At a recent CLE, Charlotte defense attorney Chris Fialko mentioned that he’s been enjoying Atul Gawande’s book The Checklist Manifesto. Chris is a pretty sharp guy, and I had a plane trip coming up, so I bought the book and read it. I liked it too, and thought it had a few lessons for criminal lawyers. We don’t do a lot of book reviews on the blog — actually, we’ve never done one — but this seemed consistent with the mission of the blog, so here goes.
First off, here’s the publisher’s synopsis of the book:
The modern world has given us stupendous know-how. Yet avoidable failures continue to plague us in health care, government, the law, the financial industry—in almost every realm of organized activity. And the reason is simple: the volume and complexity of knowledge today has exceeded our ability as individuals to properly deliver it to people—consistently, correctly, safely. We train longer, specialize more, use ever-advancing technologies, and still we fail. Atul Gawande makes a compelling argument that we can do better, using the simplest of methods: the checklist. In riveting stories, he reveals what checklists can do, what they can’t, and how they could bring about striking improvements in a variety of fields, from medicine and disaster recovery to professions and businesses of all kinds.
Despite the reference to “the law” in the above blurb, the book doesn’t talk much about the law. Gawande talks about flying planes, construction, and other tasks in which checklists have well-established uses. Then, because he’s a surgeon, he emphasizes medicine and ways in which checklists can be used to improve outcomes there. But I immediately started thinking about checklists and the criminal law.
For example, I handled a number of appeals when I was in private practice, but I never developed a checklist of things to make sure I considered. I think I would have done a better job if I had systematically determined, for each case, whether the indictment was proper, whether there was a venue issue, whether the judgment was entered out of term, and so on.
Now, I get a lot of phone calls during trial when unexpected evidentiary issues arise. I do my best to help, but of course it would be better to sort these issues out under less time pressure. Many trial lawyers create trial notebooks that include exhibit lists — essentially, a checklist that indicates whether each planned exhibit has been marked, offered, and accepted. Perhaps lawyers should create a pretrial equivalent, i.e., a pretrial checklist of each key piece of evidence that prompts the lawyer to ask systematically what possible issues might arise with respect to that evidence. Such a system wouldn’t prevent all unanticipated issues, but it might cut down the number substantially.
And it isn’t just lawyers who might benefit from checklists. There are a few errors that judges make regularly. Perhaps the most common is entering an order of restitution based on the prosecutor’s representation of the loss amount, which isn’t evidence and can’t support a restitution award. (It happened again in State v. Elkins, released in the last batch of court of appeals opinions.) Could or should judges create checklists for the most common oversights? Likewise, are there checklists that officers could or should use to ensure that they are not overlooking essential steps in an investigation? I believe that most officers now use checklists when conducting lineups, and I’d be interested in feedback about how that’s working.
This short post can’t do justice to the book. But Gawande’s point is that for many professionals, the problem isn’t a lack of knowledge, it is our tendency to overlook things that we know — often very simple things — in the course of doing what are often enormously complicated jobs. If you’ve never had the experience of thinking, “how did I miss that?” when looking back at a case, kudos to you. But if you have, you might find the book interesting. And if you use a checklist or similar device in your work, and you’d care to share your experience with it, please post a comment.
This reply is from only one sentence in your blog, but I think it deserves mention.
You stated, “Perhaps the most common is entering an order of restitution based on the prosecutor’s representation of the loss amount, which isn’t evidence and can’t support a restitution award. ”
Cases convicted and placed on probation often have restitution ordered. There have been many occasions in my experience wherein Probation Judgements have included the phrase, “PPO shall determine restitution.”
I have always felt that was improper, and should have been addressed in open court with a decision made in open court.
Thanks for your input.
In this vein, there are some great checklists for defense attorneys on a wide variety of topics on the IDS website under Training Materials, including a Trial Checklist by Susan Brooks and several district court checklists by Alyson Grines.
Mike C: I think a probation officer can determine a collection schedule for the restitution (G.S. 15A-1343(g)), but I think the court must set the total restitution amount. In State v. Simpson, 61 N.C. App. 151 (1983), for example, the court of appeals held it was error for the trial court to order the defendant to pay “one-half of his earnings while on work-release or parole” without fixing a maximum supported by the record as required by law.
Setting the restitution amount is a judicial function that probably cannot be delegated to a probation officer. See, e.g., United States v. Johnson, 48 F.3d 806 (4th Cir. 1995). Moreover, we know from many recent cases (including State v. Elkins last week) that the restitution amount must be supported by evidence adduced at trial or at sentencing. If a probation officer determines the amount later, the evidence will not have been considered at trial or sentencing.
I agree the restitution amount should be determined in open court by the judge, however there are times when the Defendant is in custody and been offered a plea where he will be released on probation and pay restitution, only to discover the victim has not submitted the restitution amount or the restitution amount is so large that defense counsel believes the victim has inflated the amount. The Defendant will take the plea and wants to get out on probation. Would it not be proper to enter the plea, direct the probation officer to investigate the restitution amount and then motion the matter back before the court to set the amount?
And on a side note, if a victim inflates a restitution amount, as happened to me recently in a theft of copper case, is the victim not committing the crime of obtaining property by false pretenses?