2015.65: Teach. For America.


I described in An Apostrophe too Far why, despite the undeniable truth that the criminal justice system would crash if every defendant refused to plead guilty, defense lawyers cannot crash the system. Tl;dr: “Prisoner’s dilemma writ large.

I hypothesized a criminal-justice system, ours in micro, processing 100 defendants a year, with capacity for four jury trials (for Harris County, multiply by about 300). Twenty defendants of the hundred don’t plead guilty, and eighteen of those twenty get their cases dismissed. Of the last two, one defendant is convicted and one is acquitted.

Each additional defendant who doesn’t plead guilty will force the State to try or dismiss a case—his or someone else’s. There is theoretically capacity for another two jury trials, but the system doesn’t love jury trials, so a dismissal is more likely than another jury trial. For every additional defendant who refuses to plead guilty, there will likely be another dismissal.

I observed that The cases that are tried or dismissed are those in which the defendant assesses a trial as more valuable than the government does (or the government assesses a trial as essentially valueless). If we can increase defendants’ assessment of the value of trial, more defendants will refuse to plead guilty. How do we do that?

Defendants get their cues for valuing trial from society (including their cellies), from the radio receivers in their heads, and from their lawyers. We can’t do anything about the receivers in their heads; we can do a little (like writing blog posts about how many cases get dismissed) about society’s messages about the value of not pleading guilty; we can do more about the lawyers.

Every lawyer communicates to her client her own assessment of the value of pleading not guilty. She might do it explicitly, or she might do it without knowing it. The client relies on the lawyer’s assessment because it is the best information the client has. At best, the lawyer’s assessment is objective and accurate. At the worst, the lawyer’s irrational fear of trial or her unwonted self-confidence poisons her assessment.

If the lawyer’s assessment is accurate, the client can rely on it. If the lawyer has an irrational fear of trial, she’s probably going to lose, ((It’s a self-fulfilling prophecy.)) so the client can rely on that assessment as well. The danger for the client lies in relying on the lawyer’s inappropriately optimistic prognosis.

For purposes of this post we are not worried about that last situation—for the sake of the system it’d be better if more lawyers had pathologically rosy outlooks, because then fewer defendants would plead guilty. In fact, one way that we might get more defendants to refuse to plead guilty is to get lawyers to believe more in their ability to win more cases. If our concern is the clients’—rather than the client’s—interest then we want to encourage criminal-defense lawyers to view trial more optimistically, whether or not that optimism is merited. ((So: Go you! You can win that trial!))

How might we encourage criminal-defense lawyers to view trial more optimistically? One way would be to pretend to teach them to be better lawyers—to teach fake CLE, and pretend to give them more tools to use to win their trials.

There may be a downside to this brilliant idea: that some lawyers might, as a result of fake education, wind up trying cases that they shouldn’t have, losing them, and losing their optimism because losing sucks. Such lawyers may might discouraged and view trial even more pessimistically than they did before. So fake education may ((It amuses me that whether fake education is harmful might be subject to discussion.)) be detrimental to the system in the long run.

Besides, fake CLE seems like a lot of work. If we’re going to go to the effort of putting on a show, we might as well give teach them to be better trial lawyers.

There are a very few criminal-defense lawyers who are natural-born trial lawyers. I don’t know many of them. There are a few criminal-defense lawyers who are flat-out incompetent, beyond all hope of repair. The vast majority of us can learn to be better.

Training better trial lawyers will have an exponential effect because society’s view of trial will feed back the results of our tweak to the system: the more cases are dismissed, the more defendants will refuse to plead guilty, and the more cases will be dismissed.

When we see injustice, we can ignore or accept it (and, like Anita Hill, “get as much as you can out of it”), we can make a big show of our outrage, or we can take action to fix it. “An Apostrophe Too Far” was inspired by @NormDeGuerreEsq’s tweet. Reading Norm, the outrage is palpable, but the action is wanting.

I favor action over outrage. Outrage is easier, but it never fixed anything. Norm, you want a solution to the problems of overcriminalization, of overprosecution, of overimprisonment? You and I are not the first lawyers to discover that the system is broken, and that by setting everything for trial we could bring it to its knees. But we have wargamed this time after time, and we cannot ethically take general action at the client’s potential expense.

You’ll never go on strike because you know that if you’re the only one you’ll just get hammered down. So if doing a conscientious job for each client isn’t enough for you, get out there and start teaching.


12 responses to “2015.65: Teach. For America.”

  1. Wouldn’t fake awards also develop that unwarranted confidence?

    More seriously: I note that you focus on lawyers’ self-assessments. Is that factor so much larger or swingier that assessment of the case and of the prosecution can safely be ignored?

    Also, why assume that clients’ interests lie solely in a better personal outcome?

      • I missed this response, long ago.
        Don’t pitch altruism then: “This is how you fight back. It’s probably worse for you, but you can at least go down swinging.”

  2. “If the lawyer has an irrational fear of trial, she’s probably going to lose, so the client can rely on that assessment as well.”

    In that case, it seems to me that the lawyer has an entirely rational fear of trial. This isn’t an irrational lawyer, just a less competent one. I imagine some lawyers hate the idea of losing so much that they never try to win, like the shy boy who never asks any girls out because he can’t stand being rejected. Or maybe “trial averse” is just euphemism for “lazy”…

  3. Don’t a significant number of CLEs do this anyway?

    Snark aside, I doubt more training is going to do much except at the margins (and yes, for that marginal defendant, it means the world).

    If you REALLY want to change my valuation of a case as a prosecutor, and also to help a defendant be more willing to consider trial, your best bet is for the legislature to reduce maximum sentencing ranges and to provide more alternatives to incarceration.

    A Driving on Suspended License (1st Offense) case in Virginia is punishable by up to twelve months. If I offer to suspend all but two days of that, a lot of defendants are going to be unwilling to risk a full year in jail, even though there’s no real chance of it happening. How would the valuation change if the max for a DOS 1st were only 10 days?

    What if the statute on Grand Larceny 1st, which requires theft of over $200 and carries a max of 20 years, were changed?

    A good attorney can guide a reasonable defendant through this, but that isn’t always the dynamic.

    • I like to focus on what is within my reach. In Texas we have jury sentencing, so lawyers’ views of what they can get local juries to do on sentencing contribute more to defendants’ go/no-go decisions, in most cases, than do statutory maximums.

  4. In domestic cases a party demands a jury if they (perceive they) have lost favor with the court. Many family lawyers finish their career without ever trying one. Undoubtedly fear influences the decision to recommend a jury in the first place. But, there are fewer jury trials because the cost is exponentially greater than a trial to the court. While apples are not oranges, criminal defendants are not immune from the laws of economics either.

    • Tyler, however, argued the constitutional system of checks and balances prevents a single man or branch of government from acting unilaterally.

      Does he not know he’s part of the judicial branch?

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