Leveling the Odds: The Effect of Quality Legal Representation in Cases of Asymmetrical Capability

• DOI: http://doi.org/10.1111/lasr.12123
• Date: 01 March 2015
• Published date: 01 March 2015

Leveling the Odds: The Effect of Quality

Legal Representation in Cases of

Asymmetrical Capability

Banks Miller

Linda Camp Keith

Jennifer S. Holmes

How much does attorney quality influence the outcome of cases in which one

litigant is significantly more capable than the other? Using a unique dataset of

all asylum merits decision from 1990 to 2010, we find that high quality repre-

sentation evens the odds for asylum applicants and that not being represented

by legal counsel is actually better than being represented by a poor lawyer. In

this analysis, we draw on a modified party capability theory and create new

measures of attorney capability. We find that variation in attorney capability is

a primary driver of the disparity in asylum outcomes in U.S. immigration

courts and that a likely causal mechanism for this influence is the judge-

specific reputation of an attorney.

In 2011, immigration attorney Vahid Shariati was disbarred for

over 100 violations of the D.C. Rules of Professional Conduct in

cases involving eleven clients. A number of the violations involved

failure to file an asylum application in a timely fashion (thereby

causing clients to potentially miss an opportunity for asylum) and

lying to clients about having filed applications in a timely fashion,

including providing false government receipts to indicate timely

filing.

1

Shariati’s unethical conduct is relatively extreme, but it

brings to the fore questions about the extent to which attorney

capability affects the outcome of asylum cases and whether the

effect of attorney capability at the trial level differs from its effects

at the appellate level. We investigate these general questions

using a unique dataset of all asylum merits decision from 1990 to

We thank Andrew Craven and Diep Truong for their excellent assistance in gathering

data on immigration attorneys. In addition, the American Immigration Lawyers Associa-

tion graciously provided information on the membership of attorneys in their organiza-

tion. A previous version of this article was presented at the 2013 Southern Political Science

Conference, where we received valuable feedback from Pamela Corley.

Please direct all correspondence to Banks Miller, School of Economic, Political and Pol-

icy Sciences, The University of Texas at Dallas at millerbp@utdallas.edu.

1

Shariati’s disciplinary case is detailed here http//caselaw.findlaw.com/dc-court-of-

appeals/1585290.html

Law & Society Review, Volume 49, Number 1 (2015)

V

C2015 Law and Society Association. All rights reserved.

209

2010. We find that not being represented by legal counsel is

actually better than being represented by a poor lawyer and that

variation in attorney capability is a primary driver of the disparity

in asylum outcomes in U.S. immigration courts. Furthermore, we

show that high capability legal counsel is able to even the odds in

this type of litigation between one-shot litigant asylum seekers

and the repeat player federal government. Our findings have

policy implications for debates about reforming the process of

adjudicating asylum claims in the U.S. as well as for understand-

ing the ways in which attorneys for disadvantaged clients can

potentially level the odds of success in trial court-like settings.

We turn to the judicial politics literature and examine these

questions in the context of party/lawyer capability theory. This lit-

erature focuses on stratification in the legal profession (repeat

players/one-shotters and have/have-nots dichotomies) which has

been demonstrated to influence success in litigation (see for

example, Abrams and Yoon 2007; Galanter 1974; McGuire 1995;

Haire et al. 1999; Szmer et al. 2007). The scholarship provides us

with a foundation to understand attorneys’ ability to influence

asylum case outcomes. We argue that in asylum cases, repeat

player and one-shotter party status is held constant, with the U.S.

government always a repeat player and the asylum seeker a one-

shotter. Thus, the asylum seeker is always the underdog relative

to the federal government. Nevertheless, we argue that capable

legal counsel can offset this asymmetrical power relationship. In

particular, we find that past success in asylum cases is the strong-

est predictor of future success. More importantly, we distinguish

between overall past success and judge-specific past success. Our

findings suggest that judge-specific attorney reputation drives the

results.

Past research has shown that aliens who apply for asylum

within the U.S. immigration courts with the assistance of legal

counsel have a much greater chance of being granted asylum

than do aliens who petition without the aid of an attorney (Keith,

Homes, and Miller et al. 2013; McKeown and McLeod 2009;

Miller et al. 2014b; Ramji-Nogales, Schoenholtz, and Schrag

2007, 2009). This fact has engendered a serious push for reform,

including movement toward a Gideon-like rule for asylum cases.

At first glance, this reform seems reasonable given the complexity

of immigration law and the difficulty in navigating the U.S. asy-

lum system, coupled with high stakes for applicants. The legal

strictures in asylum cases are loose because both the facts and the

law are vague (Baum 2010; Legomsky 2010). The sine qua non of

asylum law is whether the applicant has a “well-founded fear of

persecution” if they were returned to their sending country. But,

as Law (2005: 830) notes, “the indeterminacy of the governing

210 Leveling the Odds