Unit 2 discussion
A Discussion Question should be answered in 2 to 3 paragraphs.
How can parties that have unequal bargaining power negotiate meaningfully, without one party taking advantage of the other? Have you ever negotiated with someone who had more bargaining power than you? What were your strategies during the negotiation? Did you obtain your goal by the conclusion of the negotiation?
The Parties Involved Previous Section Table of Contents Next Section 3.1 The Parties Involved Learning Objectives Identify the parties involved in litigation. Explore the role of lawyers in our adversarial system. Understand the roles and obligations of jurors. The litigation system relies on parties bringing forth and defending their respective claims. As in the game of chess, each move can take place only if a player makes a decision to move in a particular direction; the game does not play itself. Courts, jurors, and witnesses are similarly moribund: it is up to the players, in this case called litigantsParties in litigation., to act decisively. Occasionally, a court may act sua sponteLatin for “of its own accord,” an action by a court without motion by the parties., without a direct request from a party. A judge may decide, for example, to fine a party for bad or unethical behavior. These actions are fairly rare. More commonly, judges act on a motionAny request to a court for the court to take a specific action. filed by either party asking the judge to make a particular decision. The party that begins the lawsuit is called the plaintiff in a civil case. The plaintiff is a victim that has presumably suffered some sort of legal wrong that the law recognizes. The plaintiff brings suit against the defendant—the alleged wrongdoer or perpetrator. Note that in a criminal trial, the party that initiates litigation is the prosecution, representing the people of a state or, in federal cases, representing the people of the United States. In a criminal trial the alleged wrongdoer is also called the defendant. Many cases involve multiple plaintiffs and multiple defendants. Civil procedure encourages, and makes it easy for, parties to air all their grievances against each other at once. All parties, and every possible claimAny legal right to seek a remedy for a wrong. (each claim is a separate violation of law) arising out of a single incident or series of related incidents, should be identified and named in a lawsuit. For example, if you go to an off-campus party one night and witness a friend being harassed, you might feel the need to step in to defend your friend. The harasser may then turn his attention toward you, perhaps taking a swing at you. Let’s assume that the harasser is drunk and misses, but in return you take a swing and hit him, knocking him to the ground. The harasser may file a lawsuit against you, alleging assault and battery. The harasser is the plaintiff, and you are the defendant. The lawsuit filed in court would be captioned Harasser v. You. You might decide in return to file a claim against the harasser, alleging that the harasser started the fight and that you acted in self-defense. This is called a counterclaimA claim by a defendant against the plaintiff., and you are now the counterplaintiffThe original defendant in a lawsuit, when asserting a claim against the plaintiff., making the harasser the counterdefendantThe original plaintiff in a lawsuit, when sued in return by the defendant.. In return, the harasser may allege that he wasn’t really harassing your friend but trying to defend himself from your friend’s unwanted advances. The harasser may sue your friend as a third-party defendant through a process called joinderJoining of parties or claims in litigation.. Except in some small-claims courts, parties hire attorneys to litigate most cases. Sometimes individuals feel like they have a sufficient grasp on the law to proceed in litigation without a lawyer or that they have sufficient legal training (or even a law degree) that hiring a lawyer would be a waste of money. Individuals who represent themselves are called pro seLatin for “on one’s own behalf,” a litigant representing herself without an attorney. litigants and can only proceed pro se if the judge overseeing the case allows it. Abraham Lincoln once famously said, “He who represents himself has a fool for a client.” The complexities of litigation require a cool and detached mind to thread a route to success, and if you are representing yourself it is all too easy to allow passion to cloud your judgment. Attorneys are sometimes called members of the barA body of attorneys and judges.. The U.S. legal profession is unique in several respects. In most countries, legal education is an undergraduate program followed by a period of apprenticeship before an individual is allowed to practice law. Many countries also make a distinction between attorneys who litigate in court and those who do not. In the United Kingdom, for example, solicitors are lawyers who deal with ordinary legal matters outside of court, while Queen’s Counsel (QC) are specially trained lawyers who are permitted to argue in court. In the United States, lawyers undertake three years of graduate study resulting in the award of the Juris DoctorateA professional degree and doctorate in law, required for