Tuesday, April 3, 2007
To start our last week in London, Rebecca and I went with a group of eight English law students to tour the Houses of Parliament and observe proceedings of the Law Lords and the Privy Council. Our tour was led by a Door Keeper of the House of Commons named Clive. We were led through the St. Stephen's entrance to Parliament and followed the path that Queen Elizabeth II takes when she opens Parliament every Fall.
Clive stopped us first in the robing room where the Queen gets into her official garments. The room has very little furniture, but includes a large clock that was thought to have once been owned by Marie Antoinette. At the head of the room is a Chair of State, used by Queen Victoria. A look at the chair gives you an idea of the former Queen's height and girth, neither of which would be shared by your average supermodel.
We passed through several other grand rooms before arriving in the chamber of the House of Lords. The benches there are covered in red leather. You don't notice them at first, though, because your eyes are drawn to the gold-covered area where the Queen sits. Clive explained that the large red cushion in the center of the chamber, where the Law Lords sit ("the bigwigs"), is filled with wool from around the British Commonwealth.
We next walked to an antechamber outside of the House of Commons. Clive showed us the shelves of Hansard's -- the equivalent to the Congressional Record -- and explained that even heckles and laughter can be recorded in the transcriptions of debates. He then explained the procedure by which the House of Commons (a chamber with over 600 members!) votes, and then led us through the area where members would register an 'aye' vote for a particular measure.
The chamber of the House of Commons seems smaller than it appears from the overhead view you get from C-Span. It was exciting to be able to walk behind the area where the Prime Minister stands to address the house at question time. If I have the opportunity to return to England, I will make a point of petitioning the American embassy to secure a ticket to sit in the Stranger's Gallery (a balcony above the chamber) and watch a question period.
Following the tour, our group quietly filed into the gallery of an ongoing argument before a panel of five Law Lords. The lords were hearing the first submissions on a longstanding case related to corporate tax. (The entire argument was slated to last four days.)
At 1 p.m., the lords suspended argument to break for an hour. During this break, our group attended lunch in the chambers of Lord Walker.
Following lunch and a great question-and-answer session with Lord Walker, our group exited the halls of Parliament and walked to 9 Downing Street to observe arguments before the Privy Council. Argument before the Council that day related to a new rule of evidence promulgated in Scotland that affected rape cases.
This argument was suspended at 4 p.m. I had figured out that two of the lords' judicial assistants were attending the hearing, and got the attention of one of them, Sasha, after the hearing finished. Sasha kindly led us back to a chambers library after the hearing where we discussed how judicial assistants' work for the law lords compared to the work of U.S. judicial law clerks.
Evening in Westminster
On Monday evening, Rebecca and I finally got to meet Heather MacMahon, a former UK Pegasus Scholar who had spent time in my new hometown of Richmond, Virginia, in 2004. We met up in a unique and historic wine bar by Charing Cross station called Gordon's, and went from there to an Indian restaurant near Parliament. At the restaurant, located in a former library (with messanine bookshelves still intact), we were introduced to Heather's boyfriend David. Heather is originally from Scotland, and David is originally from Wales, so Rebecca and I took the opportunity to ask the couple about differences between their countries and England. Good-natured humor about the national character of the Scots, English, and Welsh ensued.
Return to Brick Court
Tuesday I returned to chambers and caught up with Martin. During my last four days in chambers, I was able to do more practically useful research and writing than I had done up to that point. This was largely because two cases on Martin's schedule for the week raised immigration and asylum issues sufficiently similar to U.S. immigration practice for me to usefully review English caselaw.
On Friday I attended a hearing before the Court of Appeal where Martin was representing the Home Secretary in an immigration-related matter. Unlike previous hearings I had observed, Martin spoke for only about twenty minutes. This was a sharp judgment call, however, because it was made clear in the questioning of the opposing advocate that the panel was very likely to favor the Home Secretary's position in the case.
Sunday, March 25, 2007
Our flight from London's Gatwick airport to Belfast had a scheduled departure of 7 a.m. To meet that, Rebecca and I dragged ourselves out of the flat at 4:10 a.m. After a series of buses, trains, and one airplane, we found ourselves in downtown Belfast ready to make our 10 a.m. appointment at Laganside Courts.
The Langanside Courts building.
After we asked for our contact person at the reception desk, the receptionist brightened and said? "You're the students? Excellent. Have a wee seat around the corner and Maureen will be right out."
