PARTICIPANTS IN COURT PROCESSES
In the United States, courts, as dispute-processing institutions, comprise four distinct groups of participants—litigants, lawyers, judges, and juries. (In other countries, such as the Netherlands, there is also lay participation in court processes, which theoretically could constitute a fifth group [Malsch, 2010].) These participants, in turn, bring to the judicial process diverse interests, values, and perspectives that influence the ways in which disputes are processed.
Litigants Because the primary function of courts is to process disputes, the most obvious participants are the disputants. This group includes individuals, organizations, and government officials who are trying to settle disagreements and to regulate their own behavior and the behavior of others. Clearly, not all individuals, groups, or organizations can resort or are willing to resort to courts in their attempts to settle disputes. Questions of cost, efficiency, availability, the fulfillment of the legal requirements of a suit, and the nature of the dispute affect the potential users of courts differently. Consequently, two distinct types of litigants emerge.
In an oft-cited classic study, Marc Galanter (1974) designated the two types of litigants as “one-shotters” and “repeat players.” These two types are distinguished by the relative frequency with which they resort to court services. As their name suggests, one-shotters use the courts rarely or at most occasionally. Examples of one-shotters include an author suing a publisher for breach of contract and a professor filing charges against her university for alleged sexual discrimination in promotion. And, as their name suggests, repeat players engage in many similar litigations over a period of time. Whereas one-shotters are usually individuals, repeat players are organizations, such as finance companies, moving companies, the Internal Revenue Service (IRS), or insurance companies. Their investment and interest in any one particular case are moderately small. Because of their high frequency of participation in litigation, repeat players are more concerned with the ways a decision may affect the disposition of similar cases in the future than with the outcome of a single case (Ross, 1980). Repeat players can also invest greater resources in litigation than one-shotters, and their frequent appearances in court enable them to develop expertise. Such expertise is reflected in the way in which they select cases for litigation and in the acumen with which they proceed in the courts.
By contrast, one-shotters, who have only a one-time interest in litigation, are generally more concerned with the substantive result of their case than the way in which the outcome may in the future affect the disposition of other cases. For example, the author in the preceding example is more concerned with winning the case against the publisher than with setting a precedent for similar cases. As a repeat player, an organization like the IRS, on the other hand, is more interested in maintaining specific rules (such as those governing charitable deductions or computers) than with winning one particular case. Organizations, in general, participate in litigation as plaintiffs, and individuals participate as defendants. Both governmental and nongovernmental organizations have greater access to resources, and they are the most frequent initiators of court cases to process disputes between themselves and private individuals with whom they are dealing.
Lawyers Law is a technical game, and the players have to be highly trained in its complex rules and elusive categories. Without the assistance of attorneys, most individuals would be unable to activate the courts on their own behalf. Disputants generally need to retain the services of lawyers to receive advice about legal rules and how those rules apply to specific issues in dispute. By being familiar with both court operations and legal rules, lawyers are instrumental in determining whether a particular dispute warrants judicial intervention. Lawyers in effect play the role of gatekeepers for the judiciary (Hughes, 1995).
Lawyers are repeat players in the adjudication process. However, only a small proportion of lawyers are involved in actual litigation. Instead, most are concerned with specific nontrial activities, such as writing wills or carrying out routine transactions. As will be discussed in Chapter 8, some trial attorneys specialize in particular areas of the law (such as divorce law or criminal law), and others represent only particular kinds of clients (such as corporations or universities) or limit themselves to particular clients within specified areas of law (such as taxes).
Jonathan Casper (1972) distinguished several types of trial lawyers by the manner in which they perceive their clientele. He argued that a small number of attorneys view themselves mainly as representatives of public interests. These attorneys are concerned, for example, with consumer interests or with the protection of the environment. For them, individual cases are simply vehicles for achieving broad public objectives that generally necessitate major changes in the law. They prefer to take only cases they believe involve significant issues.
The second type of lawyer represents particular interests or organizations. For example, some companies have their in-house lawyers whose principal role is to represent members of the organization.
