[Policy Pulse] What Should Be the KPI for Prosecutorial Reform?

The Risks of Outcome-Based KPIs and Distortion of Facts
Shifting Evaluation of Investigative Agencies Toward Social Trust

The key performance indicator (KPI) for litigation attorneys is commonly considered to be whether they win a case. This is because the primary reason clients seek out attorneys is to win. Fee agreements and an attorney's reputation are ultimately determined by their win rate. However, not every lawsuit should have victory as its sole objective. Depending on the circumstances, the goal of litigation can vary. I categorize these into three types: ① cases where winning is absolutely necessary, ② cases where losing is actually more desirable, and ③ cases where the outcome is less important than having the substantive truth determined by the court.

A representative example of ② is a case where a sexual assault victim bit the perpetrator's tongue and was convicted of causing serious injury. In the retrial, the prosecutor requested an acquittal and apologized, illustrating that a guilty verdict against the defendant can sometimes be inconsistent with justice and fairness. There are also many examples of ③. When I worked as a legal executive at a large corporation, I was involved in a lawsuit seeking damages from former outside directors. However, in this case, winning could not be the unconditional goal. Given that it was practically impossible for outside directors to detect accounting fraud during board meetings, it was not fair to hold former executives accountable while keeping them in the dark. The company's objective should have been to receive a fair judgment based on the substantive truth, not simply to win. Nevertheless, in practice, people often fail to distinguish between ① and ③, selectively presenting only evidence unfavorable to retired executives and thereby distorting the facts. This leaves the parties involved feeling deeply wronged.

The prosecution is also caught in the trap of KPIs. As President Lee Jaemyung has pointed out, there is growing concern about whether investigations that aim solely for indictment are legitimate. Not only prosecutors, but also police, the Board of Audit and Inspection, the Fair Trade Commission, and the Financial Supervisory Service are more sensitive to the KPIs that apply to them than to the institutional purpose of their organizations. KPIs are generally focused on "how many large cases have been handled and how many cases in total," because the scale and number of cases are directly linked to performance evaluations, promotions, and rewards.

The problem is that, in this process, there is sometimes a conscious effort to inflate cases or even create cases out of nothing. Facts are sometimes distorted to fit a predetermined narrative. I witness the harm caused by such distortions every time I deal with clients.

So what should be adopted as a new KPI? Just as win rate should not be the sole criterion for litigation attorneys, investigative agencies should not be evaluated solely on the number of cases handled or the conviction rate. More important indicators should be how faithfully the agency protected procedural rights, how balanced their fact-finding was, and whether the outcome led to greater public trust. Efforts to ensure fair procedures and uncover the substantive truth are not easily quantifiable, making them difficult to include in KPIs. However, unless such indicators are established, distortions will inevitably continue.

Just as we must move beyond viewing lawsuits solely in terms of winning or losing, prosecutorial reform cannot be accomplished through organizational restructuring alone. The new standard of evaluation should not be the ability to inflate case numbers, but rather the ability to accurately capture the voices of those who have been wronged, and the degree to which public trust is enhanced, not the number of cases handled. If these indicators are not meticulously designed, investigative agencies will continue to chase case numbers and scale, and attorneys will remain fixated on win rates. True reform must begin with changing the standards by which we evaluate performance, not just the systems themselves.

Attorney Park Suman

This content was produced with the assistance of AI translation services.