Wednesday, May 14, 2008

The Standard of Professional Care in Trial Advocacy

The criminal prosecution sets the standard of performance for all trial advocacy: 75% success rate.

1) The prosecutors are recent law graduates with little experience.

2) They get paid a low wage.

3) They carry dozens of cases at a time, if not hundreds.

4) Their research budgets for each case have 4 numbers if lucky.

5) The defendant has no morals, and is strongly motivated to evade punishment.

6) Their lives get threatened.

7) Their charges contain more elements.

8) The burden of proof is higher than in other actions, beyond a reasonable doubt.

9) Every element must be shown to have been intentionally done.

10) The element and the intent must be proven beyond a reasonable doubt.

Any other type of court not meeting the 75% rate of success for the plaintiff implies a subpar performance of the judge. The judge has allowed poor performance by the plaintiff side. If the rate of verdicts favoring the plaintiff falls below 75% over two years, the judge should be removed by the administrative judge automatically.


Anonymous said...

You fail to note that the public defender's office generally has a higher case load per lawyer and lower pay. Also, those without sizable bank accounts find it easier to plea out than fight the charge. Defending yourself in a criminal case is outside the resources of the middle and lower classes. Money is a great equalizer.

Community Member said...

On behalf of prosecutors everywhere, let me say a quick "thank you" for your post!

The great advantage of being a prosecutor is that you get TONS of courtroom experience. My first legal job was working as an assistant state attorney in Palm Beach, Florida, and I got thrown right into the fire: I graduated from law school on Saturday, was in court on Monday, and was picking my first jury on Friday! There's not another place in the world where you can get that type of experience.


Supremacy Claus said...

In Pennsylvania, the public defender and prosecution resources must match, including salary, at least in principle. The public defenders of Philly are the most vicious junkyard dogs no one would want to meet in court. They defend every guilty criminal as if defending the Constitution against fascist invaders, or something. Both sides use their experience as if in a combat residency training. Imagine, a surgery resident in the middle of the battle of Fallujah. Nothing comes close in future value. I imagine, after trying 5000 drunk driving cases, one can join a defense firm and command ten times the salary.

Another commenter noted that your make your "profit" in the form of reputation, by winning. You must file strong cases or get fired.

That is the point. The lawyer has the ability to have a high rate of strong cases despite the handicaps.

The point was to compare criminal advocacy to that of torts plaintiff practices. In the case of medmal, the failure rate is 75%, in favor of the defendant, and at every stage of litigation from preliminary motions to appeal.

They carry few cases, are at mid-career, make ten or twenty times your salary, work a tenth as hard. They depend on the extortion lottery run by the good pals, the judges dependent on contributions from both the defense and the plaintiff bar.

Your standard of professional care sets the bottom, given all the burdens you carry, both sides in the criminal law. That the torts bar falls below prosecutorial performance standards represents a massive case of legal malpractice. Once the unjust, and self-dealt immunities of the lawyers and judges in torts end by constitutional amendment, the plaintiff bar, the judges, and their employers will owe the doctors a $trillion, after exemplary damages.