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The Ethics and Incentives of Socialized Law

A lot of pejusticiaalternateople look at things that happen in the legal system and conclude that the wealthy are able to buy more justice than the poor. With headline-grabbing stories like the “affluenza defense“* out there in the world, it is often hard not to be offended. Noam Scheiber and Eric Posner have an interesting exchange over Scheiber’s proposal to address this imbalance. In a word (well, three words) Scheiber proposes socializing legal fees.

It’s a radical proposal, one that is difficult for me to not dismiss out of hand. Scheiber does raise one argument that I must admit has a strong appeal. A wealthy person is able to retain lawyers who are better able to do “lawyer stuff:” comb through evidence, research obscure theories, and present more thorough defenses. A client thus represented is better able to navigate the legal system than someone who can only afford a “regular” lawyer and thus are, to that extent, greater citizens than those less able to afford such extremely skilled navigators of the complicated and treacherous waters that make up the American justice system:

[W]hen Bill Gates spends hundreds or thousands of times more than I could to defend himself against a criminal indictment, the very act of doing so actually diminishes my status as a citizen. In a democracy, what makes people equal before the state isn’t that everyone has adequate procedural rights. It’s that everyone has the exact same procedural rights. It must be that, in the eyes of the law, there is no difference between rich and poor. If the rich have more rights—if they have fuller status as citizens—then by definition everyone else has fewer rights and lesser status.

While superficially appealing, upon deeper analysis Scheiber’s argument fails to satisfy the hunger for justice. What matters in the legal arena is not that you and I both actually execute maneuvers of similar quality, it is that there be no obstruction to your executing whatever maneuver you wish. With the Olympics upon us, I proffer the analogy that litigation is more akin to a figure skating competition than a bobsled run.

Bobsledders must all run the exact same course, and are judged on their speed. In such a situation, a standardized bobsled equalizes the contestants in a way that seems to promote fairness.

But the figure skaters are given an open canvas, and nothing stops them from doing whatever it is that they are able to do, or at least attempting, they are then judged both by the difficulty of the maneuvers that they select in their routines, the grace and beauty that the execute those maneuvers with, and their technical success in going through the maneuvers thus selected. And, like the figure skater, litigants are judged by a panel of people, not an objective time clock, so there is an unavoidable element of subjectivity built into the evaluation process.

What makes the competition fair is the open canvas upon which the contestant is free to try her best, as best she can.

Scheiber implies that overworked or not-quite-as-clever lawyers are not able to execute the triple axels that BigLaw lawyers can. He does not seem to consider the hapless litigant with no lawyer at all, the lowly pro per. But in fact, clever enough litigants can do quite a lot of things that can slow down even the most competent adversaries.

I personally have litigated cases against unrepresented litigants, in legally complicated matters, whose behavior let me to believe that they very likely suffered from mental illness. Those litigants were able to prevail against my client on an appeal. To my great chagrin, the reported case in which these pro per litigants were able to obtain a favorable ruling from the Court of Appeal is now regularly cited by attorneys across the state of California. An outlier of a case? Of course. But it does demonstrate that even the most apparently disadvantaged parties before a court are able, with even a minimum amount of assistance, to set forth their cases and if the judges who hear them are competent and fair, that those litigants are able to get their fair share of justice, and have that matters resolved along similar lines as they would have were high-priced lawyers involved all around. (I still doubt these litigants would have found the very recent change in the law in their favor without what amounted to help from the bench. But I can’t begrudge the judges for doing it — the law did change while the appeal was pending, and it’s fair to hold pending cases to the new and presumably better rules.)

Now, I am less offended then probably most of my colleagues in the bar at the notion that the government might step in to my handling of a case and impose its own ideas about what a reasonable fee for my services might be. Mr. Scheiber and Prof. Posner, being who they are and where they are in the socioeconomic world, likely are not familiar with a lot of lower-rent, nuts-and-bolts sorts of cases like credit card collections, evictions, low-value estate probates, and simple misdemeanors. Certainly these are not the sexy cases people read about on BuzzFeed. I’d expect that they are more familiar with things like intellectual property law, something that BigLaw does well and often and expensively and SmallLaw types like me only get to dabble in occasionally and without a lot of labor to leverage our work.

So both Mr. Scheiber and Prof. Posner can be excused, perhaps on the basis of affluenza-induced lacunae in their knowledge of the civil justice system, of being unaware that in a lot of states, including my own, cases of this nature and magnitude already have this, with fee schedules created either by the state legislature or by court rule. In that sense, Scheiber’s vision is already a reality, and it’s working just fine without significant complaint.

The problem comes when you escalate the magnitude of cases that such regimes are asked to handle. Here, Prof. Posner raises many valid objections in service of the ultimate argument that people should indeed be allowed to spend with they like on the lawyer say like, even if that means the very best lawyers wind up working only for the very wealthiest of clients. But he misses probably the two most important points concerning governmental setting of fees in non-routine matters.

A great many of the cases that we celebrate in our legal history involves testing new theories of law. A creative lawyer, or a creative judge, gets an idea of the way things ought to be, a way justice can be improved. A classic example of this is taught in most first-year torts classes addresses the theories of contributory negligence and comparative negligence.

Think about an auto-versus-auto collision. Red car hits the blue car. The court has to figure out who is responsible for the collision. The party who was found liable will pay the other party’s medical bills, lost earnings, damage to the vehicle, and some money for pain and suffering. The system works well when it is clear that one party is wholly liable and the other party is not at all liable.

But if it turns out that the red car was partially at fault, but the blue car was also partially at fault, what happens then? Back in the days of Merry Olde England, the rule was that a party who had contributed to the events that caused damage would be unable to recover. Therefore, if both the red car and the blue car were partially at fault, neither could collect money from the other. This became the American rule and stayed that way until about fifty years ago.

In the 1970s, some judges on the California Supreme Court realized that this rule produced results that were not fair. If the red car was mostly responsible for the accident, and the blue car only responsible a little bit, it would be unfair to allow the blue car to recover nothing, but that’s the result the rule required. But the great thing about law is that it is malleable. Therefore a new doctrine was created, called “comparative negligence.” Now, the jury would be asked to find a percentage of fault and apportion that fault between the two cars. If the red car was 80% responsible for causing the collision, then the blue car would be 20% responsible, and the blue cars recovery from red car would be reduced by 20%.

To my mind, this refinement of the rule is indeed much more fair. A problem is that it also requires a more complex and sophisticated understanding of what actually happened. And, because it is a complex decision, it creates a vulnerability in the system to confuse a jury and appeal to its emotions rather than to the logic of the case. What’s more, this assumes that the 80%-20% split actually has some meaning in objective fact. As a matter of phenomenology, that proposition is, shall we say, not obvious. But juries are not philosophy professors and they come up with these numbers and we call them “findings of fact.”

