CHAPTER FIVE

1. CHAPTER FIVE LAWYERS AND LITIGANTS

2. Introduction • Prosecuting and defense attorneys (criminal) • Plaintiffs’ and defense attorneys (civil) • Groups and individuals represented

3. Primitive Legal Systems • Laws created and administered by tribal leaders • Informal and ad hoc decision-making • Lack of court systems and attorneys • Cases presented by orators

4. Transitional 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

5. Modern 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

6. Lawyers and Law Practice • 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

7. Prosecuting Attorneys • 2,344 prosecutors offices • 78,000 employees nationwide • Represent the people of the state in some misdemeanor and all felony criminal cases

8. Local and State Prosecutors • 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

9. Federal 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

10. Defense Attorney Responsibilities • Counsel clients • Develop legal strategies • Act as mediator and negotiator • Judges • Clients • Prosecuting attorneys • Give case appraisals • Promote justice

11. Status of Defense Attorneys • Less appealing clientele • Potential for poor reputation • Wide variety of compensation • Lower pay than civil attorneys • Stratification • Law firm • Practice • Background

12. Right to Counsel • 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)

13. Methods of Attorney Selection • Private Retention • Public Defenders • Voucher Systems • Assigned Counsel • Contract Systems • Legal Clinics • Legal Aid Societies

14. Private Retention • Attorney is selected by the defendant • Expenses are paid out of pocket • Used by those with financial resources

15. Public Defenders • 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

16. Voucher Systems • 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

17. Assigned Counsel • 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

18. Contract Systems • 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

19. Legal Clinics • Operate within law schools • Second and third year students represent clients • Selected legal matters • Cases are supervised

20. Legal Aid Societies • Coordinate time donated by lawyers • Pro bono legal work • Concern with undermining other lawyers’ earnings

21. Attorney Competence • 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

22. Attorneys in Civil Cases • More appealing cases • More financially rewarding

23. Civil Litigants • 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