Maureen materialized and led us through the modern building to the chambers of The Recorder of Belfast. We spoke with the Recorder briefly before we agreed to observe ongoing proceedings in which a judge was delivering his charge to the jury. Our hosts led us through a labyrinth of corridors into a well-lit, chilly, large courtroom. Maureen, Rebecca and I passed just behind the glassed-enclosed dock, where the defendant sat between two prison guards, and the glassed-walled public gallery, where small groups of people were observing the proceedings. We sat in a group of seats intended for members of the bar just to the side of the jury box.
A judge's charge to the jury
In England and Northern Ireland, a judge presents the jury with an oral summary of the evidence presented. The case we had walked in to observe involved allegations of sexual and physical abuse by a defendant's two step-daughters. Among the judge's first comments was, "You may recall that the defendant could not remember that he had a daughter from this previous relationship. Now I expect that there may be parents and even fathers among you, and I would suggest that it is not uncommon that a man may not remember the exact birthdays of all of his children, and ask his wife when the answer is needed. But to forget a daughter?"
The judge also indicated to the jury that it would have to decide whether one of the daughters was motivated to make allegations against the defendant because she thought it would result in a money judgment (in separate civil proceedings). In another rhetorical question to the jury, the judge asked, "But could she have been motivated by money when she lodged a claim against him at age fourteen?"
The judge's summary of the evidence against the defendant included a reprise of completely distressing testimony by the daughters about the defendant's alleged behavior.
The judge concluded his charge to the jury with the instruction that they need not be unanimous, but a decision to request a non-unanimous (at least ten of twelve) verdict as to any individual count could only come after at least two hours of deliberation. The jury then retired to deliberate.
The judge then ordered the defendant to be removed from the dock. The guards rose with the defendant and walked to the door of the dock which was set about seven feet from where we were seated. The defendant passed by, his wrists shackled to the arm of the guard ahead of him, and he looked closely at the three of us.
I think he will receive a long sentence of imprisonment.
Tea and lunch at the Royal Courts of Justice building
Maureen returned us to the Recorder's chambers, and, over tea and biscuits, the Recorder explained the structure of the courts in Northern Ireland and his work administering the courts within his jurisdiction. He explained that the courts still had a small number of Diplock trials -- criminal trials with no jury (created because jurors in IRA-related cases had, during the Troubles, been subject to violence, threats of violence, and general manipulation).
Following our discussion with the Recorder, Maureen brought us briefly to her office where we had a short break. We discussed the advantages and disadvantages of modern courthouses, and she gestured out the window to an old, red brick building, "That building there, you know it's been blown up so many times, but each time they have to build it back as it was. There's a courtroom in there that I take visiting schoolchildren to, and it's very old and lovely. They just enjoy the feeling of sitting in that old courtroom."
During my time in the U.K., I had seen old courtrooms. This was the first reference, however, to an old courtroom in a building that had been the subject of several bomb attacks.
We had to get to lunch, however, so Maureen walked us across the street (which was entirely ripped up and under construction) and over to the Royal Courts of Justice. Rebeeca and I were shown into the chambers of the Lord Chief Justice Brian Kerr, and had lunch with Sir Kerr and a colleague of his on the Court of Appeal.
Our lunch was served on rose-patterned china dishes and included white wine, and after the meal, red wine. Rebecca and I were given little boxes of chocolate truffles. Our lunchtime conversation was delightful. We felt like judicial rock stars.
Our hosts then returned to their work and left us in the hands of a capable court clerk. The clerk gave us a tour of the building, including the old law faculty library. (As in Scotland, all barristers in Northern Ireland work out of the courts' law library.) We then left the courthouse to see the new law faculty library next door.
The Law Faculty Library of Northern Ireland.
The Law Faculty Library building is impressive, modern, and very equipped for modern technology. It has a cafe on its top floor, and a great, if narrow, outdoor balcony with excellent views of Belfast. Each barrister has either a desk or an office, and offices are assigned by seniority (and have different rental fees). Barristers with only desks also appeared to have separate lockers for their coats and other belongings.
That evening we ventured into The Crown Bar, a Belfast landmark, and the only pub owned by the British Heritage Foundation. It was rather too smokey to our liking, however, so we ate dinner at a restaurant closer to our accommodation. The name of the restaurant is linked to another point of Belfast pride, the Titanic, which was built in the city's shipyard. The food was excellent, and the place was situated next to a company that featured a Pegasus logo: Perfect!
