Things donors know: why are there so many lawyers?

Isn't it more just that a neutral body investigates both sides, collects all the evidence, and in a trial, instead of lawyers speaking on behalf of the prosecution and the defense, give the right to speak to those ordinary people, and then a judge will rule?

"There is among us a group of people who have been raised from their youth to prove, with words that will speak to this matter, that white is black and black is white. All according to the wages that those who hire them will give them, to this tribe all the rest of the people are enslaved. For example, if someone covets my virginity, he has a lawyer to prove that he must take my virginity away from me and I must hire another lawyer to defend my rights. Because it is forbidden, according to the legal constitution, to let a man speak for himself" This grievance that Jonathan Swift puts in Gulliver's mouth leads us to Mitzi's question:

Why are there so many lawyers in the world? Isn't it more just that a neutral body investigates both sides, gathers all the evidence, and in a trial, instead of lawyers speaking on behalf of the prosecution and the defense, give the right to speak to those ordinary people, and then a judge will rule?

The system you propose, Mitzi, exists in many countries and is called the investigative or inquisitorial legal system. In the inquisitorial method, the court, not the lawyers, is responsible for conducting the trial, gathering the evidence and questioning the witnesses, and accordingly the role of the attorney is limited. The "English" adversarial system used in Britain and its former colonies including the United States and Israel does give more space to the lawyers who collect evidence, call witnesses and conduct the investigation. It is not just a procedural difference but a different legal philosophy. European law puts the emphasis on "truth" while English law focuses on "fairness". Thus, for example, the defendant's right to remain silent exists only in the adversary method: it is unfair to require a defendant to incriminate himself just as one does not require a soccer player to score an own goal. An adversarial trial can be seen as a sort of duel decided by the opposing parties and the role of the judge is only to ensure a fair fight. The English word Litigation originates from the Latin word litigatus which means fight. The adversarial worldview is that humans are naturally inclined to quarrel and the legal system should make the quarrels fair and orderly. In the inquisitorial method, on the other hand, fairness is sacrificed on the altar of obtaining the factual truth. The adversarial method produces errors because the task of locating the evidence and presenting it falls on parties who have an interest in hiding facts that are inconvenient to them and it is not fair to those who cannot afford skilled attorneys. Distortion of justice occurs in the inquisitorial method when important evidence disappears due to the lack of motivation of the neutral jurist who is supposed to collect it. But to your question "Mitzi" another difference is important - the countries with the highest number of lawyers in relation to the population are those where the adversarial system is practiced and in which the highest in the world - Israel, where over 600 lawyers are registered per 100,000 inhabitants, are close to us in this respect, adversarial countries like the USA - about 420 attorneys Dim per 100,000 inhabitants (in the state of New York the number of lawyers in relation to the population is greater than in Israel) or the United Kingdom, where over 300 lawyers are registered per 90. For comparison, in France, where the inquisitorial system is practiced, less than 70 lawyers are enough to provide services to the same population, and in Austria, XNUMX are enough.

Lawyers have existed in different ways for about 2500 years, in Greece and Rome there were professional orators who represented litigants before the assemblies that discussed their case. This is how the philosopher Protagoras made a living in his wanderings between the city-states of ancient Greece and this is how, with legal speeches, the great Cicero made him famous in Rome. These lawyers were not considered an essential element in the system and in many places their activity was banned. In Rome, prosecutors and defendants were allowed to use lawyers but payment for this service was prohibited. Emperor Claudius, a generous man who, among other things, allowed the release of swelling at official dinners, also allowed lawyers to receive fees and is therefore perhaps entitled to be considered the founder of this successful guild. Lawyers have existed on the fringes of the legal system since until the modern era, but they only made the big jump in importance and status in the last 200 years.

