Prosecutors and Defense Attorneys
The government prosecutor is a lawyer who represents the people. He or she handles cases brought against persons who are charged with violating the laws. Prosecutors, with different titles, work in each branch of government.
The U.S. attorney general, who heads the Department of Justice, is responsible for prosecuting those who violate laws of the United States. Assistant attorneys general help, supervising the work of many lawyers who work for the Department of Justice in Washington, D.C. In the offices of U.S. attorneys across the country, hundreds of other lawyers are at work. They are called assistant U.S. attorneys. Not all of these lawyers handle criminal cases. Some work on civil suits involving the U.S. government.
In Canada, the minister of justice has responsibility for government legal matters at the national level. In most Canadian provinces, an attorney general is in charge of this work.
Prosecutors, who handle cases involving violations of the laws of the several states of the United States, have different titles in different places. They may be called state's attorneys, district attorneys, county attorneys, county prosecutors, or, simply, prosecuting attorneys. In forty-five states, such prosecutors are elected on a county-wide basis or, sometimes, for a district involving several counties.
In most states, the locally elected prosecutors have very different functions from those of the state attorney general, who is elected on a state-wide basis. The roles of state attorneys general vary. Generally, the lawyers working in these offices handle legal matters involving state agencies or state officials. Violators of city ordinances are dealt with by lawyers employed by city law departments. In some cities, the chief lawyer is called the corporation counsel; in others, the city attorney. Legal work is often divided. For example, some lawyers may handle only building code violations.
Lawyers who are government prosecutors are expected to handle a large number of cases. Time for preparation may be brief. Opportunities to talk with police or witnesses may be limited. A busy lawyer in the state's attorney's office in Cook County, Illinois, advises that "Flexible persons who remain calm amid confusion are happiest in these jobs." This same lawyer one morning hurried to court for an early "call" on a motion, rushed back to the office to interview a truck driver who had witnessed the armed robbery of a supermarket, and was back in court again before noon.
Television programs often show prosecutors arguing before juries. They do. But in truth, only a small number of cases reach juries. More often, the prosecutor handles "bench" trials, in which the judge alone makes the decision. In criminal cases, much time is spent in discussing sentencing.
Prosecutors also present evidence to grand juries. Indictments, or formal charges, may be needed in cases where persons are accused of committing felonies or serious crimes. Laws are changing; indictments are less often required now. In many areas, prosecutors spend more time preparing "information," another way of charging a person with violation of the criminal laws.
In criminal cases, the government brings the legal action, and the prosecutor serves as attorney. In civil cases, the lawyer who represents the party bringing the lawsuit is called the plaintiffs' attorney. In civil cases, a licensed lawyer may represent either plaintiffs or defendants (but not both in the same lawsuit). In practice, certain lawyers almost always represent plaintiffs, while others concentrate on defense work. This is especially true in metropolitan areas.
By far, most of the civil lawsuits that are filed in the courts each year are personal injury cases growing out of accidents. More than 90 percent of them are settled without trial. Good plaintiffs' lawyers are skilled in negotiation. They can judge the reactions of others. A keen sense of timing helps them press arguments to the best advantage. Plaintiffs' lawyers are good trial attorneys too. They have a talent for asking the right questions. They can memorize details and recall them at the proper moment. They know how to gather key facts.
Lawyers who regularly represent defendants in civil cases seldom handle criminal matters. And defense lawyers who appear in criminal court are not often found in civil courtrooms.
Most individuals, who are sued, rush to find a lawyer who can defend them. They might ask an attorney who handled a different kind of legal problem for them. This lawyer may, or may not, take the case. Much defense work is done by lawyers who do little else. A large part of defense work done today is done for insurance companies.
Defense lawyers spend a great deal of time preparing their cases. Depositions or statements from various parties must be taken. Documents must be collected. Exhibits have to be prepared. In accident cases, oversize diagrams of certain intersections may be used.
Courtroom skills are important. The defense lawyer must be able to select good jurors. He or she must know how to speak to them and to the judges. Good judgment and patience are vital.
Criminal defense lawyers deal with different clients and a wholly different set of laws. Top criminal defense lawyers in the U.S. are skilled constitutional lawyers. The most significant rights of defendants in criminal prosecutions are those set forth in the U.S. Constitution. These include the right to remain silent, the right to know the charges, the right to confront accusers, the right to bail, the right to speedy and public trial, the right to trial by an impartial jury, the right to due process of law, and the right to a punishment neither cruel nor unusual.
Some people do not understand how (or why) lawyers defend persons who seem to be guilty. However, defense attorneys have an important function. In the United States, they must make certain that all constitutional rights are extended to each accused person.
They must also make certain that the guilt of the accused is proven "beyond a reasonable doubt." Even when the accused admits guilt, the lawyer must make certain that proper sentencing procedures are followed and that punishments are appropriate.
Most of us think of the Constitution once or twice a year. For the criminal lawyer in the U.S., this document is as much a part of his or her daily round as a favorite briefcase. In Canada, the rights of accused persons are spelled out in human rights statutes.
In 1963, the U.S. Supreme Court decided the case of Gideon v. Wainwright, which involved the right of persons accused of committing serious crimes to be represented by lawyers. For the first time, the Court said that this constitutional right would have to be applied in both federal and state courts. The Court said that the right existed whether or not the accused person could afford a lawyer and that lawyers must be provided for indigents. The number of indigent accused persons needing lawyers has grown each year since that time. Criminal defense attorneys who do this work are called public defenders. In large cities, dozens of public defenders are employed full-time. In other areas, public defend ers may be employed part-time. Some lawyers volunteer for this work.
For the most part, public defenders are paid from government funds. However, the offices of public defenders are separate from those of prosecutors. The same legal group does not represent both parties in a legal action.
Like the privately paid criminal defense lawyer, the public defender is expected to guard the rights of the accused. The public defender may have less time to devote to each case. Caseloads are large. Court calls requiring his or her appearance are constant.
One public defender says, "The number one challenge in this job is to get a clear statement of the facts from defendants in brief meetings." Public defenders must have the ability to adjust to changes, whether in the court calendar, or in the mood of the accused or the judge. The public defender moves steadily throughout the day, back and forth between office, courtroom, and jail.
Judges serve at all levels of government. Federal judges in the U.S. are appointed for life "during good behavior," which means they leave only by resignation, impeachment, or death. Judges in state and local courts in the U.S. may be either appointed or elected. Canadian judges are appointed.
Today, most judges are lawyers. Legal training may or may not be required. Political affiliations are important in securing most judgeships. However, judges are often rated, or "screened," by non-political groups such as bar associations or panels of laypeople and lawyers. Some courts of "general jurisdiction" handle a variety of cases. Far more judges preside over special courts. In the U.S., some 13,000 specialized courts handle only traffic cases, juvenile matters, and so on.
Law clerks and other assistants
A growing number of job openings are available each year for law clerks who assist many (but not all) judges. Law clerks research the law and help the judge to prepare opinions in decided cases. (Opinions usually contain a summary of the facts and arguments, the decision, and the reasons for it. Generally, many references to other court decisions and laws are included.) Most law clerks are recent law school graduates who ranked high in their classes. Generally, they do this work for only a few years. Many famous lawyers served as law clerks in their younger days.
The work of law clerks is entirely different from that of court clerks, who are not lawyers. Court clerks keep records of cases and help the judges in the courtroom. Judges today are also assisted by court administrators, referees, probation officers, and social workers. In complicated cases, "masters" with expertise often prepare findings for judges. These court helpers are not trained in law generally. But they have in-depth knowledge of particular laws and regulations.