Short Take: A Rate Too Great

There was a quote in Bret Stephens’ dreaded op-ed about campus kangaroo courts that struck me as extremely dubious (and more than a wee bit self-aggrandizing), and likely to whip up some backlash.

Kimberly Lau, an attorney at Warshaw Burstein, has represented over 100 defendants in campus sexual-assault cases. She described to me sitting with a client in a campus tribunal where she was forbidden from speaking. The accuser appeared via Skype but did not face the accused.

There are a handful of lawyers who have taken up the representation of the accused in Title IX campus sex hearings. They tend to be very self-promotional, some even shamelessly so. I don’t know Lau and don’t mean to impugn her at all.

I asked Lau how many of her cases were ultimately resolved through exoneration or a financial settlement. She estimated about 90 percent. But that, she adds, is the good fortune only of those who can afford high-powered representation.

Wait, what? Ninety percent? That’s . . . astounding. When you take into account that the lawyer sits there silently, unable to open, cross or close, it’s damn near miraculous. In the complete absence of due process, Lau has a 90% success rate? It could be that her clients are the most palpably innocent accuseds ever, or that her clients’ accusers are the biggest, most incredible, liars ever, but still. Of course, they have “high-powered representation,” even if she says so herself.

But this doesn’t further the argument that the deprivation of due process is a problem in need of fixing. Quite the contrary.

Whether one agrees with a preponderance-of-evidence standard turns largely on whether one thinks that women are more likely to lie about sexual abuse, or men more likely to lie about consent.

If 90 percent of represented accused men get exonerated, as Mr. Stephens writes, it seems that a lot of doubt is being raised, playing on an age-old stereotype that women cannot be trusted to tell the truth.

What is almost invariably missed by those who believe that the standard of proof is the problem here is that under the usual she said/he said scenario of what transpired in a private setting where no neutral witnesses can testify as to what transpired, that the accused must win unless he comes off as deceitful. The answer is obvious to a trial lawyer: if the finder of fact is confronted with two credible witnesses telling irreconcilable stories, then the accuser has failed to overcome the burden of proof, even under the preponderance standard. They’re at 50/50, and that’s not good enough.

It does not mean, as the irrational leap of logic suggests, that women cannot be trusted to tell the truth. It means that women telling the truth are neither more, nor less, believable than men telling the truth. Moreover, if the single investigator or the critical feminist theory prof is exonerating the accused for this reason, then they are doing an exceptionally fine job.

Could the 90% claim be based on this, that the preponderance standard works fine, perhaps too well, if the accused is represented by mute counsel? It’s possible, but highly unlikely. Much as the she said/he said scenario happens, there is usually additional evidence as well, from friends to whom the parties spoke, to texts between the parties, to observers beforehand and observers afterward.

Rarely is the issue whether sex happened, but the surrounding circumstances. And there is usually something, some admission, some text, some observation, that tilts the balance one way or the other. So how then does having a “high-powered” lawyer sitting silently in the room disrupt this balance? If we assume that 90% of the accusers aren’t lying, then something is horribly wrong with this scenario. Remember, the point of a system isn’t to free the guilty, but to not convict the innocent.

23 comments on “Short Take: A Rate Too Great

  1. B. McLeod

    First, it is hard to gauge the significance of a 90% rate reported by a single lawyer. Second, it tells us something about the people running the chambers that the mere presence of a “high-powered lawyer” has any effect. It seems to me that the only significance of a lawyer present-but-not-participating is to signal the inquisitors that whatever they decide to do may not be the end of the matter. To the extent the tribunals are composed of gutless minions who were intimidated by fanatics into setting up the star chambers in the first place, it is not surprising they would be counter-intimidated by the imminent prospect of being sued in federal court for violating the due process rights of the accused.

    1. SHG Post author

      If there’s a first, there’s usually a second. Just sayin’. More to the point, there is another reason more consistent with Occam’s Razor.

  2. Raccoon Strait

    High powered lawyers. Are those the ones that use 220 V rather than 120? Or maybe they are 24 V DC rather than 12 V DC or 6 V DC? It seems that regardless of ‘power’ sitting in a tribunal, mute, they are more likely to be solar powered and sitting in a darkened room.

  3. Corey

    “I asked Lau how many of her cases were ultimately resolved through exoneration or a financial settlement. She estimated about 90 percent”

    It seems to me that “ultimately” is the key word. Lau does not appear to claim she’s successful during the initial campus hearing. She could mean that once the process moves to an actual court she is highly successful, though it’s possible I missed something. Nothing about the quote is clear.

    1. SHG Post author

      I’m always fascinated when people apply their personal gestalt to make sense of a sentence that says something that is deeply problematic. I take the sentence as written, but then, I’m disinclined to engage in rank speculation because it makes the claims less absurd.

  4. PseudonymousKid

    Who gave Lau permission to tell the muggles about lawyer magic? Through the mystic power of The Law we can accomplish mysterious and wonderful things, but if the muggles ever found out the truth we’d be screwed. Never they mind that the issue is now more expensive and more complicated than it ever needed to be. That’s the price of magic. I mean we both know she’s busy casting her spells and earning her retainer and not just sitting there. Lau just needs to lose more so the muggles don’t get suspicious. Though good job trying to provide static, Pa.

  5. MonitorsMost

    There is also case selection bias here. Students who commit a provable sexual assault have more pressing concerns than hiring an attorney for the campus administrative hearing. The people who go out and get attorneys are those who subjectively and plausibly believe they are innocent and where the investigator’s case is marginal.

  6. Lawrence Kaplan

    Of the 90 per cent what per cent were exonerated and w on what per cent was there a financial settlement?

    1. SHG Post author

      You see the same sentence I do. Why would you ask this question? Do you expect the sentence to magically change in answer to your question?

      1. Lawrence Kaplan

        SHG: I didn’t intend it as a question to you. The point i was trying to make, perhaps ineptly, was that if of the 90 per cent, there are, say, financial settlements in 90 per cent of the cases and exoneration in the other 10 per cent, the conclusions are much less impressive.

        1. SHG Post author

          Isn’t that somewhat obvious? That said, the ratio of campus hearings to post-hearing 1983 suits strongly favors hearings (as is invariably the case). If you hear the sound of hoof beats, don’t assume it’s a zebra.

  7. bacchys

    The mute counsel is a witness to the proceedings, and so might have a dampening effect on the zeal to find against a defendant based on less than a preponderance of the evidence.

  8. Erik H

    The presence of a non-compliant third party deters the worst of the lying, bias-confirming nods, and one-sided analysis. But with or without a lawyer I’d bet you could do about as well (in the swamp of college star chambers) by requiring sworn testimony from all witnesses and investigators, and recording everything on video. The mere existence of a record reminds people of other courts and other oversight.

    I once had to meet with a hostile town committee who had given me no end of shit in prior meetings. I arrived with a video camera and tripod. When they asked why I was taping, I explained it was for a court record. That meeting had much less shit and my client won.

    1. SHG Post author

      Your war story, cool as it is, may not work the same in the insular world of academia. Town committeefolk need to be elected and not lose the town money is subsequent lawsuits. While outside oversight almost always has its impact (which is why trials are public), is it really enough to overcome the inherent bias and pro-victim training in academic hearings? Highly doubtful.

  9. Matthew S Wideman

    Reading the comments in the NYT article is very disturbing. Seemingly smart people advocate for the end of due process and for gross over reach in administrative law. The muggles certainly are not being taught enough civics in school.

    I know that is not something always talked about in the comments. But, reading muggles actual thoughts on a topic are interesting and distrurbing.

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