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Junk Justice: A Statistical Analysis of 4,400 Lawsuits Filed by Debt Buyers

April 1, 2014 Comments off

Junk Justice: A Statistical Analysis of 4,400 Lawsuits Filed by Debt Buyers
Source: Social Science Research Network

Debt buyers have flooded courts nationwide with collection lawsuits against consumers. This article reports the findings from the broadest in-depth study of debt buyer litigation outcomes yet undertaken. The study demonstrates that in debt buyer cases, (1) the vast majority of consumers lose the vast majority of cases by default the vast majority of the time; (2) consumers had no lawyer in ninety-eight percent of the cases; and (3) those who filed a notice that they intended to defend themselves without an attorney fared poorly, both in court and in out of court settlements.

This study challenges the notion that there is an “adversary system” within the context of debt buyer lawsuits. The findings suggest that no such adversary system exists for most defendants in consumer debt cases. Instead, these cases exist in a “shadow system” with little judicial oversight, which results in mass produced default judgments.

The procedural and substantive due process problems which are endemic in debt buyer cases call for heightened awareness and remedial action by the bench, the bar, and the academy. As lawyers who are “public citizens, with a special responsibility for the quality of justice,” the profession can do better. This article proposes suggestions for further study, and several common sense reforms.

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Legal Billing and Predictive Coding — A fresh way to assess your legal spend

March 27, 2014 Comments off

Legal Billing and Predictive Coding — A fresh way to assess your legal spend
Source: Deloitte

In recent years, many corporate law departments and law firms have been challenged with the task of reducing the costs of delivering services. Similar to other businesses, in-house and outside counsel have sought to streamline activities and improve efficiencies. In order to do that, counsel needs to be able to assess their past and current billing activities.

Since their introduction about twenty years ago, Uniform Task-Based Management System (UTBMS) codes have brought some clarity to the billing and analytics process, even as the codes have suffered from significant limitations. However, innovations in analytics and predictive coding have introduced new possibilities to traditional UTBMS coding and reporting metrics. With the information that attorneys routinely provide within line-item descriptions in billing invoices, text analytics can be utilized to delve into the informational content of the task descriptions to predict what appropriate codes should be used. This may allow law firms and legal departments to:

  • Develop more meaningful metrics at a much lower cost
  • Gain more insight into cost-to-deliver services, which allows for a more strategic use of alternative billing arrangements
  • Improve partnerships between in-house and outside counsel

What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers

March 24, 2014 Comments off

What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers
Source: Social Science Research Network

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards

March 16, 2014 Comments off

Hundreds of Justice Department Attorneys Violated Professional Rules, Laws, or Ethical Standards
Source: Project on Government Oversight

An internal affairs office at the Justice Department has found that, over the last decade, hundreds of federal prosecutors and other Justice employees violated rules, laws, or ethical standards governing their work.

The violations include instances in which attorneys who have a duty to uphold justice have, according to the internal affairs office, misled courts, withheld evidence that could have helped defendants, abused prosecutorial and investigative power, and violated constitutional rights.

From fiscal year 2002 through fiscal year 2013, the Justice Department’s Office of Professional Responsibility (OPR) documented more than 650 infractions, according to a Project On Government Oversight review of data obtained through the Freedom of Information Act and from OPR reports.

In the majority of the matters—more than 400—OPR categorized the violations as being at the more severe end of the scale: recklessness or intentional misconduct, as distinct from error or poor judgment.

The information the Justice Department has disclosed is only part of the story. No less significant is what as a matter of policy it keeps from the public.

Measuring the Effect of Defense Counsel on Homicide Case Outcomes

November 13, 2013 Comments off

Measuring the Effect of Defense Counsel on Homicide Case Outcomes (PDF)
Source: National Institute of Justice

Since 1993, every fifth murder case tried in Philadelphia, Pa., has been sequentially assigned to the Defender Association of Philadelphia. The other four cases are assigned to appointed counsel. This study sought to measure the difference a lawyer makes to the outcome of a serious criminal case. Compared to private appointed counsel, public defenders reduce the murder conviction rate by 19 percent, reduce the likelihood that their clients receive a life sentence by 62 percent, and reduce overall expected time served in prison by 24 percent. This suggests that defense counsel has an enormous effect on case outcomes.

