Thursday, May 24, 2018

Can We Play Moneyball with Lawyers?

Although lawyers (and other professionals) are not baseball players, some clients may benefit by looking at outcome statistics when making decisions about who to hire for a particular job.  Still, it's tough to figure out the right statistics to use.  What counts as a "win" may not always be clear.  A defense lawyer that "loses" on liability but "wins" with a small damages award probably has a happy client.  In a couple of op-eds, I've suggested that immigration court outcomes might be a useful place to start.  A recent news story has me thinking about the issue again.

Publishing outcome statistics by attorney might help asylum seekers that now bet their lives on particular attorneys.  The real question is whether they should know how different counsel might affect the odds. We've already got stats for the judges.  And outcomes vary dramatically by presiding judge.  For example, immigrants pressing asylum claims in recent years before Los Angeles’s Immigration Court Judge Lorraine J. Munoz had 97.1% of their claims denied.  In contrast, asylum seekers fare better before Los Angeles Immigration Court Judge Stephen L. Sholomson, winning 78.2% of their asylum claims.  

But we don't have ready access to the stats about other officers of the court. Although the system assigns a judge, immigrants actually get to pick their lawyers, if they're fortunate enough to afford one or find pro bono representation.  These imperfect outcome statistics may reveal unseen problems. Consider a recent lawsuit arguing that some New York immigration lawyers defrauded their clients with false promises. Notably, the suit joined by the Benjamin N. Cardozo School of Law’s immigration clinic uses statistics to make its case.  They found that the Hecht firm had filed over a thousand asylum applications from November 2006 to January 2017.  The Cardozo clinic could only confirm that two of those asylum applications were approved—an asylum claim win rate of about 0.2%.  Had they known the odds, some of the Hecht firm’s clients might have shopped around.

In theory, anyone can get this information with public records requests.  Sadly, few immigrants any practical ability to slog through the system to uncover the truth.  Because we do not make statistical information available to immigrants up front, insights into the truth lurk obscured behind piles of painstaking paperwork. Providing information about outcomes by particular professionals would help the public decide who to hire for help.  After all, one might want to avoid a heart surgeon if her patients die at double the rate of another down the street.  Immigration court practice offers a place to try increasing disclosure because immigrants may benefit from the information when picking lawyers. 

Although imperfect, statistical information may also counteract implicit biases that could lead to picking the wrong person. Without information, immigrants may be vulnerable to affinity frauds that exploit shared identity characteristics to establish misplaced trust.  One immigrant describes asking her accountant whether she could trust the Hecht firm.  He reportedly told her not to worry, saying “‘why would you think that? I’m Hispanic as well.’”  Exploiting the same human weakness, Madoff bilked billions by bamboozling coreligionists into trusting him.

Immigrants should be able to trust and verify.  Sadly, there are far too many scoundrels offering false hope for a fee.  Last year New York City’s Department of Consumer Affairs warned immigrants about “immigration service providers and immigration lawyers” that were “preying on the desperation and fear of immigrants, all so they can turn a profit.” These predators lure clients into bad decisions by telling them they have a shot at relief without disclosing that the lawyer almost never actually hits this long shot.  While a skilled shooter might strike the target more often, immigrants should know if they're praying and paying for a lawyer that is simply spraying filings.  If we make outcome statistics readily available for individual attorneys, the worst fraudsters may fleece fewer immigrants.  Pairing immigrants with more competent counsel may also save lives by increasing the odds that courts will grant valid asylum claims.  Good lawyering may also benefit us all by limiting the damage that can be done by an erratic administration.

This proposal to give immigrants easier access to public information about outcomes in public courts has vehement critics.  Much of the opposition in my inbox after writing about this came from immigration lawyers concerned about how clients might react when trying to interpret the grim math.  In response to a prior piece pointing out concerns and highlighting empirical research about the risks from the worst of the immigration law bar, the American Immigration Lawyers Association called the idea “fake news.”  One AILA chapter even sent a letter demanding that I retract the idea.  The letter claimed that making this argument publicly and warning about the risk of exploitation from attorneys was unethical because it undermined respect “for the immigration bar” and “any faith the public may have in our system.”

These critics are not entirely wrong about the idea.  Releasing information will mean that immigrants will no longer have to place blind “faith” in our system or a particular lawyer. That's a good thing. When an attorney tells an immigrant to scratch together ten grand for an asylum claim, the immigrant deserves the attorney’s batting average for these kinds of claims.  If it’s 0.2%, she should shop around.

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