Getting back to the question of government setting amounts of money which attorneys might be paid for doing their work, bear in mind that the creation of an innovative legal theory, like comparative negligence was in the 1960s, is far from certain. If an attorney has her fee set within a particular range, it only makes sense that she will prepare the work necessary to resolve the case in the most efficient fashion possible. This maximizes the rate of return on her time. Crafting a new theory, which is inherently a part of how the law evolves and adapts to changing technological and economic conditions, requires a substantial amount of time dedicated to supporting such innovative proposals. A so-called socialized system of compensation disincentivizes this, and therefore becomes a force for stasis in the law: why should I sink hundreds of hours of time chasing an innovation in the law, for a case in which I will not be paid?

Moreover, a great many cases involve lawyers advocating positions that are going to be very, very unpopular. When the Nazis wanted to march in Skokie, Illinois, the ACLU stepped in to defend their right to do so. Along the way, it lost more than half of its donors and more than half of it’s paying members. This, from a group of people who had joined an organization dedicated to advancing the banner of protecting everyone’s civil liberties. Nazis are particularly detestable people, but they are nevertheless people. Not everyone understood this at the time, not even members of the ACLU itself. Kudos to the ACLU and its lawyer for sticking it out notwithstanding.

And in our more modern times, we have all manner of innovative theories being tried out. Just this week, a Federal Court held that the flashing of headlights to oncoming drivers as a warning of an upcoming speed trap, that the driver flashing the headlights had recently passed a parked police vehicle, was a form of communication protected by the First Amendment. This an innovative legal theory; it is an extension of existing law, an interpretation of law which did not exist in January of 2014. It exists now.

Or, consider the “affluenza defense” mentioned above. There is nothing even remotely popular about advancing this theory. But as it turned out, this was a successful defense theory. It actually worked. Not only is it innovative, it is a publicity disaster for nearly everyone involved. How much more political heat with the judge who presided over that matter have to absorb, not only for allowing the defense to proceed, but then for “rewarding” the attorney who advanced it by authorizing fees to that lawyer? How long, and how many such incidents, would have to occur before some politician decided to grandstand on the issue of ridiculous and frivolous defenses offered by greedy trial lawyers, with the addition that now those greedy trial lawyers were seeking to suckle off of the public teat? My money would be on “on the floor of the legislature, before the bill was ever enacted.”

The political incentives created by the government setting, and possibly even awarding and paying, the fees that lawyers would collect for advocating unpopular causes or unpopular legal theories could and in my opinion likely would quickly devolve into another form of intellectual stasis imposed upon the legal system. Lawyers like to be paid, and if they found the politicians were successfully able to withhold payment from them, lawyers would very quickly begin to adopt intellectually conservative, non-innovative, and politically noncontroversial strategies. While this might seem appealing to the electorate, it would represent a fundamental betrayal of an attorney’s ethical duty to zealously advocate on behalf of of her client.

A governmentally-structured fee system that would discourage an attorney from being a zealous advocate is not acceptable to me. If there is going to be a system by which the government or the court regulates the amount of fee that my client can pay and I can collect, that system must leave sufficient latitude for me to apply to engage in extraordinary sorts of work, at my discretion, at my clients discretion, and no one else’s.

No third-party government regulator, no legislator, not even any judge, including the judge who is presiding over the matter, and certainly not Noam Scheiber and his Big Data (which could only be assembled by compiling hundreds of thousands of attorney-client privileged billing documents), is in a position to know whether that sort of thing is appropriate and desired. Only the attorney and the client are able to jointly decide if that extraordinary effort (and the extraordinary expense involved in it) is appropriate for that client in that case. Those people are the best people in the world to make such a decision. The only people in the world who should be making it.

Now, although he is not explicit about it, Scheiber’s proposal appears aimed at the notion that ultimately, lawyers would be paid by the government, not by their clients. This would certainly go along way towards equalizing access to justice.

If the lawyer always knew that she would be paid for her work, she would be willing to take on clients regardless of the amount of money the clients personally may have to pay her. Such a regime would need cultural assumptions, and modification of the rules and laws governing attorneys, to take account of the fact that most people, attorneys included, feel loyalty to the person who gets the money. If that person is someone other than the lawyers client, there is a concern that the lawyer will demonstrate greater loyalty to the source of funds then the clients interests. This can be particularly troublesome one source of funds adopts a position adverse to the interests of the client. For instance, when the client wishes to sue the government, or when the government seeks to imprison her.

This is not insurmountable; public defenders, for instance, are paid with government money while resisting the government’s efforts to take their clients’ liberties away. But there are some special ethical concerns that apply here, and if we broaden this compensation regime, we need to think those through. There is not a whiff of this in Scheiber — although, to be fair, in the linked article he does not propose an idea that goes so far as to require this.

The basic problem that Scheiber illustrated, the one that does move me to think that there is at least some need to reform in the legal system and level the playing field upon which affluent litigants enjoy such an advantage, is the idea that this advantage is the result of the system itself being hugely complicated even for sophisticated, intelligent, and specifically trained professionals.

Ironically, reforms that were aimed at making that system easier for unsophisticated, non-affluent people to access occurred at about the same time, and in the same place, as the adoption of the new comparative negligence rule: California in the 1970s. I speak, of course, of form pleadings.

On scores of occasions in my practice, I have had clients come into my office, hopping mad after having just been sued and served with the papers. They bringing their complaints, and express outrage and surprise at the fact that these complaints consist of little but checkboxes and fill-in-the-blank fields. “Any idiot could have filled out this form,” they protest. “You don’t even need to hire a lawyer to file a complaint!” Well, that was precisely the intent: make it so easy to file a lawsuit that even an idiot could do it. (Believe me, many do, and worse, some of those idiots have bar cards that look just like mine.)

You see, from the perspective of getting the parties to court to hash out their disputes, one auto accident case is very much like another. One divorce is very much like another. One credit card collection claim is very much like another. Why, then, should it litigant need to hire an attorney to draft a special pleading to address very common kinds of legal disputes? The finer details can get sorted out at trial. Thus, at the direction of the California Supreme Court, my State’s Judicial Council put together a series of forms intended to make it a very simple and easy process for people to fill out the forms and present their claims to a court.

The system that they created has been tinkered with more or less continuously since then. And, it kind of works! It is possible for somebody of reasonable intelligence to read through these forms, understand what they are saying, and use them properly.

Now, the forms also suffer from a very significant defect: they were written by very experienced attorneys and judges. Consequently, they use words and phrases that lawyers use with one another all the time, and which the lawyers forget are impenetrable soup to laypeople. You don’t want to be evicted from your house? The landlord has an eviction but he stupidly didn’t list you as a person he’s trying to evict so you can’t answer the complaint and get your day in court? No problem! Just fill out this handy-dandy form entitled “Prejudgment Claim of Right to Possession under Code of Civil Procedure Section 415.46“! Oh, and don’t forget to file your answer as well as the prejudgment claim form, or else you prejudgment claim form will be invalid. See, it says so right there, in eight-point type, four-fifths of the way down the form.

