Law and Justice

1. Law and Justice CJUS/POLS 110 Lawyers

2. Practice of law - radically different - turn of century vs. today - prestige / personal satisfaction - not money a. Partners - sharing liabilities / profits - not shareholders - shielding personal wealth (1) Civility existed

3. - members of the bar - taking one another at their word - today = rarely accepted - written follow-up (2) Obtaining clients - 100 years ago = word of mouth - today = glitzy ads / promotions - billboards / TV / radio - attorneys at sites of catastrophes (3) Targets for criticism - jokes throughout history

4. - Shakespeare’s Henry VI, Part II: - “The first thing we do, let’s kill all the lawyers.” (a) Why animosity? - era of political correctness - gender / ethnic origin / sexuality (b) Negative comments = acceptable b. Questions to ask / answer - who are they / what is their function

5. (1) Are we required to use a lawyer - can we represent ourselves? (2) Importance of “advocacy” - pleading cause of another (a) Advocacy - very important - adversarial nature of system (b) Becoming a corporate business - business principles

6. - how much money made - not best for client b. Primary functions = litigate / represent - litigate = “contest in law” - litigation = “judicial proceedings” (1) Primary: to represent client - prepare case (to sue / to defend) - present in court (civil / criminal) (2) Secondary functions

7. (a) Represent before government - IRS / L&I / CPS / VA / etc. (b) Acting as mediator / negotiator - between opposing parties - mediate plea agreement - settle civil matter (c) Preparation of legal documents - wills / contracts / codicils / etc. (d) Advice / counseling to clients

8. - financial arrangements - tax advice / antitrust laws - divorce / adoption • Adversary system - backbone of legal system a. Definition: - “An opponent / one who strives against us / enemy.” (1) Adversarial system

9. - parties to legal actions = opponents - judge = independent / neutral - court: decisions based on fact - attention of court by the opponents (a) Each responsible for: - producing evidence - rules of law - support their side (b) Partial / biased for their client - asserts every reason to win

10. - attack their opponent - attacked by their opponent (c) Judge is the referee - follow procedural rules (2) Civil lawsuit - plaintiff = “moving party” - to attention of court: information - required burden of proof (3) Criminal complaint

11. - prosecutor = moving party - file case (information) - required burden of proof b. Attorney at law (lawyer) - authorized by law - over 2/3s of adults consulted - hire attorney = “retained” (1) Who may practice law - designed for attorney by attorneys - practice / judge / legislate

12. - presidents / governors / legislators - mostly attorneys (a) Organization - attorneys who monitor attorneys - American Bar Association - state / local bar associations (b) Must be licensed attorney - state bar associations - regulate practice of law - varies from state to state

13. (c) Federal rules / regulation - state rules / regulation - bar association rules / regulation (d) Inherent powers of court - regulate / govern - legal profession (e) States set own qualifications - permit “legal assistants” (2) State license to practice

14. - from each state - good moral character - minimum educational requirements - pass state bar exam - take oath to support laws / standards (a) Few exceptions - lawyers not required - “in propria persona” (Latin) - in one’s own person - in pro se (for him / her self) - “pro per”

15. (b) Not advisable - go into court without - costs too high - criminal or civil (c) “One who serves as his own lawyer has a fool for a client.” c. Federal courts - recognizes own separate bar / group - those permitted to practice before it - granted to licensed attorneys in any state

16. - no further legal education - no additional examinations (1) License suspension - can be suspended / revoked - fail to maintain professional standards - includes: disobeying the law / provide incompetent services (a) Not required to disclose: - disciplinary measures - filed against them

17. (b) Unprofessional conduct - sued by prior client (c) Health issues - mental health problems - drug addiction (2) Specialization - license allows variety of legal tasks - general practice / specialists - general = routine legal matters - specialist = specific legal skills

18. (a) Specialist areas - divorce or family law - probate and estate law - criminal law - administrative law - real property law - personal injury law - small business law - corporate law - consumer law (b) Other specialties

19. - antitrust law - labor or employment law - tax law - bankruptcy law - intellectual property law - international law - workers compensation law - elder law - maritime law • Attorney-client privilege - to encourage full disclosure

20. - all communications confidential - attorney cannot waive the privilege - cannot be compelled to reveal - insure proper representation - applies to all state / federal levels a. Conflict of interest - involves rules of ethics - client and attorney = real or perceived - potential state in matter - financial / representation / etc. - cannot represent

21. (1) How do you find a good attorney? - paid advertisements - word of mouth - attorney referral service - court appointed - meeting with the attorney (a) Questions to ask - frequently handle like cases - your specialty - how many like cases handled - will you refer my case

