Resource: Jail Strip-Search Cases: Patterns and Participants

By: Margo Schlanger

April 1, 2008

This article looks at jail strip-search litigation and its participants, to analyze its internal dynamics. Among the interesting features of these cases is that many different kinds of lawyers work on them. Plaintiffs’ lawyers include employees of public-interest organizations; large law firm lawyers, often working pro bono, with a cooperating relationship with such a public-interest organization; lawyers with a private prisoners’ rights or police-misconduct practice; and lawyers with a more varied or general class-action practice. This is somewhat unusual; the litigation bar has, by all accounts, grown increasingly specialized over the past several generations. One interesting research question, then, is whether the case category or the type of plaintiffs’ lawyer matters more for outcomes and dynamics. I have previously argued that plaintiffs’ counsel’s background and orientation is crucial to understanding the framing and conduct of litigation. Here, however, differences among cases brought by different kinds of lawyers, although present, are subtler than might be expected. I had expected to find differences in framing, goals, or outcomes—in particular, settlement terms—based on lawyer type. Instead, it seems there is much about jail strip-search cases that appears not to vary based on the orientation of plaintiffs’ counsel. Still, a range of attitudes about attorneys fees is evident—for some but not all of the lawyers, fees are extremely important. In addition, my interviews demonstrate lawyers’ varying views about the threat of impending adverse legal change, and suggest (without by any means establishing) that that range may be importantly connected to lawyer background.