While the debate about Avvo ratings continues, a very good question was posed at Mark Bennett’s (with 2 “t”s) blog, Defending People.

Interestingly, you also suggest that whether a defendant is found guilty or not guilty depends pretty much wholly on who the defender is. Doesn’t the available evidence in the case have anything to do with the outcome? Doesn’t this part speak for the whole at all?

Mark’s answer was spot on:

You can’t change your facts or your luck; the only factor under your control is who you hire.

This raises the issue of lawyer fungibility.  For those of you who prefer to speak English, whether one lawyer is the same as another, and therefore interchangeable.  While lawyers recognize vast differences in skill level and experience, clients lack the tools to either appreciate these differences or assess them.  How would a client know a good lawyer from a bad one?  How would a client even begin to find out.

The knee-jerk answer is through referral.  Defendant asks someone, a friend, relative or the woman on the street corner (as is more often the case than we would like to admit) for the name of a “good” lawyer.  But as experience shows, clients’ perception of “good” lawyers is generally outcome driven.  If a lawyer beat a case, or got a defendant a good deal, he is “good” lawyer.  Conversely, if the lawyer lost the trial, he is not a “good ” lawyer.  Again, as lawyers we immediately recognize the fallacy of the outcome drive endorsement.

Next is the personal appointment.  Potential client meets with lawyer.  While common sense tells us this is the best method, experience tells us that it too has its flaws.  Clients look down two paths to determine whether the lawyer is “right” for them.  Path 1 is the “nice” lawyer.  They meet and client likes the lawyer.  While likability is certainly a good trait, it bears no connection to the lawyer’s skillset.  Think about the second defense lawyer in the movie My Cousin Vinny, and the flaw of this approach becomes painfully clear.

Path 2 is the lawyer who tells the client what he/she wants to hear.  This is a dangerous lawyer, but one who is very appealing to the potential client.  Whether it is the ethically challenged tact of guaranteeing an outcome, or the merely deceptive tact of making the amorphous suggestion that everything will be okay, it is a play on the client’s vulnerability at a time when honesty and truthfulness can be quite scary.  Nobody wants to scare the client away, but in the same vein, flat out lying to clients should be frowned upon (if you get my drift).

My thoughts have always been that the best source of determining the right lawyer is lawyer to lawyer referral.  We tend to be capable of assessing each other much better than non-lawyers, right?  But this too is an imperfect plan.  First, if the lawyers are in the same practice area, why would one refer to another (unless it was an extra defendant or conflict situation)?  On the other hand, if the potential client goes to his real estate lawyer for a referral, the real estate lawyer is unlikely to have a firm idea about the quality of the criminal defense bar and will default to a referral to a criminal defense attorney he knows.  And, of course, the one he is certain will kick back the referral fee.  With shocking frequency, the attorney to whom the case is referred is not really a criminal defense lawyer, but rather a former ADA who pretends that criminal defense is in his repertoire.

And finally, there is the price shopper, which comes full circle to the lawyer fungibility problem.  Client’s first question is “how much?”  The assumption is an ad hoc cost/benefit analysis, except that it doesn’t include the benefit in the calculus.  Since there are lawyers, unfortunately many lawyers, who will take felony cases for the cost of a traffic ticket, competent lawyers are invariably priced out of this market and the generally fee structure for the proper representation of a criminal case is impacted down the line.  But the argument from the attorneys, usually young and desperate, for taking cases at such ridiculously low fees is that they either grab the money or starve.  It’s a compelling argument, as long as you don’t think too hard about the interests of the client, since these lawyers can’t afford to try cases or do research when they are doing felonies at $1000 a pop.

So we return to the Avvo rationale.  Clients, the consumers of legal services, need a better way.  That’s for sure, but unfortunately it begs the question.  Is Avvo a better way?  Stay tuned.