The third type of lawyer, typically criminal defense lawyers, is most often involved in actual court work. These lawyers are legal specialists who most closely approximate the public’s preconception of lawyers. Although the role of defense lawyers is most often couched in the general term of “defending a client,” defense lawyers perform a number of specific roles. These include the roles of advocate, intermediary, and counselor (Cohn, 1976). In the primary role of advocate, defense lawyers take all possible steps within legal and ethical bounds to achieve a victory for the client, while protecting the rights of the client at each step of the criminal justice process. Often, this can best be accomplished by acting as an intermediary between the client and the law, working through negotiation and compromise to secure the best possible benefits from the system. The third role is that of counselor. It is the responsibility of defense to give advice to the client as to what to expect and what appears to be in the client’s best interest.
Although most people would agree that defense attorneys should perform the foregoing functions, critics say they often fail to do so. In an influential critique, Abraham S. Blumberg (1979:242) said that defense attorneys are more concerned with collecting their fees than with achieving justice for their clients. He wrote,
The real key to understanding the role of defense counsel in a criminal case is the fixing and collection of his fee. It is a problem which influences to a significant degree the criminal court process itself, not just the relationship of the lawyer and his client. In essence, a lawyer-client "confidence game" is played.
He further contended that defense lawyers manipulate their clients and stage-manage cases to offer at least the appearance of services. He also called the criminal lawyer a “double agent” because the main concern of a criminal lawyer is to maintain good relations with members of the court organization. The defense lawyer may give the impression of being an impartial professional who will do everything possible for the client; however, in reality, he or she is dependent on the goodwill of the prosecutor and the court.
Returning to Casper’s typology, the fourth type of trial lawyer perceives a lawyer’s role primarily as serving individuals who retain him or her as opposed to government- appointed attorneys. They are interested only in the case in which they are involved, and they will do everything within legal and ethical limits to ensure favorable outcomes for their clients. In their view, they serve a case, not a cause.
Judges Although many officials work in and around courtrooms, none has the prestige of the judge, who is responsible for the administration of the court and its reputation for honesty and impartiality and the occasional controversial decisions. The courtroom is designed so that attention is focused on the judge, who sits on a pedestal above everyone else. Any visitor to a courtroom will notice that the visitors’ gallery never rises above the judge and that those who work in the courtroom are not allowed to sit or stand at the judge’s level. The judge is the only official in the courtroom who wears special attire—a robe. When judges enter the courtroom, everyone rises, and all attention is directed at the judge, who is addressed as “Your Honor.” The judge alone interprets the rules that govern the proceedings, and judges see themselves as autonomous decision makers and the “boss” of everyone else in the courtroom (Jacob, 1997; Spohn, 2009).
In addition to the basic adjudication functions and the control of the flow of litigation in the courtroom, judges are also responsible for administering their own court. This entails a variety of “housekeeping” tasks, such as appointing clerical assistants, drawing up a budget, and making certain that the physical facilities are adequate for the court’s operation. The judge is also instrumental in pretrial conferences and, by law, has a great deal of discretionary power (such as jury instruction on admission of evidence), which has important implications on the consideration and outcome of cases (Hemmens et al., 2017). Because of this prestigious role, the judge also performs a variety of nonjudicial functions, such as appointing officials to public agencies (for example, to the board of education, as district attorneys in some states, and, at times, to lucrative patronage positions).
Judges generally come from the middle or upper classes and have a history of party identification, nomination, and appointment, if not activism (Carp et al., 2013). Federal court judges are nominated by the president and confirmed by a majority vote in the U.S. Senate. These federal judges hold office for life, subject to removal only by impeachment or by conviction of a major crime. State and local judges are chosen by a variety of methods: Some are elected, some are appointed, and some are chosen by a method that combines election and appointment. In the combined election and appointment system, judges are appointed by an executive (such as a governor), and after completing a term in office, they must secure voter support to serve further terms. This type of system also has a selection procedure in which the executive’s choice for a judgeship is screened through a commission or limited to nominees made by a commission. When elected, a majority ofjudges at the state level serve for a limited period, such as a 6-year term. Nowadays, running for judgeship can be an expensive proposition; judicial campaigns in many states now include large war chests, consultants, and attack advertising (Streb, 2009). Some candidates for state supreme courts spend more than $1 million for campaigns.
