Judicial Processes Exam 2 Notes

Traditional v. Policy Oriented Lawsuits

Focuses on the scope of the lawsuit Traditional litigation involves (most cases): - Single plaintiff and defendant - Litigation is retrospective - Plaintiff seeks compensation for past wrongs - Lawsuit is a self-contained episode - Once case is over, judicial involvement ends - EX: contract disputes, small claims, divorce

Can courts bring about social change?

Gerald Rosenburg, "The Hollow Hope" - He questions whether judicial actions can lead to changes with a nationwide impact. 3 constraints: 1) Rights are limited, which prevents courts from hearing many social issues 2) The judiciary lacks the necessary independence from other branches 3) Courts lack implementation power (they cannot appropriate $ or use the police to enforce their orders)

Law School Admission

- 112, 882 total law students in 2019 - Based on LSAT and undergrad performance - LSAC (law school admissions council) develops and administers the test - Applicants use the law school data assembly service (LSDAS) to send their application materials to school - 2014-2015: 101, 684 LSAT tests, compared to the 37, 597 tests in 1963-1964 - After 1L enrollment peaked in 2010 at 52, 404 new students, enrollment fell dramatically in each of the next 3 years, which was then followed by 4 years of even lower but steady enrollment between 37,000 and 38,000 new 1Ls - In 2019, 1L students numbered 38, 283 with a total of 112, 882 students 1L-3L - 2019 first year class: Men 17, 459, Women 20, 690; Minority 11, 871

Who (Judges) gets selected?

- 114 Supreme Court justices (17 CJ, 102 Associate) - Only 14 Catholics? And 8 Jews - Only 2 African-Américans: Marshall and Thomas - Only 4 women: O'Connor, Ginsburg, Sotomayor, Kagan - One Hispanic but no Asians on Supreme Court - For the first time in Supreme Court history there are no Protestants on the Court; Gorsuch, however, was raised Catholic but attends the Episcopal Church - If Barrett confirmed, 6 Catholics and 3 Jewish Justices

American Association of Law Schools

- 1900, 32 prestigious law schools founded the AALS - Most urban night schools remained outside the AALS AALS tightened standards for legal education; - 4 year undergrad degree required - Curriculum expanded to 3 years - By 1928, every jurisdiction except Indiana required a bar exam - Both AALS and ABA became involved with accreditation of law schools

Law School Costs

- 90% of law students rely on loans - 2012 survey showed typical debt for public law schools of $66,677 and private law schools, $126,723 - 2/3 students report that law school debt keeps them from considering public sector jobs - Law school has always been expensive, but the cost is rising faster than lawyer's salaries

The Master List / Master Wheel

- A master list of names is compiled for the community where the trial will be held - Until the 1960s, many states used the "blue-ribbon" panel or the "key man" system for securing jurors. Clerks would select ppl of high moral character from this community - This gave the jury commissioner wide discretion and usually resulted in all-white male juries - Historically, women and African Americans excluded - Today, common sources include voter registration, motor vehicle records, telephone directions, driver's license lists, utility customer lists

Diversity and Stratification in Legal Profession

- According to ABA there were 1,338, 678 lawyers in 2018 - Legal profession rebounding from Great Recession but not likely to return to the 1980s - Large law firms: often referred to as Wall Street Lawyers. The largest is Chicago's Baker and McKenzie, 3,774 Small # of "large law firms" but they have a great deal of influence - Represent mostly corporate clients - Offer coordinated, highly specialized legal services Lawyers are: - Associates - recent law grads who provide legal assistance - Partners: hold permanent position and contribute to firm management and split profits

Jury instructions

- After closing arguments at trial the judge instructs the jurors in the meaning of the law that is applicable to the facts - Instructions include: a) discussions of general legal principles, b) specific instructions regarding the case at hand, c) info about legal standards, d) info about possible verdicts - The judge and lawyers each prepare drafts of instructions - Jury instructions are written out, signed by the judge and read to jury - Judges are careful in their wording, but jurors often do not fully understand

Juries in Early America

- American colonists considered jury trial a fundamental right Protected in 3 areas of the Constitution: 1) Article III, Section 2 addresses "trial by jury" 2) 6th Amendment addresses "speedy and public trial with impartial jury" 3) 7th Amendment addresses the general importance of trial by jury

Merit Selection

- An effort to remove courts from politics - Judicial reformers believe(d): Elections discourage qualified lawyers from running; popular elections suggest impropriety; voters do not know how to choose among candidates - Proposed merit selection: aka non-partisan selection, or Missouri Bar Plan - Judicial nominating commission recommends a list of qualified candidates to the gov., the gov makes a final selection, and after a period of service, the judge faces a retention election. Asks voters, "should judge X remain in office?" - This process is designed to reduce the influence of politics, but it has consequences

Criticisms of Scientific Jury Selection

- Argue that the jury loses its moral authority b/c the jurors are selected for partisanship and are persuaded by the same technique used to sell products - Clients who can't afford social science consultants are at a disadvantage - Juries are rendered less representative of their communities - But scientist selection, mock trials, and focus groups can help attorneys develop trial presentations that are clear and convincing

Judicial Players: American Bar Association

- At request of Eisenhower, ABA began screening candidates in 1956 and ranked them - As ABA moved from conservative to liberal in membership, Republican presidents paid less attention George W. Bush rejected ABA ratings in favor of The Federalist Society, a conservative legal group; Obama used ABA ratings - As of September 1, 2020, the ABA rated 256 of President Trump's nominees; 180 were rated "well-qualified." 66 were rated "qualified." and ten were rated "not qualified." Previous high was George W. Bush with 8 NQ in eight years. Trump: 5 confirmed, 3 pending, 2 withdrawn - Have been only 22 "not qualified" since 1989

Trial Judges at Work

- At trial, judges serve as umpire; expected to be neutral - Judges exercise considerable discretion - Helping parties negotiate is important - State trial judges rarely write opinions - Must be good administrators - manage their dockets - the calendar of cases Benefits of job: - A high level of prestige and respect - Control patronage positions, e.g. bailiffs, clerks, commissioners, reporters, assistants, etc. - Judicial salaries are higher than the nat'l average - But salaries are a major source of controversy bc many lawyers can make more in private sector Frustrations of job: - Often face staggering caseloads - Pressure to move cases, - Limited control over lawyers, jails, prosecutors, etc.

