CLIENT PERCEPTIONS OF LITIGATION
WHAT COUNTS: PROCESS OR RESULT?
Tom Tyler
Trial Magazine (July 1988)

Tom Tyler is a research fellow at the American Bar Foundation and a professor of psychology at Northwestern University. He has recently completed two books, The Social Psychology of Procedural Justice (with Allan Lind) (Plenum) and Why People Follow the Law (Yale). [Note: Tom Tyler is now a Professor of Psychology at New York University]

My research is concerned with customer satisfaction. The customers I study are clients who go to lawyers and judges for help with their problems. I study what determines how satisfied those clients are with the third parties - the lawyers and judges with whom they deal and with the dispute resolution forums used to settle their problems.

Imagine a typical civil case for a lawyer - a divorce. Think of three things a client could care about. The first is winning and securing as many assets as possible. The second is getting a fair settlement (i.e., "having things come out right:). The third is having the dispute resolved fairly. This includes being allowed to participate in the process and being allowed to present one's side of the story. Although all of these things matter somewhat, what do clients care about most?

Lawyers have often told me that the answer is obvious: Clients want to win. Lawyers typically believe that clients judge them according to the size of the outcome the lawyers deliver when the case is settled. Lawyers do not think clients are particularly concerned with how the problem is solved. They believe that formal trials, settlement conferences, and negotiations in courtroom halls are equally satisfying to clients if they lead to a good settlement.

Interviews with clients, however, suggest a different conclusion. Clients care most about the process by which their problems or disputes are resolved. In particular, they place great weight on having their problems or disputes settled in a way that they view as fair. The second most important issue to clients is achieving a fair or equitable settlement. The least important factor is the number of assets they end up winning.

Process judgments are especially important in clients' evaluations of the third parties - the lawyers, the judge, and the court system. In other words, no one is happy about losing a case. Individuals will, however, evaluate lawyers and judges more positively after losing if their case was resolved in a way that they view as fair.

Let me give an example from my interviews with defendants in traffic court in Chicago. There, cases are often dismissed if the defendant appears for a trial. The theory is the defendant has already paid a fine by missing work to come to court.

I interviewed a woman who had come to court with pictures she had taken to prove that the sign telling her her driving was illegal was obscured from the road. When she arrived in court, her case was dismissed before she had had an opportunity to show her evidence. She paid no fine and has no criminal record.

Was she pleased with this victory? No. She was furious and gave a negative evaluation of the judge. Why? She viewed the process as unfair. She did not have an opportunity to present her evidence. In other words, she was not allowed to participate in the process of settling her case.

The importance people attach to feeling that their problem or dispute was settled fairly emerges clearly in my studies of defendants in misdemeanor and small claims courts, Tyler, The Role of Perceived Injustice in Defendants' Evaluations of Their Courtroom Experience, 18 L. & Soc'y Rev. 51 (1984), as well as in my studies of citizen-police interactions, Tyler & Folger, Distributional and Procedural Aspects of Satisfaction with Citizen-Police Encounters, 1 Basic & Applied Soc. Psychology 281 (1980). Studies of civil litigation conducted at the Institute for Civil Justice of the Rand Corporation have also found that fair process matters, J. Adler, D. Hensler & C. Nelson, Simple Justice: How Litigants Fare in the Pittsburgh Court Arbitration Program (1983), and other work at the American Bar Foundation has found that fair process matters a great deal to felony defendants. J. Casper, T. Tyler & B. Fisher, Procedural Justice in Felony Cases (1988) (Working Paper No. 8703, American Bar Foundation, Chicago).

Concerns about the fairness of the process are likely to be crucial when clients have unrealistic outcome expectations. In divorce cases, for example, both parties often begin without any real awareness of the extent to which the division of marital assets will affect their lifestyles. Both parties imagine themselves unrealistically well off after the settlement, but both are likely to end up receiving less than they expect and feel they deserve. Feelings that the settlement process was fair enhance the parties' satisfaction with and acceptance of such negative results.

One obvious question is whether process issues influence behavior, besides affecting satisfaction with outcomes. If clients are asked to choose between winning or having a fair outcome, for example, what would they choose?

Several types of evidence suggest that concerns about procedural fairness also affect clients' behavior. One example is studies of mediation, a procedure involving client acceptance of third-party decisions. Such studies have suggested that people are more likely to accept decisions if they are made in a way that the people think is fair.

These findings have important implications for practicing lawyers. Client satisfaction with lawyers and the judicial system can be enhanced by using "fair" procedures to deal with client problems. Of course, to make this approach work, lawyers need to show clients the ways they are using fair procedures.

Fair Procedures

Of course, there is no universal fair process for solving problems and disputes. Research suggests that laypeople distinguish between different types of procedures and do not think the same procedure is fair in all settings. People do not, for example, think that an adversary trial is the way for a husband and wife to settle a marital quarrel. Similarly, they do not think that felony cases ought to be settled by informal discussion. The meaning of fair process changes depending on both the nature of the dispute and the relationship of the disputants.

Since the legal system handles a wide variety of problems, ranging from accident claims to child-custody cases, no single set of concerns will apply to all legal problems. Although people's concerns will not always be the same, studies suggest that clients judge the fairness of procedures by several criteria. Tyler, What Is Procedural Justice? Criteria Used by Citizens To Assess the Fairness of Legal Procedures, 22 L. & Soc. Rev. 301 (1988).