I question whether unsophisticated people can use these forms correctly. I see a lot of these forms that have been filled out in ways that are obviously incorrect because the courts haven’t yet figured out how to make them simple enough for people with high school educations to use them — it still helps a lot to be a lawyer to work through the jargon. But that is the fault of the form, not the fault of the layman using it.

Nevertheless, forms practice has become thoroughly integrated in the way most California attorneys do business. And it really does enable some litigants to have greater access to the justice system. They may not stand on an equal footing with sophisticated attorneys, but it’s closer then it would be otherwise. And it would appear to me that the issue of the forms being too complicated for unsophisticated people to use properly is to simplify the forms, and perhaps streamline the rules forms are attempting to address. As I say, from a certain perspective many cases are very much like one another.

It is this kind of thinking, rather than tinkering with the way attorneys get paid, that will achieve the result of moving our society closer to a system where everybody enjoys not only theoretical but actual equality before the law. Maybe more and better forms are part of the answer. There are other kinds of answers out there too, maybe not forms but other creative solutions to equalize access to justice. I give him credit for being creative and thinking about attorney pay as the critical facet of the system which it is — but Mr. Scheiber’s creativity and good intentions would be better-directed elsewhere.

 

* Scheiber misses the boat, whether intentionally or not, about why the “affluenza defense” is so viscerally offensive. The presumed high rates of the lawyer who offered it up with a straight face are by far the least bothersome aspect of this. Consider two other things: first, the defense itself is substantively offensive to egalitarian sensibilities — it is inherently the notion that the rich enjoy a relaxed standard of morality as compared to the rest of us. Second, the judge agreed with it.
 
Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

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103 thoughts on “The Ethics and Incentives of Socialized Law

  1. What bothered me most about the “affluenza” defense is that it became self perpetuating. Because the person-in-question had been previously been shielded from the consequences of his actions, an appropriate response is to further shield him? Huh?

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  2. Having money lets you do things that you wouldn’t otherwise do is par for the course. It’s actually sort of the whole point of money. Unfortunately, this has a lot of unpalatable consequences, and I think unequal access to the legal process is a good example. But I’m with Burt, changing rates among clients can lead to all sorts of issues with lawyers finding other mechanisms to avoid taking on poorer clients, and I’m not that confident that money is really the main barrier to justice anyway.

    Also, I find it telling that people are more upset about a rich kid getting off with an affluenza defense than with a poor guy getting wrongly convicted due to an inadequate defense (of which there are many examples available). Is this call coming from a desire to give the poor better access to adequate representation or to make sure that a rich kid never is able to get off easy?

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    • Also, I find it telling that people are more upset about a rich kid getting off with an affluenza defense than with a poor guy getting wrongly convicted due to an inadequate defense (of which there are many examples available).

      Yup. That is exactly the problem with these types of leveling-down proposals. They are ostensibly about creating justice, but it’s only the hind-brain sort of zero-sum justice where I make myself feel better by sabotaging my neighbor. Radical yes. And completely illiberal.

      There is a phenomenon regarding goods markets where today’s luxuries become tomorrow’s staples. That is to say, the ability of the rich to pay high prices for things that aren’t necessities allows for a market in those things to develop. There is nothing to day that we don’t take for granted that was not once a luxury item available to only the rich and powerful.

      A similar thing happens when it comes to a claim on rights and access to justice. Yes, the rich have access to a more humane form of justice, but that humane justice shows us the possibility of another way. And sooner or later, the system gets more humane for all of us. Why sabotage that?

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      • Justice isn’t a consumer good. While we can expect tech improvements,etc to bring down the costs of cell phones, giant tv’s and such those things are qualitatively different from justice. There is no reason to think that some Rich Peoples justice will eventually filter down and get cheap enough to be regular and poor peoples justice. It certainly hasn’t happened yet. Also justice is one of those things talked about in the Constitution and is a task of government. Waiting for really good justice to trickle down to everybody else is ignoring the costs born by those who get little justice and just hoping things will get better.

        In civil cases courts can offer far more mediation services and increasing the funding of PD offices would be a good start.

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      • Justice isn’t a consumer good… There is no reason to think that some Rich Peoples justice will eventually filter down and get cheap enough to be regular and poor peoples justice. It certainly hasn’t happened yet.

        You will notice that I used the word “similar,” which means that two things are not the same but have certain common characteristics. And actually, there is every reason to believe that more humane rights will filter down, because it has happened.

        The history of the liberal democracy is the expansion in the franchise of rights from kings and higher nobility to lesser nobility to the wealthy to everyone else. You don’t get to the U.S. Constitution without the Magna Carta. And you don’t get to the 13th, 14th, 15th and 19th amendments without having a Constitution in the first place (note that I’m using these documents to demonstrate the evolution of rights; obviously lots of countries ended slavery and got to universal suffrage without the U.S. Constitution).

        More importantly, you missed the main point, which is that levelling down does not get you where you want to be. Sure that kid whould have done some significant jail time. However, I would much rather see the sort of consideration given that kid extended to other people trapped in our nightmare of a criminal justice system than to have a lesson made of that kid and continue business as usual for everyone else.

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      • Yes, the rich have access to a more humane form of justice, but that humane justice shows us the possibility of another way. And sooner or later, the system gets more humane for all of us. Why sabotage that?

        Following up on Creon’s short comment: If the system of justice is fundamentally unjust, as you seem to admit, then why preserve it?

        That’s not to say we should sabotage it on those grounds, of course. But appealing to the benefits of legal innovation doesn’t strike as a very compelling reason to maintain what appears to be a fundamental injustice.

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      • Why would you think that? If the problem is something like corruption, then sure ending that would move us towards both simultaneously. Corruption, however, is not the problem. The problem is inhumane Kafkaesque criminal justice bureacracy. Having more money helps you do things like fighting off prosecutors who try to force plea deals by overwhelming the accused with a mountain of charges and the possibility of massive jail sentences.

        What’s the mechanism by which socializing the law will help the people at the bottom? It’s like saying if you outlawed all private schools, the public schools in poor areas would magically get better.

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      • The public schools might actually get better. You’d shift many of those teachers from the private schools to the public ones. And many of those teachers are better than their public counterparts (if only because the good ones on one side are going to be better than the bad ones on the other). You also import a huge swath of parents who are more interested and involved in their children’s education from the private to the public sector. They are more likely to advocate for changes that will benefit students and not just their own.

