Vol. 10 No. 1 (January 2000) pp. 74-77.

AN APPEALING ACT: WHY PEOPLE APPEAL IN CIVIL CASES by Scott Barclay. Evanston, Illinois: Northwestern University Press, The American Bar Foundation, 1999. 197 pp.

Reviewed by William Haltom, Department of Politics and Government, University of Puget Sound.

In AN APPEALING ACT political scientist Scott Barclay scrutinizes two antithetical assumptions and their implications for civil appeals in a manner that augurs superior prediction, explanation, and prescription. Professor Barclay's many interviews with litigants provide him information on the basis of which to question the presumption that those who appeal from civil trials are interested merely or mostly in reversing defeats at trials. Barclay demonstrates that many litigants are more engaged in having their say - getting a fair hearing in a court - than in getting their way. By this "process-based" rejoinder to the "outcome-oriented" presumption, Barclay poses intriguing questions about civil appeals, in which judges and lawyers may focus more on outcomes while litigants concentrate more on process. If confirmed, Barclay's results may subvert the convention that legal elites are "reason-oriented" while lay masses are "result-oriented." Barclay's empirical and theoretical advances have important implications for reform of civil justice as well. To the extent that litigants are concerned with substantive justice and procedural fairness, for example, restrictions on access to civil courts may reduce the availability of second chances for judicial systems to generate perceptions of justice.

Professor Barclay assumes some risk in challenging an assumption. Some scholars have discouraged attention to the verisimilitude of assumptions because assumptions need not be true to be predictive or otherwise useful (Friedman 1953: 14-15). The facility of assumptions, however, depends on what assumptions include and exclude. As an assumption becomes more useful, "complications" that the assumption excises may fade from memory and a simplification that was explicit, ad hoc, and tentative may congeal into misrepresentation that is hidden, a priori, and durable. Reviewing inclusionsand exclusions becomes particularly important when scholars move from extrapolation to explanation or from prediction to prescription. Each assumption conditions representations or recommendations that follow from the assumption. Whenever we presume, we take one or more propositions to have been warranted previous to and perhaps independent of our instant argument, so we risk forgetting that each presupposition makes any conclusions depend on an important "if." The more numerous and massive the circumstances and contexts that our presumptions eliminate, the more "academic" our representations or recommendations must seem, especially to those most familiar with workaday, messy details that we have long since assumed away.

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Professor Barclay's welcome reconsideration of an apparently reasonable but actually reductionist assumption promises to make academic attention to civil appeals more realistic. The assumption in dispute seems the essence of hard-eyed realism: those who appeal results of civil trials hope to win in a higher court what they have not won in lower court. This assumption might be more acceptable to Barclay if rephrased to state that appellants hope to gain in an appeals court what they suspect that they have not obtained at trial. Barclay shows that most civil litigants want to be treated fairly. If such litigants believe that they have a reasonable chance of securing fairness on appeal, they are likely to push for appeal. Barclay contrasts this version of rational decision-making with the prevalent view that litigants are motivated primarily by money to be won or other goods to be secured.

Barclay formulates these presumptions - appeal in pursuit of winning versus appeal in pursuit of fair treatment - as opposites so that he and his readers may contrast them systematically, but he explicitly regards them as complementary. Some of Barclay's formulations may puzzle readers at first glance, but on further consideration the complementarities makes sense. For example, Barclay posits that those who adopt the conventional "Outcome-Oriented Approach," the assumption that appellants are interested exclusively or predominately in winning, will tend to regard the process of adjudication by which the outcome was reached as neutral. In contrast, Barclay believes that those who adopt his "Process-Oriented Approach," the assumption that civil appellants' primary motivation is to be treated fairly, will tend to regard outcomes as neutral products of non-neutral processes. Of course, Barclay supposes neither that the outcome-oriented are oblivious to the myriad shortcomings of civil trials nor that civil litigants stung by what they regard as unfair hearings are indifferent to outcomes. Instead, Barclay is articulating the outcome-based and process-based approaches by polar oppositions. In practice, the more outcome-based the orientation of the litigants, the less concerned with process per se they will be; the more concerned litigants are with having a fair hearing, the less preoccupied with winning in and of itself they are likely to be. In actual decisions about appealing, process and outcome interrelate, so any analytic distinction between the complements will break down in practice. However, the inextricability of outcome-orientation from process-orientation underscores Barclay's point: outcome-orientation is not enough. Intuitive as the outcome-oriented view may seem, Barclay's qualitative data from 125 interviews with losing litigants in four venues showed that such a view oversimplifies decisions whether to appeal. Barclay's interviewees were not interested only or even mainly in victory. Most did not believe that they would prevail on appeal. To explain their pursuing appeals nonetheless, litigants stated that they hoped to have appellate judges speak to the wrongs done by opposing parties, acknowledge the perspectives and perceptions of appellants even in the absence of legal relief, and dispense greater procedural, if not distributive, justice. Indeed, some appellants came to focus on the inadequacies of their experience of the civil trial as a central issue. In addition, some appellants wanted to expose their opponents to public scorn even when it was probable that the scorned opponents would prevail anyway.

