Kara Sears
Millions of people in the US attempt to navigate the country's complex legal system without legal representation each year. While there are a lot of lawyers in certain geographic areas and specialities, rural areas often have too few. Many people who represent themselves in court fail to make it through the process, have their case dismissed, or lose a winning case. Civil cases can involve critical issues, including housing, public benefits, child custody, and domestic violence. In most civil cases, judges or juries determine who wins based on a preponderance of evidence standard of proof, meaning that the evidence presented by the winning side was more likely to be true.
| Characteristics | Values |
|---|---|
| People without a lawyer | Millions try to navigate the US courts without a lawyer every year |
| Affordability | 80% of state criminal defendants cannot afford a lawyer |
| Self-representation | Many people who represent themselves in court fail to make it through the process, have their case dismissed, or lose a winning case |
| Lawyer availability | In some rural areas, there are too few lawyers |
| Lawyer fees | There is no automatic right to attorney's fees in a civil case |
| Case complexity | The legal system is nearly impossible to navigate for many people without a lawyer |
| Case dismissal | Missing one step could mean having to start the process all over again or having the case dismissed |
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What You'll Learn
Criminal cases vs civil cases
The American justice system uses two different types of cases to address wrongdoing: civil and criminal. While civil cases involve conflicts between people or institutions, criminal cases are considered offenses against the state or society as a whole.
In a civil case, one person or entity sues another due to a dispute or conflict. These cases usually involve money, with the plaintiff asking for relief in the form of monetary damages or specific actions from the defendant. Civil cases are proven by a "preponderance of the evidence", meaning the presented evidence was more likely true than not. The consequences of civil cases are generally less severe than those of criminal cases, and defendants are not provided with an attorney.
On the other hand, criminal cases are prosecuted by the state and carry the possibility of jail time, monetary punishment, or even the death penalty. As a result, criminal cases have more protections in place and a higher standard of proof. Defendants in criminal cases are presumed innocent until proven guilty, with the burden of proof falling on the prosecutor. Criminal defendants have a constitutional right to a trial by jury and an attorney, with a public defender provided if they cannot afford one.
While civil cases can involve critical issues such as housing, public benefits, child custody, and domestic violence, they do not carry the same weight as criminal cases. However, it is important to note that there is some overlap between the two types of cases, and individuals facing legal issues may need to consult with both criminal defence lawyers and civil law attorneys.
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The role of lawyers
Lawyers, also called attorneys, are responsible for researching the intent of laws and judicial decisions and determining their applicability to a client's case. They act as both advocates and advisors for one party in a criminal or civil proceeding. As advocates, they may present evidence and argue in support of their client for settlements outside of court or during court appearances. As advisors, they counsel clients about their legal rights, obligations, and options, suggesting courses of action.
Lawyers must represent every client competently and keep their client's information confidential unless required by law to do otherwise. They must always act with integrity, honesty, and empathy, and it is their duty to give the client a competent opinion based on sufficient knowledge of the relevant facts, adequate consideration of the applicable law, and the lawyer's own experience and expertise. The advice must be open and undisguised and must clearly disclose what the lawyer honestly thinks about the merits and probable results.
Lawyers are officers of the court, which means that the court takes lawyers at their word for certain administrative things. Lawyers must assist the court in the proper administration of justice and always be courteous, fair, and respectful. They must not knowingly mislead the court or assist their client in doing something dishonest.
Different types of lawyers include criminal law attorneys, defense attorneys, litigators, trial lawyers, corporate counsels, prosecutors, public defenders, and government counsels. Some lawyers also specialize in specific fields, such as environmental law, family law, intellectual property law, personal injury law, and securities law.
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Court procedures
Civil Cases
Civil cases involve conflicts between people or institutions, such as businesses, and usually involve monetary disputes. The party who files the lawsuit is called the plaintiff, and they may seek damages or money to compensate for their losses or harm. The plaintiff may also ask for an injunction, which can prevent the defendant from doing something or require them to take a specific action.
