Fall 2018 Gavel Gavel Fall 2018 | Page 13

Criminal Practice and Procedure When I first became an assistant U.S. attorney, the sentencing of those who were convicted or pled guilty to a crime had their sentence determined by the judge, who would have considerable information about the crime and the defendant and would therefore be in position to render a fair sentence. However, in the late 70s and 80s, the state and federal legislators decided that they were smarter than the judges hearing the cases and started enacting mandatory minimum sentences for a number of crimes, thus taking away the discretion of the sentencing judges. This shortsighted action resulted in filling both state and federal prisons to overflowing and has cost the taxpayers millions of dollars. There has now developed a greater interest in providing some rehabilitation and mental health services for people who end up in the criminal justice system rather than just locking them up. If properly done, the result should be fewer state and federal prisoners. Legal Services for Defendants In the 60s, 70s, and 80s in North Dakota, federal and state indigent defendants were provided a lawyer appointed by the courts and they were paid a very small hourly fee. Currently, North Dakota has a statewide system in place that has a number of full-time criminal defense lawyers in various areas of the state who represent indigents who are charged with a crime. Further, the federal government also has in place full-time federal defense lawyers located in Bismarck and Fargo who represent indigent defendants. If for some reason the full-time defense lawyers have conflicts or cannot represent a charged defendant, then the courts will appoint private counsel. Malpractice Insurance When I first started private practice, there were several insurance companies that would provide malpractice insurance for lawyers, but the cost of coverage continued to increase on a yearly basis. So, in 1985, when I was president of SBAND, the presidents of a number of small state bar associations got together and decided to form a malpractice insurance company that would provide reasonable cost coverage for small state lawyers. The company was formed and named Attorney Liability Protection Society (ALPS), headquartered in Missoula, Mont., and started writing policies in 13 small states. I was privileged to serve on the board of directors for several years and was the chairman of the board before resigning when I left private practice and rejoined the USAO. Today ALPS is the largest direct writer of lawyer malpractice insurance in the United States. Conclusion There have been many changes in the practice of law over the last 50 years, and this article only covers some of those changes. There is every reason to believe there will be continual change in the practice of law, and hopefully, it will result in better service for the public. ALTERNATE DISPUTE RESOLUTION SERVICES QUALIFIED NEUTRAL MEDIATORS Mediation is an effective and cost efficient method to resolve disputes. We are experienced to provide mediation in the following areas: JACK G. MARCIL [email protected] Fargo Office ROGER J. MINCH REBECCA S. THIEM [email protected] Fargo Office [email protected] Bismarck Office 701-232-8957 1-800-726-1963 serklandlaw.com • Personal Injury • Wrongful Death • Professional Malpractice • Construction • Products Liability • Estates • Discrimination • Commercial • Contract • Bankruptcy • Banking Alternate dispute resolution can also include Arbitration, Early Neutral Evaluation, Mediation/Med. Arbitration. FARGO — Fax: [phone] • 10 Roberts St. N., PO Box 6017, Fargo ND 58108-6017 BISMARCK — Fax: [phone] • Phone: [phone] • 1800 E. Broadway Ave., Suite 200, Bismarck ND 58501-4756 FALL 2018 13