To understand the difference in outcomes, researchers interviewed judges, appointed counsel and public defenders in Philadelphia. The results show that compared to the public defenders, appointed counsel are impeded by limited compensation, incentives created by that compensation, relative isolation, and conflicts of interest among both the appointing judges and the appointed counsel.

The Million Dollar Law Degree

July 17, 2013 Comments off

The Million Dollar Law Degree
Source: Social Science Research Network

Legal academics and journalists have marshaled statistics purporting to show that enrolling in law school is irrational. We investigate the economic value of a law degree and find the opposite: given current tuition levels, the median and even 25th percentile annual earnings premiums justify enrollment. For most law school graduates, the net present value of a law degree typically exceeds its cost by hundreds of thousands of dollars.

We improve upon previous studies by tracking lifetime earnings of a large sample of law degree holders. Previous studies focused on starting salaries, generic professional degree holders, or the subset of law degree holders who practice law. We also include unemployment and disability risk rather than assume continuous full time employment.

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historic norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

Birth Parents with Trauma Histories and the Child Welfare System

March 7, 2012 Comments off

Birth Parents with Trauma Histories and the Child Welfare System: A Guide for Judges and Attorneys (PDF)
Source: National Child Traumatic Stress Network

Judges and attorneys who work in the child welfare system are well aware that many of the children in the system have experienced trauma; less well rcognized is that the birth parents of these children often have their own histories of childhood and adult trauma. For example, research indicates that 30-60% of maltreated children have caretakers who have experienced domestic violence themselves. Past or present experiences of trauma can affect a parent’s confidence and ability to keep children safe, work effectively with child welfare staff, and respond to the requirements of the courts. Fortunately, trauma-informed services are increasingly available for both parents and children who need them. Trauma-informed services include mental health services offered by trained professionals that address specific reactions to traumatic events. By recognizing the potential impact of trauma on parenting, judges and attorneys can more easily connect parents with those services.

The Impact of Online Social Networking on the Legal Profession and Practice

February 23, 2012 Comments off

The Impact of Online Social Networking on the Legal Profession and Practice (PDF)
Source: International Bar Association

Major Findings

• Over 90 per cent of respondents found that online social networking presents a new set of challenges for the legal profession.
• Almost 70 per cent of respondents felt that it is acceptable for lawyers and judges to have each other as contacts on online social networks.
• Over 90 per cent of respondents considered it unacceptable for lawyers and judges to post comments or opinions about fellow lawyers, judges, parties, or cases in progress on online social networks.
• The vast majority of respondents from jurisdictions comprising a jury system found it unacceptable for jurors to post comments or opinions about the judges, lawyers, parties, and/or cases which they are observing on online social networking sites.
• While a majority of respondents found it unacceptable for lawyers, judges, and jurors to post updates about proceedings (by posting ‘status updates’, ‘tweeting’, blogging, etc) on online social networks while a matter is pending before the courts strictly for informational purposes, the majority deemed the conduct acceptable for journalists.
• Over 85 per cent of respondents deemed it acceptable for lawyers to access and use the information found on the online social networking profiles of the parties in a case, which forms part of the public domain, as evidence in proceedings.
• Nearly 95 per cent of respondents from jurisdictions containing a jury system thought that, in addition to routine instructions, jurors should receive specific instructions limiting their online communications and use of online social networking sites.
• Only 15 per cent of respondents felt that lawyers’ use of online social networks negatively affects the public’s confidence in the integrity and professionalism of the legal profession, while almost 40 per cent of respondents felt that judges’ use of online social networks negatively affects the public’s confidence in the integrity and impartiality of the judiciary, thereby undermining judicial independence.
• 85 per cent of respondents thought that law students should be informed by their law schools as to the potential risks and disadvantages associated with the use of online social networking within the legal profession.
• Over 75 per cent of respondents considered the advantages of online social networking to outweigh its disadvantages.
• 95 per cent of respondents thought that lawyers, judges, and law students could benefit from a training course discussing guidelines for the use of online social networking within the legal profession and practice.
• 80 per cent of respondents stated that there is a need for ethical/professional codes and standards to be adapted to online social interactions affecting the legal profession and practice, as they cannot be adequately applied in their current form.
• Over 90 per cent of respondents stated that there is a need for bar associations, societies, and councils, or, alternatively, for the IBA to construe guidelines regarding the use of online social networking sites within the legal profession and practice.

