Monthly Archives: February 2011

Scattershot 2011-02-25

Random shots around the web:

  • The state of Illinois has made it even easier for you to pay them to get your right to drive back after they take it away from you without bothering to convict you of a crime.
  • Meanwhile in D.C., changes in drunk driving arrest procedures set up officers for a bit of a perjury trap.
  • So, if I record a video of some children, and then I record someone singing a sexually explicit song, how much of a gap should I allow between the shots of the children and the shots of the sexually explicit song to avoid being charged with creating child-abusive material?
  • This one brings back memories. The college I went to had tons of foreign students, including a lot of Muslims. I used to stumble across them all over the place.

A Brief Note About the World

There’s obviously a lot more going on in the world than I’ve been blogging about. I pick topics not based on whether they’re important, but on whether I have something to say. I don’t know much about the Middle East, so what could I say about the struggle for freedom there? What could I say about the Christchurch earthquake?

I hope all those people come out of this okay.

The Chicago Code – Episode 3: Gillis, Chase and Baby Face

Now that Steve Graham has given me a nice shout-out in mentioning that I’ve been blogging about The Chicago Code, I feel obligated to say something about last night’s episode. Actually, I’ll start with my wife’s review: “That one didn’t suck.”

Yeah, this was a pretty good episode. It made better use of the modern television trick of mingling two separate stories. About half of this episode was the mythology, the ongoing story of the cops who are taking on the crooked politicians, and the rest was a separate story about the pursuit of a violent bank robber.

The bank robbery allowed the episode to start with a chase scene which was pretty good. It was great to see cops driving and running around some typical Chicago scenery, including some classic train stations. And unlike the chase that began the pilot, this one seemed more likely to be within the department’s chase policy since the offender was armed and dangerous. The bank robbery also involved something resembling policework, or at least the kind of policework I’m used to seeing on television cop shows.

The other half of the story was Delroy Lindo’s chance to show off why he was cast as Alderman Ronin Gibbons, and it establishes just how sneaky and ruthless he can be, and why he’s going to be hard to catch.

This episode also finally shows us that the Chicago Police Department does not exist above all the corruption. A few people in the department are dirty too. It’s good to see that the show’s producers aren’t going to whitewash over that historic fact just because they have police cooperation in making their show.

Corruption in the department is also necessary to explain–both in the show and in real life–why the police haven’t been very effective in fighting corruption in the rest of the city. It’s hard to do good police work when not everyone is on the same side. It’s not just a matter of a few street cops tipping off the bad guys, either. One well-placed commander with organized crime connections can derail dozens of investigations.

It doesn’t even have to be police officers who are compromised. Some years ago, someone in the Chicago Police Department’s Human Resources office was found to be feeding officers’ home addresses and duty schedules to a gang. The officers would return from work to discover their homes had been broken into and their personal firearms had been stolen.

On a lighter note, it’s amusing to hear the street addresses used in the show. Filmmakers and television producers like to avoid using addresses where there might be real people or real businesses. For example, in 1987’s The Untouchables, Malone’s home is said to be at 1634 Racine, which doesn’t exist because that’s where Racine crosses the Chicago River.

In this episode of Chicago Code, I heard 1650 West Harlem (the real Harlem Avenue runs north and south) and 1260 East Chestnut, which would be about a mile out into Lake Michigan.

Some Dog-Sniffing Math

In one of his posts today, New York criminal defense lawyer Scott Greenfield writes about the error rate for drug-sniffing dogs:

More to the point was the dog hits simply aren’t anywhere nearly as worthy of credit as courts have held. Consider whether it would be equally acceptable for a cop to flip a coin in order to establish probable cause to search.  For a dog whose established ability to sniff out drugs runs in the typical 50% range, it’s no more likely to be accurate than a flip of a coin.

I’m guessing the “50% range” figure comes from a Chicago Tribune article a few weeks ago based on an analysis of state drug dog data in Illinois, which found a relatively low accuracy rate:

The dogs are trained to dig or sit when they smell drugs, which triggers automobile searches. But a Tribune analysis of three years of data for suburban departments found that only 44 percent of those alerts by the dogs led to the discovery of drugs or paraphernalia.

