Ronald Wright & Ralph Peeples, "Criminal Defense Lawyer Moneyball: A Demonstration Project"

Article. Abstract:

The book and movie “Moneyball” portray the iconoclastic general manager of a baseball team. When drafting new players, this GM de-emphasized the insights of baseball scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. We take this idea from baseball into the criminal courts. In this article, we argue that criminal defense organizations could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. Statistical performance-based rankings could support better leadership in defense attorney organizations.

Rather than simply assert that a rating system is possible, we attempt in this paper to show its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system for the attorneys who work there. Our attorney ratings are based on the bottom line: sentencing reductions those attorneys achieve for their clients, principally through plea negotiations. We then use our tentative quality ratings to address the question of structural causes. What makes one attorney noticeably more or less effective than the typical defense lawyer? Our most surprising discovery is that experience actually has a negative correlation with performance after the first eight years: the more time an attorney has spent in the profession, the more likely that her clients will obtain a more severe sentence. We close with some reflections on other potential users of a statistical rating system, concluding that managers of defense organizations are better situated than judges, prosecutors, or clients to make wise use of ratings data.

Comments

[Monroe Freedman]

Any criminal defense lawyer, no matter how poor a lawyer, can get reduced sentences through plea bargaining in almost all cases. That's how the system is set up -- to avoid trials by coercing defendants into plea bargains in well over 90% of criminal cases. The coercion includes over-charging, threats of high prison terms if the defendant asserts his constitutional right to trial by jury, and imprisonment while awaiting trial. The rights that are traded for the plea include, among others, the privilege against self-incrimination, and the rights to call and confront witnesses.

When England was considering American-style plea bargaining, the BBC sent a film crew to document how plea bargaining works in the U.S. I can send a copy of the tape to anyone who emails me for it, at lawmhf@hofstra.edu

[John David Galt]

If the rated case results are mostly plea bargains, they may say more about the skill of some of NC's prosecutors (or the willingness of some of its judges to let prosecutors abuse their power) than about the skill of defense attorneys.

Certainly law will be less amenable to ratings than baseball if only because a "batter" may have to face a much greater variety of "pitches" and "playing fields" than a baseball player ever will. Still, if such ratings were available and I needed a lawyer, I would want to use them.