        These both directly analogize to the legal profession. If everyone had to use a public defender and there were no private attorneys, many of the highly skilled private lawyers would enter the public realm. And when more influential and powerful people are involved with the public defender system, they are more likely to agitate for it to work better, which benefits everyone.

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      • Kazzy, public schools for upper two quintile socioeconomic status students are already good – dang good. Many better than private schools in the same area.

        You outlaw private education, the rich are merely going to go to those already prestigious public schools, displacing some, but not many, as they are not all that numerous in the scheme of things. What you are going to effect the middle quartile parents that fled the public school systems for parochial or private (or private charters) in the first place because of irredeemable fished-uppery. They and the lower two quintiles will continue to be ill served by many public education systems.

        Plus, you will deny anyone with religious convictions that decides for a religious education or home-schooling, so you’re probably going to see even more dinosaur riding Jesuses in public schools.

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      • I’m not trying to argue in favor of socializing law. I’m not sure where I stand, but I think I agree with Burt, at least tentatively.

        But Vikram was asking about motivations, and frankly, I think both motivations can be at play. Someone might hate the fact that the rich kid gets off, and someone might sincerely want better access to representation for the poor, even if you and I might question whether the way they want to ensure that access is efficacious. Sometimes, perhaps the same person entertains some combination of both motivations. They might be logically exclusive, or at least in conflict, but humans being humans, those motivations–spite/envy and genuine concern–can coexist pretty well.

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  3. A drafting note: I dictated the text of the first draft of this post into my tablet as a way of testing the speech recognition function. After that, there was a lot of editing. I’d say the speech recognition did pretty damn well, with a more than 95% accuracy rate even for some of the technical legal terms and it got Noam Scheiber’s name right (although it consistently misspelled Eric Posner’s last name). So if some words look strange, it’s likely because I didn’t catch them on my round of editing. If you see something weird, go ahead and call me on it and I’ll edit as appropriate.

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  4. I have to ponder you post more, Burt.

    But on first read, it bends more toward civil law; landlord disputes, etc., and less toward criminal justice. I know that criminal justice is where public defenders get paid; so the problem would seem to be differential of resources and skills between public defenders and better-paid attorneys in defending a client.

    I do see radically different outcomes (this is only anecdotal) between people who find the best attorney they can reasonably afford and people who don’t think they can afford an attorney and so rely on a public defender. Since my children are still in their twenties, I pretty frequently encounter young adults in some trouble or another, and I always recommend they hire an attorney, and help them find one. The economics of outcomes — the difference in having or not having a felony on your record — are enormous, and the poorer you are, the more likely you’ll bear the cost.

    But I don’t think limiting attorney pay is the only way to accomplish more parity in a problem that, imo, is a serious constitutional threat right now. When you considering disparities in incarceration rates by race and income for the same crime, there are obviously a serious problem, and they’ve been documented throughout the system, including presidential pardons.

    So the question is how to better pay for public defense or to help people without resources access better-quality private legal defense; and limiting attorneys pay is just one of many potential options.

    (Public defenders, like primary-care doctors, seem to have unrealistic expectations of the time they need to do a good job. This is horrid.)

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    • Not being a criminal defense attorney or a prosecutor myself, it’s probably natural that I would consider civil law in more depth than criminal law. Scheiber’s article stated that he was thinking in particular about criminal cases; Posner seems to think much less so. I’m not entirely sure that someone who doesn’t have a lot of money and faces an eviction or a collections suit is going to spend a lot of brainpower contemplating the difference between civil and criminal law anyway (I’ve had tenants facing eviction protest to me that if the landlord wants to throw them in jail, they’d go, which breaks my heart a little bit each time it happens).

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    • Honestly, I wonder the extent to which this issue is simply one of lack of popular willingness to give defendants quality counsel. I don’t know the precise funding mechanism by which most public defenders are paid, but I do know that the average PD’s caseload is ridiculously high – using the numbers from this 2007 DOJ report, I calculate an average PD caseload of 367 cases per year, of which about 50-60% are felony cases; in other words, the average PD in 2007 was getting assigned an additional new case every single day, including 4 new felony cases every week. That doesn’t leave much time to do more in the average case than a brief interview with the client, make a court appearance or two, call the prosecutor and make a plea deal. And remember that PDs don’t handle traffic court level cases.

      By contrast, the average caseload of prosecutors that same year was 94 felony cases, or less than 2 new felony cases a week. (see here: http://www.bjs.gov/content/pub/ascii/psc07st.txt ) And keep in mind that prosecutors have the benefit of being able to outsource a good chunk of their work to law enforcement. I’d wager that the average private defense attorney has a caseload roughly on par with the caseload of a prosecutor.

      If we hired enough PDs to get the average PD’s caseload to the same level as the average prosecutor’s caseload, then the difference between a PD and a private attorney would primarily be skill level, which is not really possible to quantify in any event and in a vacuum is not as outcome determinative as widely assumed. Besides, there are plenty of bad but expensive attorneys out there.

      I strongly suspect, then, that the problem is that PD offices are vastly underfunded, always amongst the first casualties of budget cuts, and not something for which there is the political willpower to provide funding that would reduce the average PD’s caseload to that of a prosecutor.

      That said, it’s entirely possible that my calculations are wrong above, so if someone wants to double check my math, I’d appreciate it.

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      • New Constitutional Amendment, the Budget of the public defender is equal to the budget of the DAs office.

        Shouldn’t it be *more*? After all, a lot of the DA’s work is actually done by law enforcement. And we’re also supposed to have a system that errs on the *innocent* side, not the guilty side.

        How about having the defender’s budget equal to the DA’s plus the PD? ;)

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      • I strongly suspect, then, that the problem is that PD offices are vastly underfunded, always amongst the first casualties of budget cuts, and not something for which there is the political willpower to provide funding that would reduce the average PD’s caseload to that of a prosecutor.

        In the past, I’ve proposed that everyone accused of a crime should be randomly assigned a public defender, and that defender should be the *only* person allowed to interact with the court, period.

        Sure, you can hire other lawyers all you want, and they can do anything they want, but anything to and from the court must go through the public defender, including actual court appearances. (I don’t know enough legalese to know what it’s called, but the public defenders would be the only authorized *lawyers* on the case.)

        This would make the rich have to put up with the same system the poor have to, including massive delays. (It’s funny how everyone has a right to a speedy trial, and a right to an attorney, but somehow they don’t have the right to an attorney that isn’t so overworked that their own attorney has to delay the trial.)

        Justice is supposed to be *blind*. Period.

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      • It probably depends on the anecdote. I know a former PD who, at least to hear him talk (or what I’ve heard he’s told others because….Hearsay!), was just a rubber-stamp bureaucrat who shuffled his clients through the system.