In England, the birthplace of the adversarial system, until the 19th century there was an explicit ban on the presence of lawyers and most trials were conducted without a lawyer representing the accused almost until the 20th century. From the dawn of English legal history, judges have strictly enforced this rule. The plaintiff was the victim of the crime (in murder cases a family member took the role) and the defendant defended himself and had to present his version. The victim testified under oath about the act of the accused and brought witnesses, in front of him stood the accused who testified without an oath (probably to avoid temptation to commit the Ninth Commandment) and conducted a cross-examination of the witnesses. The removal of lawyers from the courtroom was intentional and considered an essential element of the method: the manner in which the defendant answered the charges was the key to establishing guilt.

William Hawking, one of the leading English jurists in the 18th century, explained "an innocent will defend himself with the facts better than any lawyer, while the guilty, when he speaks for himself, will reveal the truth that lawyers knew how to hide". The acquittal rate in trials of this kind was about 30%, meaning that the chances of an unrepresented defendant in those days were infinitely better than the chances of an Israeli defendant represented by a battery of lawyers. In the absence of lawyers, the judge would intervene in the "argument" in front of him, examine the evidence, present questions to the witnesses and instruct the accused on the questions he may ask in the cross-examination. An average trial, including jury consultation, lasted about 20 minutes using this attorney-free method. At the beginning of the 19th century, there are documented cases in which one jury concluded about a dozen criminal trials in a morning session and a judge was criticized when a complicated trial lasted for several hours until a decision was reached. Plea deals were not possible and trials were conducted, albeit very briefly, even when the accused was caught "red handed" or confessed. The idea of ​​a defendant presenting his version to the court by himself is charming in its simplicity, but a French ("inquisitorial") jurist who toured England described with shock a defendant who was unable to get a word out of his mouth and looked helpless and confused in the few moments he was given to extricate himself from the tangle.

The evolution of the profession

The process of penetration of the criminal justice lawyers was very slow and hesitant. In the second half of the 18th century, the parliament allowed the financing of prosecution expenses and thereby planted the seeds for the growth of the role of the professional prosecutor representing the state in criminal trials. After appearing as prosecutors and taking on the task of collecting evidence, recruiting "state witnesses" and presenting the charge, as part of the concept of fair play at the base of the system, lawyers also entered as defense attorneys. The legal basis was established in 1696 when those accused of treason were allowed to use "counsel learned in the law" to balance the clear advantage of the claim. From such special cases, the role of the attorney "leaked" to ordinary criminal trials and gradually the attorney became part of the procedure and his role intensified over time. Initially, the judges were careful to limit the lawyer to helping the accused in the cross-examination of the prosecution witnesses, but he was not allowed to formulate the accused's line of defense, speak on his behalf or argue against the evidence presented.

The lawyer's speech to the jury, a monologue so beloved by the screenwriters of the television series, is a new creation, only towards the middle of the 19th century were lawyers allowed to present the summaries of the defense. When the door was opened for the lawyer to engage in the investigation of witnesses and the examination of evidence, the attention of the criminal court was diverted from factual questions (does the evidence prove that the accused committed the crime) to legal questions such as whether the act committed by the accused fits the definition of transfer in the indictment and whether the evidence is "kosher". This turn made the trial a matter for experts. The pool of precedents grew richer and branched out, further increasing the need for lawyers. Thus, in the continuation of the passage quoted above, Swift's Gulliver describes the English law based on precedents (common law) "For these lawyers, law is because 'what has been is what will be' and therefore they are careful to write down in their literature everything that was decreed before them unlawfully and without common sense. These sentences, which they will call 'precedents', they bring as 'evidence' for the sake of the tzaddik every wronged sentence."

The rise of the lawyer was accompanied at the same time by the silencing of the accused and the victim of the crime, slowly the trial turned from a struggle between rival parties into a matter entrusted to experts that a non-lawyer can only observe from the side. Thus, in a slow evolution, the lawyer became the star of the legal show and legal education that was the property of a few became a mass commodity.

Well Mitzi, there are lawyers in the world because this is the only place where they can be found, not least due to the fact that they are the ones who designed it for us.

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