Judicial Players: Interest Groups

- Became more active in the process in the 1980s, especially over the Robert Bork nomination. Liberal groups strongly opposed and defeated nominee - Conservative and liberal groups will review every writing and speech of nominee - Groups will testify and place ads for or against nominee

50 years of Defiance and Resistance after Gideon v. Wainwright

- Bright and Sannen offer strong critique of gov. provision of indigent defense Some problems: - Prosecutors have unchecked power; no true adversarial process - more inquisitorial - Failure to fund indigent defense systems adequately - Judges tolerate or welcome defendants appearing without lawyers - Public defenders swamped with classes - Supreme Court has adopted a standard of "effective counsel" that hides and perpetuates representation

NAACP, Litigation, and Separate but Equal Doctrine

- Charles H. Hurston, Thurgood Marshall, and the Legal Defense Fund - In 1930s, started with education and tried to force states to provide separate but equal programs and facilities - School teacher salaries then graduate and law schools - Thurgood Marshall won 29/32 cases argued before Supreme Court - W/ Several victories, goal now was to attack separate but equal doctrine

Jury Verdicts

- Colonies followed the English practice of requiring unanimity - In federal criminal trials the verdict must be unanimous. If verdict not unanimous, then "hung" jury - Supreme Court originally upheld non-unanimous verdicts in criminal (noncapital) trials - Only 2 states permitted non-unanimous verdicts in criminal felony trials (LA, OR)

Judicial Players: The Senate

- Constitution requires Senate "advise and consent" - Historically, the Senate played a greater role in the Confirmation process. Suggested nominees. The home-state senator has to approve the nomination - Today, the role of the Senate is diminished, observers agree that there is less consultation and there has been a substantial decline in senatorial courtesy - Senatorial courtesy is the unwritten tradition whereby presidents allow Senators to be consulted before the president nominates a person to a federal judicial vacancy in their state. - A senator from the President's party could place a hold on the nominee, preventing their consideration.

Criticisms of contract systems:

- Contract programs may cut costs at the expense of quality legal representation. Contract programs often fail to provide funds for support services, investigation, and expert witnesses - If the caseload is higher than the bidder projected, the contractor is responsible for providing representation in each of the cases with no additional compensation. This creates disincentives to provide quality representation - System works if contracts are carefully structured

Televised coverage

- Court TV began in 1991 w/ Florida v. Robert Scott Hill - Court TV network went off air in 2008; returned 2019 - concerns were about whether courtroom participants would perform for the cameras - This concern still exists but doesn't appear to have become a reality - Most state courts allow some type of video / audio recording - Federal courts continue to ban cameras and audiotaping devices

Party Capability

- Court cases differ in the capabilities of the parties involved - Marc Galanter (1974): resources are important - One shotters: litigants who only occasionally appear in courts - Repeat players: bring cases frequently - Some may refer to the 2 groups as the "haves" (repeat players) and the "have nots" (one shotters) to denote primarily their financial resources and experience - Repeat players are experienced in court and have considerable resources, therefore are more likely to win in court - A lawsuit may pit repeat players v one shotters (criminal cases), one shotters v repeat players (personal injury), one shotters v one shotters (divorce), repeat players v repeat players (gov v gov)

Kansas Judicial Selection

- Court unification took place in 1978 - Merit selection and retention: When a vacancy in a district judgeship occurs, a judicial nominating commission interviews and recommends from 3-5 persons to the governor for consideration. The governor appoints one of these as a judge to fill the vacancy. The judge is subject to retention vote after each 4 year term - Partisan Ballot selection: Qualified individuals submit their name(s) tot he Secretary of State's office

Technology and the Courts

- Courts are using the internet to communicate to the public and increase understanding of the legal system - The internet is also being used to mobilize the legal system - providing wide dissemination of legal info that used to be held by small numbers of lawyers - Tech will continue to challenge the courts - Cameras and cell phones used to photograph crimes in progress, helping police make arrests; they also being used to film police behavior - Lawyers using internet and social media to seek clients - FB and other social media sites have become tools for cheating spouses and lawyers are using that evidence in court - Emails can provide evidence in sexual and racial harassment cases - Jurors doing internet research and messaging during trial are resulting in mistrials

State Judicial Conduct Commissions

- Created as an arm of the state's highest court - Include judges, lawyers, prominent citizens - Investigate judicial misconduct and make recommendations to the State Supreme Court - Investigate in secret and often use informal pressure to get judges off the bench w/o resorting to public disclosure

Argensinger v. Hamlin (1972)

- Decision extended the right to counsel in all misdemeanor offenses where the defendant faces jail time (called loss of liberty). Prosecutor must notify judge that the state seeks a jail sentence

Jury Size

- Details abt jury size, composition, and verdicts not provided in Constitution - English juries became fixed at 12 in 14th century - Practice was adopted in the US - Supreme Court has ruled that 12 is a historical accident - Federal criminal trials must have 12 jurors - Less than 12 is allowed in: a) noncapital criminal cases, and b) civil cases - The state of FL uses 6 person juries. So does LA (in misdemeanor cases), CT and OR. AZ and Vermont use 8 - Supreme Court has ruled against 5 person juries

Interest Groups and Judicial Conferences

- Dispute exists over whether programs by entities that are largely funded by special interest and corporate entities and attended by judges their clerks are improper or created the appearance of impropriety. More directly is the judge's impartiality in question b/c of attendance at an educational program? - The issue of judicial and law clerk participation in continuing legal education programs offered by organizations other than the judiciary arose in early 1980s. Various media raised Qs about judicial education that was funded primarily by industries with special interests, though they appeared to be neutral entities. As the reimbursements for judges attending said programs became more elaborate and the sites more exotic, more Qs were raised

Amicus Briefs 2015 Court Term

- Due to # of amicus brief submitted to the Court of Justices candidly admit that they cannot and do not read through all of them - In the 2015 calendar year by itself, groups filed over 1,400 amicus briefs - 6 amicus briefs in Brown v. Board of Ed., 1954 - 136 in NFIB v. Sebelius (Affordable Care Act, 2012) - 147 IN oGEFELL V. hODGE, 2015

Cameras in the Federal Courts

- Electronic media coverage of criminal proceedings in federal courts has been expressly prohibited under Fed. rule of criminal procedure 53, since the criminal rules were adopted in 1946 - A pilot program in 1900s allowed cameras in some lower fed. courts - In 2016, the Judicial conference recommended not to make changes to media policy - Trial courts: may authorize broadcasting, televising, recording, or taking photos in the courtroom and in adjacent areas during investitive, naturalization, or other ceremonial proceedings

Federal Conduct and Disability Act

- Establishes formal procedures for acting on complaints of misconduct by federal judges - Initially heard by judicial councils, sends a report to the judicial conference, which can recommend impeachment to the US house of reps - Since 1789 only 18 federal judges impeached and only 8 judges have been formally removed from the Bench - Resignations are a far more likely result of misconduct investigations

Legal Education before 1870

- Few British lawyers moved to England and few Americans could afford to train in England, where education was centered in the 4 Inns of Court in London - The English method for legal training was not well-suited to the realities of a vast, frontier nation - In America, entry into the profession was open; trained through self-study, often combined with an apprenticeship - Start of University based American legal education was at William and Mary (1799) - Chair of law established at Harvard in 1816 with the first professor Isaac Parker - By 1850, only 15 law programs in existence - Legal education connected to philosophy, political economy and ethics; used lecture method - Proprietary law schools (for-profit) emerged for practitioners (Litchfield 1784)

Judicial Campaigns x2

- Few incumbent judges are challenged and even fewer are voted out of office - But note that this is not v. different from other political branches; Representatives in the House are reelected at a greater than 90% rate - However, changes in judicial elections are beginning to occur - Judicial elections are becoming costlier. In 2000, candidates for state supreme court raised 100% more than those in 1994 - Research is finding that money raised in judicial elections is more important to winning than other traditional factors such as partisanship, incumbency, and coattails - Judicial elections are getting noisier - more $ being spent on advertising than ever before and interest groups are more active