        But still, you have a good point. The person I know may very well not have been representative. I imagine it’s something like Mark pointed out: even if you’re the real deal, it’s hard not to function the way my cynical acquaintance apparently did. You probably don’t necessarily disagree.

        Finally, the defense in capital cases are likely underfunded, but they are probably better funded than other cases. I don’t know.

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  5. And I have a friend who was in an abusive marriage who, after going through several lawyers who wanted her to continually compromise with her abuser and/or wanted fees that far outstripped her ability to pay, ended up representing herself.

    She managed things okay, though financially, she’d been better off with a gifted lawyer who could have gone after the income he hid. He was a doctor, on the teaching/research staff at an Ivy league, and a consultant for big name companies in a field related to one of the big causes of death in the US, but seemingly, did not earn enough money to pay more then the most basic child-support required by the court. In other words, he was financially abusive.

    She had to learn a lot, in the early years after their divorce, to be able to represent herself. Like how to dress, how to speak to a judge, how to get the court clerks to help her move things along by making sure the paper work she filed was correct.

    Self-representation is possible. But I don’t recommend it unless you’re relatively intelligent and don’t mind making it your life’s work.

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  6. My idea is that maybe for criminal justice, we should restructure how public defense is organized. The assumption should be that nearly every criminal defendant is going to get their lawyer provided by the government from a Public Defenders Office. This Public Defenders office should be headed by a Chief Public Defender, an appointed and not elected position, and staffed by Associate Public Defenders and paralegals. They should have a budget that matches the local Prosecutors. Salaries and benefits should be the same. This should make being a Public Defenders about as equally attractive as being a prosecutor and up the standards a bit.

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  7. Possible solutions for disparity in the criminal justice system:

    1. Everything will be divided up on the county, state, and government levels.

    2. All levels of government have a 1:1 ratio in terms of budgets and staffing of attorneys. Example County wants to spend 50 million dollars and have 40 district attorneys. They are legally bound to spend 50 million dollars and have 40 public defenders. Possibly equal levels of staffing as well including investigators for the Public Defenders office.

    3. This will go at all levels so the Public Defenders office for N.D. Cal gets just as many attorneys as the U.S. government gets in N.D. Cal.

    Otherwise I largely agree with Posner but we do have a disparity and something needs to be done about it. I’d also like more funding for legal aid type organizations and a complete lift on the type of people they can represent and cases they could pick. We need a Gideon for Civil law as well.

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    • This is Gideon?
      http://en.wikipedia.org/wiki/Gideon_v._Wainwright

      Not to be a wet blanket, because I agree, but that’s something I can only imagine Scalia chomping at the bit to dismantle bite by bite.

      Would you envision this happening by precedent or legislation?

      (And I agree on a Gideon for civil cases; though I’d put priority on criminal courts where it already exists and fails to meet constitutional mandate.)

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      • That is Gideon. I’m very fond of what Robert F. Kennedy remarked about the case:

        “If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.”

        We would need a constitutional amendment to provide a Gideon for civil cases like the poor being evicted from their apartments or civil forfeiture stuff. The Warren Court was able to decide Gideon because of the Constitution but that Amendment only applied to criminal trials, not civil ones.

        Ultimately we should try to provide justice for the Gideons and justice for the Joshuas:

        “Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, “dutifully recorded these incidents in [their] files.” It is a sad commentary upon American life, and constitutional principles – so full of late of patriotic fervor and proud proclamations about “liberty and justice for all” – that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve – but now are denied by this Court – the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide.”[6]-Justice Harry Blackmun.

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      • Section 1983 is an old law. It was part of the Enforcement Act of 1871, also known as the Third Klan Act. It was part of Reconstruction.

        It made the government liable for money damages when a plaintiff’s constitutional rights were violated by someone acting under the colar of state law.

        The statute layed largely dormat until 1961 when it was revived by the Warren Court and everyone’s favorite ornery Justice (Justice Douglas) revived the statute in a case called Monroe v. Pape:

        Section 1983 exists to: “1) ‘to override certain kinds of state laws’; 2) to provide ‘a remedy where state law was inadequate’; and 3) to provide ‘a federal remedy where the state remedy, though adequate in theory, was not available in practice.’ ”

        Monroe involved a suit against the city of Chicago for violations committed by their police offices in lawful search, arrest, and detainment. Originally the Supreme Court stated that municipalities could not be held liable but changed its mind in 1979 in Monell vs. Department of Social Services in the City of New York.

        DeShaney was abused by his father to the point of severe brain damage. The boy’s mother sued the county because the Department of Social Services failed to intervene successfully after first noticing the abuse. She sued under the Due Process Clause of the 14th Amendment and Section 1983 of the Enforcement act. The Supreme Court in a 6-3 decision ruled that Due Process only applied to state actors and the father was the abuser, not the DSS. Hence the county could not be held liable for actions done by the abuser.

        The dissent argued that there was a state action because DSS acts to protect children from abuse and all other state authorities are not allowed to intervene. They can only notify DSS and then DSS chooses to act or not. By failing to act when abuse was known, they deprived Joshua of his liberty.

        This is how I understand the case. I’m sure can tell me if I am wrong or not or doing something very complex a disservice.

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      • And remember that before Monroe v. Pape section 1983 was an obscurity, a historical artifact of the Bad Old Days. Now it is a cornerstone of civil rights enforcement, one of the most potent ways a citizen can call the government of her state to account in a forum where she stands on an approximately equal footing. It took creative lawyering, as well as a panel of Justices getting fed up with the law used as a tool to shield injustice, to make that happen.

        I do not think the creative lawyering that went in to Monroe would have been the product of a system in which the attorneys’ regular and customary fees were confined to a predetermined band.

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      • If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed.

        That sounds nice, but it’s highly romanticized. In fact the SupCt had been edging toward a Gideon ruling for a long time, in case after case finding “special circumstances” that required the state to provide an attorney in this instance or that one to make a fair trial possible. By the time Gideon came aong, it was the case they were looking for. They didn’t say, “Oh, wow, he’s right!,” so much as “ah, there’s a nice uncluttered case that will take us to our destination,” They didn’t “take the trouble” to look at the merits of his case, they were actively seeking a case with those merits. The machinery of the law was already disturbed, and had it not been Gideon it would have been someone else.

        It isn’t always that way, to be sure. But it was on this issue. And I think that’s a better story than the one Kennedy told.

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      • That was the Warren Court. Th Roberts Court does the same thing with goals like overturning restrictions on corporate political spending and the Voting Right Act. “Neutral umpire”, like hell.

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  8. Burt,

    What is your take on contingency fees? Do they help the poor receive justice or are they bad for the justice system? Plaintiff’s lawyers (confession: I’m biased) do a lot of good for people and take on a lot of risk but contingency fees lead to many lucrative outcomes for them.

