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This is such an interesting topic. My ideal legal system would be easy for people to represent themselves, but expensive for people to bring forward frivolous

This is such an interesting topic. My ideal legal system would be easy for people to represent themselves, but expensive for people to bring forward frivolous cases. I wonder how both can be achieved at the same time?

A_D_E_P_T 4y ago
Alright, so getting a legal education isn't easy. Admittance to the bar takes years, and the test is non-trivial. (You can't just waltz in with a high IQ and expect to pass without serious study. You can't bullshit your way past it.) Still, everybody's familiar with the stereotype of the scatterbrained and incompetent public defender... Now, take that stereotype and raise it by a couple orders of magnitude and you've got the average pro se litigant. It's almost impossible to "skip past" those years of study and practice, and just litigate your own case as though you were a lawyer. Most pro se litigants have literally no clue what they're doing, and they often end up relying on coaching from the judge (which raises fairness issues) and from the opposing lawyer (which raises ethics issues) -- it almost never ends well. Yet legal services, especially for defendants who are trying to protect themselves from unfair or frivolous accusations in civil court, are so often priced out of reach. So defenses are difficult and sometimes impossible to raise, and there are more than a few law firms who act as though they were mob enforcers. There are two solutions which have been proposed: 1. In most small claims courts, both sides are prohibited from using lawyers, and legal proceedings are simplified and rooted more in common sense than established precedent. This practice could be extended to higher-value civil cases. 2. Establish a "right to representation" in all cases -- civil as well as criminal -- with public access to government-funded legal assistance. It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed. But, hell, the way things are going, legal services and even judges might soon become AI models, so who knows? As for making frivolous cases expensive to bring forward: I think that judges should be quicker to sanction people (and corporations!) and label them "vexatious litigants," which would place limits on their ability to bring forward subsequent civil cases. That aside, I don't think that the pricetag of _anything_ associated with the legal system needs to be raised. BTW: I am not a lawyer but have a philosophical interest in the theory and practice of law. There are lawyers here who surely know a lot more than I do.
- arcbyte 4y ago
  The biggest issue with pro se litigants is not their lack of understanding of the law. Honestly the law is not that hard. The law is usually very straightforward if you spend any time thinking about the particular domain in front of you. The issue with pro se litigants is that they haven't picked up "how" to think about their case. Court is, on the surface at least, a very sterile environment filled with people who deal with life altering situations every day and are mostly numb to any individual case. That isn't an indictment because for the most part people care a great deal about things, but probably not about what the layman cares about. Case in point is drunk driving. I've done it two or three times in my younger years. Growing up in a rural area I had my own ethics about it. I never did and would never have done it in a populated area, but I never saw the harm in making my way home on dirt roads surrounded by corn fields where there was no one else to hit. Again, i only did that a few times in my college years and was very against drunk driving. But this is the ethic that I had in mind as I showed up to my first "DUI Day" in county court as a student in practice prosecutor. The entire courtroom was filled, and more people overflowed outside - at least 200 people. And that was just the morning docket. In the afternoon it was a different 200 people. This happened every single week, 400 new people a week, without end. All thinking to some degree, just like me, that they were special in some way or what they did wasn't that bad. I learned quickly just much of a problem drunk driving is and how naive most of these pro se litigants were in thinking about their own cases. They would raise some minor complaint about the officer or some stupid thing expecting the court to side with them and throw the case out. But we see a thousand complaints and stupid things a day and almost never does it materially impact the evidence against the person. But the mindset of the pro se litigants is that they are special. The only litigants that were ever special were the ones who either a) detached from their case in a way that let them actually objectively decide if they had a good case or not; or b) had enough sense to know they were guilty and present to us good reasons why this episode would never happen again. I dropped the hammer on so many people who weren't ready to accept they were going to ve convicted. But I let people off incredibly lightly who demonstrated that they were accountable despite making a mistake that I myself made a few times.
- cogman10 4y ago
  It's not perfect, but switching over to a "loser pays" system would go a long way in killing the strategy of the wealthy to just drag things out ad-infinitum. > It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed. The biggest drain on government money in the judicial system is when 2 big corporations sue each other. You get 2 teams of hundreds of lawyers filling 100s of motions for YEARS which takes a bunch of resources from judges, court reporters, and the clerks. pro-se litigation is a drop in the bucket for the government when all is said and done. A pro-se litigant simply will not be able to generate the amount of paperwork out of sheer ignorance that a real lawyer could file. Sort of an 80/20 rule. Why spend the time worrying about small fry tax payer costs when the real problem is when google and oracle sue each other.
TheOtherHobbes 4y ago
I don't think it can. Even if you banned lawyers from court rooms, rich people would still hire "legal tutors" to prepare for a court appearance. It's would be better - far from ideal, but marginally better - to increase the number of lawyers in criminal and family law and ban for-profit private representation. All cases would be heard before a random judge and argued by a random public defender and public prosecutor. The paradox is you can only have perfect justice with perfect surveillance, because that's the only way to eliminate doubt about matters of fact.
- readthenotes1 4y ago
  no paradox there. the guardians would then become the privileged class so perfect justice would be available only as long as they allowed
josaka 4y ago
It would be wonderful if it was easy for most people to represent themselves. My sense is most people struggle to express themselves precisely and clearly enough to avoid being at a massive disadvantage to someone who can do so. To my untrained eye though, AI seems poised to get us there. What LLMs are doing for code, translating imprecise natural language expressions of intent into machine-readable, precise code, looks similar to what I do as a lawyer when translating between a client request and legal work product. Lots of filling in boilerplate defaults, some assumptions based on context, etc. Differences include that sometimes we engineer ambiguity into that work product, and we can assume an adversary will exploit plausible interpretations unfavorable to our side, but I see no reason AI won't be able to do that as well.
- unavoidable 4y ago
  I see this sentiment a lot, and as an engineer-turned-lawyer, I've always found this to be intriguing but unsatisfactory. Certainly lots of transactional type work (contracts, estates) and maybe even basic adversarial work (parking tickets and fines?) could be greatly enhanced by AI/ML. But I've asked clients this question and while they would love to not have to pay lawyers - if you ever put the thought in front of them and asked whether they actually want an AI to represent them in court, when stakes are high and there's a chance of losing... well, I've never met anyone who has said they willingly take that chance. Some fields will also certainly never be AI-ified. Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics. Society is almost certainly never going to accept being judged and/or losing to AI and algorithms. Even if a person has a losing case they would want to make sure to hear it from a human rather than a machine.
  - throwaway81523 4y ago
    > Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics. Ha, you might like Pohl and Kornbluth's classic dystopian science fiction novel "Gladiator at Law", which I think was from the 1950s. There is a trial scene near the beginning where the prosecutor and defense spend a page or so addressing the jury box. Then (spoiler) the jury box flashes and whirs, and spits out the verdict.

