Justia Legal Resources: Lawyers and the Legal Process Center

Working with an attorney or launching a lawsuit can be daunting for people unfamiliar with the legal system. The Lawyers and the Legal Process Center sheds some light on what to expect in litigation and its alternatives.

Approximate Read Time: 4 Minutes

One of the cornerstones of the legal profession is the attorney-client privilege. In general, this shields the confidentiality of communications between an attorney and a client related to a legal matter. The attorney-client privilege aims to encourage candor in this relationship, which helps a lawyer provide more effective services. In one infamous Arizona case, however, the privilege kept a man behind bars for decades for a crime that he did not commit.

William Macumber was accused of a double murder in Scottsdale in 1975, but another man had told his attorney that he committed the crime. That man then died in prison. The attorney, Thomas O’Toole, sought to testify at Macumber’s murder trial about the statements of his client. The trial judge refused to allow O’Toole to testify because the attorney-client privilege covered the confession, and the privilege was not waived. The Arizona Supreme Court held in January 1976 that the trial court had the power to assert the privilege in the absence of the person who made the confession. Macumber was convicted and sentenced to life in prison. He would spend the next 37 years there.

Although the stakes are rarely as high as they were in the Macumber case, the attorney-client privilege can make or break the outcome of a legal proceeding. The Lawyers and the Legal Process Center in the Justia Legal Guides describes the scope of the privilege, including its applicability to communications that disclose misconduct by a client. While communications regarding past crimes or misconduct (such as the confession in the Macumber case) generally fall within the privilege, communications regarding future crimes or misconduct fall outside its protections. An attorney also may have a duty under the rules of professional conduct in their jurisdiction to report information if this would prevent serious harm to someone.

Working With a Lawyer

The scope of the attorney-client privilege is just one of several concepts to understand when preparing to work with a lawyer. Another key concept is the fee structure that the attorney might use. The traditional structure is an hourly fee, which means that the client pays according to the amount of time that the attorney spends on a matter. However, a contingency fee structure tends to apply in personal injury cases, as well as some other matters in which clients have limited funds. In a contingency fee structure, the attorney collects their fee as a percentage of a settlement or judgment recovered for the client. A third fee structure is simply called a flat fee. Sometimes used in very simple matters, this means that the attorney charges a fixed rate for providing a service, regardless of how much time they spend on it.

When a client retains an attorney, they will need to sign a representation agreement. Some of the core provisions in a representation agreement involve the fee, covering not only the structure but also how it will be paid. Financial provisions in the agreement also may describe the payment of court costs or any other expenses beyond the attorney’s fee. Not all of the provisions in the agreement involve money, though. For example, the agreement may require the attorney to get permission from the client before taking certain actions. A client will need to weigh how much control they want to have over the relationship.

Stages of a Lawsuit

Even if they are working with an attorney, someone considering a lawsuit (or already involved in a lawsuit) may want to know about how the court process unfolds. A lawsuit usually starts with a complaint, which the plaintiff files with the court and serves on the defendant. In the complaint, the plaintiff explains the basis for their claim and the remedy that they are seeking, such as money or an order to tell the defendant to do or not do something. After the defendant gets the complaint, they can file an answer that admits or denies each of the allegations by the plaintiff.

Each side then must gather evidence to support their positions. This is called discovery, which may consist of procedures like depositions, interrogatories, and requests for production. A deposition involves answering questions under oath, while an interrogatory involves answering written questions, and a request for production asks for tangible items of evidence. Sometimes the parties settle their dispute at this point because the evidence collected through discovery illuminates the strengths and weaknesses of their respective positions.

A pre-trial motion is another way in which a case may end before trial. For example, a defendant might try to get the case dismissed if they think that the court does not have jurisdiction over them. Either party might ask the court for summary judgment, which means that there is nothing for a jury to resolve because the facts are undisputed, and one side is entitled to judgment based on the law. If these pre-trial motions do not succeed, and the parties do not settle, the case will go to trial. Whoever loses at trial might appeal if they feel that a mistake by the trial court shaped the outcome.

Resolving Disputes Outside Court

Not every dispute needs to go through the labyrinth of litigation. This process is often lengthy, expensive, and uncertain, since the outcome cannot be fully predicted. As a result, clashing parties may choose an alternative form of dispute resolution. The two most common forms are mediation and arbitration. Mediation involves the assistance of a neutral third party, who can help the parties reach a compromise that is acceptable to each of them. A mediator does not have the authority to impose an outcome on the parties.

Arbitration is more formal than mediation and may lead to a binding outcome unless the parties have chosen to proceed through non-binding arbitration. An arbitrator or a panel of arbitrators imposes a certain outcome on the parties after reviewing testimony and evidence. Many contracts contain arbitration clauses that require disputes involving the contract to proceed through arbitration rather than traditional litigation, although these clauses are not always enforceable. A party dissatisfied with the result of an arbitration proceeding might consider appealing to a court, although this tends to be an uphill battle.

Final Thoughts

An ordinary person facing a legal dispute may not know where to start or what to expect. Generally, they should consult a lawyer about how the law applies to their situation. Attorneys in many areas of law offer free consultations or case evaluations at which a potential client can gain insights into the strength of their position. In the meantime, the Lawyers and the Legal Process Center provides some basic information about how legal representation works, as well as the stages of a lawsuit and alternatives to court. Like the other Justia Legal Guides, it aims to make the law transparent and accessible to all.

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