22. (b) More questions - are you doing all the work - if not, who else will be involved - copy of retained agreement - estimate of likely costs (2) Hiring an attorney - employment relationship = contract - a promise to represent - for a promise of compensation (a) Attorney can terminate contract

23. - reasonable grounds - fail to pay / conflict of interest - health reasons (b) Attorney must: - give reasonable notice - obtain court permission (filed) (3) Payment of fees - how much should a person pay - type of action - attorney’s time

24. Example: “Your husband / wife is a doctor who was killed in the crash of a commercial commuter airplane. He / she was not on the airplane, but was in their medical office in Aberdeen, which was destroyed in the crash. Attorney Dewey Cheatham offered to represent you on a contingency fee basis for one-third of any net recovery made. Cheatham indicated no fees would be charged “unless and until” a recovery was made.” Should you hire Cheatham?

25. NO!! b. As in most calamitous events - no issue of “if” - recovery is assured - strict liability of defendants - only a matter of “when” (1) Obtaining reasonable settlement - will require negotiations - 1/3rd of $10 million is unreasonable - 100 hours to represent you

26. (a) Good attorney = hourly rate - $200 to $500 per hour - deferred until settlement (b) Contingent fee - calamitous event - death case where liability certain - unethical (c) Referred to as: - “jackpot” cases - “retirement” cases

27. (2) Contingency fees - rarely less than 25% - nor more than 50% (a) Depends on factors involved - time / legal skill - experience / reputation / ability - money involved - results obtained (b) Customary fee = similar services - relationship with client

28. (3) Financing client’s case - legal costs incurred - before recovery is possible - typical costs: (a) Court costs - charges certain fees - processing legal paperwork - paying jurors ($20 per day) - use of courtroom / judge - expert witnesses - court security

29. (b) Investigation - private investigator services - crime scene / accident scene / photographs / etc. (c) Discovery - sworn testimony - outside of court - court reporter - transcript fees / attorney costs (d) Medical examinations

30. - physical / mental conditions of victim at issue - medical / psychological exams - doctors as expert witnesses (e) Expert witness fees - often necessary - lay witnesses = what they saw - expert = belief from information - physician / economist / model maker / computer expert / psychologist / etc.

31. Do you need an attorney? - small claim / traffic court / minor crime = no - lawsuit / serious crime = yes a. Self-help books - Nolo Press - legal software = Quicken - criminal / civil (1) General guidelines - it is always best to have attorney - do consult if:

32. (a) Involves risk of: - losing significant sum of money - gaining significant sum (b) Actual / possible - physical / mental injury - suffered / threatened - characterized as significant (c) Important for any other reason - major impact on your life - divorce / child custody / etc.

33. (d) Lack time to carefully: - preserve / pursue right (e) Facing a serious criminal penalty b. Legal malpractice - minimum standard of care - monitored by state bar - client can sue = careless wrongdoing (1) Malpractice is a tort - fail to meet standard of care

34. - client suffers loss (2) Recover damages - hire second attorney - established time frame (1 to 3 years) (3) Not guilty - lost a case - one wins / one loses c. Unauthorized practice of law - without a license = crime

35. - non-lawyer providing legal advice - not a crime (1) Bill for services - cannot use court to collect - services = illegal / void (2) Legal assistant - working with attorney - limited in services (a) Obtain facts from client

36. (b) Interview witnesses (c) Perform legal research (d) Prepare summaries - drafts of interrogatories - discovery responses d. Alternate dispute resolution - alternative to litigation - most common types - left to attorneys to decide

37. (1) Negotiation - communication - purpose of persuasion (2) Mediation - neutral third party - assist in resolving dispute (3) Arbitration - more formal - arbitrator selected - acts as judge / decision binding

38. (4) Private judging - rent-a-judge - heard before a retired judge - “referee” - empowered by state statute - can be appealed (5) Ombudsperson - actively involved - investigates / makes decision (6) Expert fact finding

39. - expert in field of lawsuit - hired to make a decision (7) Mini-trial - usually a large business - high ranking officials - present before judge Civil Process 1. Plaintiff’s complaint - informs defendant formally - who filed / what court

40. Civil Process • Plaintiff’s complaint - informs defendant formally - statement of facts a. Summons issued - by judge - accompanies formal complaint - gives court jurisdiction (1) Amount of time to respond • Federal courts = 20 days • State courts = 10 to 60 days (30 days average)

41. b. Defendant’s answer - admissions of denial - general denial = all allegations - specific denial = certain allegations c. Demurrer - motion to dismiss - legal challenge to complaint - wording legally defective - statute of limitations - other technical reason

42. d. Discovery - uncover evidence available - Federal Rules of Civil Procedures – 1938 - tools of discovery (1) Deposition - out-of-court testimony - rules of evidence apply - sworn testimony (2) Interrogatory - written questions