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…
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.
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:
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.