PUBLISHED BY
LAW WISE NOVEMBER 2020 • ISSUE 2
Coordinators:
ethany J. Roberts, Chair, LRE Committee; Lisa Leroux-Smith, Public Services Director B Nicolas Toledo Shump, Law Wise Editor; & Patti Van Slyke, Journal Editor
Greetings from the Kansas Bar Association (KBA). Welcome to this second edition of Law Wise for the 2020-2021 school year.
IN THIS ISSUE
The Practice and Profession of the Law............ 1 History of the Legal Profession in the U.S......... 2 Legal Education in the U.S................................ 3 The Practice of Law........................................... 4 Lawyers and the Legal Profession in Popular Culture........................................................... 6 Law by the Numbers....................................... 8 Terrific Technology for Teachers......................... 9 Right to Counsel (lesson plan)......................... 10 Teen Curfew (lesson plan)............................... 12 Standard Information....................................... 13
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The Practice and Profession of the Law
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he legal profession influences nearly all aspects of American life and society. From the small print on advertisements and consumer goods, to billboards and commercials regarding legal help, the law occupies a central place in our daily lives. This issue of Law Wise will explore the origins and development of the law in the United States, the current state of the legal profession, legal education, the view of lawyers and the legal profession, and an interview with several practitioners of the law to provide a snapshot of the various ways the law can be practiced in the United States. The United States, from its revolutionary beginnings, built the foundation of this country on a fervent belief in the law. Throughout its history the United States has continually returned to the Constitution and the ever-growing body of law that allow us to govern and preserve the freedom and equality we cherish.
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2 LAW WISE | NOVEMBER 2020
History of the Legal Profession in the U.S.
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n the colonial period of American history, there were no law schools, and training to become a lawyer had not been formalized. Some trained by apprenticing with other lawyers, but there was no requirement to do so. According to Lawrence Friedman’s History of American Law, Puritan New England felt ambivalence toward the legal profession. “The legal profession, with its special privileges and principles, its private, esoteric language, seemed an obstacle to efficient or godly government.” Nevertheless, the need for lawyers increased as the country grew. By the early decades of the nineteenth century, there were nearly 500 attorneys in Massachusetts alone. By the middle of the century, there were around 24,000 attorneys, and by the end of the century the number had swelled to over 100,000. While the number of attorneys grew, the attitudes toward them worsened. By 1838, many of the apprenticeship requirements no longer existed. One did not need to be an apprentice to practice in the Indiana Territory, Ohio, Georgia, Tennessee or South Carolina. In the North, Maine, Massachusetts and New Hampshire had abolished these requirements as well. In 1800, 14 of the 19 jurisdictions required apprenticeship training, but as the United States entered the Civil War, only nine of 39 jurisdictions maintained those requirements. In 1840, only nine law schools had university affiliations, though this was soon to change. With the advent of the Industrial Revolution, and with banking and financial institutions in ascendance, Wall Street firms proliferated. Many of the attorneys hired for these firms were informally segregated on the basis of nationality, religion and race with the majority of these attorneys being Anglo-Saxon Protestants. George Ruffin became, in 1868, the first African American to graduate from a U.S. law school. Ruffin had moved from Virginia where it was illegal to teach African Americans to read or write. Ruffin attended Harvard University. Women faced barriers to the practice of law as well. The first female attorney in the United States, Margaret Brent, re-
ceived “honorary male” status under which she was addressed as “Gentleman Margaret Brent”. Howard University in Washington, D.C., awarded the first law degree to a woman in 1872. Iowa became the first state to admit women to practice law a few years earlier, in 1867. With the influx of immigrants from Europe in the late nineteenth century, the children of those immigrants viewed the law as an opportunity for advancement in their new country. In response, the more elite law schools – Harvard, Columbia and other Ivy League schools – revised their curriculum to reflect legal theory and an academic knowledge of the law rather than one based on the practice of the law. The attorney and diarist George T. Strong, a Columbia College graduate, advocated for stricter admissions standards for law schools. Strong wrote, “either a college diploma, or an examination including Latin. This will keep out the little scrubs (German Jew boys mostly) whom the school now promotes from grocery-counters...to be ‘gentlemen of the Bar.’” Unfortunately, anti-immigrant sentiment manifested in the criteria for admission to the American Bar Association at this time too. The ABA employed subjective criteria such as “moral character” to keep many ethnic groups from membership in the organization. By the early decades of the twentieth century, the ABA founded the National Conference of Bar Examiners which effectively eliminated the apprentice system. The baby boom following World War II and the need for specialized attorneys resulted in further growth of the legal profession and legal education. By the end of the twentieth century, the number of law schools grew to 178. There are currently 204 ABA-accredited law schools in the United States. According to an October 2020 report published on Statista. com, the legal industry will generate nearly $350 billion in 2020. By every objective measure, the legal profession is thriving and will continue to be a significant element in American society for years to come.