Judicial Players: Senate Judiciary Committee

- First public hearings held in 1916 but first nominee to testify was Felix Frankfurter in 1939 - Party that controls committee can delay and defeat presidential appointments - If candidate survives hearing, vote goes to full Senate - For modern Supreme Court nominees, a televised 3-day hearing although some are longer

Scientific Jury Selection

- First used in 1970s to defend anti-war radicals - Used in high profile / expensive cases - use public opinion polls, focus groups to help write Qs for lawyers to use during voir dire - Used more by defense than prosecutors - The effects of scientific jury selection are modest at best. Predicting behavior by race, gender and other physical characteristics is not a perfect science

American Bar Association

- Formed in 1878 during a period of mass immigration, urbanization, and industrialization into the U.S.; there was a growing concern over ethics and the public image of lawyers - Created to try and improve the professional standing of the legal profession - Primary reason for organizing was to establish a Code of Ethics. The ABA tried to get rid of contingency fee and ambulance chasers - Code of Ethics originally banned advertising and allowed legal profession to regulate character and disbar lawyers - Supreme Court struck down advertising ban in 1977 - ABA traditionally was elitist and conservative, but the modern bar is more diverse and liberal - National Bar Association (1925), National Lawyer's Guild (1937), Hispanic National Bar Association (1972)

Voir Dire

- French, pronounced: vuar-deer - Meaning: To speak the truth. Jurors expected to be honest with their answers - Voir Dire is the examination of a prospective juror to determine if they can be fair and impartial - Process varies tremendously - sometimes only a judge is involved; in other places lawyers participate too - Scope and intensity of the questioning varies as well, can take a short time or long time depending on the case

Party Capability x2

- Galanter offers a theory of case disposition involving party capability: widely tested / used, but is it still relevant? Yes, with some caveats - in tort cases where an OS sues a RP, studies have found that ppl who suffer injuries usually recover something. The contingency fee has largely neutralized any perceived advantages of insurance companies - In divorce cases, men generally end up in a better economic position - In the courts of appeal, there is some evidence that the haves do win more often - IN the supreme court, the haves do not always come out ahead. Most have nots at this pt probably have their cases sponsored by a repeat player and other powerful interest groups may file amicus briefs on their behalf - the haves may not be able to enforce their win

Post-Gideon felony cases

- Gideon had major impact on state and local governments - In some jurisdictions, over 90% of defendants are indigent - Supreme Court never specified how indigent legal services were to be provided or how indigency is determined

The Modern Law School

- Harvard Law School and Dean Christopher Columbus Langdell changed legal education - They introduced the case method, or the reading of appellate court opinions - Appellate cases arranged to illustrate development of principles of law - The case method is now the standard form of instruction Night law schools were founded as an alternative to University education - Staffed by lawyers and judges as part-time faculty - Many immigrants and minorities attended these schools - Graduates offered legal services to the poor and criminal defendants

KS Bar Association

- In Topeka - A voluntary organization dating back to 1882 that currently serves about 7,000 legal professionals such as paralegals, law students, attorneys and judges - As a general organization, the KBA works to advance the professionalism and legal skills of lawyers and encourage public understanding of the law

Rise of Interest Groups in Supreme Court Decision Making

- In the U of Michigan AA cases, 84 briefs were filed, with 68 supporting the affirmative action plan - A total of 149 briefs were filed in Obergefell v. Hodges, the gay marriage case - 77 briefs supported petitioners who favored gay marriage - 67 briefs for respondents who defended state bans on gay marriage - 5 briefs for neither side, although a few favored petitioner or respondent Virginia law review study found that some facts asserted in amicus briefs would not pass muster in a high school research paper. The supreme court needs to be more careful about citing material for the briefs

Contract systems

- Individual attorneys, bar associations, or private law firms agree to provide indigent defense services for a specified amount under contract with a local jurisdiction - The use of contract systems has grown considerably over the past 2 decades. It is part of the move to privatize gov. services - Estimated almost 20% of counties nationwide employ a contract attorney program as a primary means of providing indigent representation

Public Defender offices:

- Intended to bring professionalism to criminal representation of the poor - Used frequently in urban areas - Proponents argue that lawyers can focus on the case b/c they're salaried - Defendant does not have a right to a specific public defender - Critics charge that b/c they receive a salary, they will not be as passionate advocates - "Did you have a lawyer at trial" "No, I had a public defender" - Major problems: caseload, resources, retention

Johnson v. Zerbst (1938)

- Johnson was convicted in federal court of feloniously possessing, uttering, and passing counterfeit money. At the time of trial, he was indigent and unable to employ an attorney to represent him. While imprisoned, he filed for habeas corpus relief in a federal district court, arguing that he had been deprived of his 6th amendment right to counsel. The district court denied his claim and the court of appeals confirmed - Held that counsel was to be provided for an indigent federal criminal defendant

Judicial Campaigns

- Judicial elections have traditionally been low-key, low visibility, low turnout affairs - Ethical rules and culture prevented candidates from discussing how they would decide cases - Campaigns were about personal integrity and character - The result is that the public knows very little about judicial candidates; a poll found that just 13% of voters knew a great deal about judicial candidates. Voters know even less with retention elections

Judicial Independence or Political Accountability?

- Judicial independence is viewed as vital for neutral and impartial decision-making, BUT - Elections are viewed by many as the best method of guaranteeing the popular accountability of judicial policy making - A tension is created between judicial independence and accountability - Judges typically enjoy longer terms than elected officials

Jury Selection

- Juries are chosen thru random processes and deliberate choice 3 steps: 1) Compiling a master jury list 2) Drawing the venire 3) Conducting the voir dire - Do these steps produce fair and impartial juries? - The Supreme Court has not required that all juries reflect perfectly the make up of the community

History and Function of Juries

- Juries judge the facts in a case - Before trial by jury was established, proof against a criminal defendant was often determined by wager of battle or trial by ordeal (cold water, hot water, hot irons and trial by witnesses). Proof by ordeal lasted until more than a century after the Norman conquest in 1066 - Modeled after the British experiences as described in the Magna Carta 1215 - Originally limited to nobles - Extended to common ppl in England but still no constitutional "right" to jury trial - American colonists believed very strongly in the right to trial by jury - Primary purpose is to safeguard citizens against arbitrary gov. actions

What motivates a jury?

