Wednesday, July 18, 2007

The economics of public defenders

This weekend, the New York Times ran an article about a study showing that indigent criminal defendants represented by a public defender generally received better results than those represented by a court-appointed attorney.

Let me make that abundantly clear: The law-firm lawyers taking case assignments did worse jobs for their clients.

The Times suggests several reasons for this difference, including that the salaried defenders have more experience -- both in general and in dealing with the prosecutors -- which informs their ability to negotiate an advantageous settlement. But I'm sure those are not the only reasons.

I've been thinking about this in the context of my own career, first as an intern in a Public Defender's office, then as a government litigator, and then as a law firm associate. And based on my observations, I think I understand why there's such a dichotomy: It's a matter of law firm economics.

See, the court-appointed lawyers are paid by the hour. Therefore -- while it's always in their best interest to do things well -- it is in their best interest to take their time doing it. Government lawyers, however, aren't billing by the hour, and they generally have a large docket of cases that all need attention. Therefore, it's in their best interest to get things done, and get them done fast. This, of course, supports the study's findings that the court-appointed lawyers "let cases drag on."

But even that's kind of inaccurate. The time discrepancy is not just motivated by self-interest. To a large extent, it's because of a difference in resources. Generally speaking, the full-time salaried government lawyer is probably somewhat of an expert in the field, and they work in an office where everyone does some version of the same thing. So, either the lawyer has personally seen the same type of case before, or someone in their office has -- so the case is almost always routine. On the other hand, while the court-appointed lawyer probably works in an office with a lot more in the way of monetary resources, and might even have some lawyering experience, his or her experience is not necessarily in the exact same area, and therefore, might not translate. Plus, as the study suggested, they're more likely to be young and relatively inexperienced. So, if they haven't seen the case before and there's no one in their office that they can turn to for advice, it's an entirely new ballgame for them. An inefficient new ballgame.


Justin S. said...

People who work in public defenders offices are often also making a conscious decision to pass up high paying firm jobs to "do what's right." I think you're right about the economics of the situation, but I also think part of the equation is that people who decide to become public defenders are motivated to help their clients in the first place.

dara said...

I agree in general -- but the lawyers that agree to be court appointed public defenders would probably argue that they're doing it for the same reason -- in lieu of representing their higher-paid clients.

Plus, I know a heck of a lot of government attorneys who do it solely to gain experience. It's an excellent resume line, and usually impresses people a lot more than a random law firm name.