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Legal Education in the U.S.
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ccording to the ABA Legal Profession 2020 Report, there were 62,400 law school applicants in 2019 with 42,300 of these students receiving at least one offer of admission, for a percentage slightly under 68 percent. The typical law school applicant applies to six or seven programs – a decline of nearly 5 percent from the previous admissions year. Nearly 113,000 students are pursuing the Juris Doctor (JD) degree. Sixty-five percent of those students took time off after their undergraduate degree before applying to law school. Over half of them took three years or more before pursuing a law degree. Fortyfour percent of law school applicants hope to pursue a career in government, politics or public service. Law school applicants mirror trends in our society with women and minorities making significant inroads. In 2019, 53 percent of law school applicants were female, continuing a trend since 2016 when, for the first time, female law school applicants became the majority. Minorities accounted for 31 percent of law school students with Hispanics accounting for 13 percent, African Americans eight percent, Asian Americans six percent, and multiracial four percent. As if the pursuit of a JD was not enough, at the end of their studies, students must pass the bar exam in order to practice the law. The percentage of students passing the bar has fluctuated over the past decade, with 2008 seeing 82 percent pass the bar to a low of 69 percent in 2016. For 2019, 73 percent of students passed the bar which was the highest percentage since 2014. For those taking the bar in 2019, 73 percent passed on the first attempt, while only 32 percent of repeat test-takers passed. In 2019, Kansas ranked at the top of the list with a passage rate of 87 percent. Maine had the lowest passage rate at 55 percent. Though the overwhelming majority of individuals taking the bar have earned a JD, there are states that allow applicants who study at law offices to take the bar. In 2019, 38 individuals in this category took the bar with a passage rate of 32 percent.
after 10 months. Nearly half of all new graduates (48 percent) pursued work with firms, while less than one percent entered solo private practice. While most students interested in the legal profession pursue the Juris Doctor degree, there is a sharp rise in students pursuing other non-JD degrees such as certification and Master of Law degrees. These programs have seen a 66 percent increase in enrollment from 2014. According to the Law School Admissions Council, most of these degree programs can be completed in as little as one year. Many law schools now offer a Master of Science in Laws, a Master of Legal Studies or a Juris Master, all of which have a similar curriculum. Master of Law programs offer the option to pursue a specialization such as American law, comparative law or other topics. Master of Legal Studies programs typically take between 16 to 28 months. The opportunity to earn a Certificate degree is another option for individuals employed in fields including court reporting, paralegal work, or those working as legal administrative assistants. For those with a JD desiring additional legal study, the Doctor of Judicial/Juridical Science may be an option. Those with an interest in legal education or academic law are ideal candidates for this program. Another degree offered to those with a Juris Doctor is the LL.M. degree, a good option for those with an international Law Degree. The University of Kansas School of Law offers an LL.M. in American Legal Studies as well as a Doctor of Juridical Science. Washburn University in Topeka has a LL.M. in Global Legal Studies: The LL.M. in American Law for Foreign Lawyers and a Master of Studies in Law program. As we enter more fully into the twenty-first century, the depth and breadth of educational opportunities in the law will only continue to grow.
