Let It Bleed

When medical students learn to practice, they first cut into cadavers.  Now that law schools are trying to get into the act of skills training, they are trying to follow in the med schools’ footprints, except they cut into the poor.  The poor bleed, just like the law students.

In a pair of pieces that unintentionally juxtapose a problem, the New York Times has an  op-ed by Lincoln Caplan on the 50th Anniversary of the Supreme Court’s Gideon decision, holding that the right to counsel in criminal proceedings requires that poor defendants be given a lawyer. Here we are, 50 years later, and there are some courts in this country that have yet to read the opinion.

Only 24 states have statewide public defender systems. Others flout their constitutional obligations by pushing the problem onto cash-strapped counties or local judicial districts.

Lack of financing isn’t the only problem, either. Contempt for poor defendants is too often the norm. In Kentucky, 68 percent of poor people accused of misdemeanors appear in court hearings without lawyers. In 21 counties in Florida in 2010, 70 percent of misdemeanor defendants pleaded guilty or no contest — at arraignments that averaged less than three minutes.

Probably less interesting to most people who have yet to find themselves in the well than who will be the next person fired by Donald Trump (Omarosa? Seriously?).  And thus, it should come as no surprise that warm bodies flow through courtrooms to jails and prisons without ever knowing what Clarence Earl Gideon did for them.

Which brings the next story, about Arizona State University’s law dean, Douglas J. Sylvester’s, epiphany to a place it wasn’t intended.

When Douglas J. Sylvester, dean of the law school at Arizona State University, was visiting the Mayo Clinic in Minnesota a couple of years ago he mentioned the shifting job market for his students — far fewer offers and a new demand for graduates already able to draft documents and interact with clients.

The Mayo dean responded that his medical students and graduates gained clinical experience in hospital rounds closely supervised by attending physicians.

“I realized that was what we needed,” Mr. Sylvester recalled. “A teaching hospital for law school graduates.”

What a cool analogy! Who doesn’t love cool analogies? But then, the relative cool is only proportional to how well it fits the situation.  Fewer jobs for law students plus a demand for grads with skills are certainly concerns. But not the only concerns. Maybe nobody told Dean Sylvester? I bet he knew.

There was still the problem of obscenely high and wholly unjustifiable tuition, milking applicants and their doting parents at their most vulnerable and ignorant, courtesy of lovingly offered tuition loans. If they used glorious adjectives about the back end of law school, maybe nobody will think too hard about the cost at the front end.

Then there is the numbers game of supply and demand.  Even if the law school grads are more skilled than before, there is still inadequate paying demand for them.  Twice as many are being churned out as needed, and even if they are in a better position to hang a shingle because they can’t get a job, even solos need clients.  Do clients want lawyers with skills? Sure. Does that mean that there are enough paying clients out there so that every grad can hang out a shingle? Nope. Well, they can, but they will grow very, very hungry.

It seems as if Dean Sylvester would be able to do the math. I bet his math is great when contract negotiations time rolls around, so why not now?  The only reason I can come up with is that the opportunity presented by Gideon’s failure, that there are vast numbers of unrepresented Americans compelled to face a criminal court, giving the impression of a need and a chance to practice law.

It’s a bad analogy.  These people need lawyers, desperately. These people deserve lawyers, because the Constitution provides for their right to be represented by counsel.  And lawyers are not being provided as required. Not even close.  But these aren’t lawyers. These are law students. These are fresh-faced, unjaded, highly-motivated and utterly clueless law students.  And the analogy suggests that they make their very first cut on a living, breathing human being.

Does it hurt less if the person is poor?  Will they bleed less?

And after the clinic, or intern, or whatever rebranded name is placed on the notion, comes to a close, there will still be no jobs for these law students who have now joined the ranks of unemployed graduates. They can open their 50,000 new law offices and the only phone calls they will get will be from copier salesmen and legal marketers. If they’re lucky, they will get a few calls for free answers and some pro bono representation. Paying clients? Well, not so much.

As for the poor, bleeding on the courtroom floors across America, they will still be poor, still be bleeding, but maybe have an eager, beaver law student explain that her professor says that the 4th Amendment  requires the evidence be suppressed because they have no warrant, so they should go for it.  So what if its a bit naive and less than a thorough legal analysis. The price was right, and it makes for good practice for the law student.

Lest you feel too badly for the poor defendants sacrificed on the alter of law school tuition and expediency, bear in mind that soon, both the poor defendant and the poor law grad will both be bleeding together. 

8 thoughts on “Let It Bleed

  1. Dr. Sigmund Droid

    Greenfield, I wholeheartedly agree with the idea that all accused of crimes are entitled to competent representation . . .

    However, if Wheeze the People™ are not willing to give the poor competent representation, – which we obviously won’t do anytime soon, – then the question to answer related to the rightness or wrongness of law students practicing on the wretched refuse is this: Are the huddled masses better off with law students or on their own?? . . .

