Response to Post No. 1
Although negotiating is a very important aspect of a lawyer’s function in the same way that litigating, representing, and counseling are, I think that drafting of documents is the most important task that a lawyer does – if I were asked to make a choice. Although negotiating has become a common function of a lawyer in plea bargaining (Neubauer and Meinhold 134), which is becoming a trend in the United States criminal judicial system, most negotiations in this area are dominated by prosecutors and I would think all a defense counsel can do is either advise his client to accept or not to accept an offer from the prosecution. I agree that litigation is a very important aspect of a lawyer’s job because it gives a party’s case a face. However, the most basic task of a lawyer, whether such a lawyer is engaged in litigation, representation and other activities, is documents drafting (Webb 2013, p. 75). As Naurbauer and Meinhold stated, it is the “most legal of the lawyer skills” (2013, p. 134). This is because all lawyers, whether they are negotiating, representing, litigating, and perhaps even counseling, must eventually reduce into writing their parties’ position and claims. Judges, too, have to reduce into writing all their decisions.
Response to Post No. 2
I find the statement that “those who do not pay for counsel to not deserve the same effort” as a little insensitive to the plight of people who simply cannot afford the exorbitant costs of getting private representation for themselves. Sometimes people commit mistakes they did not intend to do and found themselves on the wrong side of the law. Others may be innocent of the charges brought against them, but due to circumstances found themselves suspects in felonies. How many times have we read about individuals the courts have convicted and sent to prisons only to be released after they have spent a good deal of their lives in prison because new DNA technologies have proved their innocence? These persons, and many others like them, have criminal pasts, but the fact is that they did not commit the crime of which they were convicted. They were simply pre-judged. This is the reason I think why the law has made the right to counsel not simply a privilege, but a right (Tomkovicz p. 401). Nonetheless, it also proved your point that many in the public defender’s office are overworked and overloaded that they do not have enough time or the resources to carefully work out the defense of their clients.
Response to Post No. 3
I do agree that litigation is a very important activity that lawyers do, but I do not think that it is more important than all the others. However, litigation gives a party’s case – whether the prosecution or the defense – a face. I think that the reason why we often attribute litigation as the most important facet of a lawyer’s job because that is what we see on television and in the movies – that lawyers are great people because they are articulate and eloquent. Part of this is true I think because some of history’s well known eloquent speakers are lawyers. I think, however, that in criminal trials what matter most is evidence. This is especially true when a case is elevated from the trial court to an appellate court, where the court basis its review on the evidence presented and the transcript of the hearings. I think that the most important skill that any lawyer must have is to be able to draft a good document, because a major part of a lawyer’s job is writing (Beardsmore, 1996, p. 1).
Response to Post No. 4
I agree that the way that judges are being place in their position leave much to be desired. Indeed one cannot have the best of both worlds. America must either choose: judicial independence or political accountability? These two positions seem to be at the opposing sides where the judiciary is concerned. Electing judges to their position is by nature a political act. Judges are forced to show off to the public that they are what the public envisioned them to be. This can complicate matters because where judicial matters are concerned the public is not always right. Judges are forced to take into account what the public wants rather than decide a case on the basis of its own merit. Electing them to their position, which necessarily include the activities of campaigning and fundraising, can seriously impact on the judiciary’s reputation (Paynter 2008, p. 44). Perhaps, we should really seriously take into consideration the merit selection type you have discussed.
Paynter. S. (2008). Judicial Performance Evaluation: Policy Diffusion across the American States. ProQuest.
Neubauer, D. W., & Meinhold, S. S. (2013). Judicial Process: Law, Courts, and Politics in the United States (5th ed.). Boston, MA: Wadsworth, Cengage Learning.
Webb, J., Maugham, C., Maugham, M, Boon, A. and Keppel-Palmer, M. (2015). Lawyer’s Skills. Oxford University Press.
Tomkovicz, J. (2011). Constitutional Exclusion: The Rules, Rights, and Remedies that Strike the Balance Between Freedom and Order. Oxford University Press.
Beardsmore, V. (1996). Opinion Writing & Drafting In Tort. Cavendish Publishing.