The criminal defense legal practice has evolved over the almost 250 years that America has existed. Our legal system is imperfectly bound by purported parameters that are equally imperfect. I strive in my teaching to help students realize that these challenges exist and persist. They all want to excel, to go to law school, and to make a career path in this imperfect world of statutes, rules, and the ubiquity of judicial interpretations, the "common law."
The focus is on criminal cases largely because of the Sixth Amendment to the Constitution. While that was ratified in 1791, the implications were incomplete until at least 1963 when Gideon v. Wainright, 372 U.S. 335 (1963) concluded a somewhat clear interpretation of the right to counsel in criminal cases. In fairness, there was reliance there on the Fourteenth Amendment also, and it was less than 100 years old at the time (1868).
The old saw from television is familiar enough to everyone who has not been living under a rock. In Miranda v. Arizona, 384 US 436 (1966), the implications of the Sixth Amendment, Fifth Amendment, and Gideon were extended beyond the right to counsel to the right to know about the right to counsel. "You have the right to remain silent . . . "
Since that time, there has been the potential for a criminal defendant to argue about how they were represented (or not) in those proceedings. It has become known as "ineffective assistance of counsel," and the Legal Information Institute says this describes when "legal representation fails to meet the minimum standards of competence and diligence expected from attorneys."
Essentially, there is the right to counsel that we have found in the Constitution, but that counsel is not sufficient merely because someone went to law school. Competence is not a degree, a personality trait, or in any way inherent. That seems axiomatic. There are significant threats in being criminally prosecuted. From its worst outcome of death penalty to incarceration, to the reputational harm of mere prosecution, much is at stake.
Unfortunately, there is no such counsel guarantee in the civil realm. No one in a civil case has a constitutional right to effective assistance of counsel. There is no right to counsel in civil matters at all. As a result, many people struggle through their legal challenges alone in the maze of laws and rules. They cannot find a lawyer interested in their challenges, or cannot afford the fees that would interest them.
More unfortunately, many also suffer from the incorrect assumption that the lawyer they have hired is competent. The sad truth is that there are incompetent, sloppy, and ineffective lawyers.
NBC News recently described an instance in the criminal setting. It reminded me of Harry and Lloyd, Zacharia Crabill, and Forrest Gump. See AI Incognito (December 2023). There is illumination of a "2014 murder trial" and the efforts (euphemistically) of counsel to defend the allegations. There was a conviction, incarceration, and then a 2022 reversal based on "the defense lawyer's 'egregious' conduct."
The defendant might be viewed as fortunate. He had both the right to counsel and the funds to pay one. He paid over $100,000 and seemingly thought he had hired an expert. Did the lawyer use artificial intelligence like Harry and Lloyd? No, there was no AI in 2014. The defense lawyer used the next worst thing, the Internet. And, it appears he did so during trial, "Googl(ing) forensic issues like DNA."
There will be those unexpected moments, and the lawyer has to respond. But the time for delving into the science of a case needs to be before trial. Preparation is a hallmark of competency. The teacher never let you do yesterday's homework in class. That should have taught you something.
The defendant claims "he was floored when the lawyer put him on the stand without properly preparing him." Preparing witnesses is Lawyer 101. The defendant was further troubled "when his lawyer rested without calling a single expert witness to challenge the prosecution’s case." There were conclusions that the lawyer demonstrated "sheer lack of knowledge regarding any of the technical and scientific issues relevant to the criminal proceeding.”
Eventually, a new trial was ordered in a "blistering 17-page decision" regarding the failures or mistakes of counsel. The lawyer admits he was not prepared for such a fight. There is no dispute that he lacked sufficient experience.
There is no right to counsel in civil proceedings. There are challenges and complications in the course of representing any party in litigation. Over the years I have witnessed some lawyers that are absolutely stellar at the task, and others that we might charitably characterize as "not so much." Unfortunately for the public, it is difficult or impossible to determine who falls into which category. It is equally difficult to deal with the results that may follow.
In the NBC News story, there is a conviction of a crime. There the downside is incarceration, shame, and despair. But in any legal proceeding, there is a downside. There is the real chance of financial damage in either being ordered to pay or in not recovering what you are due. The fact is that any legal proceeding can be a life-changing event.
Lawyers hold the lives of people in their hands, and unfortunately, there are a fair few who do not perform competently. Through inate inadequacy, sloth, or overcommitment, they fail. More unfortunately, spotting poor performance may be beyond the client's capacity. It is, as I noted at the outset, an imperfect system in which we labor. It is filled with imperfect humans, overtaxed resources, and complications. There are risks, challenges, and imperfect knowledge.
I would like to conclude here with an upbeat recommendation for rectifying the failures, addressing the challenges. But none occur to me. Perhaps Harry and Lloyd can find us something on AI?
