American Common Law Legal Profession Overview

Comparative Law Prof.ssa Letizia Coppo Cattedra di Diritto comparato A.A. 2022-2023

The Nord-American Common Law The organisation of the judiciary and the legal profession

THE NORD-AMERICAN COMMON LAW The legal profession The organisation of law practitioners into a legal profession came at the end of the XIX century after a period of great informality. No distinction between solicitors and barristers: only attorneys at law. The development of the legal profession went along with the one of the law schools. 3 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession Every issue dealing with the legal profession falls in principle within the competence of the States. At a federal level the category is represented by a non- governmental organisation: the American Bar Association (ABA). The legal profession is almost absolutely independent and autonomous from federal legislative and political power. 4 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession Regulation (of the legal profession), to the extent it exists, is determined by lawyers and their close allies, lawyers who are for the moment judges. Groups of Lawyers in the American Bar Association draft the professional rules in the form of model suggestion to the States, where most regulation occurs. In the States other groups of lawyers (typically closely allied with the States Bar Association) review the national model and determine the extent to which they will recommend adoption of or variations from the model ... the result is a fair degree of uniformity in regulation across the country although the theoretical potential for wide variation exists. In almost all States the final determination of the shape of the rules is made by the States Supreme Court ... quite content to do what the Bar recommends... 5 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession The ABAhas a nearly dictatorial power over the legal profession, including legal academics, through the close cooperation with the American Law Schools Association (ALSA). The reason also lies in the strong identification between the bar and the bench: judges and attorneys are allied together against the interference of politics or federal legislation. 6 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession ABA and ALSA are responsible for the unitary education of American jurists: the courses and syllabus of the main law schools are established by the two associations together. The prestige of academia depends upon the legal profession, rather than being the other way round. 7 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession The bar exam: it tests candidates on the general principles of the law taught in the law schools. Every Examiners produces a multi-state exam that the various states adopt, at least in part. year the National Conference of Bar In some States only students from certain law schools have access to the exam. 8 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession The bar exam The vast majority of students graduated from the main law schools pass the exam; so the real selection basically concerns the secondary law schools. So the real selective step takes place with the admission to the law school (Law School Admission Test), at a national level. 9 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession The Law SchoolAdmission Test To be admitted to the best law schools (Ivy league), students need high ranking in the test, but this is not enough. Examiners assessment is also based on the most diverse cultural, environmental, racial (and the like) factors. On this ground the test has been harshly criticised, as it ends up favouring certain kinds of candidates. 10 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession The Ivy League Meaning: the term typically refers to a group of 8 elite colleges provided, beyond academic excellence, selectivity in admissions, and social elitism. the sports context, with Members: Brown, Columbia, Cornell, Dartmouth College, Harvard, University of Pennsylvania, Princeton, and Yale. 11 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession The Law Firms Trend towards huge law firms (370 lawyers on average); a firm with 50 attorneys is considered rather small. But, still, the majority of attorneys works for individual or small associated law firms, with limited resources. Aggressive advertising of law firms is wide-spread. 12 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession Peculiarities of Litigation Contingent fees and Third Party Litigation Funding (TPLF) No adverse costs rule Spread of Public Interest Law Firms: encouragement of personal injury litigation and mass litigation; case selection on the basis of emotional distress . 13 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The legal profession and Alternative Dispute Litigation Resolution explosion Settlement v. Adjudication; Litigation romanticists v. ADR supporters Process Pluralism and multi-door court system, where Alternative Dispute Resolution becomes Appropriate Dispute Resolution. 14 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The judges The career path of US judges is far more complex than the one of English judges. Two types of judges (federal and state judges) + Federal Supreme Court Justices. The prestige varies according to a number of factors 15 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The judges The composition of the Federal Supreme Court is culturally heterogeneous: judges of other jurisdictions; successful practitioners; and also law professors and political jurists. Federal judges are appointed by the US President (directly in case of the Federal Supreme Court; through the Attorney General in the other cases) and need to be confirmed by the Senate (simple majority is enough). 16 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The judges Senatorial courtesy : the President requires the prior placet of the senators of the State to which the justice to be appointed belongs. If one of the senators opposes his veto, it will be impossible for the President to obtain subsequent confirmation. confirmation is ruled by senatorial The most powerful senators are even able to suggest candidates to the President. 17 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The prosecution Unlike in England, it is a public party. Federal level (competent for federal crimes): 94 District Attorneys coordinated by an Attorney General who is the chief of the Department of Justice. Elected like federal judges. State level (other crimes): municipal or county or district attorneys coordinated by an Attorney General, elected by the parties or appointed by the local Governor. 18 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The prosecution Peculiarities of US prosecution Prosecutorial discretion, on which there is only a political control by the Department of Justice. Plea bargaining: both on the conviction or sentence and on the charges. 19 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury: jurors selection Each district court randomly selects citizens names from lists of registered voters. The people randomly questionnaire to help determine if they are qualified to serve on a jury. Those qualified are randomly summoned to appear for jury duty (this is the Jury Pool ). selected complete a chosen to be 20 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury: jurors selection The above-mentioned selection process helps to make sure that jurors represent a cross section of the community, without regard to race, gender, national origin, age, or political affiliation. 21 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury: jurors selection From the jury pool to the jury box The qualified jurors are taken to the courtroom, where the judge and the attorneys ask questions to determine their suitability to serve on the jury (voir dire). The purpose of voir dire is to exclude from the jury people who may not be able to decide the case fairly. 22 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury: jurors selection Candidates who know any person involved in the case, have information about the case, or may have strong prejudices about the people or issues involved in the case, typically will be excused by the judge. The attorneys also may exclude a certain number of jurors without giving a reason. 23 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury in criminal trials An individual is accused of committing a crime that is considered against society as a whole. 12 people make up a criminal jury. A unanimous decision must be reached before a defendant is found guilty. The government must prove the crime was committed beyond a reasonable doubt. 24 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury in crivil trials At least 6 people make up a civil jury. The jury must come to a unanimous verdict unless specified otherwise. The standard of proof is a preponderance of the evidence , or more true than not (specific role in awarding punitive damages). 25 Universit LUMSA

THE NORD-AMERICAN COMMON LAW The jury: the interaction with the judge The judge determines the appropriate law that should be applied to the case and the jury finds the facts in the case based on what is presented to them during the proceedings. At the end, the judge instructs the jury on the applicable law. While the jury must obey the judge s instructions as to the law, the jury alone is responsible for determining the facts of the case. 26 Universit LUMSA

Prof.ssa Letizia Coppo Email: l.coppo1@lumsa.it lcoppo@univ-catholyon.fr