As readers of this blog know, I've been struck by the Court's heightened attention to lawyering this term. The cases seem to fall into one of two categories: access to sound lawyering and concerns about bad lawyering. The second category of cases has been on my mind especially over the past week as I've finished reading lawyer/journalist Amy Bach's ground-breaking book Ordinary Injustice: How America Holds Court. (If you've not yet heard about the book, I recommend it, as have many others -- see reviews here.)
The "bad lawyering" cases considered by the Court this term have involved prosecutorial misconduct and ineffective assistance of counsel claims where a criminal defense attorney lacks the requisite experience, offers insufficient mitigation evidence during sentencing, delivers a damaging closing argument, gives faulty advice, or misses a critical filing deadline. This record number of cases addressing harms caused by lawyers (eight, compared to a docket that typically includes two or three, at best) provides an interesting example of what Bach has categorized as ordinary injustice. As Bach explains it, "ordinary injustice results when a community of legal professionals becomes so accustomed to a pattern of lapses that they can no longer see their role in them." Her book offers case studies of "key players" in the criminal justice system such as the defense attorney, the judge or the prosecutor, and "examines the circumstances that have allowed injustice to thrive in his particular court location." The cases taken up by the Supreme Court reflect many of the concerns she has identified - see here, here, here, and here. Yet, of the opinions issued to date, the Court has granted relief in only one case.
The question, of course, is what to do about the problem of ordinary injustice. Bach's solution is monitoring, measuring, and reporting. She proposes that social scientists, together with attorneys and court administrators:
create and implement yardsticks for the many facets of a court's performance. The data they collect should focus on areas of discretion allowed to legal professionals, such as a judge's discretion to assign counsel and set bail, a prosecutor's choice to charge a defendant, and a defense attorney's distribution of time spent with clients and investigating cases. The second is the citizen-user's experience of the system, as in, for example, the timely assignment of court-appointed defense. The information from such a court monitoring system would be collected and analyzed and the findings distributed to the community by a third party ... in a format accessible to citizens who are not versed in the subtleties of legal procedure. ... Communities would become as accustomed to receiving and assessing data from their courts as they are to monitoring other parts of the infrastructure, like the quality of their schools or the state of their roads and bridges.
Bach's proposal reminds me of another book I read recently, Atul Gawande's The Checklist Manifesto: How to Get Things Right. Gawande (who, among other things, is an associate professor of surgery at Harvard Medical School and a writer for the New Yorker) documents in his book the dramatic reductions in death and infections for hospital patients when basic, simple checklists are implemented for medical procedures. He observes:
People spend years of sixty-, seventy-, eighty-hour weeks building their base of knowledge and experience before going out into practice on their own--whether they are doctors or professors or lawyers or engineers. They have sought to perfect themselves. It is not clear how we could produce substantially more expertise than we already have. Yet our failures remain frequent. They persist despite remarkable individual ability.
Bach notes a similar phenomenon in the courtroom. She writes that "many of the lawyers involved, often talented and dedicated professionals, couldn't see their own role in perpetuating bad behavior. They didn't seem able in any way to connect their conduct to the courts' worst outcomes." Gawande's suggested remedy is, alas, a checklist. And while it is difficult to argue with the data he relies upon to demonstrate the checklist's success in the medical profession, it is still hard to believe that a simple checklist can make such a difference. But it does make me wonder, are there checklists that might be useful for the legal profession in responding to the ordinary injustice documented by Bach and reflected in the bad lawyering cases taken up by the Court this term?