A Plea Agreement With An Easy To Use Handle

At What About Clients?, Dan Hull has long been pounding away at the concept that lawyers need to make their services easier to use.

Client service.  In our view, that huge gap between the promise and the reality has rendered the term “client service” nearly meaningless.  Even for those who deeply care about the crusade of delivering “it”, this simple idea generates much loathing and guilt.  It’s a mantra we repeat to ourselves, to our employees,  and to our customers.  We believe that if we say “it” enough, “it” will come.  Service providers really do institute–but rarely work at and enforce–regime after regime of CS.  The reason:  CS is much harder than it looks.  You weave your skills into a buyer’s “experience” of them, and deliver them together as One Thing.  CS is a hard-acquired habit.  It never was easy.  Never supposed to be easy.  So…

80273b.jpg

In his #Reinvent Law presentation, Paul Lippe of Legal on Ramp argued that we ought to rephrase the title to Legal by Design, as it characterized the concept of what he hoped to do far better. Rather than the pompous Reinvent title, it would be more effective to think of change as an effort to design a system that better served our needs rather than how it had happened up to now, essentially a cancerous growth that happened without planning, forethought, purpose and, dare I say it, ease of use.

Much as I find cute names disturbing, Paul’s point was sound. The system of law under which we practice is grounded in precedent and fixes that come in bits and pieces without any thought to how the puzzle fits together and works.  Like streets in the City of Paris before 1853, what grew of a medieval city needed the redesign of Baron Georges-Eugène Haussmann to make it function as a world-class city.  Perhaps a better word would have been planning in place of design, but that’s likely a trivial distinction.

Later, a third year Stanford law student, Margaret Hagan, spoke of how a prosecutor suggested she redesign plea agreements.  Lest anyone think I’m picking on a law student, Hagan has a Ph.D. in design, and is engaged in a project to use the d-school approach to law.

Hagan

Notice that arrow going orthogonally to the right, captioned “plea agreement project”?  Yeah, that’s the one that caught my interest.  The question posed is how, from a design perspective, “can we help criminal defendants better understand plea offers & make decisions in their best interest?”

Anything jump out at you?

One of the gravest concerns of the well-intended but clueless efforts to Reinvent, redesign, whatever, law is that efforts to achieve glorious ends are done without the slightest idea of what they are getting into, the dynamics, the influences, the impacts and, of course, the unintended consequences.

For example, this is Hagan’s “quick illustration” of  the tort of intentional infliction of emotional distress:

Bar Visual - Intentional INfliction of Emotional Distress-01

It’s a cute image, easy to read, and utterly unhelpful to anyone who doesn’t have an in-depth understanding of every word tossed out.  But it will give people the impression that they understand it, because people will read it, impose their own definitions on the words, and walk away with the impression they are now reasonably knowledgeable.  In other words, it’s a winner from a design standpoint, perhaps, but a disaster from a law perspective.

Now picture how this would apply to plea agreements, and how design could help defendants “make decisions in their best interest.”  Note that there is no mention of defense counsel in there. Perhaps this is because the suggestion came from a prosecutor, whose concern for a defendant’s welfare is either admirable or self-serving. More likely, it reflects a gaping hole in the grasp of how these things happen, and nobody thought, “isn’t that what a criminal defense lawyer does?”

The idea that the decision to cop a plea can be fixed by design reflects a grave failing in these efforts to improve upon a troubled legal system.  As I’ve written too many times, the alternative to bad isn’t necessarily good, but can also be worse.  This isn’t to suggest that no one should try, no one should think outside the box.  This is to suggest that many, perhaps most or even all, of these outside the box ideas are dangerously misguided and will produce far worse methods than currently exist.  Whether we can do better remains to be seen. We most assuredly can do far worse.

The plea agreement project isn’t a design issue. It never was and never will be. It cannot be cured by design.  But what makes me fearful is that design holds an attraction to those who have no substantive appreciation of what is involved in the difficult, highly nuanced, incredibly sui generis determination of whether a plea offer should be accepted.  This is one of the most difficult decisions a defendant can ever make, and it should be.

Going to prison is not the sort of decision that should be dumbed down, rendered with cute pictures or language that does not, and cannot, be so over-simplified that any idiot can get it.  There is no handle, like Folgers put on its coffee containers, that will make the decision to take a plea more user-friendly.

It isn’t hard to understand why prosecutors and courts would favor an unduly simplified means of designing a plea agreement so that defendants can make decisions without regard to what their lawyers have to say.  A user-friendly plea agreement could well serve to make plea more enticing, more comforting, less scary and less foreboding.  How many defendants will jump at the chance to accept a plea with a heart-warming picture of a grandma telling them that by taking a plea, they will feel better about themselves and bring comfort to sad victims?

