Chapter 5 Lawyers “What’s the difference between a lawyer and a catfish?”

1. Chapter 5 Lawyers “What’s the difference between a lawyer and a catfish?” Answer: One is a bottom-dwelling creature that feeds off the waste of others. The other is a fish. Again, lawyers are important in our legal system: they are gatekeepers (gotta go through a lawyer). • Legal Education • Legal Training Before 1870 • Self-Study – especially out west • Apprenticeship – boy would pay to work with a lawyer for training. • Law schools were rarely used (only 15 in 1850; 1000 students). Nature of law school then was much broader (philosophy, economics, ethics). A few Proprietary (for profit) law schools created, which focused solely on the practice of law. • Modern Law school originated with the dean of Harvard Law School (Christopher Langdell) in 1870. Introduced:

2. Case method – lectures replaced by reading appellate court opinions (focus not on the law but on cases) • This method encouraged the creation of night law schools because leading law schools began raising admission and graduation standards. Night schools welcomed anyone and focused on state law. In response (1900), the American Assoc. of Law Schools was organized and left out night schools. • Law schools today • Students 127,610 in ABA approved schools 2001 (49% women). 1963, 46,666 (4% women). • Admission based on Law School Admission Test and GPA (mostly). • In the past, some law schools explicitly discriminated against women and blacks. There were only 3 black lawyers in MS 1960s. Today, 21% of law students are minorities; 20% of degrees awarded go to minorities (5% Hispanics); 7% of degrees go to AA’s. Women are 29% and blacks 5% of practicing lawyers.

3. Curriculum today • Usually 3 years (compared to 1-2) • Purpose1: Trained to be generalists • Purpose2: Think like lawyers (teach them what the law requires, not what they think is right/just. Key distinction between what is permissible vs. wise (what can be done vs what ought to be done) • First year is general and hard with little discretion over courses (civil procedure, const. law, contracts, criminal law, property, torts, legal research). Subsequent years, electives (specialization) • Instruction uses Socratic method – professors teach by asking students questions and challenging them to defend answers (heavy demand on students). • Criticisms: too hard for students (p. 145); sometimes too abstract/impractical; sometimes too bar focused/misleadingly value-free, objective, apolitical • Differences between law schools • 200 law schools, most accredited by ABA. If not, grad can only take bar in that state. • Vary in prestige quality of professors, library holdings, required courses, faculty-student ratios.

4. Prestige: 3 levels. 20 at the top (Ivy league, Duke, Stanford, UVA, Michigan, Texas, UCLA). Most in the middle (UGA, Ole Miss, Bama). Then, local law schools (not affiliated with larger university, sometimes not accredited; focus on state law; offshoots of 19th century night schools). • Licensure: • ABA’s typically push for raising admission/grad standards (increases quality of lawyers, but also decreases quantity; reduces competition). • Bar exams cover basic areas (first exam) and state law (2nd) and ethics (3rd). 77% pass it first-time. • Most states require passage before practice. Some will accept bar passage somewhere else (usually of specific states). Passage anywhere gets you in Federal court. • Bar basically disallows legal practice by non-members. Keeps the business going for lawyers, but mixed results on if it really improves quality of legal representation. • Work of Lawyers (five duties)

5. Litigating (most do not) – presenting cases before judges/juries. Must master rules of evidence, but also have insight into the psychological/sociological dynamics of juries, clients, witnesses, and other lawyers (do you support tort reform?). • Representing – lawyers are often used to represent businesses or individuals in settings where their interests are at stake (e.g. regulatory agencies, law-making bodies, public hearings). • Negotiating – most cases are settled out of court. Settlement amount depends greatly on bargaining ability of lawyer. • Drafting documents – ability to remove ambiguity/doubt by writing legal documents (mortgages, divorce papers, especially wills and estates). • Counseling Clients – tend to emotional needs (like doctors). Can lead to tension/conflict between advice of lawyer and desire of client. If client is not knowledgeable of law, more deferential to atty. • Where they work (Table 5-1, p. 157).

6. Access to legal services • Criminal defense for poor (right, not privilege; Gideon v. Wainwright, 1963) • Assigned Counsel – lawyer is assigned to case pro bono (for public good; no charge). Typically, they agree to this in order to practice in designated area. 52% of counties use this system. • Public defender (20th cent. response) – salaried lawyers paid by local/state gov’t to represent all poor criminals in jurisdiction. Used in all big cities and most medium-size jurisdictions too. • Controversey of public defender • Advantages – a criminal lawyer (not a lawyer concentrating on civil law) working solely on that case, keeps up with changing law, more experiences, trial-skills sharp. • Criticism – paid employees of gov’t, work buddies with prosecutors and judges (trials may be staged fights). • Civil representation for poor • Contingency fees – most PIs

7. Minimum fees (informal) for certain non-complicated matters • Legal aid clinics – funded with public monies, often ran by law students.

