Posts Tagged ‘legal reform’

Answering Your Most Burning Questions

Friday, December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be (more…)

Can Computers Replace Lawyers?

Thursday, June 2nd, 2011


In a post on the future of law schools, Josh Blackman predicts that “many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity.  …  This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.”  That’s not quite true.  Automated legal advice is not workable in the foreseeable future.

But he does have a valid point.  A huge amount of the law really is formulaic.  Whether it’s tax law, or commercial law, criminal law, or what have you, a lot of it breaks down to a series of “if-then” statements.  So can software really replace what lawyers do?

Actually, yes.  It can replace a lot of what judges do, too, for that matter.  Rulings, etc.

Software cannot replace the judgment and creativity required for coming up with effective strategies, adapting the law, or persuading others.  Spotting the actual issue from a mess of facts, notwithstanding what the client happens to think the issue is. Figuring out what needs to be done and how best to do it. Coming up with the right questions, to get the most accurate data.  These are all human skills that algorithms just can’t handle at the moment.  These are the high-level functions that you’ll still need a lawyer for.

But a lot of lawyering really can be done by flowchart.  Once the issue’s been identified, it’s just a matter of selecting the correct law to apply, plugging the relevant data into that formula, and seeing what the answer is.  For a lot of junior associates, this is a big part of their job description.  The flowcharts can branch intricately, but that doesn’t make them any less formulaic.

It’s wrong to suggest, however, that people will be able to replace their lawyers with (more…)

Instead of coming up with an original idea, we prefer to tell you why yours is wrong.

Tuesday, September 28th, 2010


Everyone knows that the indigent defense system in this country is broken.  The courts have mandated that every jurisdiction has to pay for indigent criminal defendants to get a lawyer.  It is required.  The vast majority of criminal defendants are indigent (or have no legitimate source of income, and so can pass for indigent).  So the taxpayer winds up paying for the lawyer for most criminal defendants.  This results public defender agencies that are understaffed, underpaid and overworked.  Or assigned counsel plans, where private attorneys are assigned to indigent defendants, and get paid a pittance.

Sadly, a lot of indigent defenders are either inexperienced or not very good at it.  Both kinds of indigent practice do attract fantastic lawyers who aren’t in it for the money, but they’re in the minority.  Indigent practice also attracts lawyers just starting out, who are willing to forgo a bigger paycheck for more experience.  And both kinds of practice attract lawyers for whom this is really their only way to make a living — for whatever reason, they don’t compete in the market for paying clients.

Also, indigent defenders tend to be insanely overworked.  Those who rely on assigned-counsel work for their pay often must take on an overload of cases just to make ends meet.  And those working full-time for a public defender’s outfit have an overload of cases whether they want one or not.  This has a predictable effect on the quality of their work, their ability to deal with (or recognize) non-routine cases, their resources to investigate and prepare, and pretty much everything else.

Furthermore, neither approach gives the defendants themselves any say in who gets assigned to represent them.  If they don’t get along, or there’s someone else who could have done a better job, then too bad.

There’s no economic pressure for indigent lawyers to do better.  If they do better or worse, they still get paid the same.  They’re still getting that next indigent client, whether they want one or not.

Finally, even with the abysmal pay, the cost to municipalities and states is still enormous.  There’s a lot of this kind of work to be done, and those nickels and dimes add up fast.

What to do about it?

Well, over at the Cato Institute (we’re big fans of Cato), professors Stephen J. Schulhofer and David Friedman have published a paper called “Reforming Indigent Defense: How Free Market Principles Can Help to Fix a Broken System.”  Go ahead and read it; we’ll wait.

For the TL;DR crowd, Profs. Schulhofer & Friedman propose that all present forms of indigent defense be abolished.  Get rid of public defenders and assigned counsel and all permutations thereof.  In their place, simply give defendants vouchers that they can use to pay the defense attorney of their choice.

Brilliant, no?  Defendants can choose whomever they wish to defend them.  Market forces will drive out the crappy lawyers currently impeding justice for the impoverished.  There will be no more of the crushing caseloads that practically guarantee malpractice.  Fewer innocents will be wrongly convicted, because they’ll have more experienced and talented representation, and there will be more resources and time available for rooting it out.  It’s a winner for everyone!

Well… about that… (more…)

How the Jury System Defeats Justice

Thursday, July 8th, 2010


Our jury system is supposed to maximize justice.  So how come our system only makes it harder for jurors to do the right thing?

