February 23, 2010
In his recently published lead article in the Albany Law Review, Legal Autopsies: Assessing the Performance of Judges and Lawyers through the Window of Leading Contract Cases, 73 Alb. L. Rev. 1 (2009), Professor Gerald Caplan argues that the law should employ legal autopsies as a method of assessing the systematic performance of judges and lawyers.
Similar to medical autopsies, Caplan asserts that by a review of documents like briefs, transcripts, and lower court records, we can assess the performance of lawyers and judges in individual cases, which can provide important systematic information that can confirm competency, identify error, and correct mistakes in the legal system. In the article, Caplan acknowledges that there are external mechanisms in place to evaluate attorney and judicial performance, e.g., malpractice suits but argues that these mechanisms are limited in their ability to highlight the ordinary rather than egregious behavior of attorneys and judges and whether ordinary practice conforms to professional standards and expectations. Acknowledging that while each case is unique, he asserts that as a collective they offer a glimpse of more general propositions that might be uncovered if autopsy-like studies were routinely undertaken. Caplan supports his assertions by analyzing contract case studies to arrive at several observations about judicial and attorney performance. His observations include the suggestion that attorney error, like incorrect physician diagnosis and treatment, is more routine than extraordinary; that there are deficiencies and gaps in the trial record which impair judicial capability to decide the case correctly. Caplan also uses case studies to make observations about judicial performance. The contract case studies, among other insights, suggest that certain types of cases test the judiciary's capability to get the facts straight. Particularly within family and perhaps promissory estoppel matters, courts appear to struggle to find the most plausible narrative. Rather than simply making observations, the article serves as a call for an increased attention to case studies for an evaluation of attorney and judicial performance.