With data drawn prior to the Covid-19 pandemic, only 6.4 percent of law school graduates had not found employment www.ksbar.org/lawwise
4 LAW WISE | NOVEMBER 2020
The Practice of Law A Group Interview
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his interview is a compilation of four separate interviews with four individuals with varied experience of legal practice. My thanks to Korey Kaul, Appellate Defender, State of Kansas; Kurt Level, Deputy General Counsel, Labor, Employment, and Benefit Group, Koch Industries; David Magariel, Assistant Federal Defender, Federal Public Defender; and Nicolas C. Shump, NYU Law Class of 2020 for their time and insight into the legal profession and the practice of law. What did you study as an undergraduate? Korey Kaul BA in Art History from the University of Kansas. Kurt Level BAs in Political Science and Public Communications from the University of Kansas. David Magariel Initially attended Johnson County Community College where I participated in debate. Transferred to the University of Kansas; continued to participate in college debate and earned a BA in Communication Studies. Nicolas Shump Attended Stanford University. Earned a BA in International Relations with a concentration in International Political Economy and a Minor in Spanish. Are there particular majors you would recommend for students interested in pursuing law school? Nicolas Shump I don’t think your undergraduate major is particularly important. Law school involves a great deal of reading and writing. David Magariel Hone your skills as a writer. Debate proved to be great preparation for me because it taught me to think critically and how to make decisions quickly. Kurt Level For high school students, debate would be a good activity. Student government is helpful too. Majors that emphasize reading comprehension such as English or History. Communication Studies helped me with public speaking. Korey Kaul Journalism is a good option – or majors that emphasize writing. Did you apply to law school right after your undergraduate program? David Magariel No. I took a year off and accepted a position as the debate coach at University of Texas Dallas. Nicolas Shump I took two years off after my undergraduate degree. What was your law school application process? Kurt Level I applied to a few schools, but as I was paying for law school, I found KU to be a good value. Korey Kaul I applied to some prestigious law schools like Harvard, Yale, and NYU. However, I received a scholarship offer to KU, which is where I decided to attend.
Nicolas Shump I mostly applied to schools where even if I did not like the area, I would have good career mobility. This narrowed my search down to about 15 20 schools, most of which I applied to. My decision came down to acceptances, cost of attendance, and taking campus visits to the schools which had accepted me. I chose NYU. David Magariel Living in Texas, I applied to UT Austin, but did not receive in state status. Received acceptances to Washington University, but not any funding. It came down to KU and UMKC. I felt KU had a slightly better ranking and I already knew KU from my undergrad program. Did you have a favorite experience or law school class? Korey Kaul I had the opportunity to work with what is now called The Innocence Project Clinic. I really enjoyed the practical aspect of doing legal work. Nicolas Shump For several reasons, I enjoyed working with the clinics. They were much smaller than my classes and even my seminars. You worked with maybe 8 12 people and you learned much about their own legal interests and career goals. It was a broad exposure to the law. I had the opportunity to work with the national ACLU office on a Voting Rights Project. David Magariel Moot Court proved to be a valuable experience for me as I knew I wanted to work in trial law. Also, I worked with the Legal Aid Clinic that had an arrangement with the City of Lawrence Municipal Court. I worked with juvenile offenders, housing law, and domestic issues too. It was good experience interacting with real clients on real legal issues. Kurt Level My first semester torts class. My professor had specific requirements for formatting and length of assignments. I did not follow instructions and earned my first “F” in any level of education. This taught me to follow rules and to not cut corners. Moot Court was fun too. As practitioners are there things you wished you had learned in law school? Kurt Level The value of doing activities like Law Review and the importance of class rank. In terms of practice, law school teaches you to view the law holistically and with an academic approach. As a practitioner in employment law, I must provide advice or a process for my client rather than just listing options. Korey Kaul New attorneys often think the law means particular things. I have learned there are no absolute answers, only the particular case in front of you. You have to make an argument and defend it in court. David Magariel I wish I had paid more attention to writing in law school. I have taken seminars since I started practicing. Law school teaches you the “ivory tower” approach to the law.
