CJUS/POLS 110
Lawyers

1.
Practice of law
- radically different
- turn of century vs. today
- prestige / personal satisfaction
- not money a. Partners
- sharing liabilities / profits
- not shareholders
- shielding personal wealth
(1) Civility existed

- members of the bar
- taking one another at their word
- today = rarely accepted
- written follow-up
(2) Obtaining clients
- 100 years ago = word of mouth
- today = glitzy ads / promotions
- billboards / TV / radio
- attorneys at sites of catastrophes
(3) Targets for criticism
- jokes throughout history

-
- Shakespeare’s Henry VI, Part II:
“The first thing we do, let’s kill all the lawyers.”
(a) Why animosity?
- era of political correctness
- gender / ethnic origin / sexuality
(b) Negative comments = acceptable b. Questions to ask / answer
- who are they / what is their function

(1) Are we required to use a lawyer
- can we represent ourselves?
(2) Importance of “advocacy”
- pleading cause of another
(a) Advocacy
- very important
- adversarial nature of system
(b) Becoming a corporate business
- business principles

- how much money made
- not best for client b. Primary functions = litigate / represent
- litigate = “ contest in law ”
- litigation = “ judicial proceedings ”
(1) Primary: to represent client
- prepare case (to sue / to defend)
- present in court (civil / criminal)
(2) Secondary functions

(a) Represent before government
- IRS / L&I / CPS / VA / etc.
(b) Acting as mediator / negotiator
- between opposing parties
- mediate plea agreement
- settle civil matter
(c) Preparation of legal documents
- wills / contracts / codicils / etc.
(d) Advice / counseling to clients

- financial arrangements
- tax advice / antitrust laws
- divorce / adoption
2.
Adversary system
- backbone of legal system a. Definition:
“An opponent / one who strives against us / enemy.”
(1) Adversarial system

- parties to legal actions = opponents
- judge = independent / neutral
- court: decisions based on fact
- attention of court by the opponents
(a) Each responsible for:
- producing evidence
- rules of law
- support their side
(b) Partial / biased for their client
- asserts every reason to win

- attack their opponent
- attacked by their opponent
(c) Judge is the referee
- follow procedural rules
(2) Civil lawsuit
- plaintiff = “ moving party ”
- to attention of court: information
- required burden of proof
(3) Criminal complaint

- prosecutor = moving party
- file case (information)
- required burden of proof b. Attorney at law (lawyer)
- authorized by law
- over 2/3s of adults consulted
- hire attorney = “ retained ”
(1) Who may practice law
- designed for attorney by attorneys
- practice / judge / legislate

- presidents / governors / legislators
- mostly attorneys
(a) Organization
- attorneys who monitor attorneys
- American Bar Association
- state / local bar associations
(b) Must be licensed attorney
- state bar associations
- regulate practice of law
- varies from state to state

(c) Federal rules / regulation
- state rules / regulation
- bar association rules / regulation
(d) Inherent powers of court
- regulate / govern
- legal profession
(e) States set own qualifications
- permit “ legal assistants ”
(2) State license to practice

- from each state
- good moral character
- minimum educational requirements
- pass state bar exam
- take oath to support laws / standards
(a) Few exceptions
- lawyers not required
- “ in propria persona ” (Latin)
- in one’s own person
- in pro se (for him / her self)
- “ pro per ”

(b) Not advisable
- go into court without
- costs too high
- criminal or civil
(c) “ One who serves as his own lawyer has a fool for a client.” c. Federal courts
- recognizes own separate bar / group
- those permitted to practice before it
- granted to licensed attorneys in any state

- no further legal education
- no additional examinations
(1) License suspension
- can be suspended / revoked
- fail to maintain professional standards
- includes: disobeying the law / provide incompetent services
(a) Not required to disclose:
- disciplinary measures
- filed against them

(b) Unprofessional conduct
- sued by prior client
(c) Health issues
- mental health problems
- drug addiction
(2) Specialization
- license allows variety of legal tasks
- general practice / specialists
- general = routine legal matters
- specialist = specific legal skills

(a) Specialist areas
- divorce or family law
- probate and estate law
- criminal law
- administrative law
- real property law
- personal injury law
- small business law
- corporate law
- consumer law
(b) Other specialties

- antitrust law
- labor or employment law
- tax law
- bankruptcy law
- intellectual property law
- international law
- workers compensation law
- elder law
- maritime law
3.
Attorney-client privilege
- to encourage full disclosure

- all communications confidential
- attorney cannot waive the privilege
- cannot be compelled to reveal
- insure proper representation
- applies to all state / federal levels a. Conflict of interest
- involves rules of ethics
- client and attorney = real or perceived
- potential state in matter
- financial / representation / etc.
- cannot represent

(1) How do you find a good attorney ?
- paid advertisements
- word of mouth
- attorney referral service
- court appointed
- meeting with the attorney
(a) Questions to ask
- frequently handle like cases
- your specialty
- how many like cases handled
- will you refer my case

