Why do we need lawyers in the Judicial system?

Question

Law is supposed to be known to all citizens.

It is also assumed (implicitly) that it is correctly understood: Ignorance or misinterpretation is not an excuse before the judge.

So why are we required to be represented by lawyers in criminal and civil trials? Why should a lawyer need to pass a bar exam before practising?

In my country, like many others with a Spanish heritage, everything must be done through a lawyer. So you can't claim ignorance (as a defense). Also, you can't defend yourself by claiming you are a simple lay person (ignorant). That sounds a lot like hypocrisy.

Why is the law supposed to be known and understood by everyone, when that is not the case? How can a legal system based on a false assumption do justice?

I do not deny the advisability of having an attorney for legal matters. Personally, all my legal matters are handled by my family's attorney.

Answer 1

The law is known to everyone in theory. But as various people are said to have said,

In theory, theory and practice are the same. In practice, they are not.

Starting from zero and actually finding out what law is applicable to your circumstances is not a trivial matter. To have an answer you can rely on you need to do the following:

1. Find out what law calls it. Sometimes this is obvious, but not always.

2. Go and find the law in question. Over the last 10 years this has got much easier. It used to mean going to your city library and looking up the relevant law. These days we have Google (other search engines are available).

3. Find any other laws which might have bearing on the matter. This can be a long way from obvious (see below).

4. Find any relevant appeal court cases in which something like your circumstances have arisen, and figure out how they relate to your actual situation. You may find that some of the laws which you read in Stage 3 have been ruled unconstitutional, or that the standard of evidence required to prove or disprove something about it has been set impossibly high, or that the penalties or damages have been set absurdly high or absurdly low. If you are in the US then maybe some of those precedents were set in other circuits, in which case you need to figure out what your local circuit is likely to do about it should the occasion arise.

5. Make a calm, dispassionate decision about what to do about your situation. Many people find this extremely difficult. The answer might be life-changing. Under these circumstances making a good decision is very hard.

Just to give you an idea about (3), suppose you are planning on importing something for your business. Here is a list of areas of the law you might fall foul of, off the top of my head and I've probably missed some:

• Tax.

• Trade in endangered species.

• Drug prohibition.

• Environmental protection.

• Biosecurity.

• Health and safety.

• Consumer protection.

And that is just the criminal laws. Theories of civil liability can get really complicated.

But OK, lets suppose you figure out the law, but despite your best efforts you find yourself in court (criminal or civil). Now in addition to all the law you find yourself enmeshed in a complicated bureaucratic set of rules, depending on the type of court and where you are (e.g. US rules of civil procedure). At this point you need to learn not just the rules but how to play the game they describe. Think of it like playing chess; learning how the pieces move is only the first step on the long road to becoming a competent chess player. And the legal system is like chess in another way; there are no do-overs if you make the wrong move.

(Incidentally, anyone who says "Well lets just get rid of all the complicated rules and laws" is committing the fallacy of Chesterton's Fence. Just because you can't see why the rules are there doesn't mean there isn't a good reason).

Or you could just hire a lawyer.

Answer 2

There are four similar answers here already, all about why it's a good idea to involve an expert.

There isn't much engagement with the apparent discrepency you're asking about; the discrepency between high standards of qualification for lawyers and the suggestion that the law is understandable for the typical citizen implied by the claim that "ignorance is not a defence."

Consider that the typical citizen is assumed competent in knowing how bodies work to feed their family, play catch, and use a tissue if they need to sneeze. At the point where someone has a complicated fracture in their leg and someone has to decide whether to set it or amputate it, you want a doctor. You also want some sort of certification that they're a real doctor. Likewise, there are some aspects of "ignorance is not a defence" that veer into the philosophical, but there is one clear, simple and relevant fact: Knowing to keep the law is a lot easier than knowing how to argue the law.

For example, everyone is expected to know enough to not shoot their neighbour. At the point where someone is accused of shooting their neighbour, and we're into standards of evidence, mitigating circumstances, plea bargains and so on, we need an expert.

Everyone is expected to know not to publish company secrets on facebook. At the point that this goes to court, we're into very complicated questions of establishing whether they were genuine trade secrets, whether the were valuable, what the various liabilities might be, whether any sort of whistleblower protections are involved, etc.

Most people stay out of court most of the time, but at the point where you get to court, you want assurance that your guide knows how to navigate the high stakes high complexity situation you're in.

Answer 3

We are not (generally) required to be represented by lawyers in court. Many people do their own legal work. The requirement to be approved by the bar association is a separate consumer protection law, which is a more general instance of the fact that government reserves the right to limit things done as "commerce" that they do not limit when done as an individual action. The bar exam is analogous to other professional exams such as for a CPA license, where the professional organization develops standards for judging basic competence. Having a bar-exam level of competence is not a guarantee that a lawyer will always correctly interpret the law, it means that the chances that the advice they give will be based on a correct interpretation of the law are probably higher than if you ask a soapbox orator.