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As a Federal Public Defender, I am representing real clients in real situations. The particulars of the case are what is important. What type of law have you practiced prior to the work you currently do? David Magariel I worked for two years with the Johnson County Public Defender right out of law school. I also had experience working with a small boutique firm and had my own firm too. I returned to the Johnson County Public Defender office before landing my current position with the Federal Public Defender office. Kurt Level I worked in a big firm during as a clerk and also working with my own litigation firm. I joined Koch as a litigator and have mostly worked for Koch since that time, though I spent one year practicing in Las Vegas before returning to Koch. Korey Kaul I have practiced plaintiff law where two cases resulted in judgements of 50 cents total. I worked in insurance law too, before the appellate defender position. Would you briefly explain the work you do? Kurt Level I represent Koch Industries in employment litigation. My cases begin with an EEOC investigation which can take between six months to three years. There is not much actual trial litigation, most of the cases are settled through mediation or summary judgement. This phase can take from one to three years. There can also be appeals to state and federal court. Korey Kaul I represent clients who are either indigent or who, because of the trial process, have become indigent and cannot afford an appeals attorney. The determination of indigency occurs at the district court level. Cases might be theft, rape or even murder. We do not handle capital cases. Once our office receives a case, we order transcripts which can take a couple of months to receive. We have approximately 90-120 days to file our briefs and the State gets four months. Then it takes a few months for the hearing to appear on the court calendar. Decisions are typically made within two months of the hearing date. First degree murder cases go to the Kansas Supreme Court while other cases go to the Kansas State Court of Appeals. David Magariel The majority of our cases involve drugs or gun charges, though we do also have financial and crimes involving electronic fraud. Any crime committed on a military basis is a federal issue too. Some cases can be tried on both the state or federal level. A determination of indigence must be made before we can represent these clients. We are assigned cases on a rotation basis. I typically have between three to five cases. Most of our cases are generated by grand jury indictments. We then have to wait for a pre-sentence investigative report which can take up to three months to complete. Most federal cases take a minimum of 90 days to complete. Approximately 90-95% of our cases are plea bargained. Often this is a strategy for the client to avoid the mandatory minimum sentencing levels established at the federal level.
How is the type of law you practice related to the practice of law in general? Why is it important to the American legal system? Korey Kaul The State possesses tremendous power to convict and sentence offenders. We provide a review of the trial to assure it was a fair trial and that our clients received their due process. Erroneous sentences do occur, and we want to provide another review of the case. Additionally, our job is to help interpret what these statutes mean and that there is a consistent application of the law. I once represented a gay woman who had her children taken away. The foster parent convinced the children to lie about abuse in the trial. When the son’s testimony was thrown out, I was able to free my client from jail. David Magariel Before the Gideon v. Wainwright decision, there was no guaranteed right to counsel. We play an important role in the judicial process. I like to say my job is to make someone else’s job more difficult. It should not be easy to take someone’s liberty away. On a professional development level, the Federal Public Defender office serves as a resource for public defenders and defense lawyers. Kurt Level I work for Koch Industries providing advice and counsel for the entire process from pre hire to post termination. Under the law, corporations deserve the same right to counsel in a lawsuit as an individual. Was there a moment or an inspiration which led you to choose the law as a profession? Nicolas Shump I had an opportunity to do an internship with the Department of Justice in Washington, D.C. when I was in college. Through this experience, I learned that the ability influence policy issues like Civil Rights would be possible with a law degree. Kurt Level When I was a senior in high school, I was called for jury duty. I ended up being selected as the jury foreman for a criminal trial. The defense attorney impressed me, and I fell in love with the idea of trial work as a career. What do you wish the general public better understood about the type of law you practice? Nicolas Shump When I work with clients in areas like housing law, they do not always understand that legal precedent often prevents me from achieving their desired outcome. David Magariel The reputation of public defenders is not always great. However, I know many of my colleagues have a genuine interest in helping others and providing them with their constitutionally guaranteed representation. Kurt Level While losing a job can be difficult, there is not always someone at fault in the situation.