Race, Attorney Influence, and Bankruptcy Chapter Choice

January 22, 2012 Comments off

Race, Attorney Influence, and Bankruptcy Chapter Choice
Source: Social Science Research Network (Journal of Empirical Legal Studies, forthcoming)
We report on racially disparate uses of chapter 13 bankruptcy. Currently, approximately 1,500,000 bankruptcy petitions are filed each year, with about 30% of those petitions being chapter 13 cases. Although chapter 13 can offer some legal advantages for persons seeking to protect valuable assets such as a house or automobile, it generally offers less relief and costs more than the primary alternative available to consumers, chapter 7. The chief feature of a chapter 13 bankruptcy case is a plan under which the debtor must devote all of his or her disposable income to creditor repayment over a 3- to 5-year period. Chapter 7, in contrast, requires only that the debtor turn over all nonexempt assets, with over 90% of chapter 7 debtors having no assets to turn over.

This paper reports on two studies, one using data from actual bankruptcy cases and the other involving an experiment with a national random sample of bankruptcy attorneys. Because the court system does not collect racial data on bankruptcy filers, the first study uses data from the Consumer Bankruptcy Project. Even after controlling for financial, demographic, and legal factors that might favor a chapter 13 filing, African Americans are much more likely to file chapter 13, as compared to debtors of other races. The second study reports on an experimental vignette sent to a random sample of consumer bankruptcy attorneys who represented debtors. The attorneys were more likely to recommend chapter 13 when the hypothetical debtors were a couple named “Reggie & Latisha,” who attended an African Methodist Episcopal Church, as compared to a couple named “Todd & Allison,” who attended a United Methodist Church. Also, attorneys viewed “Reggie & Latisha” as having better values and being more competent when they expressed a preference for chapter 13 as compared to “Todd & Allison,” who were seen as having better values and being more competent when they wanted to file chapter 7, giving them a “fresh start.” Previous research and the results from the present experimental vignette study suggest consumer bankruptcy attorneys may be playing a very important, although likely unintentional, role in creating the racial disparity in chapter choice. Together, the two studies raise questions about the fairness of the bankruptcy system.

Accessing Justice: The Availability and Adequacy of Counsel Removal Proceedings (New York Immigrant Representation Study Report: Part 1)

December 28, 2011 Comments off

Accessing Justice: The Availability and Adequacy of Counsel Removal Proceedings (New York Immigrant Representation Study Report: Part 1) (PDF)
Source: Cardozo Law Review

The problem is not a new one. For generations, immigrants facing the gravest of consequences—banishment from their homes and families—have been forced to face government attorneys in complex adversarial proceedings, unaided by legal counsel. The scale of the problem has, however, grown enormously in recent years as the annual rate of deportations has skyrocketed and the government has increasingly relied on detention as a mechanism to ensure immigrant attendance at removal proceedings. 109 The readily available national data—with 43% of immigration proceedings occurring without representation annually—is enough to alert us that this perennial problem has developed into a modern immigrant representation crisis. In order to begin to reverse the trend, however, we need to know much more than what this national snapshot has told us. The data set forth in this Report provides, for the first time, the type of detailed and nuanced analysis of the immigration representation crisis necessary to do more than wring our hands at the injustice. We now have the knowledge to begin intelligently addressing the problem.

Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Parenting and Legal Education

December 21, 2011 Comments off
Source:  Social Science Research Network (U of Colorado Law Legal Studies Research Paper)

