Court System Discussion

 

 

Now that we have studied the fundamentals of the court system as well as dispute resolution, I

would like you to think about how this system operates in reality.

More particularly, I want you to consider how the civil dispute resolution is financed in the

United States, specifically for small businesses and individuals.

In criminal cases, prosecutors earn a salary, paid by the government.  Crime victims do not have

to pay for prosecution.  Some defense attorneys are provided to defendants free of charge, in

accordance with the right to counsel in criminal cases provided by the Sixth Amendment.  These

attorneys are also paid a salary by the government.  Other times defense attorneys are hired by

defendants privately and paid directly by those defendants.

In civil cases, it is different.  With very few exceptions, and almost none in business cases, the

parties to the case pay for their own attorneys.  Usually, the attorneys are paid by the hour.  It is

not at all uncommon for attorneys to charge hundreds of dollars per hour.  In addition, in our

civil litigation system, there can be frivolous litigation, when a party sues someone for a

meritless reason.

In light of the foregoing, please answer the following questions.

1.  In civil cases, what is the conflict of interest between the attorney and the client? (Think of

how long, from a monetary standpoint, each of them wants the case to last.)

2.  How might this conflict of interest affect the course of a case?

3.  What happens if a client does not have enough money to pursue a meritorious case?

4.  What happens if a client does not have enough money to mount a defense?  What if that client

has done nothing wrong, and is facing a frivolous lawsuit?

5.  Assume a small business delivered goods and should have been paid $50,000.00.  Assume

further that, because of complexities of the case, pursuing a lawsuit would cost $100,000.00.

What would a prudent businessperson do?  Is that fair?

With major publicly traded corporations, with lawsuits with hundreds of millions of dollars at

stake, these issues are not as salient.  Spending $3,000,000.00 in attorneys’ fees to recover

$200,000,000.00 is worth it.  However, as currently constituted, many small businesses and most

middle-class individuals simply cannot afford an attorney.  They cannot afford access to justice.

They can be severely hurt, or even ruined, by frivolous litigation.

Nevertheless, the rule of law is supposed to be an important part of the American political

system.

6.  Is it fair, that in a system which relies on the rule of law, that access to justice should be a

product which the vast majority of people simply cannot afford?

7.  Is it fair that the justice system can be used as a weapon against people who cannot afford to

defend themselves?

8.  What changes could be made to make access to justice a reality for everyone in the United

States?

In writing your paper, I strongly suggest that you use the questions as headings, so it is clear the

question you are answering.