The Ethics and Incentives of Socialized Law

A lot of people 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 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.