Preface In the mid

Preface
      In the mid-seventies, social scientists began using their skills to help lawyers with jury selections. In 1976, the Team Defense Project, Inc. was started. This group, of which the author was one of the founders, was the first organizations of lawyers to associate a social psychologist as a major and integral part of the organization and litigation team. Admittedly, the focused use of the psychologist was very narrow in the beginning years of Team Defense, but this changed. As it became more difficult to win death penalty cases with jury trials and as the integration of the skills of a psychologist became more comfortable to the lawyers, a metamorphosis began, where the function of the lawyers became more real-world related and the function of the psychologist became more legally oriented.
      Through several skilled pioneers in jury consultation work, the concepts of a litigation team became common place. The assistance of a jury consultant is now considered a near necessity in major litigation. Sadly, there has been little advancement in the understanding of the global aspect of representation nor has there been an increased understanding of the many arenas in which to resolve disputes.
      There is a distinction between a litigation team and a representation team. When we advance to understand the full meaning of "representation," the skills we use will also advance. Only recently, have we begun to understand the distinction and advantage of a litigation team as opposed to a trial team. In recent years, the concept of a litigation team has been greatly expanded and the team now includes appellate and scientific experts as integral parts. Soon, we will see representation teams that have an even greater diversity of specialists.

Overview

     For too long we have devoted our training efforts to developing skills that only enhance opportunities for “not guilty” jury verdicts. This training is needed, but training directed exclusively or primarily toward this goal is disproportionate to our predominant task.
     Our options for effective representation well over three-fourths of the time do not include a realistic chance of having our client found "not guilty". Yet, almost exclusively, we train and focus our representation goals on the Holy Grail of criminal defense representation, "not guilty". For many justifiable reasons we must waltz with the concept that our client is "not guilty", but when the entire focus of the representation is based upon a "not guilty" verdict, statistically the results are devastating.
     In representing a person accused of criminal activity,   most often, at some point, we have to acknowledge   the person's factual involvement, and extremely persuasive evidence of that factual involvement. This fact being a statistical reality, we then need to focus earlier in the representation process on dispositional fairness as one of our primary goals.
     An enhanced understanding of the models of representation will provide us with a guide to distinguish between techniques that are no better than Ouija board decision making and techniques that are based upon sound judgment.

The Need to Identify Models of Representation

Models of Representation

Bird's Eye View of Criminal Justice System

     We begin this models of representation section by including here a simplistic, bird's eye view of the criminal justice system. We then follow these statements about the criminal justice system with a section that both identifies and explains the various models of representation.
     These views about the criminal justice system and models of representation are included to accomplish more than a philosophical discourse; and, certainly, are included to do more than to throw stones at those who work the other side of the street. We include these sections to identify the depth of problems that occur when we assume the responsibility of representing a person accused of a serious crime.
     Hopefully, by reflecting on these very basic problems, we can expand our vision and imagination about corrective measures that can be accomplished by using the techniques advocated in our paper about Y2K9 Action Motions.
     There is an urgent need for fresh articulation of age-old problems that affect equality and fairness in our criminal justice system. Frankly, the subject matter of motions filed in most criminal cases is stale, routine, outdated, and, for the most part, the product of knee-jerk, pedestrian, rubber-stamped thinking. Besides, most motions just provide the court with an opportunity to make disparaging remarks to counsel for the accused. Y2K9 Action Motions redirect the accusations of wrongdoing.
     To present innovative approaches to centuries-old problems, we must drill deeper into the causes of injustices and inequality in the quality of legal representation and deeper into the injustices and inequality in disposition.
     To drive this point home, let's look at a hypothetical problem. Assume that we are appointed to represent the interest of a bull that is to engage in a bullfight. First, we know that the matador usually is going to prevail in killing the tortured bull after the bull's neck has been stuck with lances, his back pierced with barbed sticks, and his aorta severed by a sword. We also know that the majority of the crowd will cheer the matador. If we were to file motions on behalf of the bull, just what motions would we file? In this example, we clearly know we would attack the fairness of the entire process. Why then do we only make superficial attacks to the process of assigning counsel to indigent persons? Why then do we make only superficial attacks to the conduct of the prosecutor, the judge and law enforcement? Could it be that the business model that brings us into the case restrains us? Let's examine the various business models and hope that this examination will give us subject matter for more innovative, corrective measures -- i.e., motions.

Two Main Categories of Models of Representation

It is relevant to identify the models of representation. First, these models may be placed into two main categories. One category will identify the methods of compensation for the attorney representing a client. This main category of models of representation we will classify as the economic models.

The other category of models of representation that we identify will be a classification that relates to the techniques used by the attorney in fulfilling the role of the client's legal representative.

The Economic Models of Representation

     The economic models of representation can be broken down into the following designations.

   The Privately Engaged Attorney
   The Court Appointed Attorney
   The Public Defender Provided Attorney
   Private Interest Provided Attorney

     Each of the descriptive categories in the Economic models of representation present constitutional problems that pose threats to justice and equality. Without a detailed explanation of the variation on each of these categories, we will briefly identify the scope of these classifications.

The Privately Engaged Attorney

This once predominate method of compensation of attorneys has almost fallen into obscurity in major cases involving violent crimes. The cost of engaging competent private counsel is out of financial reach for most persons in the criminal justice system. Persons with relatively small amounts of financial resources usually attempt to engage attorneys who offer representation at an affordable price. Often the services provided by this type of attorney are in keeping with the cheap price. Naturally, persons with good judgment in engaging counsel and adequate financial resources step to the head of the line when justice is administered. Often privately engaged counsel are not compensated adequately to engage in a sustained attack on the fairness of the entire criminal justice process.

The Court Appointed Attorney

Attorneys obtained thought this method of compensation vary greatly as to both competency and commitment to the accused person. When the government selects the attorney who is to determine if the government is providing a fair tribunal or if the government is only providing an arena for a bullfight, there are immense constitutional problems. What happens to the attorney that attacks the government? Does the attorney receive full compensation for the time spent on the attack?

The Public Defender Provided Attorney

Many dedicated attorneys work as public defenders. Do these attorneys work with a glass ceiling over the attacks that they are permitted to make against the process of the government?

Private Interest Provided Attorney

Many private interest organizations provide invaluable services to persons who could not have good representation otherwise. Like all of the various economic models, this model has a great potential for a conflict with the best interest of the client.
By identifying these economic models, we identify a myriad of conflict of interest issues that are not adequately corrected in the criminal justice process. Are these conflict of interest issues being litigated, or is the economic interest and absence of understanding of the conflict issue of attorneys deterring this type of litigation?

The Technical Models of Representation

Presently, we identify four basic technical models of representation that are used by legal advocates. These systems are persuasion, influence, legalistic reasoning and conflictineering. There are many nuances to these categories, but a simplistic explanation of the first three systems is as follows.


Persuasion -- the power of a person's personality, expressions and presence to win over and advance his or her position.

Influence -- the capacity or power of a person to produce effects on others by intangible or indirect means, best illustrated by example with the term "political influence."

Legalistic Reasoning -- reliance on law.

Each system is most frequently used with another system. Once the representation ends it is difficult to determine which system was responsible for results. Advocates who are super-achievers use the fourth basic system for individuals who are normally foreclosed from effective use of the other three systems. This system is Conflictineering

.There is a separate section of this paper devoted to conflictineering because this is the newest and least understood of identifiable categories of skills. Most skilled advocates have not explored this skill. Let us hope, more advocates will identify this aspect of their adversarial skills and begin writing about characteristics of this skill that they can identify and transfer to other persons.