It’s generally accepted that one can hire a “better” or “worse” lawyer. If you’re wealthy and can afford an expensive lawyer, then (conventional wisdom would have it), you can get away with almost any crime. Whereas, if you’re stuck with the public defender, you’re barely better off than representing yourself.
If true, this would imply that meaningful lawyering ratings could be assigned, based on something like chess’ Elo rating system (your score changes at greater or lesser rates depending on the difference of your score to your opponent’s).
Say that someone went through and compiled ratings for lawyers (ideally, starting from their performance in school trial trials), maintains it as time passes, and makes the information available on the internet.
Is it likely to display a significant difference in lawyer quality? Or is public perception flawed, and it is principally evidence that determines the result of a court case?
Assuming that there is a noticeable difference, how would the publication of this information affect the world? Would juries start to judge against the higher ranked lawyer? Would judges frown on bringing an overpowered lawyer into his courtroom?
Again, assuming there is a difference, what would the result be if the lawyers in a court had to be (relatively) evenly matched? Would evidence come to mean more? Would legal rates rise or fall? In what cases would people still go for the high-powered lawyers, just Supreme Court cases and company-vs-company battles? Would it trash the market altogether?
It might be interesting to see what the results are, but any attempt to discriminate on that basis would be obscenely stupid. Just for starters, it rejects the idea that a lawyer might specialise in one field or another. Half of all cases must be winners and half must be losers, but that does not mean that half must be plaintiffs and half must be defendants. Let’s just say you were a prosecutor who won 90% of all drunk driving cases. That doesn’t automatically mean you’re cheating, or that you’re a “high-powered lawyer” who needs to be discriminated against - it could just mean that nine times out of ten, the police hand you a rock solid case against the defendant, and the weaker cases never make it to court.
I’m not sure if this view is “generally accepted” or not, but it certainly is not true.
Lawyers are rated, though. Check out AVVO.COM or Martindale Hubbel. I don’t think the ratings mean much, but higher rated lawyers are generally better than lower rated… Many exceptions make it less useful than you would expect.
ETA. In many jurisdictions, the Public Defenders are quite talented and experienced.
It’s true that there are better and worse lawyers, of course, same as any other profession. Conventional wisdom as you have expressed it here is incredibly far afield – switch a randomly chosen public defender with any randomly chosen private criminal defense attorney who bills above a certain rate and the results will be completely unpredictable – but the initial premise is accurate.
The inference about Elo ratings is not accurate. Chess can be rated because every match starts identically and is contested according to an extremely rigid set of rules that applies almost identically in every match. The judicial system does not have this. What would constitute a “win” over opposing counsel varies a ton from case to case. In some trials, it’s pretty much a foregone conclusion that the defendant is going to pay the plaintiff a truckload of money; a successful defense in those cases might be limiting it to $500,000 instead of $5 million. In others the plaintiff’s lawyer is doing really well to get any money at all. In some criminal cases the prosecutor might be up a creek and flailing to get any charges at all to stick, and in others the defense attorney’s only priority is not getting his or her client sentenced to death. The system is not at all conducive to an objective winner-and-loser dynamic.
In fact, I’d say that the public probably already applies something like an Elo metric, inadvisedly, and that’s how people like public defenders get such a bad rap. Their clients are constantly pleading or being found guilty and going to jail, so their “rating” is in the tank. But in many many cases you’re not ever going to do any better than the deal your PD cuts for you.
Wealth can probably buy better lawyers, but actually that’s not the main thing it buys. The main thing it buys is more lawyer time, more investigator time, more expert witness time etc.
The public defender may be and probably is very talented and experienced but has next to no time to work on any given case.
Contrastingly, despite the fact I may be a totally crap lawyer* when I’m being paid by a big insurer to work on a big case, my brief is to spend as much time as I need (within what makes economic sense) to achieve a good result.
That matters hugely. Whatever evidence I can get I get. Whatever time I need to strategise I take. Whatever big outside assistance I need, I buy.
elo works in chess because there is a level playing board. each side has the same number and type of peices. It works less well when one side is right and the other side is wrong.
Lawyers have clients relations and they don’t drop a client because they have a bad case. They can cajole their client to accept a settlement all they want but the client is not obligated to do so. So sometimes you have to walk into court with a dog, suck it up and try to be a professional about it. Good trial litigators develop reputations and that is about as accurate as an elo rating.
Another reason the chess analogy doesn’t work is that the lawyers have different sets of pieces, not equal teams. For example, the prosecution has the resources of the police and the prosecutor’s office. The defence has the defence lawyer, maybe a para-legal and a p.i. The prosecutor has more pieces on the board.
But, the defence has one very important piece that the prosecutor doesn’t have: the defence doesn’t have to prove anything, and the prosecutor has to prove everything. That’s a huge advantage for the defence over the prosecutor.
That difference in the pieces makes it very difficult to compare prosecutors and defence.
As a civil trial lawyer, in a busy year I try maybe four cases (there have been years when I haven’t done any at all), although I handle hundreds of cases a year. Most of them settle or get dismissed well before we get to that point. The ones that do get tried tend to be cases that have serious evidentiary or legal problems for both sides, and which you would reasonably expect to have a good chance of going either way. I don’t think that such a small sample size is capable of measuring how effective one’s advocacy is, especially since the cases that you are trying are probably the ones you would prefer not to try. The number of trials on the criminal side is higher, but I expect that many of the selection difficulties are the same.