That 44% figure for success means that the false-positive ratio is a whopping 56%. Scott was being generous when he rounded down to 50%. However, in comparing dogs to flipping a coin, Scott makes a very common math mistake by confusing the dog’s false alert ratio with the dog’s total alert ratio.

It helps if we make up some numbers. Suppose the police dogs in some department are used in 1000 sniffs, and the dogs alert in 200 of them, but a search only finds drugs on 88 of those people. This means the other 112 are false positives, and we can calculate the false positive ratio as the number of false alerts divided by the total number of alerts:

fp = 112 / 200 = 56%

To keep the situation simple, let’s assume the dog never misses any drugs, so the 88 drug carriers are all there were in the sample population of 1000. In other words, 8.8% of the people are carrying drugs.

Now we can calculate what would happen if the police officer flipped a coin instead. Out of 1000 people, the coin would be expected to “alert” for 500 of them. Since 8.8% of the people are carrying drugs, we would expect 44 of these people to have drugs, meaning the other 456 are false positives. Thus the false positive ratio would be:

fp = 456/ 500 = 91.2

That’s a heck of a lot worse than the dog’s 56% ratio. The only way the coin could achieve a false positive ratio as good as the dog’s is if 44% of all the people sniffed are carrying drugs. Then you’d expect the 500 searches to find drugs on 220 people with the other 280 being false positives:

fp = 280/ 500 = 56

As long as less than 44% of the population is carrying drugs, a dog with a known 56% false positive ratio is performing quite a bit better than a random coin flip.

Not that that’s saying much. And it doesn’t really hurt Scott’s point, either, because the dog is still wrong more than half the time, and each time it’s wrong, some innocent person has to endure the humiliation of a police search.

As is probably often the case, although Scott was wrong, the opposition is even wronger:

Dog-handling officers and trainers argue the canine teams’ accuracy shouldn’t be measured in the number of alerts that turn up drugs. They said the scent of drugs or paraphernalia can linger in a car after drugs are used or sold, and the dogs’ noses are so sensitive they can pick up residue from drugs that can no longer be found in a car.

This might be correct in a narrow sense. Dogs certainly are capable of detecting trace odors left behind by things that are no longer there. It’s a reasonable defense of the dog’s nasal prowess.

But so what? This isn’t about the dog, it’s about whether the search is justified. The only reason the police are allowed to invade your privacy and seize your property is because they have a good reason to believe they will find evidence of a crime. If the police aren’t finding evidence as often as they expect to, it suggests their reason for the search is not as good as they say it is. The cause of their error isn’t as important as the fact that they are in error.

I’m no lawyer, but I’m pretty sure a judge isn’t supposed to grant a search warrant because a location might once have had evidence of a crime. The police are supposed to have reason to believe that the evidence will be there when they search. If that’s a good rule for a judge, it ought to be a good rule for a dog. But it’s clear that in at least 56% of the cases when a dog alerts, the evidence isn’t there.

As if that wasn’t bad enough, the Tribune story gives us good reason to believe that the 56% error rate is optimistic.

The Tribune obtained and analyzed data from 2007 through 2009 collected by the state Department of Transportation to study racial profiling. But the data are incomplete. IDOT doesn’t offer guidance on what exactly constitutes a drug dog alert, said spokesman Guy Tridgell, and most departments reported only a handful of searches based on alerts. At least two huge agencies — the Chicago Police Department and Illinois State Police — reported none.

The Tribune asked both agencies for their data, but state police could not provide a breakdown of how often their dog alerts led to seizures, and Chicago police did not provide any data.

That leaves figures only for suburban departments. Among those whose data are included, just six departments averaged at least 10 alerts per year, with the top three being the McHenry County sheriff’s department, Naperville police and Romeoville police.

In other words, the 56% error rate is for dogs working in departments that were willing to disclose their dogs’ performance statistics. We can only wonder how bad the numbers are in departments that don’t want to reveal how well their dogs were doing. And then there are the departments that apparently don’t even care enough to keep statistics.