One important element is the feeling on the part of clients that they have had an opportunity to participate in the settlement process. This includes having had the opportunity to present their side of the case, having been listened to, and having had their opinions considered by the third parties involved. Research suggests that clients who feel that they have participated in the settlement process are much more accepting of settlement outcomes, irrespective of what those outcomes are. An additional advantage of a procedure that allows both sides of a dispute to state their arguments is that each side also hears the other side's perspective.

Clients' desires to express their grievances and to participate in settling their problems may run counter to lawyers' and judges' need for efficiency. Judges, for example, are under heavy caseload pressures and are anxious to dispose of cases quickly. This may lead them to limit the opportunities people have to express their opinions. Similarly, lawyers may feel that their time is too expensive to be spent in long discussions with their clients about how to settle their cases.

These constraints suggest that the legal system may not be able to accommodate clients' desires fully. Lawyers should recognize, however, that clients will not automatically give them favorable evaluations simply because the lawyers present them with settlements that promise good outcomes.

A second important aspect of feeling fairly treated is not directly related to the process of problem solving, but is connected to the interpersonal aspect of dealing with third parties. People place great weight on being treated politely and with respect for their rights and for themselves as people.

Interpersonal issues are particularly important in dealings with public authorities. For example, if a person's home is burglarized, it is not likely that the police can solve the crime and get the belongings back. Fortunately for the police, citizen evaluations of their performance are unrelated to whether they solve a crime. Their evaluations are linked to how the police treat the citizen whey they come to the home to check the burglary. If police are polite and treat the citizen's concern as legitimate, citizens feel good about the police.

In other words, interpersonal issues dominate reactions to the experience, not the actual resolution fo the burglary. Similarly, the way lawyers treat clients has an important impact on their view of them - one that is unrelated to how lawyers handle their cases.

A third aspect of fair procedure is related to fairness in the decision-making process. People believe that decisions should be made by unbiased authorities. They expect authorities to be honest and fair and to make objective decisions.

Finally, people feel more fairly treated if they receive fair outcomes. In other words, procedural issues are not independent of outcome issues. To some extent, in fact, procedures are judged by the outcomes they produce

Formal v. Informal Justice

Research on lay conceptions of fair process suggests that people often focus on informal aspects, not on the formal structure of justice represented in institutions like the courts. As a result, the psychology of fairness differs from fairness as the legal system formally defines it.

An example of the difference between fairness from the public's perspective and formal legal fairness is found in reactions to the alternative-dispute-resolution movement. The past decade has seen an enormous expansion in the use of procedures like mediation and court-annexed arbitration.

Many legal scholars have raised questions about the use of these procedures, citing a number of valid concerns about the lack of procedural safeguards in informal justice. From a legal scholar's perspective such procedures may not be objectively "fair."

Although informal alternative-dispute-resolution procedures may not be "fair" when judged against formal legal criteria of adjudicative justice, studies of disputants whose cases are handles using such procedures generally find that disputants like the procedures and that this is true irrespective of the outcome of those procedures. Why is this so? People typically feel that they have had more of an opportunity to participate in settling the problem in an informal mediation session than in a settlement conference or in a formal trial.

Studies of felony case dispositions provide another example of the divergence between legal and psychological conceptions of fairness. These cases are often disposed of through plea bargaining.

The practice has been widely attacked by legal scholars, as has been alternative dispute resolution, for lacking procedural safeguards that are the essences of formally defined fair legal processes. On the other hand, several recent studies have found that defendants do not necessarily feel more unfairly treated if their cases are disposed of through plea bargaining. Why is this so? Again, defendants think that they have had more opportunity to participate in informal plea bargaining than in a formal trial.

I do not want to suggest that client judgments about fairness ought to replace the judgments of legal experts in designing legal procedures. Clients may lack sophisticated knowledge about the legal system and about both the alternative legal procedures that might be used to solve a problem and the general system-level consequences of using a procedure for settling cases. Hence, client judgments may be "uninformed" and should be used with caution. But it would be troubling if many people went through a formal procedure designed to be fair and ended up feeling that they had been treated unfairly.

A Different Perspective

The client's perspective is different from that of third parties. The issues legal scholars consider when judging the fairness of legal procedures differ from those that influenced the judgments of clients who experience those procedures.

The distinction between the judgments of clients and third parties suggests one important qualification to the findings I have reported. The research I have described has focused on clients who have infrequent dealings with lawyers and other legal authorities (i.e., on typical citizens). We might wonder if clients who are "repeat players" in the legal game, that is lawyers or business people who often appear in court or engage in dispute settlement, also care about process and, if they do care, whether their views parallel those reported here.

Whatever the answer to that question, lawyers should recognize that their clients are interested in how their problems are handled and do no simply want to win their cases. Client conceptions of appropriate procedures for dealing with problems have elements that differ from both lawyers's stereotypes about client concerns and from the procedural structure of the courts. Sensitivity to client conceptions of fair treatment promotes acceptance of, and satisfaction with, legal settlements in situations in which clients do not receive all that they want or feel that they deserve.