I am going to be arguing that the structure of the Public Defenders office allows for better services to be provided due to the oversight and lack of perverse incentives from profit margins. I will then argue that the Government has a duty to provide an equal defence and prosecution.
- Public defenders would be an equal but separate department to the public prosecution service
- Both would be held to the same standards and be given the same budget
- No one can buy a private attorney to represent them at a criminal trial but this is allowed in civil court
1. Quality of Service and Incentive Structures of Lawyers
Incentive structures and oversight are the ways in which we can check and promote effective legal work. These structures are very different in private practice (PP) and Public Defenders Office (PDO). To start with each PP has a different oversight method however each are concerned with profit margins because they are run as companies. They need to worry about profitability and they also have incentives to make as much money as possible which means they have incentives to increase prices and do as many "billable hours" that are not necessarily helpful to the client. On comparison the PDOs have more nationally approved guidelines to work with and more oversight just being part of a Government body. The incentives of each lawyer is changed in that they are assessed on getting the best outcome for their client rather than putting in the most billable hours. This leads to a client focused structure that is more efficient and more effective. A few quotes from a in depth research paper highlight this:
"The staff, almost all of whom had previous experience of private practice, valued what they saw as the client-focused, not-for-profit, quality service principles of the PDS. They acknowledged that the PDS approach was possible because of the way in which the service was resourced, but were also clear that the quality, experience and commitment of PDS staff themselves played a considerable role in delivering these principles. Generally they felt that they worked under a system that enabled them to provide a better, generally more holistic service and to adopt a more rigorous approach when representing their clients."
"In this respect, perhaps the greatest strength of the PDS, in comparison with private practice, lies in its ability to present good information, well communicated to clients in well structured files. It is possible that these results are partly attributable to the extra time available to legal staff in the PDS given their smaller caseloads during the period of the research. However, the quality standards achieved are also likely to be the result of the development and refinement of systems across the PDOs in terms of standard forms and letters and the case management system (CMS), and of training and staffing associated with implementation of these systems, including each PDO having a quality manager."
"There was evidence that PDO advisers were more likely to attend in person on clients held in police stations than their private practice counterparts. There was no consistent pattern across the PDOs as regards the amount of time spent on police station advice cases or in attending on the client, in comparison with private practitioners in their areas. However, there was a clear pattern in several of the areas of clients being advised to exercise their right to silence more often by PDO advisers than by those from private practice. This pattern of advice appears to have led to more positive outcomes for PDO clients in police stations, with their being more likely than clients of private practice not to be charged or summoned for a criminal offence."
The last quote I find particularly interesting. PDOs are seemingly more likely to give out advice that has the priority of advantaging the client where as the PPs are more likely to give out advice that makes the case run longer hence they have more billable hours. I believe it is illegitimate to allow people to profit off the vulnerability of a client especially when it is clear that these incentives mean that the advice given is not what is in the best interest of the client. I will now analyse this as my second argument.
2. Government's Duty to Protect the Right to a Fair Trial
The Government handles every prosecution however they say that it is their duty to provide a fair trial for people. The Government and only the Government should held accountable to the justice provided in their country. The Government is bound by article 6 of the European Convention of Human Rights [http://www.equalityhumanrights.com/sites/default/files/documents/humanrights/hrr_article_6.pdf] therefore they should be accountable fully to the people how are being detained and tried. This is particularly important in criminal matters because is the Government that has set out what is a criminal act. The Government should therefore not just be responsible for those prosecution of those they have deemed criminal but also the defence of that person.
I will make this a short opening (mostly because I managed my time badly this week) and leave it as a principled argument. I look forward to the rest of the debate.
Return To Top | Posted:
2016-03-02 12:53:51 | Speak Roundadmin (CON)
The primary way private practices profit is by winning trials. If you tend to win your cases, you can command higher fees. Likewise, providing a better service, being more efficient, and being more effective are all things that people are willing to pay for. If it is true, as pro claims, that money is an incentive to lawyers in private practice, then the remainder of pro's case - substantially, that private practice lawyers are incompetent - simply does not hold.
On side negative I affirm that value of a public defender system, but deny that exclusive representation is a good idea for criminal trials. First I'll explain who is affected worst by this model - spoiler alert, it's the poor. Second I'll talk about specialization, and why criminal trials need it. Third I'll demonstrate why oversight is fundamentally irrelevant to this debate. In my second speech I'll talk further into the psychological motivations of lawyers, and muse on the role of the state in a supposedly democratic world.
For those unaware, criminal law is when the government sues you. This is distinct from civil law, where somebody else sues you. Only a lawyer could come up with names this confusing, so you know what I'm saying must be true. Criminal law includes everything from parking tickets to murders. The "defendant" is the person being accused of doing a crime in a trial.
I think it's very important that we understand what exclusive representation really means. It means that you are not free to choose your own lawyer, but are forced to have one assigned to you by the government. The motion precludes representation by anybody except whoever the government lottery determines on your behalf, as the government runs and funds public defenders' offices. So in a criminal trial, the same power that is prosecuting you would also be your only defence.
The most important stakeholders in this debate are defendants - some guilty, many not - who are forced into court to defend their liberties. Both of pro's key points underscore this value. It's no secret that the poor and marginalized groups in society tend to make up a greater proportion of those prosecuted, and ultimately, convicted. This is due not only to the skill of private practice lawyers, and the wealth of those able to afford them - it's also because of the institutional biases which, frequently, made them poor in the first place. So if the prosecution is biased in criminal trials against the poor, marginalized groups, then it only stands to reason that the public defender service would have effectively the same issue.