Almost all judges are lawyers in the United States, but only a small fraction of lawyers ever become judges (Badinter and Breyer, 2004). By contrast, in civil law countries, such as France and Italy, judges are civil servants and have different training and experience from practicing lawyers. Those who aspire to become a judge take a competitive examination after law school. The ones who pass will become judges with a career of their own. Previous practice of law is not required, and it is unlikely that these individuals will ever practice law.
These judges’ roles and functions also differ from their American counterparts of the adversarial system. Unlike in common law countries, judges rely on the inquisitorial method (Parisi, 2004). In France, for example, the main figures at a trial are the investigating magistrate and the presiding judge. The magistrate is responsible for the investigation and sends investigative materials to the trial’s presiding judge, who interrogates the defendant and the witnesses. This interrogation resembles more of a conversation than a cross-examination (Loh, 1984). In general, judges in civil law countries are much more active than in the United States: They play a greater role in building and deciding a case, they put the evidence together, and they go far beyond the “refereeing” role characteristic of common law judges.
Juries An ancient Welsh king, Morgan of GlaMorgan, established trial by jury in A.D.
725, and the origins of the American jury system can be traced back to civil and criminal inquiries conducted under old Anglo-Saxon law in England (Abramson, 2000). The original concept of the jury was most likely imported into England after the Norman Conquest. The Normans started the practice of placing a group of local people under oath to tell the truth. Early jurors acted as sources of information on local affairs, and they gradually came to be used as adjudicators in both civil and criminal cases.
Before the twelfth century, criminal and civil disputes were resolved by various types of ordeals. For example, an accused person would be bound by rope and dropped into a body of water. If the person floated, it was a sign of guilt; if he or she sank, it was a sign of innocence. There was also ordeal by fire—carrying heated stones or iron, and if the subsequent burn did not get infected in three days, the accused was declared innocent— and ordeal of the morsel that did or did not choke the accused.
The early British settlers brought the jury system with them when they came to colonial America. One of the important symbols during the struggle for independence, the jury system is prominently referred to in three of the first ten amendments to the Constitution. Although the Constitution provides the right to a jury trial for both criminal and civil cases, juries render verdicts in fewer than 10% of all cases in the state trial courts (Hemmens et al., 2017). Even so, juries are essential to the operation of American courts, because the prosecution and defense in criminal cases and plaintiff and defendant in civil cases always have to consider the repercussions if a jury ends up hearing the case.
Juries are used predominantly in common law countries, although less so than even in the United States (Hans, 2006). It is estimated that 80% of all jury trials worldwide take place in the United States (Hans and Vidmar, 1986). According to federal judge Richard A. Posner (1995), the American commitment to the jury system reflects the legacy of American distrust of officials, which has its roots in colonial times, and to a lesser extent to the political power of trial lawyers.
Jury trials, as well as trials heard only before a judge, involve two basic types of issues— issues of law and issues of fact. Issues of law emerge as participants in the case seek to identify and interpret norms that will legitimize their behavior. In a sense, a trial is a contest of interpretation and legal reasoning (Bankowski and MacLean, 2007). The judge has the authority to determine which interpretations of law are proper and acceptable, but a trial is more than a question of legal reasoning. It also provides the opportunity for a reconstruction, description, and interpretation of events (that is, issues of fact). The purpose of a trial is to answer the question of who did what to whom and whether such conduct is legal. The function of the jury is to listen to and decide among competing and conflicting interpretations of events. The jury acts as a referee in an adversary contest dealing with the presentation of differing versions of the same event. By a crude division of labor, the jury is the authority on facts; the judge is the authority on law. But judges also control the jury, and the common law provides several mechanisms by which judges can and often do intervene to prevent juries from overreaching, including the discretion to exclude prejudicial evidence, the power to split trials into separate phases so that liability can be decided before jurors hear of the terrible pain suffered by the plaintiffs, the prerogative to instruct the jury in the law, the use of special verdicts to ensure that factual determinations are rational, the power to reduce jury awards, and the ability to order new trials when a jury reaches an absurd result (Umphrey, 2009).