PAD 525 Week 10 Discussions Litigation and Resolution

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Week 10 Discussion 1

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“Litigation and Resolution.” Please respond to the following: 

Read the case summary of Alyeska Pipeline Services Co. v. Wilderness Society. Discuss the court’s analysis that the legislature, not the courts, need to address responsibility for lawyers’ fees? Discuss why there is resistance to liberalizing lawyers’ fees awards? Explain if there is another approach, such as proportionate responsibility or capping fees? 

Evaluate Dondi Properties Corp. v. Commercial Savings & Loan Ass’n. Compare and contrast the benefits, in the long run, of following the judges’ rules. From a personal perspective, will you be able to resist the temptation to engage in such tactics when you are involved in litigation? Even when the other side has engaged in them?

Read the case summary of Alyeska Pipeline Services Co. v. Wilderness Society. Discuss the court’s analysis that the legislature, not the courts, need to address responsibility for lawyers’ fees? Discuss why there is resistance to liberalizing lawyers’ fees awards? Explain if there is another approach, such as proportionate responsibility or capping fees?

Under the “American Rule” that attorneys’ fees are not ordinarily recoverable by the prevailing litigant in federal litigation in the absence of statutory authorization, respondents, which had instituted litigation to prevent issuance of Government permits required for construction of the trans-Alaska oil pipeline, cannot recover attorneys’ fees from petitioner based on the “private attorney general” approach erroneously approved by the Court of Appeals, since only Congress, not the courts, can authorize such an exception to the American rule.

This litigation was initiated by respondents Wilderness Society, Environmental Defense Fund, Inc., and Friends of the Earth in an attempt to prevent the issuance of permits by the Secretary of the Interior which were required for the construction of the trans-Alaska oil pipeline. The Court of Appeals awarded attorneys’ fees to respondents against petitioner Alyeska Pipeline Service Co. based upon the court’s equitable powers and the theory that respondents were entitled to fees because they were performing the services of a “private attorney general.” Certiorari was granted, to determine whether this award of attorneys’ fees was appropriate.

In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. We are asked to fashion a far-reaching exception to this “American Rule”; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged by respondents and approved by the Court of Appeals.

“Fees and costs allowed to officers therein named are now regulated by the act of Congress passed for that purpose, which provides in its first section, that, in lieu of the compensation previously allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed.

Attorneys, solicitors, and proctors may charge their clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed or recovered as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars in a trial before a jury, but they are restricted to a charge of ten dollars in cases at law, where judgment is rendered without a jury.

FindLaw’s United States Supreme Court case and opinions. (2016). Retrieved December 05, 2016, from http://caselaw.findlaw.com/us-supreme-court/421/240.html

• Evaluate Dondi Properties Corp. v. Commercial Savings & Loan Ass’n. Compare and contrast the benefits, in the long run, of following the judges’ rules. From a personal perspective, will you be able to resist the temptation to engage in such tactics when you are involved in litigation? Even when the other side has engaged in them?

As judges and former practitioners from varied backgrounds and levels of experience, judicially know that litigation is conducted today in a manner far different from years past. Whether the increased size of the bar has decreased collegiality, or the legal profession has become only a business, or experienced lawyers have ceased to teach new lawyers the standards to be observed, or because of other factors not readily categorized, observe patterns of behavior that forebode ill for our system of justice. Now adopt standards designed to end such conduct.

The standards the Northern Districted announced, which litigation counsel must adhere to, are as follows

Effective advocacy does not require antagonistic or obnoxious behavior and members of the Bar will adhere to the higher standard of conduct which judges, lawyers, clients, and the public may rightfully expect.

Lawyers will be punctual in communications with others and in honoring scheduled appearances, and will recognize that neglect and tardiness are demeaning to the lawyer and to the judicial system.

Lawyers should treat each other, the opposing party, the court, and members of the court staff with courtesy and civility and conduct themselves in a professional manner at all times.

In fulfilling his or her primary duty to the client, a lawyer must be ever conscious of the broader duty to the judicial system that serves both attorney and client.

The Court noted that malfeasant counsel can expect instead that their conduct will prompt an appropriate response from the court, including the range of sanctions. In the Rule 11 context: a warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.”

Callahan, S. (2010, September 17). Dondi Turns 22. Retrieved December 05, 2016, from http://www.ndtexblog.com/?p=68

Week 10 Discussion 2

COLLAPSE

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Please respond to the following:

The attorney-client privilege is an important part of the client-lawyer relationship. Discuss the extent that the public records or open meeting laws should override the privilege.

In the text, the section of “Insincerity Seemingly Is Rewarded in the Adversarial System” gives a precursor to the trial?) system. Discuss whether the need for lawyers to act zealously to win cases explains why lawyers act in sometimes “immoral” ways.

The attorney-client privilege is an important part of the client-lawyer relationship. Discuss the extent that the public records or open meeting laws should override the privilege.

The only way that public records or open meeting laws override the privilege of attorney-client relationship is that if the client is a government body or an organization. It can also be overridden if information is divulged to a third party that is confidential, it could waiver the privilege unless the third party’s involvement is necessary in connection with legal advice. Another way these privilege can be overrode is when the lawyers professional duty is to comply with a law or court order and to disclose information that is believed necessary to prevent death or substantial bodily harm or fraud that could result in substantial financial harm to another.

In the text, the section of “Insincerity Seemingly Is Rewarded in the Adversarial System” gives a precursor to the trial?) system. Discuss whether the need for lawyers to act zealously to win cases explains why lawyers act in sometimes “immoral” ways.

In constant argumentative situations, lawyers may tend to sometimes act in immoral ways. I have personally seen a fist fight between attorneys after a family court proceeding. I don’t know what happened after it as the cops came to separate them. But, some attorneys do act immorally to either win the case or to get convictions, prosecutors do it too but sometimes do not get caught. This is why we have the judicial system that we do because we can appeal decisions and send it off for judicial review.

References

Szypszak, JD, C. (2011). Understanding Law for Public Administration. Sudbury, MA: Jones and Bartlett Publishers, LLC.

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