- Jury deliberation = secret, so research on jury deliberations must be done indirectly - Research is mixed: - Most deliberations are short and focused on the trial. Votes taken almost immediately upon entering the deliberation room - A lone juror rarely produces a hung jury. More likely that 1-2 in minority cave to peer pressure - Juries that hang almost always have a sizable minority voice. In addition, most juries seem to hang b/c case is difficult and ambiguous Critics: Discussions do not bring divisions but consensus - If the jury cannot decide, trial ends w/ hung jury. The moving party may decide to try the case again

Sequestering the Jury

- Jury may live in hotel and be carefully monitored to mitigate the impact of the press - Affects who's able to serve - No TV, newspapers, etc. - Used in George Zimmerman, Bill Cosby, and Jerry Sandusky - OJ case: sequestered for 265 days - Courts have moved away from sequestering; expensive and takes a psychological toll on the jurors

Judicial Players: The Justice Department

- Justice departments searches for acceptable candidates and develops a list for the president FBI conducts background checks - President Reagan's Supreme Court nominee, Judge Douglastic Ginsburg, said that he smoked marijuana once as a college student in the 1960s and in the 1970s; he withdrew from consideration - It was not clear whether the FBI had asked him whether he had ever used illegal drugs - The FBI usually asks friends and associates of nominees about past drug use. Agents do not usually pose such questions to the nominee

Civil Juries: Some issues

- Key factor in debate over litigation explosion - Critics question the jury's competence to decide complex issues related to business wrongdoing -

Voir Dire x3

- Lawyers have wide discretion to use peremptory challenges but may not exclude jurors b/c of race / gender - Prosecutors may not use peremptory challenges to exclude Blacks from jurors b/c they believe that such jurors favor a Black defendant (Batson v. Kentucky). The same restriction holds true for gender (J.E.B v. Alabama - In Foster v. Chatman, SC ruled that prosecutors in Georgia violated the Constitution by striking every Black prospective juror in a death penalty case against a Black defendant - 9th Circuit has recognized discrimination based on sexual orientation, 2014

Lawyers in Colonial America

- Lawyers were scarce in the colonies - Many lawyers in early America suffered from a poor public image - Positive: 1/2 of the signers of the Declaration of Independence were lawyers and 25 / 55 delegates at the Constitutional Convention were lawyers - Negative: Attorneys were used to collect debts. This was v unpopular. The practice of law developed around merchants and banks and their interests. Common belief among lay citizens that the law was all tricks and technicalities, ran by unscrupulous men who built legal careers upon the misfortune of others - According to St. John Crevecoeur (1782): "lawyers are plants that will grow in any soil that is cultivated by the hands of others; and when once they have taken root, they will extinguish every other vegetable that grows around them. The fortunes that they daily acquire in every province, from the misfortunes of their fellow citizens, are surprising"

Jury Selection and Discrimination Summary

- Long history of discrimination in jury selection; most forms of discrimination have been removed - Federal law prohibits discrimination in service on a federal jury based on race, color, religion, sex, nat'l origin, and economic status - Neither Supreme Court nor federal law have explicitly prohibited discrimination in jury service based on sexual orientation or gender identity - Currently 11 states prohibit discrimination on the basis of sexual orientation or gender identity

Work of lawyers

- Many thing of lawyers and trials together but the reality is that most lawyers do not spend their time in court - England draws a formal distinction between: (1) solicitors: office attorneys who advise their clients but argue only minor cases and (2) Barristers: litigators who argue case in major trial courts Litigating: presented cases before judges or juries - Trial attorneys must organize a case and the facts of presentation to the judge or jury - Only a small number of attorneys are full time litigators

Critics of Legal Education argue:

- Method of instruction is confrontational, which does not suit many learning styles - Some argue too focused on knowledge needed to pass the bar exam - Others argue not enough attention to the actual practice of law

Who should select judges?

- No consensus on whom we should trust to select judges - The choices include lawyers, elected officials, or voters - A case can be made for and against these actors - B/c of disagreement about who should select judges, judicial selection is a highly unstructured process that includes many different actors depending on the jurisdiction

Cameras in the Supreme Court

- No photography or audio / video recording is allowed inside the courtroom - Public seats in court available for 3-5 minute viewing - None of the current justices have consistently advocated for cameras, but several have expressed willingness to consider

Diversity of Federal Branch

- None of Trump's 53 confirmed appeals court judges is Black. That makes Donald Trump the first president since Richard Nixon to go a full first term without selecting a Black nominee for a federal appeals court Trump's nominee for Justice Ginsburg's seat: - Judge Amy Coney Barrett: mother of 7 from Vice President Mike Pence's home state of Indiana, Barrett, 48, graduated from Notre Dame Law School and served as a law clerk to Justice Antonin Scalia. She returned to South Bend in 2002 as a law professor, where she worked until Mr. Trump nominated Barrett to the 7th U.S. Circuit Court of Appeals in 2017

Scope of the Right to Trial by Jury

- Not all litigants are entitled to a jury trial - Exempt are juvenile offenders, adults charged with petty offenses (crimes for which authorized punishment is less than 6 months in jail) - Some states offer wider guarantees - Not all litigants are entitled to a jury trial - Minneapolis and St. Louis Railroad Co. v. Bombolis (1916): Supreme Court refused to incorporate jury trial in civil cases

Trump Judicial Appointments

- Packing the courts with conservative judges has been ongoing since first day in office - As of 9/18/20, the total number of Article III judges confirmed under this administration is 216, which represents nearly 1/4th of all Active Article III judgeships. That milestone could be reached as early as next week - The 9th Circuit has already been reshaped by the arrival of 10 Trump-appointed judges. Once a liberal bastion, it now has 16 judgeships nominated by Democratic presidents and 13 named by Republicans - The D.C. Circuit, which ruled against Trump's efforts to keep his financial records secret and rescind the DACA deferred-deportation program, has two Democratic appointed justices at least in their late 70s. Seven of the court's 11 full-time judges are Democratic appointees.

Licensing Requirements

- Passing the bar exam is required to practice law - Historically, lawyers were admitted to the bar by courts and judges - Bar associations worked to improve the quality of the legal profession Most bar exams include: 1. Basic areas of law 2. Knowledge of state law 3. Legal ethics The multistate bar exam is used in 48 states and offered 2x a year - 2010, 79,953 tests administered with a passage rate of 68% - NY and CA administer the most tests - Other tests include the Multistate Professional Responsibility test and the multistate essay test - Many students take a bar review course

Venire

- Pay for jury service is less than $21 per day in most jurisdictions Capital trials are a special case - Those who categorically object to the death penalty or who believe that it is mandated in all cases will be disqualified - Mere opposition to capital punishment, however, is not grounds for automatic dismissal; potential jurors must be open to imposing the death penalty - Citizens not excused receive a summons to appear in court - Despite possibilities for exclusion, venire is more representative than previusly

Traditional v. Policy Oriented Litigation x2

- Policy litigation is growing in importance and these cases attract a lot of attention - May be private or public - In the private sphere are recent cases involving automobile manufacturers and fast food restaurants - Asbestos litigation, silicone breast implants, firestone tires, gender discrimination by Walmart in paying workers - In the public sphere are cases against the gov such as brown v. board of education involving racial discrimination in public schools. Other cases also involve abortion, prison conditions, etc. Also known as institutional reform litigation

Courts and Social Change

- Power of courts is greater than Rosenberg expected / suggested - If courts don't promote social change, why do we see so many interest groups involved in litigation? - Authors argue that courts do matter and that litigants can use the judiciary to secure numerous goals

The Venire: Jury Service as Citizenship Duty

- Qualifications: US Citizen, resident of the judicial district, at least 18 years old, and English speaking Ppl may also be ruled ineligible for several reasons: - They do not understand English - Convicted of a previous felony - Local residency requirement - Many others asked to be excused for various reasons. In some jurisdictions all requests are granted under the assumption that those who do not want to serve will not make good jurors - Trend has been to move away from automatic exemptions. The clerk decides on a case by case basis - Can also be excused if you're famous (Madonna, distraction)

Merit Selection x2

- Retention elections are not without critics - Voters routinely return incumbent judge (although there are signs it is becoming slightly more competitive) - To aid voters, states are creating judicial performance evaluation programs. KS had one for several years but funding was cut - A growing # of states use some or all components of merit selection - Politics is still involved, who makes it on the nominating commission list when the gov chooses

Which Judicial Selection systems is best?