Counterintuitive as the process-oriented view may seem, responses from

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losing litigants substantiate the importance of losers' views of process. Barclay further substantiates the atypical assumption by showing that litigants' views of appeals courts are crucial to their decisions to pursue cases into those courts. Losers who expected the appellate court to replicate the unsatisfactory treatment that losers perceived in their trials tended to forego appeals, while losers who expected more satisfactory treatment in an appeal tended to appeal even after they were told that they were likely to lose.

Barclay's theoretical rigor demands close reading and careful reflection, so his book is probably best suited for graduate students and faculty. Both of these groups, moreover, will be challenged by his unconventional procedure. Once Barclay had articulated his irror-image approaches, I expected pseudo-scientific shtick: an alleged critical test that confirmed the novel approach and misconfirmed the conventional alternative. I should have known better because Barclay had, as far as I could discern, carefully and fairly formulated both approaches. Having eschewed construction of a straw opponent, Barclay could concede that the utcome-Oriented Approach had some utility. When both approaches pass Professor Barclay's inspection because contexts and contingencies will lead to different degrees of attention to outcome and to process, readers who expect clear victories may balk at the dead heat. Barclay is promoting no unambiguous outcome; rather, he is articulating a process of reasoning that identifies where ambiguities are likely to arise.

Because his theoretical synthesis includes outcome and process alike, Barclay may comprise studies (Posner 1985, 1996; Galanter 1974; Baum 1981) in which he discerns outcome-based assumptions as well as work by Zemans (1983) and Lawrence (1991) in which litigants are seen to be political actors mobilizing the government through adjudication. Debates about the impacts of adjudication implicitly involve outcome-based (Rosenberg 1991, 1996) and process-based presumptions (McCann 1994, 1996), as Barclay notes, so theoretical transcendence of dichotomies may be an implication of Barclay's study. Thus, Barclay points the way to a more fecund understanding of legal phenomena beyond those that impel civil litigants through the appellate system.

The utility of the Outcome-Oriented Approach for understanding the calculations of lawyers remains beyond dispute. Barclay is forthcoming on the limits of his data and analyses. He states that, "Overall, the current research is not sufficient to offer evidence about ither the notion that the disjunction between lawyers and their clients rests on their differing approach[es] or the notion that some cases of self-representation represent an attempt to resolve this disjuncture. Yet, the process-based approach lends credence to both of these notions" (p. 152). With Barclay, I anticipate research on the interplay of outcome-oriented counsel and process-oriented clients.

Barclay also limits his study to individual litigants. Companies, governmental agencies, and other repeat players might be expected to orient themselves by outcomes more than by processes. On the other hand, interest groups and corporate entities are hardly indifferent to the potential of appellate venues for political action, colloquy, public relations, and theater, so students of civil courts will profit from Barclay's research.

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In sum, Barclay offers no panacea. Presumptions based on outcomes offer the convenience of counting and the patina of practicality. These assumptions are thus in multiple senses facile. As an easy way to proceed, such assumptions will live long and prosper. nonetheless, Barclay makes outcome-based assumptions a problem for scholars. Whatever scholarly outputs that problematic presumption may ground; any process of reasoning that ignores AN APPEALING ACT will henceforth be suspect.


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Copyright 2000 by the author.