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6 LAW WISE | NOVEMBER 2020
“The first thing we do, let’s kill all the lawyers”: Lawyers and the Legal Profession in Popular Culture
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he title for this article comes from William Shakespeare’s Henry VI, Part 2. It is likely a line known by most attorneys and by those who might not possess the best opinion of the legal profession. However, it is a line often misunderstood and misused. The speaker is Dick the Butcher a supporter of the rebel Jack Cade. Cade hoped to become king, and to do so, he needed to remove those pillars of law and order like lawyers. Nevertheless, views on lawyers and the legal profession swing from depictions of lawyers as true believers who take on cases to help the common man to portraits of lawyers as amoral practitioners on sale to the highest bidder. Whatever one’s opinion of the legal profession, it remains a rich ground of source material for drama, fiction, film and television. Here is a brief overview of how lawyers have been portrayed over time in these various media. 1. William Shakespeare. The Merchant of Venice • In the famous scene where Portia defends Antonio from the money lender Shylock, she demonstrates how the law would allow Shylock his pound of flesh, but at the risk of losing his fortune or life.
3. Aaron Sorkin. A Few Good Men • Both a Broadway play and a film starring Tom Cruise and Jack Nicholson. The majority of the action takes place in a court room where a Naval attorney defends two Marines for crimes they allegedly committed at Guantanamo Bay. A gripping depiction of the tensions between following orders and individual conscience. 4. Scott Turow. Presumed Innocent • Turow wrote the novel turned into a successful film with Harrison Ford and Raul Julia. The work provides insight into the life of a successful prosecutor who finds himself on the other side of the table as a defendant in a murder trial.
2. Jerome Lawrence and Robert E. Lee. Inherit the Wind • Based on the actual 1925 Scopes Trial with Clarence Darrow and William Jennings Bryan as the two lead attorneys. The original play debuted in 1955 and while the original case focused on the teaching of evolution, the play had undertones of the McCarthy hearings of the time.
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5. John Grisham. A Time to Kill • Another successful novel turned into a film with Matthew McConaughey and Sandra Bullock. Set in the American South, the narrative concerns the murder trial of an Black man (Samuel L. Jackson) and father who killed the White men who raped his 10-year-old daughter. He is represented by a White attorney played by McConaughey. Tackles race and fair trial issues.
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6. David E. Kelley. Ally McBeal • A popular television series which depicted the young female title character and her role as a young associate in a Boston law firm. One of several projects developed by David Kelley. This series take a more lighthearted look at the legal profession. 7. Barry Levinson and Valerie Curtin. And Justice For All • A 1979 film starring Al Pacino as an increasingly disillusioned and cynical defense attorney who struggles with his obligation to represent an esteemed judge accused of sexual abuse. A bleak and cynical presentation of lawyers and the legal profession. 8. Barry Reed. The Verdict • A 1982 film starring Paul Newman as an alcoholic personal injury lawyer who takes on a case involving medical malpractice. With a script by the renowned playwright David Mamet, this movie has the familiar David v. Goliath theme often associated with these types of stories.
12. William Landay. Defending Jacob • A 2012 novel by Landay that Apple TV+ developed into a miniseries. The Jacob of the title is a teenage boy who is the son of the local assistant district attorney. Jacob finds himself a suspect who is put on trial for the murder of a bullying classmate. A compelling story which addresses familial dynamics as well as the process for preparing a trial for both the prosecution and defense. Though this review has been brief and likely idiosyncratic, it does support the contention that lawyers and the law remain a rich vein of storytelling for subjects that stretch far beyond the realm of the law itself.
