malloc wrote: ↑Tue Oct 06, 2020 9:14 pm
What exactly distinguishes an effective lawyer from one considered less competent? If the law prohibits theft, it seems like anyone caught stealing (assuming the same item and circumstances) would face the same consequences regardless of who represents them in court. Yet popular culture and the news make it clear that the right lawyer can somehow make an enormous difference. What are the good lawyers doing differently that makes them so valuable?
OK, not a lawyer, I merely have an excessive interest in 'true crime' stories.
I think this may be a surprise to some, especially to Americans (*) but lawyers are really essential to civilization.
My apologies for the long post, but it's not a very intuitive idea, and it needs a proper demonstration.
(*) You guys
do have an awful lot of lawyers.
First off: I'm not a lawyer. Besides, while I've picked up a little about French legal proceeding, but don't know that much about American ones, except from the 'Your Honor' and 'objection' stuff we've all learned from TV. That said, while I may make mistakes, I don't think there's anything deeply wrong with what I'm about to say. Oh, and I'm focussing on criminal lawyer here, BTW
So, first off, law is highly technical. It needs to be: because we adhere to the rule of law, the circumstances have to be spelled out somewhere in excruciating detail. These can be spelled out in law codes, or based on precedent. That's why judges and lawyer are professionals, and just like any technical trade, they use a lot of specialized vocabulary.
Criminal trials involve protocol, and a good deal of it. Part of it is
because it looks cool to give the proceedings the appropriate gravitas, but it mostly serves the purpose of taking care of the details (who's the judge? are we trying the right person in the first place?) so everyone can focus on the legal business.
All of this is obscure to outsiders. It's not that law people are deliberately being obscure: it's just that in daily life, we never have to speak about "benefit of bargain" or whatever and we get to see a criminal trial maybe once or twice in our lives.
So if you and I were to stand trial, we'd be completely lost, amidst people who enact strange rituals and speak an incomprehensible jargon. Facing time in jail, we'd be stressed out of our minds, and nobody would be inclined to show the slightest patience (first, because there's no time for that, second, because there's a fair chance everyone's convinced you're guilty already.)
So we'd need a guide and an interpreter, and that's what a lawyer is.
That's true for you and me, and all the more for actual defendants. The vast majority of defendants are from unprivileged social classes while judges are overwhelmingly in a high social position. That'd be a grave source of misunderstanding even under normal circumstances.
Sometimes lawyer arrange for an
actual translator as well. (The court provides a translator as a matter of course, but if the evidence in your favor has to be requested from your home country through the Ruritanian embassy, you're out of luck. That happens a lot to asylum seekers.)
Of course that role can make a role of difference. If you're at least aware of what's going on and able to translate your case into the appropriate lawyerese, you're going to make much better an impression than if you try to do it alone. For that matter, judges don't like people who defend themselves alone (if it's allowed in the first place): first, yes, that's unfair, but some of them'd rather talk to another white law school graduate, second, all of them are chronically overworked: they don't have the time to go through the basics.
And we're not done yet!
A good criminal lawyer will know about criminal cases, police procedures, and how judges and police think. Typically layfolk don't.
Case in point: the most common strategy is to lie outright. The defendant just didn't do it. The thing is, it rarely works. Neither police nor prosecutors are stupid: the evidence is right in front of the judge and lying will just make infuriate the judge.
(Not that judges are ornery types, but the best case scenario is to reinsert criminal into society: there's no hope of reinsertion if you don't even admit you did wrong.)
Or maybe the opposite occurs. Maybe the evidence isn't just that compelling. Police, prosecutors and judges are under strong pressure to send criminals to jail. The thing is, on a societal level, we've made a collective committment
not to send innocent people to jail.
The judge might be sorely tempted to judge on incomplete evidence: it's the defendant's lawyer's job to show where and how it's lacking. I think Americans judges and juries need to be convinced beyond or within reasonable doubt, or something. Typically a lay person won't know where 'reasonable doubt' lies: a lawyer will.