The most damning item in the Tribune article, however, is that the dogs’ success rate declines to 27% when the person being sniffed is Hispanic.

This is a reminder that these statistics aren’t a measure of the dog’s performance, they’re a measure of the performance of the dog-and-handler system, and I don’t think it’s the dogs that are likely to be prejudiced against Hispanics.

The most benign explanation for these numbers is that police dog handlers are more likely to expect Hispanics to have drugs, and that they somehow inadvertently cue the dog to alert. For example, if they lead a non-alerting dog around the cars of Hispanic drivers for a longer period of time than other drivers, the dog may learn that he can get his master to stop by doing a drug alert.

This sort of unintentional cueing is sometimes called the Clever Hans effect, after a horse that appeared to be able to accomplish all sorts of amazing mental feats, signalling his answers by stomping his foot. Eventually, scientists figured out that his owner would tense up when the horse was supposed to start answering a question and then relax as soon as he reached the right number of stomps. There is evidence that some drug dogs are doing the same thing.

Other explanations for the high error rate with Hispanics are that the police dog handlers are more likely to misinterpret a dog’s behavior as an alert, are intentionally cueing the dog to alert, or are simply lying about the alert because they want to do a search.

(It might also seem possible that Hispanics and their cars are simply exposed to drugs more often–perhaps due to greater involvement in drug culture–and that the dogs are alerting to drug traces. But I can’t think of an explanation for how Hispanics could have increased the rate at which they have had drugs without also increasing the rate for which they have drugs when searched. It seems to me those statistics should rise and fall together, which would not affect the dogs’ error rate.)

A big part of the problem with drug dogs is the lack of standards:

Experts said police agencies are inconsistent about the level of training they require and few states mandate training or certification. Jim Watson, secretary of the North American Police Work Dog Association, said a tiny minority of states require certification, though neither he nor other experts could say exactly how many.

A federally sponsored advisory commission has recommended a set of best practices, though they are not backed by any legal mandate.

Compare this to the situation with the breath testing devices used by police to detect intoxicated drivers. Those things are calibrated and tested regularly. If you get busted for blowing 0.09 and your lawyer can show that the testing device hasn’t been calibrated and tested according to the proper schedule, there’s a pretty good chance you’ll go free.

But if a dog at the side of the road alerts at your car, the cops are going to search you, and whatever they find will be usable, because the judges always believe the dogs.

Update: Radley Balko is taking on this same topic today.

The Chicago Code – Episode 2: Hog Butcher

I finally got around to watching the second episode of The Chicago Code last night. The opening titles and music were different, which confirms that the first episode was a true pilot, created long before the next episode. Otherwise, my impression is about the same: It’s not great, but I could get used to it, and they do a great job of filming my home town.

The story is still shaping up to be Superintendent Colvin’s fight to clean up Chicago and especially to expose Alderman Ronin Gibbons’ ties to the largely mythical Chicago Irish mob. They’re going to have to introduce us to a lot more of those guys if they want to make it believable, because right now they’re making it look like Gibbons is a big shot in the mob, and that’s just silly. We’ve had Alderman connected to the mob, but they’re not actually part of it. They just do favors and get favors (and bags full of cash) in return.

Once again, there’s some good acting in this episode, but not from Jennifer Beals. I can’t quite put my finger on what’s wrong, but I have a theory. I think Beals is just the least talented at covering up for the awkward dialog.

That’s not the only problem with the writing. Let me give you a few examples (minor spoilers coming):

The cops are trying to catch the cop killer from last week. He shot at Colvin, killing her police bodyguard instead, and then jumped into a waiting getaway car. Colvin shot at the car as it sped away. Thanks to a citizen’s tip, they’ve found the getaway car abandoned in an alley, with blood all over the driver’s seat, indicating that Colvin hit him.

