Lawyers, Attorneys and the Law
A lawyer or attorney at law
is a person
licensed by the state to advise clients in legal
matters and represent them in courts of law (and
in other forms of dispute resolution). Most
countries today require professional law
advisors in their judicial systems. Lawyers have
many names in different countries—including
"advocate," "attorney," "barrister,"
"counselor," "civil law notary", and
"solicitor"—and many of these names indicate
specific classes or ranks of jurists.
Law is traditionally considered to be a
learned profession.
The role of the lawyer can vary significantly
across legal jurisdictions. For instance, in
some countries, lawyers may be required to lead
or manage criminal investigations. In the United
States, lawyers have taken over functions that
used to be (and in some countries, still are)
performed by other professionals, such as the
civil law notary or even by non-professionals.
What Lawyers Actually Do:
Unlike most other nations, the American legal
system does not draw a strong line between
solicitors and barristers, nor does it relegate
most routine work to notary publics.
Once accepted by the bar association of a
state, an American lawyer may file legal
pleadings and argue cases in any court in that
state (either federal or state), provide legal
advice to clients, and draft important legal
documents (like wills, trusts, deeds, and
contracts). American lawyers use the term
lawyering to refer to the art of practicing law.
In some states, real estate closings may only
be performed by lawyers, even though the
lawyer's role in a closing mostly involves
notarization of documents and disbursement of
settlement funds through an escrow account.
Practicing law can be broadly generalized as:
(1) interviewing the client and identifying what
is their legal matter or dispute, (2) "spotting"
the discrete legal and factual issues embedded
within the client's larger problem, (3)
systematically researching each issue, and (4)
designing a solution that resolves at least some
of the issues, if not all, and executing it
through specific tasks like drafting a contract
or filing a motion with a court. Most academic
legal training is directed to "issue spotting,"
how to research facts and law, and how to argue
both the facts and law in favor of either side
in any case.
Contrary to the media image of lawyers,
virtually all serious legal work requires hours
of in-depth research in a law library or in an
electronic database like Westlaw or LexisNexis.
Very few television programs and movies
accurately portray the long nights surrounded by
a pile of books or printouts which form the core
of the average American lawyer's occupational
life.
In litigation, lawyers also spend a lot of
time discovering the facts of the case, in order
to develop a "theory of the case" that
integrates facts and law in a way most favorable
to their client. Sadly, too often the discovery
phase of a case turns into an unpleasant war of
attrition over petty technicalities. Most
lawyers would agree that approximately 50 to 70%
of all funds spent on legal services in the U.S.
go towards discovery costs.
Most American lawyers are highly specialized
in one field or another. Often dichotomies are
drawn between different types of lawyers, but
these are neither fixed nor formal lines.
Examples include:
■ Litigators (who sue and defend) v.
transactional lawyers (who draft and advise)
■
Solos and small firms (who can't afford to
litigate every little issue) v. big firms (who
can)
■
Plaintiffs' lawyers (solos and small firms who
represent individuals on contingent fee
agreements) v. defendants' lawyers (big firms
billing large corporations by the hour)
■
Trial lawyers (who argue the facts like Johnnie
Cochran) v. appellate lawyers (who
argue the law
like David Boies)
Outside counsel (law firms) v. in-house
counsel (corporate legal department)
About half of American attorneys work as solos
or in small firms. See law firm. There are also
many midsize firms, with anywhere from 50 to 200
lawyers, and since the 1970s, some law firms
have merged to form giant "megafirms" with 1,000
lawyers or more.
Unlike other common law jurisdictions, there
is nothing to prevent an American lawyer from
controlling and arguing his case at each level
of the judiciary through its entire lifecycle.
However, cases which advance to the appellate
level, particularly to the U.S. Supreme Court,
are often assigned to experienced appellate
practitioners or firms. Nonetheless, in some
cases, a lawyer may handle his or her case from
the trial level all the way to the U.S. Supreme
Court. A notable example of this is the Brown v.
Board of Education litigation, where the same
trial team handled the case from start to
finish.
Who can do legal work besides lawyers?
Engaging in the kind of work customarily done
by lawyers, without a valid, current license to
do so, is the "unauthorized practice of law",
which is punishable as a crime in most
jurisdictions. In some jurisdictions, the
definition of the practice of law is quite
strict; persons have been successfully
prosecuted for publishing do-it-yourself will
forms and for representing special-education
children in federal proceedings as specifically
allowed by federal law.
A person who has a J.D. but is not admitted
to any bar is not a lawyer. However, some courts
allow law students to act as "certified student
attorneys" after the satisfactory completion of
their first year of law school and the
completion of particular second- and third-year
courses such as Evidence.
Paradoxically, some jurisdictions will allow
a non-lawyer to sit as a judge, usually in lower
courts or in hearings by governmental agencies,
even though a non-lawyer may not practice before
these same courts.
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