Public Defenders and Ethical Blindness
Date:  02-05-2015

When excessive caseloads seem “normal” lawyers don’t realize they are not providing optimum legal services to indigent clients
David Carroll, Executive Director of the Sixth Amendment Center, asks, “Do psychological factors force public defenders to rationalize sub-par performance in the face of excessive caseloads?”

Carroll sat down with Tigran Eldred author of Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Case , who ,like Carroll, believes that when public defenders are saddled with an enormous workload they consider it “normal” and fail to realize that their indigent clients are not getting the legal services they deserve. The following article is posted with permission.

How public defenders struggle with ethical blindness

Posted on February 2, 2015 by David Carroll

The National Association for Public Defense (NAPD) has triggered a critical debate as to whether public defenders with excessive caseloads can provide quality representation to their clients. (See articles by Andre Vitale and John Gross here, here and here.) Citing Professor Norman Lefstein’s exhaustive study, Securing Reasonable Caseloads: Ethics and Law in Public Defense, Professor Gross notes that psychological and organizational factors can “create an environment where excessive caseloads are regarded as normal.”

These are themes that former public defender and current New England Law professor, Tigran Eldred, has explored in great detail in his seminal work Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases [65 Rutgers L. Rev. 333 (2013)]. The Sixth Amendment Center (6AC) encourages all defense providers and criminal justice stakeholders to read Professor Eldred’s full article. In an effort to further the debate, I sat down with Professor Eldred to explore the psychology of excessive caseloads.

David Carroll: Can you give our readers a brief overview of what you mean by the term “ethical blindness”?

Tigran Eldred: The central thesis of my work is that defense lawyers, like everyone, are influenced by a number of psychological factors (called “cognitive biases and heuristics”) that, under certain conditions, make it hard for them to appreciate their own limitations. The result, I believe, is that many lawyers with excessive caseloads simply do not realize when they are providing subpar performance to their clients.

DC: Okay – let’s try to unpack this for our readers. Are you saying that the demands of excessive caseloads force public defenders into making quick decisions about cases everyday that that they themselves may not be consciously aware of?

TE: That’s basically it. And, the scientific support for this comes from the world of “behavioral ethics.” In particular, three psychological factors are relevant to the excessive caseload discussion. First, we all experience what is known as “confirmation bias.” This is the tendency in all of us to seek out, interpret and remember information in a manner that supports our pre-existing beliefs. The second and related concept is “motivated reasoning.” Not only do we seek to confirm our pre-existing beliefs, but also we do so to reach conclusions that we prefer. Third, because of our general desire to think well of ourselves, we tend to experience an “overconfidence bias,” including the tendency to overestimate our abilities to act competently and ethically when confronted with difficult dilemmas.

All of three of these factors occur unconsciously. We are tricked into believing that our choices are reasoned, even when often they are not. Our brains convince us our quickest decisions are solely the result of conscious and rational deliberation. But all the while we are blissfully unaware of how our pre-existing views, desires and self-conception can influence the judgments and decisions that we make.

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