Caleb Evers, the less experienced cop, suggests calling out the crime lab to sample the blood and run it for DNA. The show’s supercop, Derek Wysocki, has a different plan. He gives a misleading statement to the press in which he gives an incorrect description of the getaway car, which he hopes will make the offenders feel safe enough to come out and move it. Sure enough, a little while later a young woman comes to get the car. It turns out she’s the car’s owner, and she’s come to pick it up after lending it to her boyfriend. In other words, the cops have just used guile and trickery to discover something that they could have gotten hours earlier by running the car’s license plate.

Then there’s the whole business with the bulletproof vest. You see, Colvin’s bodyguard was a young officer who had known her for years. On the night of the shooting, after she received a threat, he insisted that she wear his vest for protection. Then he got shot and died.

I don’t pretend to know much about Chicago cops, but I’m pretty sure about this: A lot of street cops do not trust the people in command to do the right thing by them. From their point of view, it would look like the Superintendent took a vest off an officer to protect herself, and it got him killed. End of story. It doesn’t matter how close Colvin was to her bodyguard or how strongly he insisted she wear the vest. She was in command. It was her decision that got him killed. Street cops would be grumbling about this incident for the rest of her career.

Finally, there’s the scene near the end where the dead officer’s mother tells Colvin she’s filed a lawsuit. Colvin responds by lecturing her: “I understand that you are upset, but this is not the way to handle this. You understand me? This is not the way to handle this.”

That might be correct–involving lawyers tends to gum things up–but that line makes Colvin sound like a self-important tone-deaf bitch, and I don’t think that’s what the producers have in mind for the character.

Still, I love seeing the city, and there are bits and pieces of the show that work for me. I think they either need to pay a little more attention to the details, write the Colvin character’s dialog to better fit Beals’s acting style, and move the main plot mythology forward a little more in each episode. It could still be a pretty good show. I’m gonna give it a few more episodes.

Scattershot 2011-02-14

Random shots around the web:

Hat tip: Jesse Walker, Radley Balko.

On the Blogging Gender Gap Kerfuffle

So a few days ago Mike Cernovich at Crime & Federalism addressed the (apparently common) question of why women are underrepresented in the legal blogosphere.

Everyone gets very concerned for women, who apparently are being prevented from blogging. Who is preventing women from blogging? No one says. Well, it’s “men,” we are told.

Mike calls bullshit on that. As evidence, he quotes a recent New York Times article:

About a year ago, the Wikimedia Foundation, the organization that runs Wikipedia, collaborated on a study of Wikipedia’s contributor base and discovered that it was barely 13 percent women; the average age of a contributor was in the mid-20s, according to the study by a joint center of the United Nations University and Maastricht University.

As Mike points out, there are almost no barriers to contributing to Wikipedia. You just click “Edit”. It seems like it would be almost impossible for men to be keeping women out. Yet some people have theories that sound pretty reasonable:

But because of its early contributors Wikipedia shares many characteristics with the hard-driving hacker crowd, says Joseph Reagle, a fellow at the Berkman Center for Internet and Society at Harvard. This includes an ideology that resists any efforts to impose rules or even goals like diversity, as well as a culture that may discourage women.

“It is ironic,” he said, “because I like these things — freedom, openness, egalitarian ideas — but I think to some extent they are compounding and hiding problems you might find in the real world.”

Adopting openness means being “open to very difficult, high-conflict people, even misogynists,” he said, “so you have to have a huge argument about whether there is the problem.”

This doesn’t sound too far off the mark to me–I remember similar theories from the early days of Usenet–but Mike doesn’t care for it much. He has a different theory:

Another theory is that women care less about facts and information than men do. Women instead care about superficial gossip. Consider, for example, the demographics of People:

Female: 66%

Walk into any gym in the country – even one in a liberalized, feminist city like San Francisco. You’ll see rows of professional women on the treadmills and stair climbers. I know several of them, and they are doctors, lawyers, psychologists, and other professionals. No patriarchy has kept them from earning fuck loads of money, and obtaining educational credentials. Yet they read stupid shit like People and US Weekly (76% women).

Why should anyone be surprised that a demographic who uses its off-hours to read celebrity gossip aren’t on the Internet sharing useful knowledge, and provoking interesting discussions? Why should anyone blame men?