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    • I am all in on contingency fees. They are an important way that access to justice can be afforded to those of moderate means. Alas, many people, including lawyers, are dazzled by the outliers on the high end of the curve and develop unrealistic expectations of what is available. But they are a strong net benefit.

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      • I think it seems to operate under a power law.

        There are some plaintiff’s firms which seem to only handle very big cases and have the resources to get multi-million dollar or more victories or settlements for their clients. And/or they get hundreds or thousands of clients for a mass/toxic tort case like Vioxx.

        There are other people who have smaller resources and tend to be solo practioners or two-three person partnerships. These plaintiff lawyers seem to handle things as a volume business and try to keep overhead as low as possible.

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  9. Another related note:

    There should be an ethical wall between foresenics labs and police and prosecutors offices.

    Law should state that people who work in crime labs have a moral and ethical obligation to the truth and not to conviction. They do not serve the Prosecutors and they do not serve the Public Defenders. They are officers of the court and should be treated as court appointed experts under the supervision of the judge.

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    • It seems like a lot of the problems with crime lab collusion or incompetence could be solved with very simple blinding procedures. Testing a sample for the presence of cocaine? Mix it along with a few known samples, label them all with random numbers, and throw the results out unless the known samples are identified correctly. I’m thinking specifically about the Annie Dookhan case here, but it applies in a lot of “match/no match” tests that crime labs do.

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  10. The problem with the adversarial justice system is that neither side is pursuing justice. The government is pursuing convictions and the defense is pursuing acquittals. Both sides do this regardless of what justice actually demands.

    I won’t pretend to have a remedy. But it does seem a fundamental flaw with our current system.

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      • Well, maybe it is not the “adversarial” nature of the system but the way in which the “sides” are structured.

        As one of Hanley’s rules states, mind the incentives you create for people. If we reward prosecutors for convictions, they are going to prioritize convictions over justice. If we reward defense attorneys for acquittals, they are going to prioritize acquittals over justice. The difficulty lies in defining what justice demands and how well a particular outcome serves it. It seems that we rely on a rough balance between the two sides getting us close enough. What I think we are starting to see here is that this balance is rarely where it ought to be, with money often being the element that tips the scales.

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      • The thing is that defense attorneys are really and truly supposed to prioritize acquittals over justice as long as they stay within the bounds of ethics. Their client is the defendant and they are supposed to represent his interests in the criminal proceeding. They are not supposed to assist the prosecution in obtaining convictions.

        The problem on the prosecution side is that their client is supposed to be the people, and thus they are supposed to be interested solely in prosecuting guilty people. In reality, however, they too often act as if their client is the police. Unlike a defense attorney, prosecutors are supposed to have “the responsibility of a minister of justice and not simply that of an advocate.” (Official comment 1 to ABA Model Rule 3.8). Far too few prosecutors seem to act in a manner consistent with this – and yes, the incentives in the way prosecutors’ offices are run are a big part of that.

        But under no circumstances should we ever consider making it the moral duty of the defense attorney to seek some sort of broader justice in which they stop vigorously defending their client simply because of their belief as to the client’s guilt or innocence. To do otherwise would be to remove the concept of reasonable doubt and to wipe out the last remnants of the fourth and fifth amendments.

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      • The thing is that defense attorneys are really and truly supposed to prioritize acquittals over justice as long as they stay within the bounds of ethics. Their client is the defendant and they are supposed to represent his interests in the criminal proceeding. They are not supposed to assist the prosecution in obtaining convictions.

        I think there’s a perception that many defense attorneys opt to look for loop holes and technicalities to get guilty clients off (often guilty clients with the funds to pay them); and that poor clients are not able to access this get-out-of-jail card because it’s not free. So this adds to the burden of feeling there’s a substantial miscarriage of justice between the haves and the have-nots.

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      • Trials are expensive; most of what I’ve seen for no victim felony charges is negotiations for a plea bargain to avoid the expense of a trial by the public defender.

        For example, in the height of the war years after 9/11, pleas that involved enlisting in the military were commonly discussed as part of the pre-trial negotiations. A classmate of one of my kids took this route, and came home in a coffin.

        On the one hand, this is a good thing — looking for alternatives to trial and jail time. On the other, it is, also part of the same resource disparity, a part where less well-off defendants often seem to get the short end of the stick; the pleas that are only reduced time, not an alternative to the felony and time.

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      • Many Prosecutors think that the jury renders a verdict of not guilty that the lost the case even though they really shouldn’t have any personal or financial stake in the verdict. Like many lawyers, they don’t like losing and fight for the win. In this case that means a conviction of some sort.

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      • I think that’s probably an accurate assessment.
        While that may be the perception, the Fourth and Fifth Amendment are not technicalities, and when a private defense attorney successfully wins an argument on Fourth or Fifth Amendment grounds at the appellate level, that becomes ammunition that indigent defendants can more readily access. Violations of the Fourth and Fifth Amendment are, as I said, not technicalities in no small part because, when those amendments are violated, the reliability of the evidence obtained becomes highly suspect. The most obvious example of this is the confession obtained in violation of the Fourth and Fifth Amendments; if such a confession is in violation of those Amendments, then it was effectively coerced and thus is unreliable.

        If the sense is that only the wealthy are able to make these arguments, there is certainly some truth to that conclusion. But the solution isn’t to prohibit the wealthy from making those arguments, which as Burt points out benefit all defendants, it’s to vastly increase the number of public defenders and their budgets.

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      • Two things here, . One, I have a fundamental problem with Scheiber’s proposal that the amount of money a defendant can spend on her criminal defense should be limited. The inequality that (the articles presume but do not prove) results from wealthy defendants having higher acquittal rates and milder sentencing upon conviction may well be something we must tolerate. As I tried to conclude in the OP, there may well be other means available to afford access to justice for the less affluent. But limiting the amount of due process available to anyone (in this case the wealthy) is not acceptable to me.

        Second, obviously your friend’s experience and loss of her child is awful and all of our sympathies go out to her and her family. It will not mitigate her grief for me to note that many on-the-edge young people joined the military rather than plunge into the criminal justice system and turned their lives around in a big way. I’ve seen many examples of this so while I don’t wish to domesticate or dismiss anyone’s losses and I have come to advocate ending all of the GWOT military engagements abroad at the earliest possible date, I wouldn’t foreclose the “military option” in an appropriate case before the criminal courts.

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      • That seems to be how our current system is set up. What I’m wondering if there is a better system, where all parties are charged with considering the interests of justice on BOTH sides. Imagine a panel of legal professionals of some sort. I can immediately think of multiple problems with any such system so I won’t pretend to have an answer. But I do wonder about it sometimes.

        Here’s a quasi-solution… what if instead of a DA’s office and a public defenders’ office, you simply had public lawyers who got thrown into the hopper and sometimes they represented the people and sometimes they represented the accused. You could still leave room for private attorneys to come in on the accused’s side. Thoughts?