Aside from the factual, tactical, strategic and psychological analysis that goes into the sophisticated decision of whether or not to take a plea, there are certain aspects of the legal system that should never be made more user-friendly. Taking a plea is one of them. This is one of the reasons why those who adore new ideas can’t be left to their own devices. They have no idea of the harm they can cause, and yet they are egged on by the hooting from the similarly blind cheerleaders of innovation.  This must be stopped.

33 comments on “A Plea Agreement With An Easy To Use Handle

  1. Tim Knowles

    Was any evidence presented that defendants don’t understand the plea agreements that they enter into? Given all of the important issues surrounding plea agreements, it’s kind of surprising that this would be the area of focus. It’s like she’s saying, “We want them to better understand how badly they are screwed.”

    1. SHG Post author

      There is an underlying assumption among this group that everything is broken and everything needs fixing. While that may be true, at least to some extent, the distinction between fixing and screwing up even worse eludes them.

  2. C. N. Nevets

    Another peril of design-based strategies is that in its efforts to simplify, the design can distract from what content does remain. I’ve just spent way too much of my time trying to understand the second and third elements in the example design on emotional distress torts. Not only, as you identified in your post, do I not now have a better handle on the legal definitions of the terms employed, but I’ve forgotten those terms in my pursuit of understanding the bizarre graphics and the elusive main point.

    1. SHG Post author

      Interesting. I thought to myself when I saw the images that I really didn’t see how they provided any insight whatsoever, but I hadn’t thought about how they detracted from insight.

  3. Patrick Maupin

    There are a lot of problems here. Most ideas are crap, but even when there is a good idea, it won’t be recognized, or when it is recognized, it won’t be acted upon.

    One man who realized that handwashing by doctors would save lives was Ignaz Semmelweis, decades before Pasteur’s germ theory. He was thoroughly excoriated by the medical community, and even today there is a study showing that doctors in hospitals only wash their hands 25% of the time they should.

    At least now the doctors give lip-service to handwashing. When Sara Josephine Baker cut down infant mortality in New York by teaching hygiene to mothers, the doctors tried to stop her because business was down.

    The current best practice for operating rooms is to have a checklist of really simple stuff before the operation. Nurses and doctors introduce themselves, a check is made for possibly needed supplies, etc. This has been empirically shown to save lives, but trying to get it implemented is really difficult.

    I work in a chip company. A new chip tapeout puts over half a million dollars of NRE and 6 weeks of opportunity cost (from the time we send out the design until we get the chip back from the fab) at risk. It would be unthinkable for us not to have a checklist for that, but that sort of menial check is well beneath the dignity of the trained professionals at the hospital .

    Objective measurements are difficult but not impossible. In a disinterested competitive private industry, the results of such measurements are analyzed and acted on. In a union (AMA or ABA) environment, perhaps not so much, especially when there is big business in dealing with the screw-ups.

    Lawyers have a huge advantage over doctors — sure doctors bury their mistakes, but for the doctor, there aren’t any more billable hours after that.

    And the insurance companies — well, just suffice it to say that the insurance companies have every interest in insuring that the cost of (health problems/malpractice/whatever) are high enough to require the prudent practitioner to have insurance, yet low enough to not ever seriously inconvenience the insurance company itself, and that they are past masters at lobbying for just the right amount of tort “reform.”

    1. SHG Post author

      Did I ever mention that I’m not a big fan of analogies? I’m even less of a fan of really long analogies. Just sayin’.

      1. Patrick Maupin

        Sorry.

        tl;dr: Many (most?) humans love to not be accountable and will arrange things to make it so if at all possible. Counterintuitively to some, it’s usually more possible for those in highly regulated professions to achieve this.

  4. Dan Hull

    Nice post, and thanks for the mention. I have 2 overall comments. Sorry if they are long. I didn’t have time to make the comments shorter–but here goes:

    1. Re: “it would be more effective to think of change as an effort to design a system that better served our needs rather than how it had happened up to now”.

    Wonderful. I am not sure from the context who said/is saying it–Paul Lippe, you paraphrasing, you or both of you–but I liked that sentence a lot. I do know from talking to Paul that he thinks (as do you, Scott) that lawyers need to think globally/comprehensively in terms of changes the profession needs to make, and that of course thinking think globally/comprehensively is precisely what lawyers are not good at. Lawyers do balk (read: our heads explode) at thinking expansively about most things. The subject of “changes to the profession” itself is number 1 on the long list of lawyer unfathomables. Finally, as the What About Clients? guy, I still think that the touchstones of (1) Clients/Customers being the main event generally and (2) Ease-of-Use For Clients in delivering services cover about 90% of the needed reinvention for ANY business model or ANY profession. But the idea in the quote above (i.e. ask ourselves what works for the profession without regard to what’s gone before) is even more comprehensive than Clients/Ease-of-Use. Expand ease-of-use beyond clients to cover everything–to cover what both clients and lawyers experience. That may be the way to look at it. So nicely done, Paul. And Scott.

