C) Tendency to Avoid Constitutional Issues When Possible

Federal courts also tend to avoid deciding constitutional issues when they are able to decide a case on a procedural, statutory, or some other ground.

Task 4. The legal professions in the U.S.A.

A) Attorney

Depending upon the circumstances and the needs of the client, the lawyer may be a counselor, a negotiator, and/or a litigator. In each of these roles, the lawyer will need to engage in factual investigation. With respect to each of these roles, the lawyer will do the following:

Counselor: Attorney will help advise the client how to order the client's affairs, how or whether to proceed with a proposed course of action, or how to proceed with respect to pending or potential litigation or settlement. Often, this is when the lawyer will prepare (or ask that someone prepare) an interoffice memorandum of law which will examine the client's legal position and help the lawyer counsel the client.

Negotiator: Lawyer will work with opposing counsel to try to get a favorable resolution for the client with respect to a pending dispute. The parties may already be in litigation when they negotiate, or the parties, through their attorneys, may be negotiating a resolution to a dispute not yet in court. The art of negotiation involves many techniques individual to particular attorneys and the circumstances. The client always retains the right to accept or reject a settlement negotiated or offered by the opposing party.

Litigator: In litigating, the attorney will help pick a jury and participate in pre-trial motions. At trial, the attorney will present evidence through testimony of witnesses, documents and perhaps demonstrative evidence (e.g., charts, diagrams). The lawyer will also present an opening statement and closing argument, and will make and respond to evidentiary objections lodged by the opposing party. The lawyer may also make motions, sometimes supported by a memorandum in support thereof before the court, and propose to the court a set of jury instructions.

Fact Investigator: All of the lawyer's roles require the investigation of relevant facts, including locating and interviewing witnesses. A lawyer is to be a zealous advocate of his/her client. In this respect, the lawyer must advocate on the client's behalf and avoid conflicts of interest. The lawyer is also an officer of the court and is required to deal fairly and honestly with the court and with its other officers, including the lawyer's opponents.

There are specific ethical rules applicable to these issues, but in most circumstances, when the client's interests and those of the lawyer as officer of the court conflict or otherwise interfere with each other, the lawyer is generally expected to favor his or her role as advocate of the client.

B) Judge

The judge is the final arbiter of the law. The judge is charged with the duty to state, as a positive matter, what the law is.

At trial, the judge takes a passive, "umpire" role in connection with the presentation of evidence by counsel. The judge must also make evidentiary clings, and charge the jury as to the law to be applied. In addition, the judge is to maintain order in the courtroom.

Occasionally, when the parties agree, the judge may also act as trier of fact. This is known as a "bench trial."

Judges in federal courts are appointed by the President with the "advice and consent" of the Senate. Many state court judges are elected by popular vote.

C) Jury

The jury, a group of local citizens, is the fact-finder in most trials. The jury will receive instructions from the judge as to the law, and its members will assess the facts as they perceive them in light of the law as instructed, to return a verdict.

Task 5. How does a case usually start?*

1. The plaintiff files a summons and a complaint with the clerk of court. The plaintiff’s attorney will also file an appearance.

2. The summons and complaint will be personally served on the defendant by a sheriff or a "process server." Other means of service may also be possible under local rules.

3 The defendant's attorney will file a (general) appearance on behalf of the defendant, unless the defendant denies that the court has personal jurisdiction. (If the defendant denies that the court has personal jurisdiction, the defendant may file a "special appearance" to challenge the court's exercise of jurisdiction.)

4. The defendant will file some "responsive pleading" to the plaintiffs complaint. This may be an answer (to the allegations of the complaint), a motion to dismiss (for lack of personal jurisdiction or subject matter jurisdiction), or a counter-claim (or cross-claim) to assert the defendant's own claims against the plaintiff.

5. The parties will engage in a period of "discovery." This may involve the answering of written interrogatories, producing documents and other evidence, taking depositions of the parties and the witnesses, and admitting facts or the authenticity of documents. A party may move to suppress or exclude certain evidence at this stage.

6. The parties will appear periodically before the judge to report on the status of the case. Eventually the case will be ready for trial (unless the case is settled privately between the parties).

7. Trial will commence. The trial is called before a jury or before a single judge. The trial before a single judge may be called a "bench trial." If the trial is before a jury, each side will participate in the process of selecting jurors (the "voir dire").

8. The trial begins with an opening statement from the plaintiff and, usually, an opening statement from the defendant. The plaintiff will then present its testimony and other evidence in support of its case. The defense may cross-examine the prosecution's witnesses. When the plaintiff has finished presenting its case, the defense will present its own testimony and evidence. Both sides will then make closing arguments and the jury will receive "jury instructions" to help it reach its verdict. The judge will usually enter a judgment based on the jury's verdict.

9. The losing side may decide to appeal to a higher court.

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