I am a Chinese American who at age 14 enrolled at Princeton and at age 17 began my applied mathematics Ph.D. at Harvard. I was a 1L at the University of Chicago before transferring to Stanford, preferring the latter’s pedagogical culture. This Essay reflects upon Professor Amy Chua’s memoir about being a tiger parent by offering a complementary personal memoir about growing up as a tiger cub. In so doing, this Essay examines some of the pros and cons of tiger parenting. This Essay discusses how mainstream legal education and tiger parenting are similar. This Essay advances three central proposals to improve legal education and parenting. First, this Essay suggests that a central goal of legal pedagogy and parenting should be to develop and improve Judgment and Decision Making (JDM) skills because they are crucial to achieving career and life satisfaction. In particular, tiger parenting and traditional doctrinal law school classes spend much time on developing what are known as system two JDM skills and spend little time on improving what are known as system one JDM skills. System two reasoning is analytical, cognitive, conscious, controlled, deliberative, effortful, logical, rule-based, and slow; while system one is affective, associative, automatic, fast, habitual, heuristic-based, holistic, intuitive, and unconscious. Second, this Essay advocates that law professors can reform legal education and parents can improve how they raise their kids by teaching more about emotions and emotional intelligence. Third, this Essay proposes that education about character, ethics, professionalism, values, and virtues is crucial to achieving lasting career satisfaction and sustainable personal happiness Because I did not receive tenure at the University of Pennsylvania law school, I feel free to recount how a former associate dean there gamed the U.S. News & World Report law school rankings.

Mamas 2011: Is a Law Degree a Good Investment Today?

December 21, 2011 Comments off
Source:  Social Science Research Network (Vanderbilt Law and Economics Research Paper)

There continues to be an active debate on the question of whether or not law school is a good investment. I prefer to think of the question not in terms of “whether,” but in terms of “when.” In this essay, I conduct an analysis for three current undergraduates who are considering attending private law schools. I demonstrate how such individuals should take all known costs and all expected benefits into account in making their “investment” decision. As the calculation necessarily differs dramatically from one potential law student to another, my conclusions are far less important than my methodology.

How Markets Work: The Lawyer’s Version

November 4, 2011 Comments off

How Markets Work: The Lawyer’s Version
Source: Social Science Research Network

In this article, we combine two sources of data to shed light on the nature of transactional legal work. The first consists of stories about contracts that circulate widely among elite transactional lawyers. Surprisingly, the stories portray lawyers as ineffective market actors who are uninterested in designing superior contracts, who follow rather than lead industry standards, and who depend on governments and other outside actors to spur innovation and correct mistakes. We juxtapose these stories against a dataset of sovereign bond contracts produced by these same lawyers. While the stories suggest that lawyers do not compete or design innovative contracts, their contracts suggest the contrary. The contracts, in fact, are entirely consistent with a market narrative in which lawyers engage in substantial innovation despite constraints inherent in sovereign debt legal work. This raises a puzzle: Why would lawyers favor stories that paint them in a negative light and deny them a potent role as market actors? We conclude with some conjectures as to why this might be so.

System Overload: The Costs of Under-Resourcing Public Defense

October 26, 2011 Comments off

System Overload: The Costs of Under-Resourcing Public Defense (PDF)
Source: Justice Policy Institute

Public defense systems serve millions of people in the United States every year. Nearly four out of five people charged with a crime are eligible for courtappointed counsel. Yet, despite the obvious need for a working public defense system to serve so many clients, many public defense systems across the country have been in a state of “chronic crisis” for decades.

The defender systems that people must turn to are too often completely overwhelmed; many dedicated defenders simply have too many cases, too little time and too few resources to provide quality or even adequate legal representation. Failing to provide the constitutionally guaranteed right to effective counsel, regardless of one’s ability to pay, is not simply a denial of justice, it is costly to individuals, families, communities and taxpayers.

Individuals who do not receive quality defense may be more likely to end up behind bars or with a criminal conviction that will follow them for the rest of their lives. Families are torn apart when a loved one is sent to prison or can no longer work due to the collateral consequences of a conviction. Communities suffer both in terms of public safety and through unnecessarily losing friends, neighbors and co-workers who are locked up. And taxpayers bear the monetary costs when under-resourcing legal defense results in more—and more expensive— incarceration.

