Law and Society

CJUS/POLS 102

Institutional Roles in the American Legal System

Roles1. Attorney

- depending on circumstances / needs of client

- counselor / negotiator / litigator

- involved in factual investigations

a. Counselor

- advise client how to order affairs

- whether to proceed with a course of action

- how to proceed with pending litigation or

settlement

Rolesb. Negotiator

- opposing counsel / favorable resolution

- both civil / criminal matters

(1) Negotiates with opposing counsel

- attempts to get best resolution

(2) Client rights

- retains right to accept / reject

- settlement negotiated / offered by opposing party

Rolesc. Litigator

- pre-trial motions / pick jury - present evidence - witnesses / documents / etc - opening through closing statements

(1) Trial attorney- used for criminal matters- used for civil matters

(2) Specialize in certain area of law

Rolesd. Fact investigator

- investigation of relevant facts- locating / interviewing witnesses

(1) Zealous advocate- advocate on client’s behalf- avoid conflicts of interest

(2) Officer of the court- deal fairly / honestly- also with others

Roles(3) Ethical rules apply

- issues conflict between client and ` court

- favor role as advocate of client

e. Prosecutor

- representative of the court

- working for the state

-present case against accused

Roles(1) Review evidence

- from police / defense- make recommendations

(2) Interview- police / witnesses- file the case

(3) Court process- pre-trial motions- opening through closing statements

Rolesf. Public defender

- representative of the court- working for the state

(1) Legal representation- financially disadvantaged

(2) Reviews reports- interviews witnesses- directs clients actions

(3) Court process

Roles- pre-trial motions- opening through closing

statements

2. Judge- final arbiter of law (trier of law)- charged with duty to state what the law is

a. Trial - passive / referee role - makes evidentiary rulings - inform jury how law is to be applied - maintains order in courtroom

Roles(1) When parties agree

- “trier of fact”- bench trial

(2) Federal judges- appointed by president- “advice and consent” of senate

(3) State judges- Washington state- elected / appointed

Roles3. Jury

- group of local citizens- fact-finder

a. Receive instructions from judge - assess facts - according to law - return verdict

4. Witnesses- professional / lay- have some evidence to present

Roles5. Attorney-Client relationship

a. Law touches every aspect of life - cradle to grave - hospitals where born / schools

attended - personal / professional relationships - security of funds / medical technology - funeral services

b. Law enables us to protect ourselves - by bringing into court

Roles- the individual / school district / corporation / or government agency- that injured us / failed to prevent injuries

c. Legal system controls all we do- developed by / functions for / controlled by lawyers

(1) Most influential throughout history- 25 of 56: signed Declaration- 31 of 55: Constitutional Convention

Rolesd. Held in distaste

- by early colonists

(1) After Revolutionary War- needed to legitimize a new America

(2) Massachusetts colony (1740)- 1740: 15 lawyers (1 per 10,000)- 1840: 640 lawyers (1 per 1,000)

(3) To become a lawyer:

Roles- 2 to 3 years as apprentice- ½ hour oral examination

e. Development of law schools- late 19th century: private law schools- replaced apprenticeships

(1) 1878: American Bar Association- more professional- stringent standards- better educated

Roles(2) From “for profit” business = universities

- undergraduate degree in law

(a) Harvard’s Law Department - entrance exam for 1 yr. program- 1871: from 1 year to 2 years- 1895: 2 years to 3 years- early 1900s: graduate program

(b) Law school students:- male / Anglo-Saxon / protestant

Roles- difficult for Irish / Italian / Jews - doors shut / bolted to women

(c) Women excluded from state bar- until 1870- 1960: only 3% women lawyers

( 3) 1873: woman challenged Illinois bar - denied access- appealed to US Supreme Court- white / male / protestant

Roles- response of court:

“The paramount destiny and mission of women are to fill the noble and benign offices of wife and mother. This is the law of the creator.”

(a) Slow process

- 1923 women admitted

(b) Obstacles

- Columbia University: 1927

- Harvard: 1950

Rolesf. Sandra Day O’Connor

- Stanford, 1952

- high grades

- difficulty finding work

g. Ruth Bader Ginsburg

- Columbia, 1959

- tied for first place in class

- no offer from major NYC law firm

(1) Women and law school

- over half are law school students today

Roles(2) Most dramatic change in legal

profession- growth

(a) 1960: 286,000 lawyers

(b) 1987: 690,000 lawyers

(c) 1996: 911,000 lawyers

(d) Today: 1.1 million- 1 per 300 population

Roles6. Who can practice law?

- must be licensed / member of state bar

a. Education

- 4-year degree

- any major (prefer political science / law and

justice / criminal justice / business)

(1) LSAT

- law school admissions test

- state test

Roles(2) Law schools look at:

- degree / grades / LSAT- school activities- community activities- college attended

b. Specialization- first year: general law course work- second / third years: specialize

c. State bar exam

Roles- pass bar of state

- test in several states

- most states: after 5 years of practice

d. General vs. specialized practice

- out of house

- small firm (2 – 3 partners)

- large corporate firm