    Question is: after centuries of having our heads up our asses, and thinking it’s all about us , can lawyers do this? Because The Profession needs a New Mind.

    2. Re: SLS student Margaret Hagan, I love the general idea of “design “for anything to do with lawyering. Designing solutions–which are different for each customer–is what I hope I have been doing for clients for the last 25 years. I like the idea of making things easier for clients, especially if we can do that through sane legal writing which does not scream out “hey, I’m a lawyer, and I am special.” Bravo.

    However, in the chart, and aside from the always-annoying word empower–empower evokes images of Tom Hayden, the Port Huron Statement, late-1960s sensitivity trainers and my college roommate, Space, who lived in Western Tibet for 3 semesters –I was troubled by the 2 steps “How can we guide a person through the steps to access legal services using real time technology like texting?’ and Mobile Legal Advocate. Am not sure what Margaret’s getting at here. To be fair, I didn’t hear her talk in NY. But wouldn’t it be better to make technology fit lawyering? Rather than make lawyering fit technology? I am not the first to note that Tech is a merely tool–not the main event.

    1. SHG Post author

      When they speak of serving the clients, they don’t mean it in the same way you (or I) do. It’s more like a cookbook, and lawyers are for dinner.

        1. SHG Post author

          “They” refers to the collective of the Reinvent cheerleaders, from Katz and Knake to the majority of speakers and their core early adopter audience. What is interesting is that when you speak with some of these folks individually, they are well aware of, and troubled by, the general castigation of lawyers and the specific goal of serving the client by circumventing the lawyer rather than through the lawyer.

          But put ‘em in a group and, with some notable exceptions, you get a rousing chorus of the Barney the Dinosaur song.

          1. Hull

            Sorry to hear. Sounds in some respects more like a trade show than brainstorming or a call-to-arms. My reinvention question: How do we price and deliver quality legal solutions to clients with fancy problems? I’d still start there.

            1. SHG Post author

              You and I have been arguing to “reinvent” law for years, but this isn’t anything like what we have been doing. Think of this as a quarter trade show, quarter GC’s arguing biglaw is greedy, quarter tech lovers adoring anything shiny and quarter clueless non-lawyers dreaming of fantasy Utopia under the guise of serving clients without any comprehension of what that really meant or the harm their ideas would cause.

              There was a surprisingly large crowd, and yet when someone asked how many practicing lawyers were in the room, there were about ten hands raised. Don’t let the rhetoric fool you; this was a loaded gun in the hands of children.

  5. DaveL

    I never understood the concept behind a PhD in “design”. There are people who design bridges, there are people who design circuits, there are people who design clothes. Each one of these requires a wholly different set of highly specialized knowledge. What exactly does a PhD in design make a person qualified to design?

    1. C. N. Nevets

      As I understand it from acquaintances in the field of design, Design incorporates a lot of elements (e.g., aesthetics, functionality, emotional appeal, systems-integration, usability, and more), principles of which transcend the specifics of bridges, clothes, or operating systems. Students of Design do not engineer bridges or tailor clothes or code operating systems, but they establish parameters within that work takes place in order to provide the “best” experience for the ultimate end-users of each product.

      At least, that’s how I understand it.

      1. SHG Post author

        Makes sense, and I can see it having a very useful role in making things better in the ways you described within the substantive confines of utility. No matter how cool and easy to use a bridge may be, it still have to serve the purpose of being a bridge first.

      2. DaveL

        Because people who study the principles of designing bridges and clothes and circuits don’t think about such things as usability, aesthetics, and systems integration, right?

        Sounds suspiciously like a convenient way for a high status non-expert to take credit for the efforts of all the technically knowledgeable “little people” who are actually responsible for making their “vision” work in practice.

        But maybe I’m just cynical.

        1. Patrick Maupin

          > But maybe I’m just cynical.

          Maybe more uninformed than cynical. As Scott points out, a bridge has to operate as a bridge, but as we recently found out, if you reconfigure the lanes to it, it might operate operate perfectly well as a bridge while still making for some deep and serious unhappiness.

          Or take a door as an example. It is possible to have an upright handle that you press, or a horizontal bar that you pull. Engineering-wise, it still works as a door, but the surprised users of the door will not be particularly happy about the design choices.

          And you probably wouldn’t be very happy if the order of the knobs on your stovetop didn’t match up in some sane way with the burners. On stoves where the knobs are in a line at the front, the matching up of the knobs with the burners usually takes into account the way humans perceive perspective — the inner knobs will correspond to the back burners.