    And that answer is simple: with law students, fer sure . . .

    Though having answered that question, personally, I’m still a bigger fan of the asteroid and cockroaches approach, but, unfortunately, that elegant solution is gonna take more time than the poor poor have . . .

  2. JPM

    I think your answer depends more on the quality of supervision than anything else. If the supervision is high-quality, then I would think the representation would be too. In your example, I would hope the supervisor would push the student to think not only about the legal issues but also about the consequences of losing the motion, the likelihood of losing the motion, whether the issue could be used for negotiation — in short, whether the best advice really is to fight rather than plead/try to get a better deal. I also don’t know why the assumption is that the supervising professor would be any more likely to push the bad advice rather than more thorough good advice.

    I also suspect that the supervisor WOULD, in fact, do those things. I am a young lawyer who was heavily supervised at the beginning of my practice, and I find it hard to believe that my experience is so exceptional that it couldn’t be replicated elsewhere. A couple examples:
    – When I started as a PD, my assigned supervisor/co-counsel came with me on every single client visit. Now, whenever I’m assigned a new “type” of case, or have something new and notable coming up, a supervisor will often come with me on that client visit. If the supervisor doesn’t come, we will discuss what to do, at length. There is no rubber-stamping nor any suggestion that my growth in skills or experience should take place on the backs of my clients. (If I suggested such a thing, I’d probably be fired.)
    – When I was new, a supervisor would review and discuss with me every single written legal filing, and would come to every single court appearance, even “just” a continuance.

    I would think that this kind of heavy supervision at the beginning, tapering off as one proves oneself could be provided in a law school setting. Of course, it would require viewing “skills training” not as checking “experience” boxes but, rather, the day to day of representing clients and the eventual accretion of experience that brings. It’s my understanding that that’s what medical schools do, and I just don’t see why law schools couldn’t do it as well.

  3. Nigel Declan

    But if the lawyer is taking the time to supervise all of your appearances and review your documents (at least at first), wouldn’t the poor client be better off with the lawyer’s time than that of the student? If someone who can afford a lawyer, ignoring their potential lack of information for the moment, he or she might elect to go with a less-experienced lawyer that costs less and that is certainly their prerogative. The poor do not have this luxury; they are stuck with whomever they get. It is therefore incumbent on the State to require at least a minimum (albeit presumptive) degree of confidence that comes from having lawyers who have practiced for some non-zero period of time. It does not guarantee that all those lawyers that take indigent clients may be good or even competent to represent them in criminal matters, but on average a lawyer with some experience trumps a graduate with none.

    Ideally, the courts in some of these States would start tossing charges against defendants if the State lacks a PD or other comparable lawyer-assignment scheme on the grounds that the State should not be able to benefit from a conscious decision to ignore the Constitution and Gideon. It seems far-fetched, but if 50 years has passed and certain States are still twiddling their thumbs, someone needs to deliver to them a good, hard, swift kick to the backside that the politicians unwilling to accommodate PD programs will recognize and find politically detrimental (e.g. the “law and order” candidates fiddle while the metaphorical Rome burns, with large numbers of prosecutions are tossed without trial).

  4. SHG

    There is an element of JPM’s comment that can’t be ignored. New lawyers believe they are doing a great job, whether with or without supervision.  It begs to be tested by whether or not that’s true, but there is no way to do so except to challenge JPM’s competence and quality of representation.  Such self-assessment is notoriously unreliable.

    I don’t want to respond to JPM that maybe she sucks and just doesn’t realize it. Or maybe she’s doing a fine job. Who knows? But she isn’t the first young lawyer who thinks everything is going swell, only to find out years later, when she’s got more experience and a deeper appreciation of what it takes to competently defend someone, that she wasn’t doing such a bang-up job back when, and that the supervision didn’t solve all the problems such that any new lawyer (or law student) can magically show up in court and be competent counsel.

    And I would be pretty sure that the supervisor is supervising a slew of young lawyers. Whether the supervisor is competent is another question that remains an unknown.

  5. Alex Craigie

    When I read about, and initially approved of, Dean Sylvester’s plan, I was not picturing law students standing in for criminal defense attorneys, but rather, as I did, drafting answers to civil complaints in landlord/tenant UD cases and drafting TRO petitions in domestic violence situations, only in a more organized, training hospital-like fashion. Looking back, with the benefit of 20 years experience, I don’t think I caused much bleeding, and perhaps even prevented some. Perhaps I have those rosy glasses we seem to get in our mid-40s. But the experience did help me understand what a “petition” and “answer” and “affirmative defenses” were, and how to refine a conclusory statement into useable evidence in a declaration. These are skills most law schools historically did not teach. If the schools are going to devote some of that inflated tuition toward giving students and new grads some real skills and providing “appropriate,” supervised legal services to an underserved segment of the population, I say go for it. But I agree the idea is not that revolutionary, and should not be a substitute for constitutionally-required assistance of qualified counsel.

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