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