A_D_E_P_T 4y ago

Alright, so getting a legal education isn't easy. Admittance to the bar takes years, and the test is non-trivial. (You can't just waltz in with a high IQ and expect to pass without serious study. You can't bullshit your way past it.) Still, everybody's familiar with the stereotype of the scatterbrained and incompetent public defender... Now, take that stereotype and raise it by a couple orders of magnitude and you've got the average pro se litigant. It's almost impossible to "skip past" those years of study and practice, and just litigate your own case as though you were a lawyer. Most pro se litigants have literally no clue what they're doing, and they often end up relying on coaching from the judge (which raises fairness issues) and from the opposing lawyer (which raises ethics issues) -- it almost never ends well. Yet legal services, especially for defendants who are trying to protect themselves from unfair or frivolous accusations in civil court, are so often priced out of reach. So defenses are difficult and sometimes impossible to raise, and there are more than a few law firms who act as though they were mob enforcers. There are two solutions which have been proposed: 1. In most small claims courts, both sides are prohibited from using lawyers, and legal proceedings are simplified and rooted more in common sense than established precedent. This practice could be extended to higher-value civil cases. 2. Establish a "right to representation" in all cases -- civil as well as criminal -- with public access to government-funded legal assistance. It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed. But, hell, the way things are going, legal services and even judges might soon become AI models, so who knows? As for making frivolous cases expensive to bring forward: I think that judges should be quicker to sanction people (and corporations!) and label them "vexatious litigants," which would place limits on their ability to bring forward subsequent civil cases. That aside, I don't think that the pricetag of _anything_ associated with the legal system needs to be raised. BTW: I am not a lawyer but have a philosophical interest in the theory and practice of law. There are lawyers here who surely know a lot more than I do.