Over at MyShingle.com, Carolyn Elefant responded that women have a lot of other stuff to do, like housework and taking care of the kids, and lightweight reading like People and Oprah is just a way to relax. Then Mirriam Seddiq at Not Guilty, posted her response which is that Carolyn’s response sounds reasonable, in that she’s too busy living her own life to blog more often, but she has even less time to worry about why women don’t blog more often.

All of this blogging seems like an awful lot of talk that may not lead to any answers about an issue that may not even be a real problem. Naturally, I want a piece of this, and I have my own theory.

It all comes down to an observation made by linguist Deborah Tannen about twenty years ago: As a broad generalization, men tend to use conversation as a form of competition, whereas women tend to use conversation to form and maintain social connections.

Tannen did not try to argue which conversational style was better. Instead, she wanted both sides to recognize that there was a difference, in order to avoid (or at least understand) the miscommunications that could result. For example, a woman might ask a coworker if he wants help learning how to perform a new task, and he might turn down her help even though he could use it because he interpreted her offer as a challenge to his competence. Similarly, a woman who wants a male subordinate to change his ways might soft-sell her criticism in order to be diplomatic, only to have him ignore most of her criticism because he didn’t realize he was being confronted.

It’s important to understand that this is a difference in communication style, which is not necessarily reflective of a difference in psychological outlook. My favorite example concerns a male department head at a company I used to work for who got in an argument with a woman lawyer in another department. Afterwords, while meeting with some male coworkers, he joked that she wasn’t much of a lawyer because she broke down in tears during the argument. Within a year, he was unceremoniously kicked out of the company, due in no small part to her behind-the-scenes efforts. Just because she didn’t get in his face didn’t mean she wasn’t out to slit his throat.

Similarly, just because men don’t spend a lot of time talking about relationships doesn’t mean they don’t care about them. They just don’t see talking as a requirement for working on a relationship.

This effect even extends to casual conversation. I remember my wife and I were driving home one day and we got to talking about our respective lunchtime conversations with coworkers. She and her women coworkers had talked about their families and their friends and what each of them was doing, who was seeing someone, who was going through a breakup, and how everybody was feeling. That same day, me and the guys had gone to lunch and talked about how best to defend the Earth from meteor strikes.

It’s easy to see how the women were using conversation to form social relationships, but how were us guys using conversation to compete? The basic answer is that we were each showing off the cool things we knew about meteor defense, such as which types of asteroids were the greatest threat, how much warning time we needed, and what was the best propulsion method to deflect an oncoming meteor.

We’ve all heard guys trying to top each other’s stories about sports or arguing over which brand of power tools is better or trading obscure factoids about the Star Wars movies. It’s a conversational style that becomes second-nature: In casual conversation, guys tend to givie mini-lectures to show off what they know.

Think about that a minute. Mini-lectures to show off what we know. Isn’t that a pretty good description of what most bloggers are doing?

No wonder blogging is dominated by men. It’s a medium that is almost perfectly aimed at men’s conversational style. We like showing off the cool things we know. After all, why do you think I’m responding to Mike and Carolyn and Mirriam with a post about a relatively obscure linguist’s 20-year old theories?

A Long Post About Flat-Fee Lawyering

I don’t know what Houston criminal defense lawyer Mark Bennett’s politics are, but over the past couple of months he’s been experiencing a classic example of the sort of thing that turns people into libertarians: Out of the blue, the government–in the form of the State Bar of Texas–wants to outlaw his business model. He usually charges clients a flat fee, but now the State Bar is proposing changes to its ethics rules that would prohibit flat fees.

(Supporters of the proposed changes apparently claim they’re not trying to prohibit flat fees, and the discussion got all lawyer-y real fast. Here’s an example. I’m not going to get into that.)

As I understand it, the basic premise of the new rules is that while lawyers can demand an advance payment of their fee, the money doesn’t actually become theirs until they’ve earned it. And if they don’t earn it all, they have to give it back. That sounds reasonable, but Mark Bennett has an argument for why flat fees are good for clients which I’d like to talk about. I don’t know much about lawyering or the law business, but that won’t keep me from rambling on for a bit. I think it’s a fascinating little lesson in economics.