Nobody actually expects everybody to have complete knowledge of all pertinent law in a jurisdiction. The "ignorance is no excuse" rule simply say that "I didn't know that that is the law" is not a defense against an accusation.

Answer 4

One element not touched on so far is the time and effort it takes for courts to support people who are representing themselves.

In England & Wales we have had significant problems with an increase in the number of "Litigants in Person" since deep cuts were made to Legal Aid. This has resulted in hearings taking longer, Lawyers and Judges time being wasted, court costs increasing, and people not getting the justice they deserve.

From Legal aid: how has it changed in 70 years?:

Under Laspo^†, large areas of civil legal aid were deemed out of scope and removed entirely from any legal aid coverage. These included most cases involving housing problems, family law, immigration, employment disputes and challenges to welfare benefit payments. The family courts, in particular, have been inundated with unrepresented defendants: about 80% of cases involve at least one side being unrepresented.

^{† Legal Aid, Sentencing and Punishment of Offenders Act}

It has been suggested that the total cost, to society, of Legal Aid cuts may be significantly higher than the savings made from those cuts.

From Legal aid cuts are a false economy:

In 2010 Citizens Advice estimated that for every £1 spent spent on legal aid, the State saves :£2.34 from housing advice; £2.98 from debt advice; £8.80 from benefits advice; and £7.13 from employment advice.

Similarly from Benefits of legal aid significantly outweigh costs, according to global study:

A study in the U.S. State of Kentucky found that for every $1 spent on a civil protective order, there were $32 in avoided costs for society. A similar study in the state of Wisconsin estimated that the net economic benefits of expanding the domestic violence legal aid programme amounted to $9.8 million.

Lawyers spend their days (and often their nights) understanding the nuance of the Law, and working out ways of presenting those nuances in such a way that they can be quickly and efficiently understood by all.

Without legal grease, the wheels of justice would grind to a halt.

Oh, and to paraphrase Lincoln:

A lawyer who represents themself has a fool for a client

Answer 5

A legal court is not like school debating where you can make any argument to support your case. There are strict rules about admissible evidence. There are rules about which documents you must give to the other side before the trial begins. There are rules for how to ask questions of witnesses. And in a common law legal system simply knowing the statutes is not enough, you need to know which prior cases set relevant precedence to your matter.

So while in most jurisdictions you can represent yourself in small matters, for matters where the stakes matter to you (such as whether or not you'll go to prison, whether you will have any custody over your children, whether you'll lose your house, etc) self-representing is risky and someone who is not a trained lawyer could easily do significant damage to their chances of winning.

Answer 6

You beg the question (since explicitly raised in edits to the original question): Does anybody know the entire body of law?

At least in the U.S. the answer is apparently: No! Not even lawyers know every law.

Most citizens don't even know what is encompassed by the term, "law." (As I said in a comment elsewhere, "So you somehow managed to find and digest every law passed by every legislative body, and every regulation promulgated by the executive of every government entity with jurisdiction? Great: Now get started on the case law that could potentially be cited by any court that might claim jurisdiction.")

While this quandary is not the origin of the legal profession, it is an argument for why such a profession (with a bar) is needed:

Ignorance is not a defense. But legal advice from licensed lawyers is a defense.

Even if legal advice turns out to be wrong, if you act in reliance on the advice of a lawyer then your legal exposure is limited. I.e., lawyers offer a safe harbor from the fact that nobody can be certain of the entirety of law applicable to any question.

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Other helpful questions and answers here:

• Is “legalese” necessary?
• How to effectively search laws?

Answer 7

If you're in court facing criminal charges, the prosecution will be led by a district attorney (or similar). This is a person whose entire career is specialized in prosecuting criminals and earning convictions. They have specialized training, years of experience, and an entire support team behind them. That's a massive advantage for the prosecution, even if the law were extremely simple and understandable by any common person.

Thinking about it another way: boxing is a fairly straightforward sport. You can read the official rulebooks to understand the rules, and there are lots of books on strategy, technique, etc. Even if I memorized every book on boxing, there's no way I'm getting in the ring with Mike Tyson. That fight would last 4 seconds, tops, and I'd end up a crumpled blob on the floor. A fight between an untrained rookie and an experienced professional is about as far away from a fair fight as you can get. That's more or less what happens if you try to defend yourself against a team of professional prosecutors.

You hire a lawyer because they also have experience and training in the relevant area of law. Their experience and knowledge levels the playing field and helps ensure trials are fair. They know the relevant law and they've tried cases like yours before so they know what's effective and what isn't. They help protect your rights as a defendant because they know the sorts of tricks that prosecutors might try to play. They may even be familiar with the sorts of strategies that this particular prosecutor uses (some are even former prosecutors themselves). These are things you learn from experience, and not something that you can teach yourself as a layperson.

If you're being detained in jail until your trial, you will have limited resources and opportunities to collect evidence, interview witnesses, etc. Your lawyer, however, is "on the outside" and can do all of these things for you without restriction.