Again, a competent lawyer has a better chance of convincing his client to forget about stupid strategies.
Then, assuming the defendant is proved guilty, there's the question of the sentence.
There are precedents to consider. A lawyer digging up obscure precedent feels like cheating, but really it's not. If Bob gets ten years for aardvark-bothering, how is it fair, when aardvark botherers typically get five years?
Plus, the judge might not be aware of the precedent, or the prosecution (which is very sad about the poor aardvarks) conveniently 'forgot' about it.
Besides, in real life, the circumstances are
never the same. Maybe Bob's just turning his life around, maybe it's just a juvenile mistake, maybe in his case jail would only make things worse and community service would be better suited. Considering this is the judge's duty of course, but he or she needs help. (a lawyer can focus on his clients, indeed that's what he's paid for; a judges has a dozen of trial cases to consider, and all sides to consider.)
malloc wrote: ↑Tue Oct 06, 2020 10:35 pm
What about felonies? Could someone really shoot an infant in the face and avoid conviction simply because someone forgot to dot an "i" while writing the police report and the lawyer noticed this?
In spirit, it's not entirely wrong. And it's not a bug in the judicial system, it's a feature.
In crime fiction, the cop hero is often grumbling about the paperwork, and disregarding the rules. In fiction, we accept that Harry Bosch doesn't follow procedures, because we're privy to his thought and we know he's the good guy. In real life, the case might be assigned to the good guy (most of the police force, I'm sure)... or it might be assigned to the racist lazy bun who just pin the stuff on whomever looks most shady.
The rules and paperwork are certain counterproductive, and there's certainly paperwork for the sake of paperwork, but at heart they're in place to make sure the police doesn't go around doctoring the reports, beating the perps or making up evidence.
Let's make up a particularly outrageous example.
Charlie Manson comes back from the dead. Soon after, women are killed, HELTER SKELTER is written in blood, the works.
Manson shows up in court; there's DNA and everything.
Manson's amoral attorney points out something wrong with the DNA evidence. The timestamp on the report isn't in the proper font or something: Manson is free.
Well, that's actually a net win for society! Why is that?
- Maybe the timestamp is wrong because the report is a forgery. They just didn't have any evidence and they wanted to stop Manson because it was too late. Actually, Manson didn't do it. It was actually John Wayne Gacy.
- Maybe Manson did it. But there just wasn't any evidence. So then? We can't convinct people without evidence! Shouldn't we make an exception for Charlie Manson? But how do you know it was Manson without evidence?
- Maybe the lawyer was just nitpicking and it worked. I talked about rules and procedures earlier; if you have rules and they aren't enforced, you don't really have rules. Too bad for Charlie Manson, but the 'DNA report timestamp' rule will be enforced in the future, which will save innocent people down the line. (If you don't require evidence to be lawyer-proof, well, police just makes it up and lots of people end up in jail. Source: any dictatorship ever.)
In practice, judges are not stupid. You need a pretty serious violation to make an entire judicial procedure invalid, and a simple mispelling won't do it. Yes, it's probable a lot of killers get away since they're not allowed to torture prisoners; but you get a whole lot less false confessions too. Again, we don't mind Batman torturing people because we know he's the good guy. But in real life, we prefer when the police officer in charge of
our case isn't allowed to beat us up, you know, just in case he is not Batman. If ACAB now, imagine if the rules were more lenient... What I say about police applies to judges too. Remember the saying: 'hanging judge'?
Credit where credit is due: most of this I learned from the blog Journal d'un avocat, and this post:
https://www.maitre-eolas.fr/post/2004/0 ... -coupables (
How can you defend the guilty?). In French, unfortunately, and once again the Machine Uprising fails to deliver: Google Translate mangles it horribly. @zompist: I suppose you could use as a resource for designing Verdurian law