There are two relevant facts about the practice of criminal law which I think have helped shape how Bennett handles fees. First of all, it’s very hard to predict initially how much a criminal defense is going to cost by the time it’s over. Lawyers can reasonably guess that a routine first-time DUI stop is probably only going to take a few hours of billable time, and that a money laundering case with 400 hours of wiretap evidence is going to be a long battle, but in most cases, there’s a lot of variability, and many of the factors that determine the level of effort won’t be known during the initial consultation with the client.

Second, once a lawyer has worked a case for a while, he can’t easily back out. He’d need permission from the judge, and he’s unlikely to get it without a really good reason. Not getting paid is not a good reason, as far as the judge is concerned. So once a criminal lawyer takes on a case, he’s committed to defending the client, and he’s committed to the entire labor cost of the trial. (He may be the only labor involved, but his time is still his cost of doing business, and he’s going to want to get paid for it.) In other words, even if a criminal lawyer charges by the hour, his minimum unit of commitment is always the entire duration of the case, including any trial. (There are exceptions, but I hear they’re unusual.)

Third, criminal defendants tend not to pay their bills once the lawyer starts work. This means a lawyer discussing representation with a client can get a reasonable amount of money up front as a condition of taking the case, but if the case turns out to require more money than that, he has very little chance of getting it from the client. Most criminal clients don’t have any more money, they’re unlikely to get more money, and even if they get it, they have little incentive to pay it since their lawyer isn’t allowed to walk away from the deal.

This all means that a criminal defense lawyer who bills by the hour is facing a no-win billing scenario: If the initial deposit he demands up front is not enough to cover the true cost of the case, he’s going to run through his client’s money before the case is over and end up working the rest of the case for free. On the other hand, if the case ends quickly and he has money left over at the end, he has to give it back. Breaking even is his best case scenario. The average case is much worse.

(Criminal defense lawyers rarely if ever bill by the hour, but some might bill in stages, such as X dollars for pre-trial work and Y dollars more if there’s a trial. However, just because their billing units are larger than an hour doesn’t mean they aren’t stuck in the same scenario. They’re still charging for their effort, not for the job.)

The only way for a lawyer to avoid losing money in this system is to require every client to provide an initial deposit large enough to cover the entire worst-case cost of the case, including a complete trial.

The problem with that is that most cases don’t go to trial, so most cases will never end up requiring that much effort. The lawyer would be asking clients for large amounts of money up front, which some clients will be unwilling (or unable) to pay. He’ll be losing clients–and they’ll be passing up his services–even though in most cases (i.e. those that do not go to trial) they could have afforded it.

Let’s make up some numbers to illustrate how this works. To keep it simple, let’s use big round numbers and pretend that there’s only one type of case. Assume it costs our lawyer $20,000 worth of his own labor to take a case to trial, but only $10,000 to take a case that ends without a trial (plea, dismissal, or something else), and let’s assume that only 1 case in 10 goes to trial.

So, out of his first 10 cases, our lawyer will take in $20,000 in advance fees for each case up front. He’ll have to keep that money in a separate escrow account of some kind. In nine of the cases, he’ll have to give the clients back $10,000 each, for a total of $90,000, but in the tenth case he’ll get to keep the entire $20,000. In summary, he takes in $200,000 in advance fees, refunds $90,000 of it, and keeps the remaining $110,000 as revenue.

Observe that over ten cases, our lawyer has an everage revenue of $11,000 per case. In other words, our lawyer could make the exact same amount of money by charging every defendant $11,000 per case regardless of whether it goes to trial or not. This is the economic basis of the flat fee. It requires less up-front money from the client, it’s easy to understand, and it’s simpler for the lawyer to handle.

So what could possibly be wrong with a flat fee? A couple of things:

First, it creates economic pressure for the lawyer to plead clients out instead of going to trial because he makes money faster that way. But on the other hand, if the lawyer uses staged fees, he has an incentive to take more cases to trial to increase his revenue. I don’t think these kinds of problems can be eliminated under any payment system. There’s always going to be an inherent conflict over fees, because the lawyer always wants to earn more and the client wants to pay less. At some point, the client has to trust his lawyer to do the job properly.