8. Chapter 6 Judges • Judicial Selection – Which method? Shaped by 3 questions. • What’s a Good Judge? – stellar legal credentials or modest credentials better suited for the actual functions of most judgeships (e.g., administration). • Who Should Select Judges? • Actors: Lawyers, elected officials, or voters? • Public generally distrusts all of these. Selection in the U.S. usually features participation by all three plus interest groups. • Judicial Independence or Political Accountability? • Public holds contradictory opinions here. • Therefore, methods often feature compromise. For example, practically all judges, regardless of method, hold longer terms (promotes independence). D. 3 methods in general emerge from these questions:

9. Appointment (by executive or legislative) • Elections (partisan or nonpartisan) • Merit Selection • Appointment of Federal Judges Constitution says simply that Fed judges will be nominated by Pres, confirmed by Senate, and serve for life. President’s personally involved in SC appointments, but less in lower federal court appointments. • Senatorial Courtesy • Started with Washington (1789). • Senators of Pres party expect to be consulted before nomination of a district court judge from Senators’ states. • If Senator is not from Pres party, consultation is literally a courtesy (polite). • Senatorial courtesy far less important in C of A nominations (crosses state lines). • Interest Group Involvement 1. Increasingly involved/influential.

10. None more than the ABA, which is directly involved. • Senate Judiciary Committee requests the opinion of the ABA Standing Committee on Federal Judiciary (14 members, staggered 3-year terms). Rank nominees “well-qualified; qualified; unqualified” • GOP President’s traditionally enjoy better cooperation with ABA than Dems (ABA usually politically conservative). • If declared qualified by ABA and favorable hearing in SJ Committee, Presidential nominees are practically always confirmed by floor. Instead of rejecting, opposing parties usually try delay tactics. • Clinton Judiciary (peculiar) • Determined not to use ideology as a screen • First to allow nominations to come from Justice Department (Reno) instead of White House. • Appointed record # of women and minorities • Bush Judiciary 1. Pledge to appoint strict constructionists (Reagan too)

11. Verge of doing it with GOP control in Senate, until Sen. Jim Jeffords left GOP to give Dems a voting majority in Senate. • GOP gained Senate back after elections in 2002 (51-49). Bush re-nominated his group of conservatives. Dems found a loophole tactic (filibuster on procedural votes for the most conservative nominees). • Still, Bush able to confirm 167 DC (25%); 34 CA (20%) and 2 SC justices. About 80% of his nominations are confirmed. • Whether by Dems or Reps, similar: former activists in Pres party, held prior gov’t positions (judges/prosecutors), white male Protestants from elite law schools. • Difficult to use D/R Pres to predict what the judiciary would look like. (see Table 6-1)

12. Judicial Elections – majority of state judges are elected. Product of Jacksonian era (early 1800s; transfer rule to common man, democratize political system, etc.). View abhors special qualifications for public office; let voters decide. • Methods (Table 6-2) • Partisan Elections (9 states) • Nonpartisan Elections (12; MS) • Appointment (5) • Merit Selection for all (15) • Combined (some Merit some elected; 9) • Judicial Campaigns • Usually low-key, little controversy, not nearly as much partisan language, candidates often do not take rigid policy positions. • Turnout is low (13% know much about candidates). • Favors incumbents: marked as “Judge” on ballot. Sitting judges seldom opposed; when challenged, just a few get voted out. • Campaigning changing: nastier, noisier, costlier

13. Merit Selection (MO plan) • Judicial reformers argued that simply electing judges had 3 adverse effects: • Discouraged qualified lawyers from running (they are not politicians) • Suggest impropriety (answer to voters/parties) • Voters least likely to be informed on judicial candidates • Merit Plan (or Missouri Bar Plan, 1940) is the proposed solution/compromise (hybrid) • Judicial nominating commission composed of lawyers and citizens create list of suggested nominees • Governor appoints one to fill vacancy • After a short period (1 yr typically), new judge faces an uncontested retention election (keep Judge X or not?). • If retained by voters, awarded full term. Subsequent terms awarded via another retention election. 3. 1964-1998, 4588 retention elections, 52 ousted (99% retention). 28 from IL (requires 60% vote to retain).

14. Assessment • Has not eliminated politics from selection process (interested groups, like plaintiff and defense lawyers, work to have their reps on commission). • Basically has reduced importance of parties and enhanced influence of legal profession. • Which System is Best? • Selection systems do not seem to matter in terms of judge quality. • Yet, election systems have an impact on minority representation. • Statewide elections tend to reduce it. • The VRA 1965 (revised 1982) encouraged the creation of majority-minority districts for elections, including judicial ones. • Removing Judges Most judges can be removed only through Impeachment (federal) and some states allow for recall elections. Only 6 federal judges have been removed *Hastings-FL was ousted from bribery,

15. Then elected to the House that charged him. Nixon from South MS district court, convicted of lying about intervening on behalf of a son of a friend. Drew his judicial salary while serving time, until removed by Senate.