- Selection methods heighten or diminish role of certain political actors (and voters) - Which system produces better judges? "Better" is a "normative" concept - We can ask "who gets appointed' and "what do they do on the bench" - Judges are more alike than different, regardless of selection method - Evidence points to changing trends, more women, less emphasis on former elected experience - But it is difficult to link these changes to the type of selection system

Senate Filibusters and the "Nuclear Option"

- Senate Democrats in 2013 first changed the rules of the Senate to block Republican filibusters of presidential nominees to lower courts and to government positions. But they left the filibuster for Supreme Court nominees untouched, an acknowledgment of the courts exalted status - That last pillar was swept away on a party line vote in 2017, with all 52 Republicans choosing to overrule Senate precedent and all 48 Democrats and liberal-leaning independents pushing to keep it In deploying the so-called nuclear option, lawmakers fundamentally altered the way the Senate handles on of its most significant duties "The move, once unthinkable amongst Senators, is a testament to the creeping partisan rancor in recent years, after decades of at least relative bipartisanship on Supreme Court matters. Both parties have warned of sweeping effects on the court itself, predicting the elevating of more ideologically extreme judges now that only a majority is required for confirmation."

Jury Size x2

- Some argue that 6 person juries more efficient, reduce court backlog Social science finds: - Small and large juries spend equal time deciding cases - Small juries do not exclude important POVs - Jury size does not affect criminal cases - Some evidence that 12 member juries are less able to reach verdict 6 jurors in Trayvon Martin case were all women. One POC and 5 middle aged to senior white

Jury Nullification x2

- Supreme Court has ruled that state courts and prosecution are not required to inform jurors of nullification power - Nullification has been good and bad. Undermines the rule of law

AT&T Mobility v. Conception (2011)

- Supreme Court ruled (5-4) that the Federal Arbitration Act preempts "State law rules" that stand as an obstacle to the accomplishment of the FAA's objectives. Consumers can be bound by an arbitration clause in a cellophane deal or other contract even when state law permits

Judicial Players: The President

- Technically nominates all judicial candidates, but takes greater personal involvement in Supreme court appointments - Most presidents appoint members of the party, but some have looked outside - Some presidents have been disappointed with their choices. Wilson and James McReynolds; Eisenhower and Earl Warren / William Brennan, Kennedy and Byron White

Civil Representation: Pro Bono Publico

- Term pro bono comes from Latin phrase pro bono publico, which means "for the public good" - ABA describes the parameters of pro bono for lawyers in the model rules of professional conduct - Lawyers should aspire to render, without fee, at least 50 hours of pro bon publico legal services per year, w/ an emphasis that these services be provided to people of limited means or nonprofit organizations that serve the poor - Nearly every state has an ethical rule that calls upon lawyers to render pro bono services. The rule is not binding unless adopted by state legislatives or state supreme court - In the law school setting, pro bono generally refers to student provision of voluntary, law-related services to people of limited means or to community-based nonprofit organizations, for which the student does not receive academic credit or pay

The Ideal Juror

- The 1990 Trial of a Cincinnati art museum and its director charged with obscenity for showing photographs by Robert Mapple-Thorpe - First time a US museum was taken to court on criminal charges related to works on display - Judge dismissed the only potential juror who had seen the exhibit and who regularly attended museums. Among those who survived process was a woman who had never been to a museum - Jury acquits museum

Civil Representation: Advertising and Legal Clinics

- The ABA used to require minimum fees and it prohibited advertising - Supreme Court struck down min. fees as a violation of anti-trust laws in Goldfarb v. Virginia (1977), and in Bates v. State Bar of AZ (1977) the court struck down the prohibition of advertising as a violation of first amendment. States can, however, place restrictions on advertising and solicitation - Decisions led to the development of legal clinics, which pioneered the mass production of routine legal services at affordable rates for the middle class. High overhead and economic recessions have forced many of these for-profit offices to close - Most advertising is modest but accident victims often do receive letters from attorneys. - Legal clinics may be run by community-based organizations or law schools. Often specialize in uncomplicated matters.

Arnold v. Kemp (1991)

- The Supreme Court of Arkansas ruled that a state law limiting court-appointed attorneys to $1,000 in fees and $100 in expenses in defense of capital crimes was unconstitutional. It was estimated that the 2 attorneys assigned to the complex case would be required to work 200 - 400 hours preparing a defense. The court found that the fee caps violated the due processes and equal protection rights of attorneys assigned to a case

"Who is to Judge" Charles G. Geyh

- The battle of who is to select judges has been going on for centuries

Legal services Program

- The legal aid movement began in ethnic neighborhoods in NY in 1876 and other big cities with the founding of the German Aid Society - By 1919, legal aid operations were in 41 big cities - Many of these programs were underfunded and a client had to be extremely poor to qualify - Types of cases handled were limited. Clients could not sue banks or retail stores that contributed to the community chest or sue against gov. agencies (housing authorities), and divorce cases were not accepted

Judges: State Judicial Selection

- The majority of state judges are initially selected or retain their position through popular elections Election types include: 1) Nonpartisan elections - judicial candidates run for office w/o a party affiliation listed on the ballot 2) Partisan elections - judicial candidates are listed on the ballot w/ party 3) Retention elections - where the voters are asked whether to keep the incumbent judge

Lawyers in Early America

- The most positive image of the legal profession before the civil war was that of the country lawyer (Abraham Lincoln and Henry Clay) - This image included a self-made, independent, solo practitioner of high moral character who practiced for the common / public good - Abraham Lincoln: "The cheapest, quickest and best way into the legal profession was to read Blackstone's commentaries, chitty's pleadings, evidence, equity, and other texts. Quick wit > extensive knowledge" - With the rise of industrial capitalism and increased urbanization, the image of the country lawyer faded and that practice became less relevant for the needs of corporate capitalism

Law and the Media: Historical Relationshipo

- The relationship between the media and the courts is important - The 6th Amendment protects public access to trials - Print access was guaranteed early - But other forms of coverage, pictures, TV, internet, etc have had more difficulty getting established - Judges do not give press conferences and most of their work is behind closed doors Must balance free and open access to court activities with fair trial concerns

Effective Assistance of Counsel

- The right of indigents to legal rep is not satisfied by the formality of having a lawyer present during criminal proceedings. This requires the effective assistance of counsel in preparing and presenting a defense3 - In both the U.S. v. Cronic and Strickland v. Washington (1984), the court provided guidelines to determine the effectiveness of counsel. A criminal defendant asserting ineffective assistance of counsel must make two showings: 1) Defendant must show that the trial counsel's acts or omissions were outside the range of professional competence assistance demanded of attorneys. This part of the test is satisfied only if the defendant can demonstrate that the counsel made "specific, identifiable errors" 2) Defendant must show not only that the counsel made specific errors, but also a reasonable probability that, if not for the errors, the result of the proceeding would have been different. In other words, the errors prejudiced the defendant's case Under standards articulated in Cronic and Strickland, providing a claim of ineffective assistance of counsel is a difficult but not impossible task