Right now, under the status quo, public defenders achieve generally poor results for their clients - who also happen to be those who can least afford it. This is because of poor funding, high workload for public defenders, and several other factors that we'll get to in this debate. Often, people are better off begging a private lawyer for some pro bono work than dealing with the public defender service. Pro's model inherently involves a large increase in funding for the public defender service, or alternatively, a large decrease in funding for the prosecution service, the latter of which would likely be politically impossible and criminally immoral. However, the additional funding ultimately comes out of the pockets of taxpayers, who are, by and large, wealthy. This creates in the minds of the Mr Scrooges of the world, the illusion that they're bankrolling the crimes of the poor, an illusion that's difficult to shatter. Naturally that's not what they want, so this process exacerbates the false division between the haves and the have nots - the very root cause of the institutional biases pro actually wants to diminish.
In real terms, that means a public defender service that increasingly faces a hostile judge and jury when they take on a poor client. And it means clients who become increasingly disenfranchised from the political process of one of the most important branches of government. Right now, a serious problem is that many believe the law doesn't work for people of their background. Legal outreach programmes have done much to combat that illusion, yet ongoing scandals like police filmed shooting fleeing protestors continue to add fuel to the fire. We don't need to compound that by, for example, refusing to allow poor groups to represent themselves, assigning them lawyers who may be incompetent.
I'd like to take this opportunity to briefly counter this whole "profit before people" argument again. People don't have to use private lawyers. They can choose to use public defenders - but most choose not to. That's good, because there are hardly enough as is. But the point that people routinely choose not to do so is not because the people are misinformed or want to go to jail - it's because private practices tend to win more, and provide better service. In truth, both public defenders and private practices have incentives to do what's best for their clients - be that monetary or moral. And I also deny that private practice lawyers are generally immoral any more so than public defenders. Many are former public defenders themselves, this being a popular option in many places for young lawyers coming out of university. The number of such lawyers willing to do additional work for clients pro bono is proof enough of that!
Criminal trials are incredibly complex. This manifests itself both in the evidence - for which the court usually hears from specialists in the field - but also in terms of the legal issues involved. That's why so many criminal cases are appealed - the law itself around some crimes can be a bit murky, and the laws about procedure and evidence even stranger.
If you open up the phonebook looking for a criminal lawyer, you'll see that generalist criminal lawyers are rare, and tend to be part of larger organizations that can draw upon other specialists within the same organization as and when required. Instead you'll find lawyers who specialize in offences as specific as, say, drunk driving. Less advertised is extremely specialized criminal law, for example the sort used in international tribunals. Such specialist lawyers are relatively efficient at a narrow range of legal services, which allows them to provide better services for cheaper via the process of specialization. The same thing happens in civil law, for example family, employment or trust lawyers.
This doesn't happen on its own. It's a consequence of an open market that allows lawyers to find niches in the law and exploit them. The number of lawyers in a field is checked by the demand and wages, ensuring coverage of the complete spectrum of legal problems is always sufficient. When somebody is employed as just a "public defender", however, they don't get the opportunity to specialize, or even to progress in any way. Such developments are also difficult to account for internally: even with substantial reorganization of public defenders, clients choosing who they think would be best for their case will always be more efficient than government bureaucrats choosing the same.
It is also more important for defenders to specialize than the prosecution, as typically the prosecution has a significant length of time prior to a trial to research the legal issues while the police etc. gather the evidence required for a conviction - a time that the defence may not have access to. In particular, judges are accustomed to providing a limited period of time for the defence to do their legal research, in the best interests of the doctrine of due process.
What that ultimately means is that lawyers are less able to understand the legal issues involved with trials under a pro model, leading to reduced representation for clients, and more miscarriages of justice.
Right now, bar associations provide oversight for lawyers. The rules of such organizations typically have a democratic legal basis. As such, they are incredibly efficient at handling allegations, true and false, of misconduct in this important profession. Both of us agree that misconduct, especially in a criminal trial, is a serious and terrible thing when it happens. And by the way, bar organizations monitor all lawyers, including public defenders and government prosecutors.
I don't believe it was my opponent's intention to remove bar associations and replace them with politicians. If it was, let me do away with the argument by saying that bar organizations are usually fine, and politicians are usually slimy used-car salesmen. So oversight - fundamentally - would not change. Further, even if I'm seriously misreading this argument, the whole point of oversight (and the reason why external non-government agencies do it right now) is that it's done independently. That way you can ensure that such oversight is fair and unbiased by institutional factors.
To answer the European Convention on Human Rights: I don't think this debate is fairly set exclusively in Europe, but just look at how European countries handle this problem right now. They use bar organizations. They debar poor lawyers. There's nothing particularly difficult about it. What's more, you don't increase government accountability by taking more control of the legal system. That's like saying you take more accountability by the environment by buying more land - in reality, it can be good or ill. With governments constantly changing, there can be little doubt that a government accountable largely only to it's own payrolled staff in the public defender's office may eventually become a government that's not accountable at all. If government oversight is the aim, the model hardly solves for it anyway.
The resolution is negated.
Return To Top | Posted:
2016-03-09 10:16:08 | Speak Round