Marketplace Institutions Related to the Timing of Transactions

May 2, 2011 Comments off

Marketplace Institutions Related to the Timing of Transactions
Source: Harvard Business School Working Papers

Certain markets face the problem of “unraveling,” in which competition for good talent leads a firm to make job offers earlier and earlier, without sufficient knowledge about any given applicant—and in which applicants are forced to decide whether to accept a job before they really know much about working for that firm. Harvard Business School professor Alvin E. Roth discusses how this issue affects the labor markets for new lawyers and gastroenterology fellows, as well as the market for postseason college football bowls. Key concepts include:

  • The market for postseason college bowls is one in which the negative effects of unraveling can be easily quantified: If two teams are matched to play a postseason game before they have finished the regular season, it’s possible that one or both will lose some of their remaining regular season games, making the postseason bowl game less attractive to potential TV viewers than it would have been if it had featured more successful teams.
  • Efforts to stop the problem of unraveling in the market for law graduates have generally been unsuccessful, as have attempts to establish uniform dates for recruiting and hiring. This proves that unraveling is a problem even in markets such as law, where salaries are easily adjustable.
  • On the other hand, the market for new medical residents has faced little unraveling ever since that market introduced a stable resident matching system. This negates the idea that rigid pricing is the cause of unraveling, because the medical field generally pays its new residents uniformly across the board.

+ Full Paper (PDF)

Legal Aid in Canada: Resource and Caseload Statistics

April 22, 2011 Comments off

Legal Aid in Canada: Resource and Caseload Statistics
Source: Statistics Canada

Highlights
  1. In 2009/2010, legal aid plans spent $762 million on providing legal aid services in 11 provinces and territories, 1  which amounts to about $23 for every Canadian. After adjusting for inflation, legal aid spending was up about 4% from the previous year (Table 4).
  2. With the exception of Quebec and Ontario, legal aid plans spent more on criminal matters than civil matters in 2009/2010. The Quebec legal aid plan allocated 43% of its direct expenditures to criminal matters, while in Ontario the figure was 47%. In the other jurisdictions the proportion of direct expenditures on criminal matters ranged from 56% for Alberta to 74% for Saskatchewan and the Northwest Territories (Table 6).
  3. Legal aid in Canada is funded primarily by provincial/territorial and federal governments. In 2009/2010, legal aid plans reported receiving funding totalling over $721 million with 93% of this amount coming from government sources. 2  Other funding is received by way of client contributions, cost recovery monies and contributions from the legal profession (Table 1-1).
  4. Provincial and territorial governments directly fund both criminal and civil legal aid. The $547 million contribution in 2009/2010 represented a 6% increase from the previous year (after inflation) and marked the fifth consecutive annual increase. In 2009/2010, funding was up in 9 of the 13 jurisdictions (after inflation), led by Manitoba at 31% (Table 3).
  5. The federal government contributes directly to the cost of criminal legal aid only. In 2009/2010, funding for all 13 jurisdictions totalled $112 million. After adjusting for inflation, this figure was down slightly from the year before (Table 2).
  6. About 745,000 applications for legal assistance were received by legal aid plans in the 11 reporting provinces and territories in 2009/2010, a decline of 5% from the previous year. The decline was driven by fewer civil legal aid applications as the number of criminal legal aid applications remained unchanged. Civil matters accounted for over half (55%) of applications received (Table 10).
  7. In 2009/2010, the reporting legal aid plans approved almost 500,000 applications for full legal aid services (including providing information, advice and representation in court), a decrease of 1% from the previous year. 3  Criminal matters accounted for over half (56%) of approved applications (Table 12).
  8. In the reporting provinces and territories, almost 10,000 lawyers from both the private sector and legal aid plans provided legal aid assistance in 2009/2010, a decline of 2% from the previous year. Private lawyers accounted for 87% of those providing legal aid services, while legal aid plan staff lawyers accounted for the remaining 13%. (Table 20). 4

What Judges Think of the Quality of Legal Representation

March 19, 2011 Comments off

What Judges Think of the Quality of Legal Representation
Source: Stanford Law Review

Studying the legal profession poses several challenges. The evolution of law has moved lawyers away from a generalist practice towards increased specialization. This makes it difficult to compare lawyers across different practice areas meaningfully and to provide a comprehensive assessment of the legal profession. Judges are well situated to provide such an evaluation, given their experience and scope of cases. This Article reports the responses of federal and state judges to a survey we conducted in 2008. The questions relate to their perceptions of the quality of legal representation, generally and in criminal and civil cases; how the quality of legal representation influences how they and juries decide cases; and their recommendations for change in the profession. We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

+ Full Paper (PDF)

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