Right to Counsel: Criminal Law

- The right to counsel is recognized in the 6th amendment to the U.S. Constitution, which provides that in all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his defense - For most of our legal history, however, the right to counsel was an empty right, enjoyed by those who could afford to hire an attorney - In 1790, Congress required that persons charged with capital crimes in federal courts be provided the assistance of counsel. Extension of that right to state actions has a short and difficult history

Formal and informal judgeship qualifications

- There are no constitutional or statutory qualifications for serving on the Supreme court or lower federal courts other than residency There are, however, several important informal requirements: - Legal competence: Nominee must have legal training and some legal experience although judicial experience is not required - Political background: nominees are almost always from the president's party - Self promo and luck: Demonstrating an interest and knowing the highest ppl helps

Why Interest Groups Litigate

- Traditionally interest groups litigate b/c they are disadvantaged in the legislative or executive branch - Courts are viewed as better protectors of minority rights. 7th Day adventists, Jehovah's Witnesses, Orthodox Amix - Recently, interest groups have been going to court b/c they see opportunity to influence policy (favorable judges) - Powerful groups go to court to enforce gains won politically

Change of Venue

- Venue = local area where the trial is being heard - Change can be requested to help pick an impartial jury - Considerations: nature and gravity of crime, extent of news coverage, size and demographics of community, status of the defendant, status of victim in community

Judging the judges

- What should be done with unfit judges? Judicial misconduct can include many things, e.g.: - Corruption - taking bribes or fixing cases - But it can also be the result of old age or senility Formal methods of removal include: - Recall elections - Impeachment proceedings

Characteristics of a good judge:

- no agreed upon set of criteria that make up the personality of a good judge - judges are expected to be fair, honest, patient, wise, have legal wisdom, etc. - But they are also expected to be good managers: keep the docket moving, be organized

Work of Lawyers x 2

1) Representing: helping clients with securing a license, dealing with administrative regulations, requesting variances, etc. 2) Negotiating - most lawsuits are settled through negotiation. Lawyers work to settle a dispute in the most favorable way for their client. Negotiations in criminal court are frequently referred to as plea bargaining 3) Drafting Documents - lawyers spend a great deal of time writing documents. A properly drafted document can help a client avoid a lawsuit in the future. Docs required at every stage of a lawsuit 4) Counseling Clients - lawyers advise clients about the dictates of the law. They are expected to provide sound, dispassionate advice about the law. This role sometimes creates tension b/w the lawyer and the client 5) Cause lawyering - invokes the mobilization of the law combined with political calculations

2 Traits of the Ideal Juror

1) The impartial juror - Ignorance is bliss. It is ignorance of the case that makes impartial judgment possible. Primary qualification of a good juror is that she knows nothing. The juror is a tabula rosa (blank slate) 2) Juror as Peer and Neighbor - The juror will have some knowledge of the case and may even know the parties and witnesses. This local knowledge of the neighborhood qualifies the juror to understand the facts of the case and to pass judgment in ways that a stranger to the community would not - Problem: how to reconcile these competing visions of the jury. How can we empanel a jury that has enough knowledge to be competent, but enough ignorance to be impartial? - Too often, the search for impartial jurors leads to an elimination of all persons who have some idea about the events happening around them. Ignorance and apathy

The Adjudicatory Process

1. Routine Administration: - Many cases filed in court are not complex; in these cases, routine admin. means the court has no disputed Q of law, the court is merely asked to formalize a settlement - Uncontested divorce is an EX - These cases are resolved quickly and with relatively little effort by the judges 2. Procedural Adjudication - Reflect the adversarial model - Involve 4 key elements: (1) Judges and lawyers search for applicable law, (2) relies on formal rules of evidence, (3) Exhaustive exploration of all facts, evidence, etc., (4) Assumes all parties are preparing for trial (EX: tort litigation) 3. Decisional Adjudication - Involves cases where the law is clear and the facts are straightforward - judges seek to rapidly establish the relevant facts and expeditiously apply the law - Emphasis is on quick resolution - Many litigants appear "pro se" (representing themselves) - small-claims courts are an EX 4. Diagnostic Adjudication: - Focuses on determining the cause of the problem rather than just settling the case - Often involves nonjudicial personnel in defining issues (e.g. professional experts such as psychiatrists or social workers) - EX = Juvenile Court where the focus is on what's best for the juvenile - Sentencing decisions also involve a diagnostic adjudication - A difficult area for courts b/c the law offers less guidance in this area

Voir Dire x2

2 Purposes: 1) Determine if a juror is unfit to service 2) Allow the prosecution and defense some discretion in determining jury composition Lawyers use voir dire for other reasons: 1) Educate citizens about role of juror 2) Try to influence how the juror views their client Goals achieved by: - Challenge for cause: either attorney may argue juror is not fit to serve for some rzn - Peremptory challenges: Can be used by either attorney to excuse any juror without having to state a rzn. The number of peremptory challenges varies from 2-26 depending on the jurisdiction and seriousness of the charge

Differences in Law Schools

204 American Bar Association approved law schools in 2014 - Most are associated with a university - The rest are free-standing (proprietary) Law schools differ in prestige, elite national law schools, public and private university schools, and local / night schools - Ranked by U.S. News and World Report every year but not without controversy. The LSAC encourages applicants to find the "best school for them"

Varying Road to Judgeship

3 principle methods of judicial selection in the US: 1) Appointment - selection by either the executive or legislative branch of gov 2) Election - either partisan or nonpartisan 3) Merit selection - typically involving appointment with retention elections - Political geography matters

Interest Group Strategies #3

3. Class Action - A lawsuit brought by a person or an interest group on behalf of all people similarly situated - Are commonly among policy-oriented lawsuits - Interest groups help sponsor the case and mobilize the individuals in the class - Often used in product liability cases - A source of many litigation explosion cases

Interest Group Strategies

4 Different strategies to influence courts: 1. Direct Sponsorship - Interest Groups may directly sponsor a case, providing lawyers, paying for expenses, etc. (NAACP and Brown v Board of Education) - Most recent has focused on high profile case sponsorship of interest groups - Sponsorship is expensive - Mixed success b/c so few cases make it to court

Interest Groups Strategies #4

4. Judicial Nomination - Interest Groups would like to determine who gets appointed / elected to the bench (thinking this will lead to a favorable judicial climate) - Interest groups are increasingly active at the federal and state levels in trying to influence who becomes a judge - Supreme Court vacancies are now a major focus of liberal and conservative interest groups - ABA and Federalist Society but over 100 groups active in confirmation process - Review paper trail and background of nominees - Testify for or against nominees - TV commercial in support of Judge Amy Coney barrett

Interest Group Resources

5 resources are more important to interest groups in the court: 1. Money 2. Support from other organizations (strength in #s) 3. Longevity (victories come slow and over time in the courts; passive and reactive) 4. Expert legal staff 5. Extralegal publicity (ability to share message and influence decision makers)