Take this example: A judge in Florida today began reading some 100 pages of instructions to the jury in a case charging a lawyer with stealing $4 million from clients.  A hundred pages of instructions.  Which the jurors are expected to absorb through their ears.  Which, on appeal, the jurors will be presumed to have remembered perfectly, and to have applied with absolute precision.

Nobody really believes that jurors remember the details of their instructions, of course.  And nobody really believes that they apply those instructions to the letter.  It’s just a useful fiction.  Like so much of the law, what’s important is that the litany was spoken.  Say the right words, and we can all presume the right thing was done, and we can all move on with our lives.  

The system is more interested in finality than with the truth, is why.  The truth is nice, and something to be hoped for, but it isn’t necessary.  The whole point of a trial is not to arrive at the truth, but to arrive at an official version of the facts.  The judge can then apply the law to these official facts, and then everyone can close the book on that matter.  It’s a kind of justice, perhaps, but it’s not about truth, and it never has been.  The jury’s job is to consider the admissible evidence, and decide whether it makes out certain facts.

That’s really not a huge task.  Oh, it can be difficult to weigh evidence and separate fact from falsehood, but the task itself is very straightforward.  In a criminal case, for example, the jury has only to decide whether the defendant committed each of the elements of the crime.

Nevertheless, we sure make it hard for them to do even that.

The elements they are to consider, after all, are in the judge’s instructions.  And the judge won’t (more…)

The System is Broken: NY Ct. of Appeals Allows Class Action over Indigent Counsel Failings

Thursday, May 6th, 2010


Gideon v. Wainwright, 372 U.S. 335 (1963) guarantees that criminal defendants who cannot afford a lawyer must be provided one by the state. In a groundbreaking decision today, New York’s highest court ruled that “serious questions have arisen in this and other jurisdictions as to whether Gideon‘s mandate is being met in practice.” And these questions are significant enough to warrant a class action against the State of New York by criminal defendants left to suffer the consequences.

In a lengthy opinion (viewable here), Chief Judge Lippman goes out of his way to point out that this is not a Strickland issue about whether defendants are getting ineffective assistance of counsel. The issue is whether the state is denying them counsel, period.

In order to allow the class action to go forward, the court had to find that there’s a basis for that suit, that looked at in the light most favorable to the plaintiffs they actually have a case. So what did the court see here?

Judges are deciding who is or is not “indigent” for the purposes of assigning counsel, and there are no standards for that determination. There’s no rhyme or reason to it. There’s no consistency. People who perhaps should be getting a public defender wind up never getting a lawyer at all. There’s a huge Due Process and Equal Protection violation right here.

Defendants are arraigned without having a lawyer present. Bail gets set in amounts they could never afford. And they wind up languishing in jail without representation, even for minor offenses. They lose their jobs in the meantime, and lose their homes when they can’t pay the rent, and their families suffer enormously.

Defendants appear in significant court appearances without counsel. They enter into pleas without a lawyer. This despite the clear language of CPL 180.10(5) forbidding a court from proceeding without counsel, unless the defendant has knowingly agreed to it.

In instances where lawyers do get appointed, they’re incompetent. They don’t confer with their clients. They don’t learn the case. There’s a different lawyer at each proceeding, just as unfamiliar with the case as the previous one. They don’t respond to client inquiries however urgent. They either miss court appearances, or if they do appear they’re unprepared to proceed.

The appointed lawyers waive important rights, without first conferring with their clients and getting authorization. They make “virtually no efforts on their nominal clients’ behalf,” as the opinion puts it.

“Actual representation assumes a certain basic representational relationship.” The facts here show the opposite, that there are “serious questions as to whether any such relationship may be really said to have existed.” In other words, counsel may have been appointed, but there was never any real attorney-client relationship. This is not ineffective representation — it is the absence of representation. (more…)

2009 New York Drug Sentencing Guide

Wednesday, April 15th, 2009


2009 New York Drug Sentencing Guide

What with all the drug law reforms happening in New York, we thought we’d put together a quick-and-easy guide to what they mean. Click here to view it in PDF form.

We used to do this all the time back when we were prosecuting cases with Special Narcotics. New York laws are so (unnecessarily) byzantine that a single chart really became necessary to figure out what they mean. We were often gratified to see nth-generation photocopies of our drug-law charts on various judges’ benches, and they were certainly popular in the office.

Standard warnings apply, of course: this is only a guide, and is not meant to be a substitute for legal research. And like everything else on this blog, it neither provides legal advice nor implies or creates an attorney-client relationship.