Other Great Movies – Old and New – Dealing with the Law:
9. Dick Wolf. Law and Order • This long-running series introduced the American public to a stable of attorneys engaged in the practice of criminal prosecution in New York City with Sam Waterston’s Jack McCoy at the heart of this series. Wolf spun off two other series focusing on other elements of the criminal justice system. 10. Harper Lee. To Kill a Mockingbird • Generations of Americans have grown to admire the fictional attorney Atticus Finch for his noble and heroic defense of a Black man accused of raping a White woman. Gregory Peck brought Atticus Finch to life. Additionally, nearly every American middle or high school student reads this novel for a class. 11. Erle Stanley Gardner. Perry Mason • Gardner’s criminal defense attorney not only had a decade-long run as a television series starring Raymond Burr in the title character but is additionally a character in over 80 novels and short stories.
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My Cousin Vinny 12 Angry Men On the Basis of Sex Lincoln Lawyer Bridge of Spies Runaway Jury Marshall Liar, Liar Denial Just Mercy The Judge The Trial of the Chicago 7 Primal Fear The Accused Philadelphia Anatomy of a Murder A Cry in the Dark Judgment at Nuremberg Inherit the Wind Witness for the Prosecution Let Him Have It Fracture Erin Brockovich Absence of Malice Michael Clayton
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Law by the Numbers Here is a snapshot of the legal profession according to the 2020 ABA Legal Profession Report. As of January 1, 2020, there were 1,328,692 active lawyers in the United States. The median age for attorneys in 2019 was 47.5 years – five years older than the median age for all U.S. workers. One-fourth of all attorneys were between the ages of 35-44. Cumulative debt for law school graduates was $145,500. The average salary for attorneys is $145,300. Since 1999 attorney salaries have risen 61 percent. • In 2020, 63% of attorneys were male and 37% were female. • 14.1% of attorneys were people of color in 2020 – a growth of three percent since 2010. m 5.0% African American and Hispanic attorneys m 2.0% Asian American m 0.4% Native American m 2.0% identified as Multiracial • 25% of attorneys of color were associates and nearly 10% were partners in law firms. • 4.0 percent of LGBT attorneys are associates and slightly over 2.0% of LGBT attorneys were partners in firms. • 0.6% of attorneys with disabilities were associates and over .04% were partners in firms. Kansas has 8045 attorneys with 2.8 attorneys per 1000, ranking 32nd out of the 50 states. New York has the highest percentage of attorneys at 9.5 per 1000, while South Carolina, Arkansas and Arizona have the fewest at 2.1 per 1000. Florida had the highest increase in attorneys since 2010, with 26% growth. In Kansas, Johnson, Sedgwick and Shawnee counties had the most attorneys, while nine Kansas counties had only one attorney listed. According to this report, Topeka ranks in the top 20 of metro areas in terms of demand for attorneys.
40% of White attorneys work in law firms. 28% of African American and 25% of Hispanic attorneys tend to work for the government. 22% of Native American attorneys work in the tribal sector. 21% of Asian American attorneys work as in-house counsel for businesses.