Settlement Role

A. Mediation: Where the parties reach an agreement that is satisfactory to each and w/ which they comply B. Arbitration: similar to mediation except the parties agree ahead of time to be bound by the decision - Courts make more decisions and enforce them; others try to encourage compliance Control by the Parties - Dispute settlement mechanisms offer the parties varying degrees of control over the outcome - During mediation, parties must agree to the outcome or there is no resolution; in arbitration they agree in advance (i.e. give up some controls) and in courts there is very little control by the parties. The court's order will be final and controlling

Groups that sponsor cases: ACLU and Center for Biological Diversity

ACLU has filed 400 cases v Trump administration - Separation of children - Protect abortion access - Citizenship Q in 2020 census CBD = nat'l nonprofit dedicated to protection of endangered species and wild places. 237 lawsuits v Trump

Interest Group Strategies #2:

Amicus Curiae Briefs (friend of the court) - filed by an interest group to make their views known to the court - offers possible legal arguments, data, expresses a POV about how a case should be resolved - less expansive (considerably) than case sponsorship - An increasingly popular tool of interest groups - widely used - 1940s, only 18% of cases had amicus briefs - by 1990, over 80% involve amicus -- Outside groups w/ interest in case submit briefs (obergefell v. Hodges) -- Modern courts increasingly citing amicus briefs (facts are sometimes inaccurate)

Legal Ethics and Discipline

Are lawyers dishonest, unscrupulous, and conniving? - Increasingly law schools focus on ethics - Bar associations work to improve public image of lawyers - State high courts establish the standards of conduct for the legal profession, based on the ABA's model rules of professional conduct Typically, a state bar association disciplinary committee handles common complaints, such as: 1. Misuse of client funds 2. Acceptance of money for services never rendered 3. Felony conviction - Complaint is filed, investigation performed, recommendation is made - Most complaints are dismissed, with very few resulting in sanctions Most extreme punishment is disbarment, determined by state supreme court - FL Lawyer was disbarred this year for using client's trust fund to operate a strip club and pay for drug addiction - Dissatisfied clients can also file a malpractice lawsuit

Assigned Counsel Systems

Assigned counsel = judges appoint local attorneys - Traditionally, the defense of indigents was provided by members of local bar associations, much like Atticus Finch representing Tom Robinson in "To Kill a Mockingbird" - Attorneys would be appointed by judges usually on a pro bono basis or with minimal compensation For much of our legal history, assigned counsel indigent cases had no constitutional right to compensation. The practice was justified as being the duty of an attorney as an officer of the court and as a condition of practicing law in a practical jurisdiction - Used mostly in rural, less populated areas

3rd Party Alternatives to Courts

Identifying Characteristics: - Some disputes are resolved by ppl in a community w/ special (high) standing (e.g. religious leaders) - Others are resolved by specially trained arbitrators or mediators - More specialized than judges Private vs. Public - Level of connection to the gov. - Many dispute processing institutions are private (e.g. student discipline boards) - Many lack authority to enforce their decisions - The police are an example of a public dispute resolving mechanism - Police spend a great deal of energy trying to maintain public order Level of formality: - Some attempts to resolve disputes work with a very informal structure (e.g. marriage counselors) - Others, like courts, have very formal rules and procedures - Courts are among the most formal institutions compared to arbitration, mediation, and other private citizens

Gideon v. Wainwright (1963)

Clarence Earl Gideon was charged in Florida state court with a felony: having broken into and entered a poolroom with the intent to commit a misdemeanor offense. When he appeared in court without a lawyer, Gideon requested that the court appoint one for him. According to Florida state law, however, an attorney may only be appointed to an indigent defendant in capital cases, so the trial court did not appoint one. Gideon represented himself in trial. He was found guilty and sentenced to five years in prison. Gideon filed a habeas corpus petition in the Florida Supreme Court and argued that the trial court's decision violated his constitutional right to be represented by counsel. The Florida Supreme Court denied habeas corpus relief. Question: Should the Court's holding in Betts v. Brady be reconsidered? - Answer Yes. Unanimous vote - The court reasoned that the 6th Amendment's guarantee of counsel is a fundamental and essential right made obligatory upon the states by the 14th Amendment.

Jury Nullification

Definition: A jury's knowing and deliberate rejection of evidence or refusal to apply the law either b/c the jury wants to send a message about some social issue that is larger than the case itself, or b/c the result dictated by law is contrary to the jury's sense of justice, morality, or fairness - Most famous nullification case was the 1735 trial of John Peter Zenger - Appeared at other times in history when gov. was trying to enforce morally repugnant or unpopular laws

Appointment of Federal Judges

Determined by the Constitution - Nominated by the President - Confirmed by Senate - Serve during good behavior (i.e. life) - Hamilton defends life appointments and compensation protection in Federalist #78 The process appears simple, but it is complex and political - Varies by level of court (district, circuit, supreme) Vacant judgeships are highly valued - President opportunities to pursue political objectives and reward party faithful - However, the prez has very little control over when vacancies will occur - Lifetime appointment and congress rarely authorizes additional judgeships - Article III Judges serve for life while Article I judges (administrative) serve 7-10 years

Law School Curriculum

Early curriculum was 2 years; Today the standard is 3 years - Train students as generalists - Teach students to "Think like lawyers" Distinctive feature in the case method - Casebooks organize appellate court decisions - Few references to other disciplines (history, economics, public policy, etc) - Employs the Socratic method -- Professor challenges students to explain the logic of their thinking - No correct was of analyzing opinions, it is the process that counts

Betts v. Brady (1942)

Established that state governments did not have to provide lawyers to indigent defendants in capital cases - The court refused to apply Johnson to the States and instead adopted a "fundamental fairness" test to determine whether the appointment of counsel for indigent defendants was necessary in noncapital cases. Here, because the defendant was of "ordinary intelligence" and not "wholly unfamiliar" with criminal procedures, the court found no special circumstances - Over the next 2 decades, Betts was frequently undermined by expansion of the "special circumstances" exception, resulting in the appointment of counsel in most felony cases, until it was finally overruled in Gideon v. Wainwright (1963)

Branzburg v. Hayes (1972)

Facts: - A newspaper reporter was subpoenaed to appear before a grand jury to face questions regarding illegal activities during an undercover investigation of the local drug scene. Citing the 1st amendment, he refused to disclose his confidential sources to grand jury. Supreme Court refused to vacate his conviction for contempt Majority: - Justice white stated, "We cannot seriously entertain the notion that the 1st amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write abt crime than to do something about it." Dissent: - Justice Stewart said that protecting the confidentiality of sources was essential to newsgathering Impact: - 30 states have passed shield laws which allow reporters to refuse to divulge info about their newsgathering activities

Ramos v. Louisiana (2020)

Facts: - Ramos was charged with 2nd degree murder and exercised his right to a jury trial. After deliberating, 10 of the 12 jurors found that the prosecution had proven its case beyond a reasonable doubt, while 2 jurors reached the opposite conclusion. Under Louisiana's non-unanimous jury verdict law, agreement of only 10 jurors sufficient to enter a guilty verdict, so Ramos was sentenced to life in prison without possibility of parole Question: - Does the 14th Amendment fully incorporate the 6th Amendment guarantee of a unanimous verdict against the states? Decision: - (6-3); Justice Gorsch noted the original meaning of 6th Amendment right to trial by jury supports an interpretation that it requires guilt to be determined by a unanimous jury