arcbyte 4y ago
The biggest issue with pro se litigants is not their lack of understanding of the law. Honestly the law is not that hard. The law is usually very straightforward if you spend any time thinking about the particular domain in front of you. The issue with pro se litigants is that they haven't picked up "how" to think about their case. Court is, on the surface at least, a very sterile environment filled with people who deal with life altering situations every day and are mostly numb to any individual case. That isn't an indictment because for the most part people care a great deal about things, but probably not about what the layman cares about. Case in point is drunk driving. I've done it two or three times in my younger years. Growing up in a rural area I had my own ethics about it. I never did and would never have done it in a populated area, but I never saw the harm in making my way home on dirt roads surrounded by corn fields where there was no one else to hit. Again, i only did that a few times in my college years and was very against drunk driving. But this is the ethic that I had in mind as I showed up to my first "DUI Day" in county court as a student in practice prosecutor. The entire courtroom was filled, and more people overflowed outside - at least 200 people. And that was just the morning docket. In the afternoon it was a different 200 people. This happened every single week, 400 new people a week, without end. All thinking to some degree, just like me, that they were special in some way or what they did wasn't that bad. I learned quickly just much of a problem drunk driving is and how naive most of these pro se litigants were in thinking about their own cases. They would raise some minor complaint about the officer or some stupid thing expecting the court to side with them and throw the case out. But we see a thousand complaints and stupid things a day and almost never does it materially impact the evidence against the person. But the mindset of the pro se litigants is that they are special. The only litigants that were ever special were the ones who either a) detached from their case in a way that let them actually objectively decide if they had a good case or not; or b) had enough sense to know they were guilty and present to us good reasons why this episode would never happen again. I dropped the hammer on so many people who weren't ready to accept they were going to ve convicted. But I let people off incredibly lightly who demonstrated that they were accountable despite making a mistake that I myself made a few times.
cogman10 4y ago
It's not perfect, but switching over to a "loser pays" system would go a long way in killing the strategy of the wealthy to just drag things out ad-infinitum. > It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed. The biggest drain on government money in the judicial system is when 2 big corporations sue each other. You get 2 teams of hundreds of lawyers filling 100s of motions for YEARS which takes a bunch of resources from judges, court reporters, and the clerks. pro-se litigation is a drop in the bucket for the government when all is said and done. A pro-se litigant simply will not be able to generate the amount of paperwork out of sheer ignorance that a real lawyer could file. Sort of an 80/20 rule. Why spend the time worrying about small fry tax payer costs when the real problem is when google and oracle sue each other.

TheOtherHobbes 4y ago

I don't think it can. Even if you banned lawyers from court rooms, rich people would still hire "legal tutors" to prepare for a court appearance. It's would be better - far from ideal, but marginally better - to increase the number of lawyers in criminal and family law and ban for-profit private representation. All cases would be heard before a random judge and argued by a random public defender and public prosecutor. The paradox is you can only have perfect justice with perfect surveillance, because that's the only way to eliminate doubt about matters of fact.

readthenotes1 4y ago
no paradox there. the guardians would then become the privileged class so perfect justice would be available only as long as they allowed

josaka 4y ago

It would be wonderful if it was easy for most people to represent themselves. My sense is most people struggle to express themselves precisely and clearly enough to avoid being at a massive disadvantage to someone who can do so. To my untrained eye though, AI seems poised to get us there. What LLMs are doing for code, translating imprecise natural language expressions of intent into machine-readable, precise code, looks similar to what I do as a lawyer when translating between a client request and legal work product. Lots of filling in boilerplate defaults, some assumptions based on context, etc. Differences include that sometimes we engineer ambiguity into that work product, and we can assume an adversary will exploit plausible interpretations unfavorable to our side, but I see no reason AI won't be able to do that as well.

unavoidable 4y ago
I see this sentiment a lot, and as an engineer-turned-lawyer, I've always found this to be intriguing but unsatisfactory. Certainly lots of transactional type work (contracts, estates) and maybe even basic adversarial work (parking tickets and fines?) could be greatly enhanced by AI/ML. But I've asked clients this question and while they would love to not have to pay lawyers - if you ever put the thought in front of them and asked whether they actually want an AI to represent them in court, when stakes are high and there's a chance of losing... well, I've never met anyone who has said they willingly take that chance. Some fields will also certainly never be AI-ified. Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics. Society is almost certainly never going to accept being judged and/or losing to AI and algorithms. Even if a person has a losing case they would want to make sure to hear it from a human rather than a machine.
- throwaway81523 4y ago
  > Not a snowball's chance in hell (and I know it sounds like a cranky person talking) that lawyers and judges in criminal/constitutional trials will ever be "replaced" by AI. It has nothing to to with the possibilities of present and future technology, but everything to do with optics. Ha, you might like Pohl and Kornbluth's classic dystopian science fiction novel "Gladiator at Law", which I think was from the 1950s. There is a trial scene near the beginning where the prosecutor and defense spend a page or so addressing the jury box. Then (spoiler) the jury box flashes and whirs, and spits out the verdict.