PS 305 Test 2- Lawyers and Legal Representation

What do attorneys do? What functions do they serve?

- act as advisors

- draft documents

- act as negotiators

- cause lawyering

**90%-95% of cases filed in most jurisdictions are settled before the trial stage

What is an adversarial system? Why relevant to attorneys?

Our current system has been described as one in which you obtain the fairest decision when two men/women argue as fairly as possible on opposite sides.

The theory is that this is the best way to bring out the strengths and weaknesses in both sides' arguments, so the impartial "trier of fact" (either a judge or a jury) will then be more likely to make the right decision.

What are the 4 levels of prosecutors in the US?

1. US Attorneys at Federal Level

2. State Attorneys at State Level

3. District Attorneys at County Level (most powerful)

4. City attorneys at the Local level

What are the different roles of a district attorney?

1. The DA serves as "House Counsel" for the Police by providing advice to the police on changes in the law, which helps ensure that evidence collected holds up in court.

2. DAs are officers of the Court, and as such their primary job is to see that justice is done, even when that means dropping a case they might personally want to prosecute. *highlights difference between independence and accountability*

3. DAs are elected officials in all states except New Jersey and Connecticut. As such, they must be sensitive to the wishes of the electorate

What is the prosecutors or prosecutorial dilemma? How is it explained by Davis in the article and the Duke lacrosse case?

The dilemma of prosecutors on how they should act, because their primary job is to see that justice is done. Meanwhile they are elected officials, making it important for them to be sensitive to the wishes of the electorate. It's a battle between accountability and independence. When want judges who are accountable to uphold the values of the country, but also want them to be independent enough to judge cases based on the law, rather than public opinion. Duke Lacrosse case: lacrosse team has stripper over, and she accuses them of sexual assault. Blew up in the news, with support of the girl and hatred of the team. The prosecutor got evidence that they were innocent, but withheld it so as to not go against public opinion and put himself under scrutiny.

What are the sources of prosecutorial discretion?

Prosecutorial Discretion:

- Exercised at different stages in the process

- First decision is whether to prosecute or not

- What kinds of things impact a prosecutor's decision to prosecute? → amount of evidence; that there is a case; witnesses; relationship between victim and suspect

1. To prosecute or not?

- Lack of evidence. (Police need probable cause but the DA needs proof beyond reasonable doubt.)

- Lack of resources

- Issues with victim/witness such as character and credibility, chooses not to come forward, relationship between victim and suspect

- First time offender

- Willingness to cooperate

2. Once the decision is made to prosecute, the DA must decide which charge or charges to bring, and how many counts

3. Next, prosecutor must decide whether to plea bargain or not

4. And lastly, what sentence they will go after (Obviously, what charges and the number of counts they bring will affect the ultimate sentence)

What are the limits on prosecutorial discretion?

1. Criminal Justice Wedding Cake

2. Courtroom Work Group

3. Judges

4. Statutory Law

5. Election/Public Opinion

What is the relationship/balance between the prosecutor's office as a political position/ partisanship and power and the administration of justice?

What is the development of precedent and the 6th amendment as discussed in class? What cases did we discuss? What happened in these cases and what precedent did they establish?

6th Amendment: all prosecutions, the accused SHALL have counsel for their defense → wasn't until the 1960's when this was also applied to the states- due process revolution

Gideon v. Wainwright (1963): Florida case: Clarence Gideon charged with breaking and entering with intent to commit a misdemeanor offense. Went to court, but could not afford an attorney, so he requested an attorney. The FL court did not give him one (only capital cases) so he represented himself and lost, sentenced to 5 years in prison. After he appealed with an informa pauperis petition on a piece of paper written in pencil. SC took this case because it looked exactly like a case they had already ruled on (Betts v. Brady) so they could overturn.

- Selectively incorporated the right to an attorney in all serious felony matters

- Overturned Betts v. Brady (1942): facts of the case were almost the same as Gideon v. Wainwright

Escobedo v. Illinois (1964):

Right to an attorney was extended back in time so that it attached at the interrogation stage

Argersinger v. Hamlin (1972):

Right to counsel applies any times there is a possibility of imprisonment

Alabama v. Shelton (2002):

Suspended sentences: put a person on probation but if they break probation they will have to serve their sentence

What are the different types of indigent services? Be able to define them. How are they different? What are the pros and cons of each type?

Public Defender: hired by the state and work within the courts system (salaried)

Pro:

- Experienced

- Extensive resources

- Will be paid their salary regardless so work equally for all defendant

- Part of courtroom work group

Con:

- Part of the courtroom work group

- More motivated to plea bargain (they have SO many cases)

- Will be paid regardless so may not have motivation to work as hard

Assigned Counsel: private lawyers that sign up to be assigned to cases by the state. Why? → people need experience/try to get their name out there

Pro:

- May need the work because they are just starting out and thus more zealous and will work hard for their client

- Trying to prove themselves, develop clientele

- May have smaller caseload than public defender so more time to devote to case

Con:

- Not paid as much as they are by their regular clients so may not give attention deserved

- Not specialized

Contract Attorney System: gov't unit contracts with a law firm/bar association to handle cases over a set period of time

Pro:

- Have potential experience

- Going to get paid no matter what by the firm

Con:

- Motivation can still be fairly low

What do relatively few defense attorneys serve on the criminal side?

Relatively little money to be made

Within the legal profession criminal law is generally perceived as a relatively low status field of practice

They may lose by winning (people's perceptions on them)

What happens in the Buried Bodies article? What is the case about? Why does it reflect on the issue of substantive versus procedural justice? What would you have done if you were Garrow?

This article cracks open the sometimes strained relationships in our justice system among procedural justice, substantive justice, and the truth, and the companion question of which of these our system of justice places its highest priority on.

How does the Buried Bodies article raise the question about where the boundaries are to the loyalty owed to a client (attorney client privilege)?

"Buried Bodies" article raises the question of where the boundaries are to the loyalty owed to a client. Is the obligation of loyalty absolute?

What does Judge Learned Hand mean when he says "a society of laws must be measured by how it treats its worst examples, not its best."?

What are the different types of civil lawyers?

Represent Federal, State and Local Governments

- private civil practice

- corporate counsel- "In-house counsel"

- Litigators/"trial lawyers"

What is the difference between solo practitioners versus a law firm?

Solo Practitioners: lower barriers; autonomy; greater impact; profit; usually start off as a "jack of all trades"; often sign-up as appointed counsel in criminal matters

Law Firm: Range in size from very small to very large; Composed of partners and associates; Lucrative, especially if you become a partner; Long hours for junior associates; 44% of lawyers leave their firms after three years, higher for large firms; Pressure to accumulate billable hours; Can offer "general purpose lawyering" beyond the means of small firms and solo practitioners; Large firms can have offices world wide

What is legal aid or the legal services corporation? Should those who cannot afford an attorney have more access to free legal aid in civil cases?

- Provide legal representation to the poor in civil matters

- No federal constitutional right to an attorney in civil cases

-Legal services corporation (federal agency)

-->Single largest funder of civil legal aid for low-income Americans in the nation

-->LSC is headed by a bipartisan board of directors whose 11 members are appointed by the President and confirmed by the Senate

What type of cases legal aid lawyers handle? → usually helping a client against a government agency (yet funded by a government agency)

-Legal Aid Lawyers generally not paid well

Why is it that attorneys are a constitutional guarantee in criminal cases but not in civil cases?