We studied the workings of the U.S. justice system in San Jose, California. In addition to learning how law firms work, they visited court hearings, got acquainted with the activities of mediators engaged in pre-trial dispute resolution, studied the basics of the American justice system, and talked with judges.
How is the legal profession organized in the United States?
No law school graduate can practice law, or even give advice, unless he or she has gained access to the profession (a license to practice law, to practice law). Even full-time employees of non-law firms are required to have one. If a corporate lawyer gives advice without a license, he faces a heavy fine and loss of reputation. To gain access to the profession, one must pass an exam and become a member of a bar association. The association grants and revokes licenses and develops a code of ethics for lawyers, which specifies what a lawyer can be held liable for.
To become a prosecutor or a judge, you have to be a member of that association. The position of judge is an elected one. Each judge is elected by the population for 10 years. A judicial candidate must have a good record, experience in both the bar and the prosecutor's office. Then he has a chance of being elected.
Does the license give you the right to represent your client in the entire United States?
No, only in the state in which it is issued. Since the U.S. is a confederation, the laws may vary from state to state: for example, one state allows you to carry a gun, while another prohibits it. To represent your client in another state, you need to pass an exam there, or engage a lawyer licensed in that state to participate in the process. Otherwise, the lawyer can only be present in court, to be a consultant. He cannot appear in court. Our lawyer has the right to defend a client in any city or region.
What else is different about the U.S. court system?
For the most part, the U.S. court system is precedent-based. In order to win a case in court, lawyers have to find a precedent from the court of the state in which the case is being considered and propose the same decision. But in Louisiana, as in our country, the continental system is applied, where the defense is built not on precedent, but on the interpretation of the law.
American attorneys are more concerned with building a relationship with the judge than with the prosecutor. They look at who the case is assigned to in order to calculate what decision the judge can make. One of our professors, a judge who used to be a prosecutor, told us that within the legal corporation there is no antagonism between the different legal professions. They are quite polite with respect to their colleagues and no rudeness is tolerated. We went to several hearings in different courts. It turned out that everything happens like in the movies, the films reflect the real state of affairs. The judge behaves quite correctly, explains his position to the jury and can invite the defense attorney to his office to discuss something. Prosecutors and attorneys try to emotionally influence jurors because they are ordinary citizens, they need to be impressed (the judge is not affected by these techniques). The judge may even make a joke.
Can a lawyer present his own evidence and not only challenge the evidence presented by the prosecutor's office?
Lawyers in criminal cases have not complained about being prohibited from obtaining and presenting their evidence. In civil cases, there are no such problems at all, because they have a mandatory pre-trial exchange of documents, the parties must disclose their evidence, which they will be referring to, to their opponents. The lawyer can interrogate the witness himself, formalize his testimony and present it in court as written evidence. The court, if it deems it necessary, can call the witness and question him again. We asked: is the adversarial nature of the parties real or is it just an appearance? The judges said that they heard the arguments of the defense and the prosecution very carefully. It happens, and it's not uncommon for a judge to enter a case with one submission, but after hearing the arguments he changes his point of view. From which I conclude that the adversarial nature is there.
How much do lawyers cost, are there free legal services in the U.S. for socially disadvantaged citizens?
The companies we have worked with do not have a social focus. They view advocacy as a full-fledged business, and whoever comes to them has to pay for this work. They pay by the hour, on average $400 per hour. In the U.S. there is a kind of social bar, these are lawyers by appointment, but they do not work for free, their work is not paid by the state, as in our case, but by the association of lawyers.
How do they identify bad lawyers?
They have ratings in which all the major law firms are present. In addition, there are ratings of successful cases of lawyers. Anyone can get a lawyer's dossier: where he studied, where he worked, what cases he took part in, whether he has any disciplinary practice. At the same time, lawyers emphasize that most of the clients come to the firm only by recommendation: if someone liked the quality of a lawyer, he is recommended to his friends. At the same time, the association monitors the performance of lawyers. A good motivator for faithful performance of duties is the oath. We also have a code of professional ethics for lawyers, which lawyers sign up to when they receive the title of lawyer.
There are also bar associations that review disciplinary practices. But in the US a lawyer can lose his or her license if he or she violates the oath and is found guilty of it. We have no such consequences, especially for non-lawyers. So when a lawyer and a non-lawyer meet in a trial, it turns out that the lawyer is bound by corporate ethics and the other lawyer is not, and can do whatever he wants. The code of ethics must apply to all lawyers without exception, there must be a fear of losing their license, not to behave in an unworthy manner, not to engage in falsification of evidence, not to falsify documents, not to mislead the court. When a lawyer goes to trial and understands that his behavior can be judged not only in terms of the law, but also in terms of the norms of corporate legal practice, it is disciplining.
Can Americans sue in court without going to a lawyer?
In some cases. Generally, a citizen cannot even file a complaint or initiate a lawsuit without an attorney. It is believed that writing a lawsuit is a specific job, it must be done by a competent person, and one must go to that person. A citizen, when he writes a statement of claim on his own, can describe his whole life in it, but not indicate legally significant circumstances and references to the norms of law. This prevents the judge from understanding at once: what right is violated, what protection the person wants to get. This approach to filing a lawsuit makes the court process more expensive and forces citizens to look for non-judicial ways to resolve conflicts.
How often are conciliation procedures used?
They have a very well-developed pre-trial practice of conflict resolution, especially civil conflict resolution. Lawyers meet and decide whether to go to court or not. The court is also actively using the mediation procedure. If the judge sees that a dispute can be solved in another way, he recommends applying to organizations which deal either with mediation or mediation: these are both private organizations and those accredited by courts. Mostly mediation is done by former judges. They settle commercial and family disputes, environmental damage. Sometimes mediators are approached as independent experts in order to assess what kind of decision can be made in this or that case. The mediator may draft a future court decision. If the parties have not come to a solution after mediation, the mediator can send a draft of a court decision to the court, where he will outline how the dispute can be solved and the court can accept this decision.
Large companies try to cover all issues. There are firms that specialize in white collar crime (cases of economic blackmail, elements of corruption, bribes), they do not take on cases involving violence, murder. The civil firms make good money in real estate. They accompany all purchase and sale transactions. There are companies specializing in tax disputes, intellectual property protection. About 40% of lawyers engage in private practice and open their own offices.
