CHAPTER FIVELAWYERS AND LITIGANTS

Prosecuting and defense attorneys (criminal)

Plaintiffs’ and defense attorneys (civil)

Groups and individuals represented

Introduction

Laws created and administered by tribal leaders

Informal and ad hoc decision-making

Lack of court systems and attorneys

Cases presented by orators

Primitive Legal Systems

Advanced agrarian and early industrial societies

Emergence of police, judge, and attorney roles

Attorneys trained through tutelage and apprenticeships

U.S. system mirrored British system

Emergence of law schools in late 1700’s and early 1800’s

Transitional Legal Systems

Institutionalized and formal legal training

University education required

Bar exam must be passed for law license

200 ABA-accredited law schools

38 unaccredited law schools

Attorneys find employment in a wide variety of settings

Modern Legal Systems

Practicing Attorneys 74% in private practice Government agencies or private industry Judges and legal educators Legal aid or public defenders

Nationwide trend toward larger firms

Appealing earning potential Variation based upon location, firm size, field of law Median salary is $110,590

Large demand for attorneys and legal services

Lawyers and Law Practice

2,344 prosecutors offices

78,000 employees nationwide

Represent the people of the state in some misdemeanor and all felony criminal cases

Prosecuting Attorneys

Variance in title and job responsibilities

Represent the people in bringing charges against criminal defendants

Responsibilities Receive cases from law enforcement Review cases for legal sufficiency

Case screening Area of tension between law enforcement and prosecutors Advise grand jury Try criminal cases throughout all stages of judicial proceedings

Local and State Prosecutors

U.S. Department of Justice and Attorney General Cases from the District of Columbia Cases from the Office of Civil Rights

United States Attorneys Handle most federal prosecutorial work Appointed by the President and confirmed by the Senate Serve at the pleasure of the President and Attorney General Responsibilities

Prosecution of cases brought by the U.S. government Handle civil cases in which the federal government is a party Collect administratively uncollectable debts owed to the government

Federal Prosecutors

Counsel clients

Develop legal strategies

Act as mediator and negotiator Judges Clients Prosecuting attorneys

Give case appraisals

Promote justice

Defense Attorney Responsibilities

Less appealing clientele

Potential for poor reputation

Wide variety of compensation

Lower pay than civil attorneys

Stratification Law firm Practice Background

Status of Defense Attorneys

Guaranteed by the 6th Amendment

Extends only to criminal cases

Applicable to the states (Powell)

Applies to all felony cases (Gideon)

Applies to all cases where there is a possibility of incarceration (Argersinger)

Applies at all critical stages of criminal proceedings (United States v. Wade)

Right to Counsel

Private Retention

Public Defenders

Voucher Systems

Assigned Counsel

Contract Systems

Legal Clinics

Legal Aid Societies

Methods of Attorney Selection

Attorney is selected by the defendant

Expenses are paid out of pocket

Used by those with financial resources

Private Retention

Government attorneys provide legal services to indigent defendants

Criteria for eligibility Income level Public assistance Ability to post bond Federal poverty guidelines Judge’s discretion

State and federal public defenders

Features Smaller office staff Recent law school graduates High rate of attorney turnover

Little difference in case outcome

Public Defenders

Indigent defendants are issued a voucher worth a certain amount

Defendant selects an attorney who will accept the voucher

Gives the defendant the ability to choose their own attorney

Voucher Systems

Dominant form of legal defense

Case appointment from a list of private attorneys

Attorneys paid a flat fee or by billable hours

Variety in quality of representation

Panel attorneys are utilized in federal courts

Assigned Counsel

Attorneys contract with a funding source

Provide court-appointed legal representation

Either stand-alone systems or in conjunction with public defender

Handle overflow or conflict cases for public defender

Contract Systems

Operate within law schools

Second and third year students represent clients

Selected legal matters

Cases are supervised

Legal Clinics

Coordinate time donated by lawyers

Pro bono legal work

Concern with undermining other lawyers’ earnings

Legal Aid Societies

No evidence that one method of selection is better than another

Little difference in case outcome for appointed or privately retained attorneys

No definite criteria for attorney competence

Factors for attorney competence assessment Defendant must be able to point to a specific procedural error The action or failure to act must prejudice the case’s outcome

Attorney Competence

More appealing cases

More financially rewarding

Attorneys in Civil Cases

Frequency with which parties appear in court

One-shotters: litigants that file suit once or very infrequently

Repeat players: litigants that frequently have business in court and file lawsuits often

Number of parties involved in the dispute

Civil Litigants