(The bar could probably mitigate this problem through better transparency, such as publishing every lawyer’s history of case outcomes. Potential clients could learn to avoid hiring a lawyer who’s plead out his last 50 clients).

The second problem is that it could appear to bar regulators that the lawyer is taking unearned money from some clients to pay for services for other clients. In the example above, the lawyer could be accused of taking $1000 that he didn’t earn from each of the clients that plead out and using it to cover his losses on the client that went to trial.

In fact, that is exactly what he’s doing. But so what? He promised to defend each client for a specified fee, the client accepted the deal, and he delivered on his promise. There’s nothing fraudulent about this. Lots of businesses work this way.

The key to understanding what’s really going on is to realize that a criminal defense lawyer who works for a flat fee is actually selling two services disguised as one. Obviously, he’s selling his legal services: The labor he does to complete the job. Less obviously, however, he’s also selling trial insurance. He’s agreeing to take on the financial risk of bringing the case to trial.

Every client who pays $11,000 is paying $10,000 for the pre-trial stage of the case, plus a $1000 insurance premium which will cover the cost of going to trial, should that prove necessary. As with most insurance, the client is buying some peace of mind. He knows that no matter what happens in the case, it’s not going to cost him (or his family) any more money. And when the time comes to sit down with his lawyer and decide whether to take a plea offer or go to trial, he can make the decision based on the state of the case, without regard for the cost of trial.

Actually, the flat-fee lawyer in this situation should get something extra out of the deal besides the $1000 extra per client. That $1000 only covers his expenses, but insuring the client against the financial risk of a trial is a valuable service for which clients should be willing to pay an additional fee, so he might be able to charge $1100 instead. On the other hand, if the flat-fee arrangement saves him an hour of haggling with the client over the trial fee later–or the risk of being forced by the court to defend the client without a fee–that could make it very attractive for the lawyer as well. He might be willing to lose a little money on the flat fee in order to buy himself a little peace of mind.

Almost every service you buy is sold under similar terms. Get your hair styled, and it’s the same price for a broad range of styles, even if some are more difficult to achieve than others. Buy a new set of tires, and they’ll quote you a price for installation that covers most of the things that can go wrong. Decide you need breast implants, and you can get a doctor to quote you a fee that includes all immediate complications, and maybe some of the less immediate complications as well.

Sometimes, especially when you’re buying a product instead of a service, they don’t call it insurance, they call it a guarantee. Buy a cell phone, and they’ll guarantee it against defects for a year. You may think of this guarantee as a promise of quality, but to the seller–who knows how often defective products are sold–it’s essentially insurance to cover the cost of replacing defective products. That’s why for a small extra fee, they’ll sell you an extended guarantee that covers things that aren’t their fault, such as if you break it, lose it, or drop it in the toilet. In other words, you’re buying insurance for your cell phone much the way you buy collision insurance for your car.

In fact, it might be a more accurate to describe fixed-fee criminal defense as a type of guarantee, given that most cases end in pleas. Our lawyer is charging his clients $11,000 for negotiating the best possible plea deal, and he guarantees that the case will not go to trial. In the unfortunate event that a trial becomes necessary, the lawyer will do it for free.

Update: On re-reading this, I realized I haven’t quite tied it all up. Remember that the original issue raised by the proposed Texas State Bar rules was that a lawyer could be accused of keeping client money that he hasn’t earned if the number of hours worked is too small to justify the fixed fee.

There’s some legal argument over whether a lawyer and client can contractually agree that the fee is earned upon receipt, or at some very early point in the case, regardless of how much effort the lawyer has put into the case. I can’t begin to follow that argument or figure out who’s right as a matter of law.

But regardless of what the law says, the flat-fee lawyer is performing a significant service for his client by assuming the financial risk of a trial, and therefore he really does earn rather a lot of his fee the moment he signs the contract.

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