In civil cases, the parties must complete any Alternative Dispute Resolution (ADR) requirements before the case can be certified as ready for trial. If the parties settle their disputes, they must file a signed settlement agreement with the court and prepare proposed findings of fact and conclusions of law for the judge to review and sign.
Criminal Cases
Criminal cases involve accusations of criminal behaviour and are generally heard in a criminal court. Criminal defendants have a constitutional right to an attorney, but this right is only guaranteed for those who are incarcerated. Many people facing criminal charges, particularly in rural areas, cannot afford legal representation and may have to navigate the legal system without a lawyer.
Supreme Court Procedures
The procedures for cases heard in the Supreme Court differ from those in lower courts. After initial petitions are filed, the petitioner and respondent are permitted to file briefs outlining their respective positions. The U.S. Government, represented by the Solicitor General, can also file a brief on behalf of the government if it has an interest in the outcome of the case.
Oral arguments are heard in two-week sessions from October through December and from January through April. Each case is allotted an hour, during which lawyers for each party answer questions from the Justices and make their legal case. The Justices then decide the case at a Justices' Conference, where they discuss the cases heard and review memoranda and recommendations from their law clerks.
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Case law
In common law countries, including the United States, United Kingdom, Canada, Australia, and India, case law is used for judicial decisions of selected appellate courts, courts of first instance, and other adjudicatory bodies. Common law systems follow the doctrine of stare decisis, which means that most courts are bound by their previous decisions in similar cases. For example, a court in New York would rely on binding precedent from within its jurisdiction. If no previous decisions exist, it may look at persuasive authority from other jurisdictions.
The role of case law differs in civil and common law traditions. Common law courts explain the legal rationale behind their decisions, with citations of legislation and previous judgments, often interpreting wider legal principles. This analysis, called ratio decidendi, constitutes a precedent binding on other courts. Decisions in civil law jurisdictions are generally shorter, referring only to statutes, with the logic deduced from the decision and the statutes.
Civil cases often involve conflicts between people or institutions, such as businesses, and usually concern monetary compensation or injunctions. Many people navigate civil cases without a lawyer, and some experts advocate for the expansion of the right to counsel in such cases.
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Settlements
In law, a settlement is a resolution or agreement between disputing parties in a legal case, reached either before or after court action begins. Settlements usually involve monetary agreements, which may be enforced by court order. Settlements can be beneficial as they allow both sides to avoid the costs, time, and stress associated with a trial. They can also provide a faster resolution, reduced costs, and more control over the outcome than a court trial.
There are different types of settlements, including collective settlements, which resolve multiple similar legal cases, and structured settlements, which provide for future periodic payments instead of a one-time cash payment. Settlements can also be global, addressing civil claims and criminal charges against a corporation or other large entity in multiple jurisdictions.
The majority of cases are decided by a settlement, as both sides often have a strong incentive to settle. Settlements are normally private contracts, but consent decrees are court orders that are relatively uncommon in the United States. Most settlements are confidential, but this has been controversial as it can allow damaging actions to remain secret. Some states have passed laws limiting confidentiality, such as Florida's "Sunshine in Litigation" law.
Settlement agreements typically include confidentiality clauses, which can keep personal or sensitive information out of the public record. They are binding contracts that prevent the renewal of litigation. However, settlements may also be incorporated into a consent judgment, recorded by the court, providing the same protection against reopening the dispute as a fully litigated case. Settlements can be challenging, especially when dealing with insurance companies and complex legal terms, so working with a qualified attorney can make the process easier.
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Frequently asked questions
Civil cases involve conflicts between people or institutions, like businesses. These conflicts usually involve money.
Civil cases can involve a range of critical issues, including housing, public benefits, child custody, and domestic violence.
Case law, also known as precedent or common law, is the body of prior judicial decisions that guide judges in deciding issues before them.
Use case law where the facts are very similar to your legal situation and from the jurisdiction where your case will be heard.
It is difficult to say if most people have a law case, but millions of people navigate US courts without a lawyer each year.
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