Though popular perception might conclude there are too many attorneys, the data sug-
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TERRIFIC TECHNOLOGY FOR TEACHERS
10 Reasons to Choose a Career in Law https://www.thebalancecareers.com/why-choose-legal-career-2164310 From the BalanceCareers website, this site provides concise information on the legal profession using ten different categories spanning career options, finances, practice areas, and other perspectives. ABA Profile of the Legal Profession https://www.americanbar.org/news/reporter_resources/profile-of-profession/ This site contains a downloadable profile of the legal profession in 2020 as well as other resources for anyone interested in the legal profession. Brief Demographic History of the Legal Profession http://www2.law.columbia.edu/donnelly/lda/techprof3.html More of an academic approach to the legal profession from Columbia Law School. A great resource for those desiring a more comprehensive understanding of the history of the legal profession. Center on the Legal Profession https://clp.law.harvard.edu/ Sponsored by Harvard Law School, this site serves as a clearinghouse on various aspects of the legal profession. It includes sections devoted to Events, News, Research, and other features. Exploring the Law Profession https://www.bu.edu/prelaw/preparing-for-law-school/exploring-the-law-profession/ This site sponsored by Boston University is designed for students who are interested in applying to law school and on the legal profession. A History of Law Schools https://newintrigue.com/2018/02/21/a-history-of-law-schools-a-battle-between-law-as-a-science-andlaw-as-a-liberal-art/ An accessible and comprehensive website from New Intrigue which covers the history of legal education globally, but with a focus on the UK, the United States and other Commonwealth nations like Australia and Canada. Inside the Legal Profession in 2019 https://www.abajournal.com/magazine/article/inside-the-legal-profession Though written in 2019, this article from the ABA Journal provides a useful snapshot of the legal profession. Lawyers https://www.bls.gov/ooh/legal/lawyers.htm A site developed by the Bureau of Labor Statistics as part of their Occupational Outlook Handbook. It includes information on jobs, salary, and information on the work environment for lawyers. Legal Education https://www.americanbar.org/topics/legaled/ A comprehensive website maintained by the American Bar Association for every aspect of pursuing legal studies in the United States with information on accreditation, admissions, education, and statistics. The Nature of the Legal Profession https://www.lawcrossing.com/article/900014477/The-Nature-of-the-Legal-Profession/ A short, but informative site produced by the Law Crossing, a job site for legal professionals.
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10 LAW WISE | NOVEMBER 2020
Right to Counsel Lesson Plan This lesson was written by David T. Naylor,
Professor of Education in the Department of Curriculum and Instruction and Director of the Center for Law-Related Education at the University of Cincinnati.
Grade Level 7-9 Overview In this lesson, students will look at the various dimensions of right to counsel. They will study how the meaning of this right has evolved over time with reference to specific landmark United States Supreme Court cases. Time Requirements
45-60 minutes
Materials • Handout 1: The Importance of Right to Counsel • Handout 2: Access to Counsel • Handout 3: What’s Your Opinion Learning Outcomes This lesson enables students to explore several dimensions of the meaning of the right to counsel. • It begins with a questionnaire permitting students to express their views regarding matters related to this basic right. • Students then explore what the right to counsel means and develop a list of reasons why the right to counsel is so important. • Next, students consider the meaning of “access to counsel,” including the Miranda decision. • They conclude with an examination of the role of the criminal attorney. Background The right to counsel is one of our most important rights. It lies at the heart of the adversary system. As with other salient legal concepts, its meaning has evolved over time. Originally, the right to counsel was narrowly interpreted to mean that those who could afford an attorney should not be denied the right to hire one. In addition, access to counsel at various stages of the criminal justice process was severely limited. The right to counsel was permitted at trial, but not proceedings before or after it. During the twentieth century, the right to counsel underwent significant change. No longer is the right restricted only to those who can afford it. No longer is it limited to adults. And, no longer is the right to counsel restricted to trial. Landmark Supreme Court decisions have significantly expanded our understanding of this basic right and assured its reality to all citizens, regardless of socioeconomic status. Some of those decisions have become veritable household words – Gideon, Gault, Miranda. Lesson
1.
Begin the lesson by making reference to a current, preferably widely known, situation involving an attorney representing a client (e.g., a recent court decision, a trial, an arrest). Elicit reactions to that situation and attorneys in general. Then distribute and have students complete the exercise, “What’s Your Opinion?” (Handout 3)
2. When students complete the exercise, use a show of hands to tally responses. Record results and select a few items for discussion. Have students share reasons for their choices. (Note: Save responses for use later in the lesson.) www.ksbar.org/lawwise
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3.
Point out that the Bill of Rights guarantees the accused the right to an attorney. Then have students find this guarantee in the Bill of Rights.
4. Divide students in small groups. Distribute a copy of Student Handout 1 to each group and ask each to list on it reasons why the right of counsel is important. When the groups complete their task, have them share their reasons. Record responses on the chalkboard and discuss them.
5.
