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CHAPTER FIVE. LAWYERS AND LITIGANTS. Introduction. Prosecuting and defense attorneys (criminal) Plaintiffs’ and defense attorneys (civil) Groups and individuals represented. Primitive Legal Systems. Laws created and administered by tribal leaders Informal and ad hoc decision-making

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chapter five



  • Prosecuting and defense attorneys (criminal)
  • Plaintiffs’ and defense attorneys (civil)
  • Groups and individuals represented
primitive legal systems
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
transitional legal systems
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
modern legal systems
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
lawyers and law practice
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
prosecuting attorneys
Prosecuting Attorneys
  • 2,344 prosecutors offices
  • 78,000 employees nationwide
  • Represent the people of the state in some misdemeanor and all felony criminal cases
local and state prosecutors
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
federal prosecutors
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
defense attorney responsibilities
Defense Attorney Responsibilities
  • Counsel clients
  • Develop legal strategies
  • Act as mediator and negotiator
      • Judges
      • Clients
      • Prosecuting attorneys
  • Give case appraisals
  • Promote justice
status of defense attorneys
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
right to counsel
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)

methods of attorney selection
Methods of Attorney Selection
  • Private Retention
  • Public Defenders
  • Voucher Systems
  • Assigned Counsel
  • Contract Systems
  • Legal Clinics
  • Legal Aid Societies
private retention
Private Retention
  • Attorney is selected by the defendant
  • Expenses are paid out of pocket
  • Used by those with financial resources
public defenders
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
voucher systems
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
assigned counsel
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
contract systems
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
legal clinics
Legal Clinics
  • Operate within law schools
  • Second and third year students represent clients
  • Selected legal matters
  • Cases are supervised
legal aid societies
Legal Aid Societies
  • Coordinate time donated by lawyers
  • Pro bono legal work
  • Concern with undermining other lawyers’ earnings
attorney competence
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
attorneys in civil cases
Attorneys in Civil Cases
  • More appealing cases
  • More financially rewarding
civil litigants
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