Law and Society
CJUS/POLS 102
Institutional Roles in the American Legal
System
Roles
1.
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
Roles
b. 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
Roles
c. 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
Roles
d. 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
Roles
f. 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
Roles
3.
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
Roles
5.
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
Roles
d. 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
Roles
f. 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
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
Roles
6.
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
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