6. Shift attention to the Miranda decision, emphasizing the role of the U.S. Supreme Court in interpreting the Constitution. Distribute Student Handout 2. Call attention to the guidelines the Supreme Court specified for police and other government officials. Mention some of the concerns that have been voiced about the wisdom of these guidelines. Refer students to the excerpt from Escobedo and elicit their reactions to it and the Miranda decision.
7.
Point out how court decisions have increased access to the right to counsel for all persons accused of committing criminal offenses. Discuss the importance of the access issue.
Focus on the role of the criminal attorney. Let students share what they know about criminal attorneys. List responses on the chalkboard. Then display the following quotation and elicit reactions to it.
8. The Role of the Criminal Attorney Criminal lawyers, it is said, police the police. Also, we police the courts. Every time we try a person, we are trying--and defending--more than the accused. We’re defending you, that lady down the street, and the Bill of Rights. But nonetheless, criminal lawyers are controversial figures. We try to get justice for the ones you or the newspapers have labeled bad. But we can sleep nights, because we’re the ones who hold the state to the ground rules you and our legislators have established. We’re the ones who see to it that society doesn’t convict a person who shouldn’t be convicted. (William Foster Hopkins, Murder Is My Business) 9.
Possible Extension Activity Attorney in the classroom: Invite an attorney who represents criminal defendants to your classroom to discuss the role of the criminal attorney. As a variant, also invite a prosecutor to visit at the same time. Have them use a modified pro/con format to emphasize key points and different perspectives.
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12 LAW WISE | NOVEMBER 2020
Teen Curfew Lesson Plan Grade Level: 8-12
American Bar Association, Division for Public Education Overview Students discuss the intent of city ordinances and identify the role citizens play in advocating in policy debate Time needed: 1 class period Materials required • Copies of the Proposed Curfew Law • Data on curfew and crime found here and here Learning Objectives This exercise helps show students how citizens can be involved in policy change and decision making. Background Explain to the students that they will consider a proposed teen curfew law in a mock city council session. They will play the roles of city government officials and community groups who are weighing the proposal. Ultimately, the city council will decide if there should be a curfew law for teens. Lesson 1. Start by asking the following questions. a. Do your parents or guardians impose a curfew on you? Should they? Why or why not? b. Should the government impose a curfew on young people? Why or why not? 2. Distribute Proposed Curfew Law. Read aloud and clarify any basic questions that arise. 3. Ask: Who would probably oppose this law? Who would probably support this law? 4. Explain to the students that they are going to participate in a mock city council meeting and will play the roles of either a city council member or a community group concerned about the proposed curfew law. 5. Divide the class into teams of 3-5 students. Assign each team to represent a community group. a. The first team is the city council. Their job is to run the council meeting, question presenters, and make a decision on the proposal. If you have a city council member present, have him or her sit with the group to help them prepare. b. The other teams are community groups testifying before the council. Their job is to present their persuasive arguments to the city council to consider. • Police Officers • County School Board • Families Against Violence • Students for Rights of Youth • Local Merchants Association • Other groups 6. Conduct the mock city council meeting. Allow each group three minutes to present its position. 7. Once the presentations are complete, the city council should discuss the arguments and reach a decision. The council should base its rationale on the most compelling testimony presented. Have the council announce their decision and the rationale.
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NOVEMBER 2020 | LAW WISE 13
iCivics Resources for Getting Involved & Taking Action
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About the Law Wise Editor: Nicolas Toledo Shump Nic teaches courses in American Electoral Politics, Design Thinking and Creativity, Film Studies, AP Comparative Government and Politics, AP European History, AP Psychology, AP US Government and Politics, AP US History, and AP World History for Constellation Learning. He also teaches English 110: Introduction to Academic Writing at the University of Missouri-Kansas City (UMKC) where he is a MFA student in Creative Nonfiction. He is a columnist for the Topeka CapitalJournal and other Gannett Kansas publications. He has served since 2012 as a Discussion Leader for the Talk About Literature in Kansas (TALK) program for Humanities Kansas.
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