          A good introductory book on this is “The Design of Everyday Things” by Donald Norman.

          1. Patrick Maupin

            Forgot to mention — Apple thought enough of Donald Norman to hire him and lessons from him have permeated the company since the early 90′s.

            Because people who study the principles of designing bridges and clothes and circuits don’t think about such things as usability, aesthetics, and systems integration, right?

            Right. Or at least a lot of times they don’t.

            Sounds suspiciously like a convenient way for a high status non-expert to take credit for the efforts of all the technically knowledgeable “little people” who are actually responsible for making their “vision” work in practice.

            Steve Jobs was very good at this. You can argue with a lot of things about Apple, but I think this helps prove that having someone who deeply understands the human factor can drive the engineers to make much more usable products.

            Or to put it another way, if design wasn’t important, how come all the big companies don’t just let programmers loose to create all aspects of their websites?

            1. DaveL

              “Or to put it another way, if design wasn’t important, how come all the big companies don’t just let programmers loose to create all aspects of their websites?”

              Because coding isn’t the only aspect of design – designing just about anything requires teams of people with specific skills. Some specialize in artistic or aesthetic styling, some in ergonomics, interface specialists, database specialists, etc. NONE of them are simply “domain-general designers”.

            2. SHG Post author

              The Apple/Norman example were probably Patrick’s best, as Norman came up with some monumentally cool designs (including the first mouse, IIRC). But he was still an MIT trained engineer first, and understood that form follows function. As long as function (and the knowledge, ability and expertise to achieve function) is paramount, design has a role to play.

            3. DaveL

              BTW, I should make it clear I have no problem with the field of usability engineering. I just object to the appropriation of the label of “design” to this to the exclusion of everything else.

          2. DaveL

            ” As Scott points out, a bridge has to operate as a bridge, but as we recently found out, if you reconfigure the lanes to it, it might operate operate perfectly well as a bridge while still making for some deep and serious unhappiness.”

            Yes, but traffic engineering is separate, highly specialized discipline in itself. It isn’t simply a product of some nebulous idea of “design” separate from any particular expertise.

            “It is possible to have an upright handle that you press, or a horizontal bar that you pull. Engineering-wise, it still works as a door, but the surprised users of the door will not be particularly happy about the design choices.”

            Aaaaand we’re back to pretending that engineers, or other people with specialized skills in designing specific things, don’t take such considerations into account, requiring the intervention of “designers” who have no specific skill in designing the object in question.

            1. Patrick Maupin

              NONE of them are simply “domain-general designers”.

              BTW, I should make it clear I have no problem with the field of usability engineering. I just object to the appropriation of the label of “design” to this to the exclusion of everything else.

              Sorry, didn’t realize that was the strawman I was arguing against.

              Aaaaand we’re back to pretending that engineers, or other people with specialized skills in designing specific things, don’t take such considerations into account, requiring the intervention of “designers” who have no specific skill in designing the object in question.

              How do you know the designers have no specific skill? I mean, sure some skillless people probably call themselves that and pull wool over peoples’ eyes for awhile, but my assumption is that anybody who is continuously gainfully employed for a few decades is actually bringing something to the table.

              My job title is “Senior Member of Technical Staff, Systems Development”. What is Systems Development? Well, it’s just design at a different level. We have plenty of great hardware engineers who have no idea that this tweak to a register set would make it infinitely easier to program. We have plenty of great software engineers who might ask for a “tiny” change to the hardware because it will make their lives infinitely easier — never mind that such change will double the size of the hardware. And those software engineers are so focused on the nuts and bolts of what they are doing that they might create an interface that the average customer would find useless. Somebody has to tie it all together. Part of it is just thinking about it at a higher level, but part of it really is a skill that many people in more specific disciplines just don’t have.

              So if I were to see the job title “designer” I would have no preconceived notion that it’s not in reference to an MIT-trained engineer like Norman.

              (BTW, I think it was Doug Englebart who invented the mouse.)

    2. the other rob

      In the first sentence underneath the chart, I think that you may have meant to write “diagonally” rather than “orthogonally”, since the arrow in question isn’t perpendicular to anything else in the drawing. I’m mildly surprised at being the first jerk to point that out.

      I too am vague on the concept of “design” as an academic discipline, but have sent a link to this post to a friend who has a PhD in the subject and teaches it at a university in England. Perhaps he will enlighten us.

      1. SHG Post author

        You’re technically correct, but I use “orthogonally” as a remembrance of an old buddy who is no longer with us, as it was his favorite word. It’s just a little inside joke here.

            1. the other rob

              It was, in part, an attempt at a pun – “obtuse” being also a term from geometry, describing a type of angle.

Comments are closed.