Civil Representation for the Poor

In civil matters, free legal rep is a privilege, not a right - Mostly offered by a legal clinic, the legal services program, or on a contingency fee basis Contingency fee - lawyers agree to be paid only if the case is won - Very controversial, usually 1/3 compensation, but increases the availability of lawyers to the poor - contingency fee is a distinctive feature of US law - Opponents charge that (1) unfair to clients b/c winning lawyers take a large portion of the settlement, (2) lawyers make too much for their time spent, (3) the chance of winning big causes reckless behavior by the attorneys - Proponents counter that (1) lawyers that use the contingency fee do not benefit all that much, (2) they turn away plenty of cases, (3) may not cause higher verdicts

Jury Selection x2

In order to show that a jury pool is unconstitutional, 2 things must be shown: 1) an identifiable group has been excluded. Only racial selection and women have been put in this category. Age and economic group are not subject to judicial scrutiny. The 9th Circuit Court, however, has also recognized sexual orientation as a category 2) No group can be banned absolutely, or procedures manipulated to keep certain groups off the master list

Interest Groups in Court

Interest groups = important part of legal mobilization in the US - They might sue to promote the interests of their members - Offer advice to the courts on issues presented in cases - Recommend possible judges to office holders - Mobilize voters in judicial elections to influence the judiciary

Large Firms and Solo Practitioners:

Large firms: - Firm lawyers are sometimes described as finders (finding new clients), minders (managing the firm), and grinders (doing legal research and work) - Participate in bar association leadership - Expanded rapidly in the 1980s, but # of super large firms has been declining Solo practitioners: - Individual attorneys - Represent one-shotters: individuals who rarely make legal claims - Have modest incomes and focus mainly on criminal, personal injury, divorce, real estate, etc.

Legal Services Program x2

Legal Service program created in 1965 by President Lyndon Johnson to offer legal services to the poor - Prosecutors were small, largely urban offices trying to provide professional legal services - The LSP created neighborhood offices, gov. funded, independent, advocates for the poor - Replaced by the Legal Services Corp in 1974

Legal Mobilization

Legal mobilization refers to the process by which a legal system acquires its cases - the state (public actors) and individual litigants set the agenda of the judicial branch - The U.S. judiciary is largely passive, requiring action by others for it to become involved in disputes - What becomes a legal dispute is a very important Q - Courts are merely one place where disputes are resolved. It is useful to compare courts to other mechanisms citizens use to resolve courts

Assigned Counsel Systems x2

Main problems: competence and compensation - Many of the appointments are accepted by recent law school grads eager for the litigation experience and the more "seasoned" but marginally competent attorneys who need the income - To avid problems of legal competence, jurisdictions implemented a coordinated assigned counsel program that requires attorneys to meet qualification standards in order to participate. Also provides training and continued supervision - Most jurisdictions now provide for some compensation for assigned counsel although payment tends to be inadequate and historically was subject to fee limitations in many states - Several lawsuits in the 1900s challenged fee limits

Legal Services Corporation

New: A private nonprofit corp established by Congress in 1974 - Overseen by an 11-person committee appointed by president and confirmed by Senate - By 2018 the budget was $425 mill - Provides aid to > 1M annually - Subject of partisan debates in Congress: conservatives do not like the idea of having the federal gov. fund legal services that are used to sue biz and local govs - Supreme court struck down restrictions against funding welfare reform litigation in Legal Services v. Valazquez (2001) But support is now bipartisan and budget is steady

Scope of Litigation

Policy Litigation involves (fewer but important cases): - Multiple plaintiffs and defendants - Litigation is future oriented - Plaintiff seeks more than compensation - Lawsuit has broad ramifications, affects other parts of society - The court may stay involved after it's over

Where lawyers work:

Private practice - nearly 55% (2018) of lawyers work in private practice - # of solo practitioners is declining - Economies of scale make working in a firm, an association of lawyers, more and more desirable Businesses hire many lawyers (13.9%) - House counsel: employed by the biz as a salaried employee - Outside counsel: a lawyer or firm hired by the biz but not an employee Government - nearly 10.8% of the nation's lawyers - Typically we think of gov. lawyers prosecuting criminals - But many other lawyers are employed by federal, state, and local gov Law Clerks - provide legal research and writing for judges. Judicial clerkships are highly prized by law students and seen as prestigious by future employers

Powell v. Alabama (1932)

Question: Do indigents have the right to counsel in a capital case? - Yes: 7-2 vote - It is clear that at the most critical part of the process - that is prior to the trial when consultation is clearly needed - the defendants here did not have the aid of counsel in any real sense. The court held that the trials denied due process b/c the defendants were not given reasonable time and opportunity to secure counsel in their defense. Though Justice George Sutherland did not rest the court holding on the right to counsel guarantee of the 6th amendment, he repeatedly implicated that guarantee

Bar Associations

State bar associations - 30 states have adopted integrated bar: all attorneys to join the state bar association ABA - over 400,000 members, attempts to speak for the legal profession - Try to remove dishonest lawyers and promote the public image by conducting assessments of public confidence - Activities aimed at the unauthorized practice of law -- Lawyers traditionally have a monopoly over legal services - Many legal tasks are routine (uncontested divorces, adoptions, name changes, will); These tasks are being made easier by computer programs and handbooks

Sheppard V. Maxwell (1966)

The Supreme Court overturned Dr. Sam's Sheppard's 2nd degree murder conviction, holding that the judge has a responsibility to prevent press coverage of a trial to interfere with courtroom proceedings - F. Lee Bailey represented Sheppard before the court and pointed out to the Justices how press coverage both inside and outside the courtroom, from the day Mrs. Sheppard was killed, interfered with mr. Sheppard's right to due process - The court noted 9 examples of "intense publicity." every juror except 1 testified in voir dire to reading the case in the local press or seeing / hearing broadcasts about it

The Venire

The Venire is the jury pool Names are drawn from the master jury list and they are asked to report for jury duty - Sent questionnaire about ability to serve - Some exemptions are made for doctors, lawyers, ministers, etc. - Compliance with jury duty summonses is a major concern (many ppl do not report or ask for exemptions)

The Jury Verdict

The jury foreperson announces the verdict, which is the decision of a trial court - After announcement either party can ask for jurors to be polled - Jurors convict in criminal cases 2/3 times and in civil cases, 50% for the plaintiffs - Studies show that juries and judges frequently agree - Judges and juries agreed on guilty 64% of the time, and in 14% of the cases agreed defendant should be acquitted. Basically, 78% of the time they're in agreement

LSAT (Law School Admission Test)

The test is designed specifically to assess critical reading, analytical reasoning, logical reasoning, and persuasive writing skills - key skills needed for success in law school. It is the only test accepted for admission purposes by all ABA-accredited law schools - The LSAT is administered in 2 parts: First part is a multiple choice exam administered at test centers. Starting in 2019, multiple choice administered digitally - Exam does not test your knowledge of constitutional law or the judicial process

Biggest class action settlements

Tobacco settlements for 206 billion BP Gul of Mexico Oil spill 20 billion Volkswaggen emissions scandal 14.7 billion Enron securities fraud 7.2 billion