The Nonlinear Library: LessWrong LW - In Defense of Lawyers Playing Their Part by Isaac King
Jul 2, 2024
14:18
Link to original article
Welcome to The Nonlinear Library, where we use Text-to-Speech software to convert the best writing from the Rationalist and EA communities into audio. This is: In Defense of Lawyers Playing Their Part, published by Isaac King on July 2, 2024 on LessWrong.
This is a linkpost for In Defense of Lawyers Playing Their Part.
Michael Huemer writes about why he believes it's wrong for lawyers to pursue unjust legal outcomes.
It's a good article, and one of the best defenses of this position I've seen. Still, I think this argument is mistaken. The reason why we require lawyers to fight for "their side" even if they believe they're in the wrong is to minimize the opportunity for bias.
Imagine if all trials were bench trials, decided by only one person as the judge. Even if they're taught to be as objective as possible, there would still be significant concerns about unconscious bias. One person only has one set of experiences to draw on, which is necessarily not very representative of the full range of experiences.
And in some ways this problem becomes worse the more training the judge is given, since it filters the pool of valid people down to a small subset of the population.
The chosen solution to this is to instead have the important cases decided by a jury, randomly[1] selected from the population. The jury is then instructed that they must come to a unanimous decision, and are allowed an arbitrarily-long time to discuss the case. This prevents a tyranny of the majority, while still allowing a diverse range of perspectives to have a voice in the discussion.
Any prospective juror who seems likely to be so biased that they would vote in a predetermined way regardless of the evidence is removed from consideration during voir dire. (This step does reduce the representativeness of the jury, but the assumption is that for any group of people who hold a particular perspective, there will be members of that group who are not so biased as to be selected out.[2])
But this doesn't solve all problems. The jury is still only human, and if they're presented with facts that are biased in only one direction, they're more likely to vote in that direction. If lawyers were instructed to present an unbiased case to the jury, this would provide a significant incentive for the less ethical lawyers to not do as instructed, using a misleading presentation of data to bias the jury towards their side. This is a bad incentive to give people.
It would also lead to copious accusations from the losing side that the other side's lawyer was presenting biased facts, which would necessitate some process to sort them out every time, even if both lawyers were perfectly objective.
So instead, we tell the lawyers to go nuts. Be as biased as possible, and, as long as they're equally skilled and there aren't background factors that favor one position over the other, this ensures that each presented position is equally far from the truth. The jury now has a fair overview of both sides of the case, without a malicious lawyer being able to advantage one over the other.[3]
Michael provides 5 arguments in favor of this position - that lawyers are obligated to do their best even for a client they believe is guilty - then attempts to refute them all. I'll go through them individually.
2.1. The epistemological problem
Michael argues that lawyers can know with high confidence that their clients are guilty, giving the example of Benjamin Courvoisier. Thus, "I'm not sure so I should just defend my client" is not an excuse.
In the case of Benjamin Courvoisier, Benjamin confessed to the lawyer, presumably under the expectation that the lawyer would not publicly share this information. If lawyers were duty-bound to share any private confession given to them, all but the dumbest criminals would simply stop giving private confessions. The overall effect on convictions would be negligible.
But cases like Benjamin Courvoisier are few and far between. Using this example to argue that de...
Welcome to The Nonlinear Library, where we use Text-to-Speech software to convert the best writing from the Rationalist and EA communities into audio. This is: In Defense of Lawyers Playing Their Part, published by Isaac King on July 2, 2024 on LessWrong.
This is a linkpost for In Defense of Lawyers Playing Their Part.
Michael Huemer writes about why he believes it's wrong for lawyers to pursue unjust legal outcomes.
It's a good article, and one of the best defenses of this position I've seen. Still, I think this argument is mistaken. The reason why we require lawyers to fight for "their side" even if they believe they're in the wrong is to minimize the opportunity for bias.
Imagine if all trials were bench trials, decided by only one person as the judge. Even if they're taught to be as objective as possible, there would still be significant concerns about unconscious bias. One person only has one set of experiences to draw on, which is necessarily not very representative of the full range of experiences.
And in some ways this problem becomes worse the more training the judge is given, since it filters the pool of valid people down to a small subset of the population.
The chosen solution to this is to instead have the important cases decided by a jury, randomly[1] selected from the population. The jury is then instructed that they must come to a unanimous decision, and are allowed an arbitrarily-long time to discuss the case. This prevents a tyranny of the majority, while still allowing a diverse range of perspectives to have a voice in the discussion.
Any prospective juror who seems likely to be so biased that they would vote in a predetermined way regardless of the evidence is removed from consideration during voir dire. (This step does reduce the representativeness of the jury, but the assumption is that for any group of people who hold a particular perspective, there will be members of that group who are not so biased as to be selected out.[2])
But this doesn't solve all problems. The jury is still only human, and if they're presented with facts that are biased in only one direction, they're more likely to vote in that direction. If lawyers were instructed to present an unbiased case to the jury, this would provide a significant incentive for the less ethical lawyers to not do as instructed, using a misleading presentation of data to bias the jury towards their side. This is a bad incentive to give people.
It would also lead to copious accusations from the losing side that the other side's lawyer was presenting biased facts, which would necessitate some process to sort them out every time, even if both lawyers were perfectly objective.
So instead, we tell the lawyers to go nuts. Be as biased as possible, and, as long as they're equally skilled and there aren't background factors that favor one position over the other, this ensures that each presented position is equally far from the truth. The jury now has a fair overview of both sides of the case, without a malicious lawyer being able to advantage one over the other.[3]
Michael provides 5 arguments in favor of this position - that lawyers are obligated to do their best even for a client they believe is guilty - then attempts to refute them all. I'll go through them individually.
2.1. The epistemological problem
Michael argues that lawyers can know with high confidence that their clients are guilty, giving the example of Benjamin Courvoisier. Thus, "I'm not sure so I should just defend my client" is not an excuse.
In the case of Benjamin Courvoisier, Benjamin confessed to the lawyer, presumably under the expectation that the lawyer would not publicly share this information. If lawyers were duty-bound to share any private confession given to them, all but the dumbest criminals would simply stop giving private confessions. The overall effect on convictions would be negligible.
But cases like Benjamin Courvoisier are few and far between. Using this example to argue that de...