The Unreasonable Lawyer Standard

New York criminal defense lawyer Nathan(s) Burney has a  lengthy and thoughtful post about a rarely discussed problem with the legal system and its various participants. The gist is that our system is conceived based on an assumption that the key players, from defendant to juror, prosecutor to cop, are rational actors, but they’re not.

[Nobel Prize winning economist Danny Kahneman’s] Prospect Theory shows that people aren’t rational. They’re more risk-averse than they ought to be, when choosing between things posed as “gains.” When options are presented as “losses,” people are prone to take more risks.  A year added to a sentence is significantly more valuable to a client than a year whittled off, though they both consist objectively of the same 365 days.


This has HUGE implications for criminal law, beyond the tactics and strategy of a particular case. Our entire jurisprudence is built on the presumption that people, in general, are rational actors.


In the course of explaining how this impacts the critical players in the system, criminal defense lawyers were somehow left out of the mix. Are we the only rational people in the mix? Come on. In a perfect world, we’re detached and unbiased, capable of making unemotional assessments of both the case, our client and our adversaries. And ourselves. But then, in a perfect world, everyone else is a rational actor too, so there’s no basis to reserve to ourselves such a lofty place.

Nathan(s) has done an excellent job of discussing how the Prospect Theory affects the decision-making of defendants, jurors, prosecutors and police, and I urge you to read his post. There’s no purpose in my repeating it here, so this post will be limited to the player left out, the criminal defense lawyer.  In his example of a defendant failing to rationally assess risk, Nathan(s) states:


Your client’s looking at 10 years after trial, but you figure a 70% chance of acquittal? Rationally, going to trial is the equivalent of taking 3 years. If the offer is 7, the rational decision is to go to trial. But your client doesn’t see it that way. His starting reference point is that 7-year offer. He just sees those extra 3 years if he loses at trial, and they far outweigh the 4 years he objectively saves by going to trial — and they even outweigh the 7 years he saves if, as is probable, he wins.

My very first client asked me the question that’s been repeated thousands of times since: what are my odds of winning? Nathan(s) example uses a 70% chance of acquittal. In almost 30 years, I’ve never been able to answer the question that well.  Back then, I used to say, “I’m not Jimmy the Greek; I don’t do odds.” While experience has allowed me to make gross assessments, such as “excellent” or “not a chance,” to suggest that we possess the ability to put such a fine point on the percentage is, in my experience, ludicrous.

There are so many variables that go into the ultimate result that are unknown at the time a decision on whether to take a plea has to be made that it can often be a blind guess. Whether the evidence will play out as the prosecutor suggests; whether the jury will be swayed by emotion, anger, hatred, bias, sympathy, empathy, and the rest of the panoply of feelings that trump facts in almost every trial.  We usually don’t have a firm knowledge of the prosecution’s evidence, though few realize how little we have to work with until they find themselves in the defendant’s chair.

And then there’s our own internal issue, the belief that we, gladiators, hired guns, fighters for freedom, can pull it off. Criminal defense lawyers tend to believe in themselves and their abilities to make magic happen as an occupational necessity. It’s impossible to stare down the government if you don’t. At the same time, this belief can easily skew our vision of the defendant’s chances at trial. We wrap ourselves in our cloak of invincibility and believe we can do anything.  We find out when the verdict comes in how right, or wrong, we are.

On the other hand, it is often in the financial self-interest of the criminal defense lawyer to advise the defendant to cop a plea.  You’ve been paid, and should the defendant take the offer, the case is over. No more work to do. As I’ve explained more times than I care to remember, when defendants complain afterward that their lawyer was never willing to take the case to trial, when they retained a guy with a fee that was a fraction of what other lawyers, the ones who would be just as happy to take a case as not, charged, did they not realize that the lawyer never intended to try the case? Do the math, guys. At least this lawyer’s fee was rational, albeit utterly deceptive, unethical and irresponsible.

To the extent that criminal defense lawyers have the capacity to make a neutral and detached assessment, that comes with experience combined with competence. After years of working in the well, the criminal defense lawyer has a basis upon which to provide some insight to predict the outcome.  The rookie, on the other hand, has nothing. Without sufficient trial experience, it’s impossible to assess the likelihood of a positive outcome. It’s pure bluff and swagger, with absolutely no foundation.

A smart young lawyer will run it past a more experienced lawyer, but the prediction still has to be tempered by the lawyer’s trial skills, a serious unknown. Whether the rookie will tell his client that he really doesn’t have a clue because he lacks the experience to offer anything remotely resembling a valid assessment is another ethical question.  Self-assessment is notoriously unreliable.

As Nathan(s) asserts, we have constructed a system that assumes all the actors are rational, when the reality is that all the players suffer from some degree of color blindness.  There are better and worse, and that goes for everyone involved. But the criminal defense lawyer is no more immune from irrationality than anyone else in the game, and the realization of this deficit is critical to overcoming our bias and providing the most meaningful advice and counsel to our clients as possible.