The Volokh Conspiracy

There's a very simple solution to this problem: All lawyers should be government employees, graded with respect to expertise and ability, and serving alternately as prosecutor/plaintiff's counsel and defense attorney. Both plaintiff and defendant in civil and criminal cases should receive randomly chosen lawyers, having equal credentials and some minimal level of expertise in the matters being litigated. Litigation support services should also be provided by the government. The same pool of personnel should provide prosecutors and defense attorneys in criminal cases, thus discouraging the execrable behavior of attorneys, e.g., Nifong, who seek advancement at the expense of justice.

If anything should be guaranteed to all citizens it is the same chance at justice under the law. I have never understood why the idea of making the law a government entereprise is far less in the public consciousness than doing the same with medicine.

AppSocRes, I think most people--even those who support socialized medicine--would find it repugnant if they were randomly assigned a doctor "having some minimal level of expertise" in the medical specialty that pertains to their desired treatment.

Ok, AppRocRes, I'll bite. Neglecting for a moment the origin of the common law in the slow history of people seeking freedom from government and the revelation of natural rights, how exactly would one go about forcing a litigant to accept one attorney over another? Do I get lined up in front of a wall and shot if I refuse the attorney the friendly local commissar selected for me? Or do I just lose my case on account of my refusal to play ball?

And, for the Tullock fans out there, what rent seeking behavior might we see in a system of law where a central authority controls access to the courts? I get the vapors thinking about this.

Is anyone here familiar with the workings of the military JAG corps? I'm under the impression that it works pretty much as AppSocRes described, with the exception that the defendant can turn down his randomly-assigned defender and hire a civilian lawyer. I'm fairly sure that it's quite rare for a civilian lawyer to do a better job of defense at a courtmartial or of plea bargaining in the military system than a JAG, simply because the JAG is experienced with the particular court system from both sides. I'm also fairly sure that an innocent defendant usually has a better chance at a court-martial than in a civilian court, for one thing because the prosecuting JAG does remember that the pursuit of justice requires looking at the case from all sides. (OTOH, the defendant who contests the charges at courtmartial and is convicted is well and truly screwed.)

The exceptions tend to be cases where political pressure is involved, and especially where it takes something beyond normal lawyering to get a factually guilty defendant off. Famously, consider the cases of Lt Calley and Captain Medina. As far as the publicly revealed evidence about My Lai goes, they seemed to be about equally culpable of mass murder. Medina hired a firebrand civilian lawyer who was clearly going to put the whole chain of command on trial - and somehow his case never went to trial. Calley's JAG did all he could do without challenging the whole system, and Calley drew a multi-decade sentence, which seems pretty lenient considering the crime, but not nearly as good as going free.

But as I said, this was a highly exceptional case; in the normal cases, charges aren't even brought unless there's no escaping conviction, and then the defendant's best chance is an insider lawyer who will get him as much mercy as the system allows.

I haven't read Todd's article yet, but based on my own experience in commercial litigation, I think people (including lawyers) tend to exaggerate the extent to which lawyering can tip the scales in a case. Aside from a few high-profile criminal cases, lawyering alone can't make chicken salad out of chicken sh*t. It can mitigate the extent to which a defendant who's already in trouble will be damaged, or push higher the amount that a plaintiff with a decent claim will get, but in the vast majority of cases it can't turn a bad claim into a good one or vice versa.