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      • on the military option; I’m not opposed to it, either. But during the height of the war in Iraq, it was abused as a back-door draft; and the option for enlistment is probably used less often then it should be in normal circumstances; in good part because the US military is typically not interested in the caliber of person that often ends up in US prisons. Or so a general who was head of HR for one branch of the US military told me in an interview during the height of the practice.

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      • I’ve had a similar thought before about that, but in practice it would be unworkable. You’d have all sorts of conflict of interest problems arising, and it would be incredibly easy for the prosecution side to obtain privileged communications between the defendant and whoever was representing the defendant in that particular case. What’s more, in practice what would happen is that the incentives would favor the prosecution side even more than they do now for the simple reason that the police would be able to claim the role of being something equivalent to a major client with whom attorneys need to deal on a daily and ongoing basis while the defendant would be someone that would be essentially a one-off. So in practice you’d have public attorneys being even less helpful to defendants but just as in bed with the police.

        No, if we are to give the notions of the Fourth and Fifth Amendments and “innocent until proven guilty beyond a reasonable doubt” any meaning whatsoever, the defense side needs to be able to represent their client’s interests, and only their client’s interest.

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      • and

        I have absolutely zero interest in limiting the rights of the wealthy to access justice. None at all, and please don’t construe anything I say to mean that.

        I am interested in increasing the rights of the not-wealthy to access justice. But I firmly believe the lack of justice is an ongoing class-based rights violation; a constitutional crisis.

        And Mark, thank you for pointing out that rulings in cases with lawyered-up defendants do result in precedent that aids poorly represented defendants.

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  11. I think we can maximize “justice” in this country by removing immunity for DAs, cops, etc. and allowing people to sue for wrong doing on the part of these people.

    Burt, you made a good post. A lot of what you said is directly applicable to healthcare if you just change “lawyer” to “doctor”. Your conclusions on the outcome are too.

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      • One of my friends from lawschool had an internship turned externship with the U.S. Attorneys office in N.D. Cal. His sole responsibility was to ask for demurrers and motions to strike from all the lawsuits filed by pro per conspiracy theorists. These are people who allege that the CIA is tapping their teeth and that the government is hiding aliens somewhere. He told me that these were not uncommon. The case clerks and paralegals at the law firm I worked with for a year told me they also got a lot of calls with people asking about those kinds of injuries.

        This says more about our lack of a mental health system than anything else.

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      • the lack of a mental health system is probably a much bigger part of this discussion then any of us wants to ponder, and probably merits its own discussion.

        From what I’ve gleaned, there’s really high rates of mental illness amongst prison populations; we deal with the problems of mental health in society via the justice system. I would wonder at the overlap of poor/no legal representation and mental health issues.

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      • We are seemingly correct that we do deal with a lot of mental health issues by waiting for a time when the mentally ill commit a crime and then we lock them up.

        At the end of 2012 and start of 2013, there were a series of stories about people being pushed to their deaths by random strangers on the NYC subway tracks. It was not surprising that all of the alleged pushers had serious histories of mental illness and accusing random strangers of horrible acts and accosting said strangers. I’ve had my own encounters with the mentally ill telling me interesting things on the bus and then seen the same people in a worse state several months or even years later.

        I think the problem is that everyone is willing to let the perfect be the enemy of the good. Many of these mentally ill people probably do not have families or support structures to help them. Many are beyond poor and into the farthest depths of destitution. Even really loving families that want to help their mentally ill relatives can find the situations to be emotionally and financially exhausting.

        Yet there is no way to force someone to take medication or treatment and it is next to impossible to commit someone against their will to a mental health facility. Mental health advocates argue that we only use mental health facilities to keep the mentally ill in an out of sight/out of mind place and they might be right. Civil libertarians argue that waiting for a mentally ill person to commit a crime is the least bad option for the sake of liberty and that it is the road to fascism to go after future crimes.

        So again we have everyone bringing up valid points but no one wanting to come up with a solution or compromise. There does not seem to be the political will to spend vast sums of money on mental health issues.

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      • this is compounded by the severely mentally ill over legal age. They often do have family, but their family members cannot activate the mental health system on behalf of their loved ones until the justice system has been engaged by some transgression. Family members in this position are actually told this by professionals in the mental health system. And when the justice system is engaged, it often means gross mistreatment of a severely ill individual in numbers of ways.

        Stories like this are incredibly common. All over the country.

        http://www.npr.org/2013/09/15/222822452/what-is-the-role-of-jails-in-treating-the-mentally-ill

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      • And not to pile on, but with all this said about mental health/prisons, I am also somewhat skeptical of numbers I see about mental health problems within the prison population. Not that the mental health illnesses are false, but I suspect prison itself creates some of them. Prison rape and mistreatment, not to mention loss of freedom and contact with family, would lead to a host of disorders such as depression and PTSD.

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    • People are far too casual about the honor of being selected to serve on a jury in my opinion. Jury duty is not an abridgement of liberty, life, or property, certainly no more so than the obligation to pay taxes. It is, at worst, an inconvenience.

      Our country demands very little by way of universally-applied duties from its people: pay your taxes so that we can have a government at all; if you’re male, sign up for the Selective Service in the event of a national emergency; and serve jury duty no more than one time per year so that we can have justice. Not even taxes are necessarily mandatory; only about half of the people who live in our country make enough money to have to pay taxes in the first place. Other than that, you’re free to do as you like (understanding that some of those choices may come with further responsibilities and duties).

      Meanwhile, people have fought and died for the right to serve on juries. The right to a jury trial is at the very foundation of our nation and a reason why we are not still British subjects to this day; denial of the right to jury trial is one of the grievances listed in the Declaration of Independence.

      I know that jury service pays something like five to fifteen dollars a day, depending on the jurisdiction, an amount universally recognized as a joke, and which is usually cited as the reason why most people do not want to serve. If you were to ask “should employers have to provide paid leave for people to serve on juries?” I’d say that’s a more interesting question, as would be “if employers do not provide paid leave for jury service, should the state make up at least some of the difference for the juror who suffers financial difficulties resulting from a loss of income?”

      So, should people be able to retain lawyers to get out of serving jury duty? No. I’m tentatively of the opinion that jurors should be better compensated, but even as it is, my trend for thinking is that it should be more difficult than it is, not easier than it is, to avoid jury service.

      I’ll get off my soapbox now.

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      • My last jury pool was told that the trial was likely to take 8 calendar weeks with the jury on duty every other week. That’s pretty rough, but watching people come up with excuses was depressing. I didn’t want to do it, but I recognize that I’m a well-off white collar employee with substantial savings whose company will pay for a chunk of that, and I’m not a crazy person, so there’s no good reason for me to skip out on it. Better me than a nut case, a person who gets off on standing in judgment of others, or somebody who will experience real hardship on a long trial. This was a serious crime and the jury had a serious job to do.