practicing law in the United States. degree, or JD. Every year, more than thirty thousand students graduate from U.S. law schools with their JD. They then sit for the bar exam in the state where they wish to practice. Since the practice of law in the United States varies widely by different jurisdictions, lawyers are only permitted to practice in jurisdictions where they are licensed. Some states permit lawyers from out of state, after a few years of being in practice, to apply for bar admission without taking the exam through a process called reciprocity. Other states, notably California and Florida, require attorneys to take the bar exam no matter how long they have been in practice. If a lawyer is dealing with an issue or matter that takes him or her out of state to litigate a case, he or she can ask to be admitted temporarily by a court in that foreign state through a motion called pro hac viceLatin for “for this occasion,” a motion allowing out-of-state attorneys to practice in-state for a specific case or matter.. Once the lawyer passes the state’s bar exam or is otherwise admitted, he or she is permitted to practice all aspects of law in that state, from drafting wills and contracts to arguing a case before the U.S. Supreme Court. Attorneys in the United States are broadly divided into civil and criminal attorneys; few lawyers excel in both areas. Civil attorneys generally work in two different categories: in law firms, where they may represent multiple clients, and as in-house counselThe attorney employed by and representing only one enterprise., where they represent only one client, their employer. Most large corporations have an in-house legal department to control legal costs but may still hire outside counselLaw firm attorneys representing a company or other enterprise. for representation and advice in complex matters. With the possible exception of politicians, no other profession is subject to more morbid jokes than lawyering. William Shakespeare famously wrote in Henry VI, through a character speaking of a utopian world, “The first thing we do, let’s kill all the lawyers.” In spite of this public animosity toward lawyers, however, if there comes a time when someone needs a lawyer, it’s not uncommon to hear them wish they had the most aggressive lawyer money can buy. Perhaps part of the reason the public has a low opinion of lawyers can be traced to the ethical and legal obligations of attorneys. Lawyers may be the most regulated of all the professional industries, and they are required to comply with complex and sometimes rigid rules of professional conductRules for attorney conduct issued by a licensing entity such as a state bar or supreme court. The American Bar Association issues a set of Model Rules of Professional Conduct for attorneys nationwide, which can be found at http://www.abanet.org/cpr/mrpc/mrpc_toc.html.. Unlike rules for other professions, the rules of professional conduct for lawyers are largely drafted and enforced by the bar itself (other lawyers and judges) and almost never involve external enforcement mechanisms. These rules govern virtually every aspect of the practice of law, and a violation of these rules can result in disciplinary action from the state bar or supreme court of the state in which the lawyer practices, up to lifetime disbarment. When President Bill Clinton, for example, lied under oath about certain aspects of his extramarital affairs, he was suspended from practicing law for five years in Arkansas and ordered to pay a $25,000 fine. These rules of professional responsibility require attorneys to represent their clients with zealous advocacy. Ordinarily, we associate the word “zealot” with extremists, but that is the standard by which lawyers must represent their clients. This might clarify why some lawyers act the way they do. One of the most sacrosanct rules of professional responsibility is the obligation to keep a client’s secrets. The communications between a client and his or her attorney are absolutely confidential under the attorney-client privilegeA doctrine that requires all communications between client and attorney be kept secret by the attorney from any disclosure to any person. doctrine. There are many privileges under the law, such as the spousal privilegeA doctrine protecting communications between spouses from disclosure in court., doctor-patient privilegeA doctrine that prevents medical personnel from testifying in court about their patients’ communications with them., and priest-penitent privilegeA doctrine protecting communications between clergy and penitent from disclosure.. The attorney-client privilege, however, is arguably the strongest of these privileges. The privilege belongs to the client, and the attorney is not permitted to reveal any of these communications without the client’s consent. A narrow exception exists for clients who tell their lawyers they intend to harm others or themselves, but attorneys must tread very carefully to avoid violating the privilege. Many members of the public feel that the privilege may be open to abuse and can’t understand, for example, why an attorney can’t reveal a client’s confession to a heinous crime. Ultimately, the privilege exists for the client’s benefit. Someone who cannot communicate with his or her attorney