(b) More questions
- are you doing all the work
- if not, who else will be involved
- copy of retained agreement
- estimate of likely costs
(2) Hiring an attorney
- employment relationship = contract
- a promise to represent
- for a promise of compensation
(a) Attorney can terminate contract

- reasonable grounds
- fail to pay / conflict of interest
- health reasons
(b) Attorney must:
- give reasonable notice
- obtain court permission (filed)
(3) Payment of fees
- how much should a person pay
- type of action
- attorney’s time

Example:
“ Your husband / wife is a doctor who was killed in the crash of a commercial commuter airplane. He / she was not on the airplane, but was in their medical office in Aberdeen, which was destroyed in the crash. Attorney Dewey
Cheatham offered to represent you on a contingency fee basis for one-third of any net recovery made. Cheatham indicated no fees would be charged “unless and until” a recovery was made.”
Should you hire Cheatham?

NO!!
b. As in most calamitous events
- no issue of “if”
- recovery is assured
- strict liability of defendants
- only a matter of “ when ”
(1) Obtaining reasonable settlement
- will require negotiations
- 1/3 rd of $10 million is unreasonable
- 100 hours to represent you

(a) Good attorney = hourly rate
- $200 to $500 per hour
- deferred until settlement
(b) Contingent fee
- calamitous event
- death case where liability certain
- unethical
(c) Referred to as:
- “ jackpot ” cases
- “ retirement ” cases

(2) Contingency fees
- rarely less than 25%
- nor more than 50%
(a) Depends on factors involved
- time / legal skill
- experience / reputation / ability
- money involved
- results obtained
(b) Customary fee = similar services
- relationship with client

(3) Financing client’s case
- legal costs incurred
- before recovery is possible
- typical costs:
(a) Court costs
- charges certain fees
- processing legal paperwork
- paying jurors ($20 per day)
- use of courtroom / judge
- expert witnesses
- court security

(b) Investigation
- private investigator services
- crime scene / accident scene / photographs / etc.
(c) Discovery
- sworn testimony
- outside of court
- court reporter
- transcript fees / attorney costs
(d) Medical examinations

- physical / mental conditions of victim at issue
- medical / psychological exams
- doctors as expert witnesses
(e) Expert witness fees
- often necessary
- lay witnesses = what they saw
- expert = belief from information
- physician / economist / model maker / computer expert / psychologist / etc.

3.
Do you need an attorney?
- small claim / traffic court / minor crime = no
- lawsuit / serious crime = yes a. Self-help books
- Nolo Press
- legal software = Quicken
- criminal / civil
(1) General guidelines
- it is always best to have attorney
- do consult if:

(a) Involves risk of:
- losing significant sum of money
- gaining significant sum
(b) Actual / possible
- physical / mental injury
- suffered / threatened
- characterized as significant
(c) Important for any other reason
- major impact on your life
- divorce / child custody / etc.

(d) Lack time to carefully:
- preserve / pursue right
(e) Facing a serious criminal penalty b. Legal malpractice
- minimum standard of care
- monitored by state bar
- client can sue = careless wrongdoing
(1) Malpractice is a tort
- fail to meet standard of care

- client suffers loss
(2) Recover damages
- hire second attorney
- established time frame (1 to 3 years)
(3) Not guilty
- lost a case
- one wins / one loses c. Unauthorized practice of law
- without a license = crime

- non-lawyer providing legal advice
- not a crime
(1) Bill for services
- cannot use court to collect
- services = illegal / void
(2) Legal assistant
- working with attorney
- limited in services
(a) Obtain facts from client

(b) Interview witnesses
(c) Perform legal research
(d) Prepare summaries
- drafts of interrogatories
- discovery responses d. Alternate dispute resolution
- alternative to litigation
- most common types
- left to attorneys to decide

(1) Negotiation
- communication
- purpose of persuasion
(2) Mediation
- neutral third party
- assist in resolving dispute
(3) Arbitration
- more formal
- arbitrator selected
- acts as judge / decision binding

(4) Private judging
- rent-a-judge
- heard before a retired judge
- “ referee ”
- empowered by state statute
- can be appealed
(5) Ombudsperson
- actively involved
- investigates / makes decision
(6) Expert fact finding

- expert in field of lawsuit
- hired to make a decision
(7) Mini-trial
- usually a large business
- high ranking officials
- present before judge
Civil Process
1. Plaintiff’s complaint
- informs defendant formally
- who filed / what court

- informs defendant formally
- statement of facts a. Summons issued
- by judge
- accompanies formal complaint
- gives court jurisdiction
(1) Amount of time to respond
-
Federal courts = 20 days
-
State courts = 10 to 60 days (30 days average)

b. Defendant’s answer
- admissions of denial
- general denial = all allegations
- specific denial = certain allegations c. Demurrer
- motion to dismiss
- legal challenge to complaint
- wording legally defective
- statute of limitations
- other technical reason

d. Discovery
- uncover evidence available
- Federal Rules of Civil Procedures – 1938
- tools of discovery
(1) Deposition
- out-of-court testimony
- rules of evidence apply
- sworn testimony
(2) Interrogatory
- written questions