Lawyer Sophistication in Supreme Court Criminal Litigation
Tony Mauro has a nice article in the Legal Times suggesting that, while the Supreme Court bar has become increasingly specialized, that process has not extended to criminal cases. In criminal matters, it seems, the local lawyer wants to hold on to the case. One possible result: criminal law develops in ways more hostile to criminal defendants. Why might criminal clients be less likely to use a Supreme Court boutique for their Supreme Court argument? Several reasons.
First, and probably most importantly, there is client sophistication. When IBM has a case in front of the Supreme Court, you can be sure that its general counsel – the true client – seeks out the attorney best prepared to win. And since that general counsel knows a lot about the business of law, he or she will surely be able to identify the most appropriate lawyers for the job. Most criminal clients, on the other hand, are relatively poor, relatively uneducated, and relatively unsophisticated. (I use the term “relative” since a recidivist may know more about good and bad lawyers than the average schnook who never got arrested, got divorced, or sued in tort.)
Also, criminal practitioners have every incentive to litigate the case themselves, and little not to. Most lawyers would love to argue a case before the Court. It looks fun, and – prospectively, at least – it offers a big ego boost. (You may not feel so good once Scalia has shaken you like rag doll.) They can also claim big shot status to clients who probably won’t know any different. And the main downside – that you lose, that you’re embarrased publically – will be lost in a market with limited information flow (unsophisticated incarcerated clients spread reputational data, but my sense it that it often relates more to the sizzle than the steak) – and where almost every case is lost on appeal.
Another factor may be the degree to which lawyers care about the broader implications of an individual case for the entire doctrinal area. In many areas of civil practice, the lawyers align their own interests very closely with clients. This is particularly true for activist lawyers who are suing as much for themselves as clients. But it’s also true in private practice. I would expect a management side labor lawyer to want to win for Client A because it will be good for Clients B-Z and because, over time, that lawyer is likely to find the positions of his or her clients preferable, as a normative matter. Part of this is good business, but part is that lawyers have close professional, and sometimes social, relations with their clients. The blurring of the lawyer/client line is less common for criminal lawyers. While many criminal lawyers do care deeply about the issues they litigate, it is usually in the activist lawyer sense. And in any case, my sense is that this passion is more common among indigent defense lawyers (and particularly public defenders) who do the work, and pass up income, in the interest of social change. And I wonder if these passion-defenders are the lawyers least likely to showboat at the Supremes to the deteriment of their client.
I’m curious what others think about this.