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).
I.
Legal Education
A.
Legal Training Before 1870
1.
Self-Study – especially out west
2.
Apprenticeship – boy would pay to work with a lawyer for
training.
3.
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.
4.
Modern Law school originated with the dean of Harvard Law
School (Christopher Langdell) in 1870. Introduced:
•
•
B.
1.
2.
3.
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 (140k taking
it annually) 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; 21% of
degrees awarded go to minorities (7% Hispanics; 7% AA’s).
Women are 29% and blacks 5% of practicing lawyers and
50% law students are female.
4.
•
•
•
•
•
•
5.
•
•
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. 137); 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.
•
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).
6. 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.
7. Cost of Legal Ed: can cost between $60-150k; half students owe
$75k with median $84k (typically $1k a month for 10 years).
Salaries not growing at same rate as education expenses.
II. Work of Lawyers (five duties)
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?).
B. 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).
C. Negotiating – most cases are settled out of court. Settlement
amount depends greatly on bargaining ability of lawyer.
D. Drafting documents – ability to remove ambiguity/doubt by
writing legal documents (mortgages, divorce papers,
especially wills and estates).
E. 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.
III. Where they work (Table 5-1).
A.
IV.
A.
1.
2.
3.
•
•
B.
1.
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
2. Minimum fees (informal) for certain noncomplicated matters
3. Legal aid clinics – funded with public monies,
often ran by law students.