Now, that's not to say that a lawyer is always necessary. You'll see civil suits in small-claims court without lawyers on either side because the cases are generally simple and the lawyer's fees would exceed the value of the item in dispute. Cases in family law courts or probate courts might not use lawyers if both sides are amicable and already in agreement (with the court proceeding being more of a formality). Even in criminal cases, lesser-severity misdemeanor offenses can be tried in special courts designed so that a defendant can represent themselves.

Answer 8

Let me say something about the point that everybody is expected to understand and follow the law without being a lawyer.

In Germany, you are excused if it was "impossible for you to know that something is forbidden". This is of course a high bar. It often requires you to contact authorities or lawyers that explain to you whether your intended action is legal or not.

But if you try everything within your power to find out whether X is illegal, or if you get misleading advice from officials or lawyers, you have a good chance to be excused.

Answer 9

Speaking as a non-lawyer - but someone who has dealt with a number of non-trivial legal issues myself - it was a surprise to realize this question were not along the lines of "why do we always need[/want] a lawyer in court proceeedings". Instead it is closer to "why do we ever need that lawyer".

The distinction is key since I have handled some financially related matters - even significant ones - on my own. It is not a matter of principle but rather pragmatism: I had sufficient understanding of the related laws and procedures to handle those matters. I did double-check by some brief consultations with legal assistance in a couple of scenarios just to be sure.

But if there were an instance of criminal proceedings .. I would certainly want skilled legal representation for that life altering scenario. Law is in some ways more complex than technology fields: in addition to nuances of the directly applicable laws and/or regulartions there is precedent, understanding of particular judges, opposing counsels, courts and regions, and more. These all come into play - and as other answers have mentioned require potentially years of exposure and particular skill to handle most effectively.

Answer 10

One benefit not mentioned in the other answers is that of a known standard method of discourse. A pro se litigant could very well learn the necessary aspects of the law (a reality most lawyers are reluctant to admit) but it is much harder to study the norms of discourse and compromise. That is, there are certain standards of decorum (codified as well as non-codified) that are designed to promote efficiency within the system. Someone from outside the system typically goes against those norms and can make discourse frustrating. For example, a pro se litigant might seek accommodation where none is given and refuse to compromise on points that are typically used to find common ground. There is also the element of trust within the bar - an attorney is known and must uphold their reputation among their peers to maintain their license whereas an outsider is less interested. Thus a non-attorney might be treated with greater suspicion (hence why I hire someone to file my taxes, even though they always mess up - it means I have less chance of getting audited).

Answer 11

I've already posted an answer to the original question, but it turns out not to be what the OP actually wanted to ask.

2° Edit: Let me rephrase this question: Why is the law supposed to be known and understood by everyone when that is not the case?

Several reasons:

1. In most cases it is an accurate assumption; the general intent of the laws that are likely to be violated by people in everyday life are in fact well known.

2. In cases where people are genuinely uncertain as to the exact law, they can always consult a lawyer, or read up on the relevant law, or ask the relevant government department.

3. (This is the kicker). If you allow ignorance of the law as an excuse then you will get lots of people who break the law and then claim they didn't know what the law was. "I didn't know it was illegal to rob banks" may not be too persuasive, but "I didn't know it was illegal to sell microprocessors to Elbonia" might well be.

To get some idea of what "I didn't know it was illegal" might look like in practice, take a look at the doctrine of Qualified Immunity in the USA. This allows public officials, and particularly police officers, to claim that they acted in good faith even if it is subsequently decided that they broke the law. The exact details are complicated and not closely parallel with allowing ignorance as a defence, but the effect has been to allow some policemen to get away with assault and even outright theft on the grounds that the illegality of their actions was not clearly established.

Having said all that, it is a real problem sometimes. In his book 3 Felonies a Day Harvey Silverglate argues that most professional people inadvertently commit lots of felonies without realising it. Personally I find his claims about the scale of the problem to be unpersuasive, but there are genuine cases of people who have found themselves at the wrong end of an arrest warrant without having realised that they had broken the law.

Answer 12

Why do we need lawyers in the Judicial system?

Because the judicial system is built by lawyers. They are in control to build it in such a way so that they stay in demand.

An ideal, spherical cow judicial system should be able to make justice merely on the facts of the case. But, unfortunately, in a real judicial system justice is solicited and made by people. People often have other interests than justice itself (surprise, surprise), and they keep pursuing those interests even if they understand that those interests go against justice.

Lawyers are people who are supposed to deal with / mitigate those unavoidable imperfections by operating a framework of rules. On the one hand, this is factually necessary to make the best justice people possibly could (like you need a surgeon to do surgery). But on the other hand, unlike surgeons, lawyers are in control as to the complexity of those rules, and so as to what level/amount of skills/time/effort is required to operate them (surgeons are not in control of how complex the human body is). It is in lawyers' best interests to keep those rules complex enough so that most people could not operate them and had to hire lawyers.