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					Law and Justice

  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) In adversary 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 = “retain”

   (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
     - depends on the type of action
     - depends on the 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 contin-
 gent 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
        - 1/3rd of $10 million is unreasonable
        - 100 hours to represent you
(a) Good attorney at hourly rate
     - $250 per hour
     - deferred until settlement

(b) Contingent fees
     - calamitous events
     - 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 the factors involved
          - time required
          - degree of legal skill
          - customary fee = similar services
          - experience / reputation / ability
          - money involved
          - results obtained
          - relationship with client
(3) Financing the 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

				
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