        At the same time, jury selection has to be one of the most inefficient, ass-backward, poorly run operations I’ve ever seen. The number of man hours wasted on the process is staggering, and the feeling jurors get is that the state doesn’t appreciate that they’re performing a valuable public service. I think that potential jurors might take it more seriously as a civic responsibility if they felt a little less like they were being yanked around most of the time.

        I’m especially annoyed to hear from my attorney friends that a lot of time, cases that should settle don’t settle until jury selection starts. The parties just need for it to get “real” before they finally sit down and agree. I understand the game-of-chicken psychology of it, that’s profoundly dickish behavior when you’re wasting that much of other peoples’ time.

        As for compensation, I’d rather see it go to $0 in the general case to build up a war chest to partially compensate people who get stuck on longer trials. $15 for a lost day of work doesn’t make as much of a difference as $300 for two weeks when you’re trying to make rent and you’re skipping a paycheck.

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      • Speaking as someone who has to call in for jury duty on the 25th:

        I imagine that people would be less contemptuous of jury duty if the two sides weren’t allowed to stack the deck beforehand.

        My father was never allowed to serve on a jury because he was a lawyer. One of the times that he was in the jury selection process, he was told by the defense lawyer afterwards that he would have been perfect for their case but, as a lawyer, he would be able to see through the tactics used so he was a no go.

        My own experience has been similar. The only time that I actually had to come in for jury selection, I was disqualified when the defense asked us a question and I spun his logic right back at him. Another one (an engineer) was disqualified, despite being perfect for the defense, because he described the methodical way that he came to conclusions in his life. What was left, after the weeding out process, were people who were easily swayed by emotional arguments as opposed to considering logical arguments. (I hesitate to say that what was left wasn’t a jury of MY peers but some of the people who were left on the jury……)

        I suspect that people might have less disdain for the juror system if peremptory challenges were removed from the process and “for cause” removals were more stringent. I feel that this would serve justice AND would enhance respect for the system. As it stands, I know that, if I get called in, it’s just going to be a wasted day of sitting around until I can point out to the prosecution/defense that warped logic arguments don’t work on me.

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      • Even were I not making a push for a bench appointment, I would take the considerations of and very much to heart.

        As an advocate, I am given peremptory challenges, so I use them to my client’s best advantage. But I’m not so sure that I really ought to get them, or at least that I ought to get so many of them.

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  12. I was recently peripherally involved in helping a patent holder estimate what the licensing fee should be for their patent. In this case, licensees would all be large corporations. I pointed out that one of the considerations (based on my own time inside a giant corporation) should be the patent holder’s ability to fund long, drawn-out lawsuits. The corporations have salaried staff attorneys, so it costs them essentially nothing to fight an infringement case. If the patent holder sets the license price too high, the corporation will go ahead and infringe, knowing that the patent holder will eventually settle for a lower fee rather than watch the value of the patent get eaten up in legal expenses.

    The situation is made worse by the recent broad decision that says that in patent suits, the burden is always on the plaintiff to prove infringement. In this case, discovery would be a messy business, requiring access to both hardware as well as millions of lines of code.

    It’s starting to look to me like small inventors will eventually be priced out of the patent business by the cost of legal action.

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    • This sort of thing is a very good reason why the mercenary nature of contemporary civil law could stand a healthy bit of reform. But we may have tools in our kit already that can be exploited: the contingent fee and the fee-shifting statute. (The British have “loser pays” as a matter of ccourse, we do not.)

      Not perfect tools for this situation but an entrepreneurial approach might be fashioned to equalize things a little bit.

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      • I’ve always leaned a bit towards “the government granted me a monopoly for original work, the government ought to defend that grant.” Patent Office examiners would probably do much better work in the first place if that were the case. In this particular instance, I was hired to do a demonstration implementation of a portion of the patent. After a couple days of literature search, I handed the guy a paper and said, “Here. IMO, two-thirds of your patent claims are invalid and shouldn’t have been granted because there’s prior published work.” PO examiners often do a terrible job.

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    • My sense is that patents are on the verge of becoming meaningless, at least in some industries; software, in particular.

      It’s probably a problem of complexity; a patent for a brand new mechanical invention vs. a patent for a complex bit of code are apples and oranges. And there’s so much code that patent clerks are overwhelmed. (And I just love the stereotypical image that Einstein worked ‘just’ as a patent clerk, that it was beneath him; I’d guess he got a lot out of the job, and might have been very good at it; it should require the ability to grasp complex things quickly.)

      So another suggestion would be eliminating patents on software, and cover it with copyright; and update copyright laws because, duh, the internet.

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      • Lots of software patents certainly shouldn’t have issued. Disallowing all of them raises the question that so many things today are a bunch of sensors, actuators, and a processor executing a billion ops per second to make them to do the right sophisticated things. I’ve written occasionally about the huge change that has happened over the last 15-20 years regarding how “things” work.

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      • , I am in not suggesting giving up IP protections.

        Let’s take an example: software that takes analog signal from a radio antenna and converts it into a digital signal.

        With a patent, that’s a specific action. While your IP protection patent is shorter than your copyright, but nobody else can, without paying license fees to you, sell software that converts analog radio to digital.

        This create tremendous risk for any software company, and is the misapplication of IP law that results in patent trolling.

        With copyright, someone else can write code that does the same thing; it’s your particular code that’s copyrighted; and it’s not that it’s identical, but that it’s original that matters; and there’s very little likelihood that any two bits of code that do the same thing will be identical. This fosters competition, not market restriction, as patent trolling does. With copyright, you can still profit from licensing, and that’s exactly what many small tech companies do; it’s what my bil’s company does, and he’s written code that is the industry standard for digital music.

        I’ve had conversations with him about his fear of patent trolls; with other entrepreneurs, as well.

        The problem with copyright is that it lasts, for many things, far too long. If you’re a freelancer or small company, your rights are nearly impossible to enforce given the national differences in copyright law as enforced by the Bourne Convention. Once your work is uploaded to a server in some countries, China is a good example, you have no IP protection on it. That same software my brother wrote is frequently pirated. The laws, and I say this of all nations, no longer reflect the distribution systems, which are based on physical goods.

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      • I should add:

        I picked the example of radio/digital conversion for a reason; a friend developed such a thing, and was recently asked to re-develop it on another platform as open source, for a test project to provide broadband service in a rural area.

        He did the conversion last month and turned it over; so there’s the third option for software of open-source development, which can become quite profitable for the developers. That is how some of the hottest code monkeys in the world work today; the source of some of the most innovative stuff going on. See Raspberry Pi, Linux, Apache, etc. etc. etc.

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