Sunday, December 08, 2013

Why We Don't Have the Greatest System in the World

Anyone who has served on a jury has heard a speech from a judge about our criminal justice system is the greatest in the world because the citizens participate and act as finders of fact.  The judge doesn't distinguish our system from genocidal regimes in which the citizens participated and found facts (as in Nazi Germany or Rwanda).  Here's what you may not know about the jury system in our country.

Jurors are told that they are the judges of the case, while his or her honor simply presides neutrally over the trial.  Nothing could be further from the truth.  The jury only hears facts that the judge has predetermined that they can hear (much of the evidence is excluded from every criminal trial).  Sometimes this benefits the accused but more often the prosecution.

The judge will further tell you that you can only judge facts as s/he will give the jurors the law which they have a duty to follow.  That is a blatant lie.  What the judge doesn't tell you is that while you may have a duty to follow the law as determined by the judge you have the right not to do so, particularly if you perceive the law to be unjust.

Similarly juries are not allowed to consider punishment.  Punishment is the judge's domain.  That means ultimately the jury is not the judge of the case.  It is the judge.  In many trials if the jury knew how draconian the punishment is their decision about whether or not to apply the law would be affected (which is why they don't want you to know the punishment).

The judge will also tell you that you have to evaluate the testimony of police officers in the same way as any other witness.  Then the cops come in one by one in full uniform with a gun conspicuously at their hip and give the official version of the case.  You can not help but be influenced by the pomp and circumstance of the officer's appearance.  So you will tend to believe a cop even if you really try to be neutral and you will say to yourself "something must have been done and badly done or we wouldn't be having a trial.

This leads to the biggest joke of all which is that the defendant is not obligated to take the stand and the jury shall not take his/her silence as evidence of guilt.  In most criminal trials the accused does not take the stand and despite the instructions of the judge the jurors are affected by that.  I have never tried a case, win or lose, where jurors didn't say to me afterwards "why didn't we get to hear his/her side."

These are a few reflections on our system.  This discussion is only the beginning.  It doesn't take into account racial bias, unrepresentative jury panels, capricious judges or prosecutors who lie.  When all this is taken into account I can think of a number of justice systems that work better than ours.  I am just not allowed to say that to the jury.

Wednesday, December 04, 2013


Over the last 5 or 6 years Avvo has succeeded in convincing consumers that attorneys graded highly by Avvo will give them free help and advice.  Of course many of us regularly answer legal questions in our field so the promise is partially true.  But where Avvo has gone over the top is in trying to set standards for the legal community which is actually regulated by the state bar associations.  Avvo pretends to judge the quality of attorneys who donate their time by standards but they won't reveal why except to say (like every one else on the Internet) "we have an algorithm."

First look at the list of highest ranked attorneys (I am one).  Some of them regularly answer questions but the majority have never made any contribution to the Avvo community.  How do these attorneys rate a 10 when they don't participate?  Beats me.  Then look at the answers over a broad range of categories.  The most popular answer is "Hire an attorney,"  seconded only by "I agree with my colleagues."  What that contributes to the discussion is dubious.  But many attorneys earn high Avvo rankings by typing out these empty headed answers.  And they receive the same Avvo credit as an attorney who gives a pertinent and helpful answer however long or short.

Avvo has now started censoring answers by taking down an attorney's comment it doesn't like.  The excuse is "violates community guidelines."  But in what way and which guideline?  Avvo won't say.

Now the real motor that drives Avvo is the answers provided by attorneys for free; by what standard does Avvo (which is not a company of attorneys) judge these answers?  Occasionally a more than usually stupid question may be answered sharply.  For fear of offending consumers Avvo takes these down, again according to unstated principles.

The biggest scam is that you will see the word PRO by some attorney listings.  This seems to be an endorsement but it is not. PRO simply means that the attorney pays Avvo a monthly fee supposedly to have his account activity monitored.  All fine and good but the designation PRO is false and misleading.

Avvo is not going to go away but before you hire attorney look further than the Avvo ratings because they mean nothing.  Absolutely nothing.