Tuesday, March 20, 2007
Thursday, March 15, 2007
I had the good fortune of starting on a day on which Mr. Chamberlain was requested to appear to give evidence before a joint committee of parliament. The subject of this testimony will be addressed in a separate post, but I mention it here just as a comment on how diverse a barrister's workday can be.
Like Quandrant Chambers, Brick Court has three pupils (law students hoping for a tenancy in chambers). On Monday, I was invited to participate alongside the pupils for their monthly advocacy exercise, which is essentially a practice oral argument before a panel of members of chambers, who act as judges. I am now in the midst of preparing a 'skeleton argument' that I will exchange with my counterpart on Monday, the day before the oral argument presentations on Tuesday.
The argument is before a mock committee of three Law Lords. The claimant, one of the three pupils, will request leave to appeal the judgment of the Court of Appeal before the panel. I am the advocate for the respondent, so at least I will have the benefit of hearing the claimant's oral presentation before I begin my ten minutes of argument. Additionally, following our presentations, I will be able to watch the two remaining pupils present their arguments before the panel. The underlying dispute relates to an arguably omitted quantity term in a requirements contract.
It will certainly be an experience to begin an argument with, "Your Lordships."
Tuesday, March 13, 2007
The English legal system, rather unlike the American system, is accustomed to bringing in visitors for short periods of time to observe proceedings. This is a welcome surprise for an American attorney. Although my observations of counsel at trial are from the back of the courtroom – like any member of the public – when court is not in session, the barristers and solicitors I have been introduced to have very generously allowed me to observe their confidential conferences and act, in a guest capacity, like a member of their team.
Even considering this level of access, I was surprised when the Right Honorable Sir Martin Moore-Bick, a Master of the Inner Temple and Lord Justice on the Court of Appeal, explained that, normally, special guests to the Court would sit next to him during proceedings. Unfortunately, because there were two of us and the bench was small, Rebecca and I would be obliged to sit in the press box to the side of the advocates’ benches. Although Sir Moore-Bick expressed regret about this, Rebecca and I accepted it happily, as we would not have thought that we would be able to sit alongside members of the Court of Appeal.
Lord Justice Moore-Bick met us in his chambers and we walked together with him and his administrative clerk to the chambers of Lord Justice Ward, where we were joined by Justices Ward and Nourse. The judges asked where we lived in the U.S., and when I mentioned Richmond, Virginia, Lord Justice Ward mentioned that he had been there. He further added that he had attended an event with other judges in Richmond, and had made the acquaintance of Justice Elizabeth Lacy of the Supreme Court of Virginia. (Lord Justice Ward was keen that I send Justice Lacy his warm regards.) Finally, Lord Justice Ward said that although many English judges were going over to Virginia to participate in the Jamestown anniversary celebrations, he, sadly, would not be going.
The judges then turned to their confidential exchange of views in advance of the proceedings. They ended their discussions with some humorous remarks (Lord Justice Ward is known to be light-hearted), and proceeded to walk, with Rebecca and I in tow, through the secure corridors to their designated courtroom.
Because cameras cannot be trusted in court buildings in places with a reasonable fear of terrorism, I was unable to capture on the memorable images of this walk with the members of the panel. I felt specially honored to walk alongside these robed and wigged judges in the Royal Courts of Justice, and felt a deep respect for a system that would open its doors to me so graciously.
Over two days of argument, the advocates contested whether the lower court had properly discharged two orders granting temporary equitable relief. Each advocate used more oral argument time than had been expected, and on the second day, the presiding judge, Lord Justice Ward, announced that the panel had made arrangements to sit for the entire day (instead of the half-day that had been scheduled).
In previous posts I have mentioned that the English system accords a greater role to oral advocacy than the American system. Because I enjoy oral argument myself, I expected I would really like the English system. Certainly, I do appreciate it and have grown fonder of it in many respects now that I have seen several proceedings. However, over two days of watching oral argument in the Court of Appeal, and despite counsel’s considerable skill, I started to develop a healthy skepticism as to whether it is really a good idea to give lawyers free rein to speak for as long as they consider necessary.
Overall, then, I began to see that English judges are not merely generous to special guests, but they are also generous to the barristers who appear before them. Although certainly American judges are respectful of lawyers during proceedings, it is fair to say that the American legal culture enforces, with some reinforcement from judges, the idea that an attorney appearing before a judge is a subordinate. American judges are also quite willing, in my opinion, to abruptly stop a lawyer from proceeding with a line of argument that the judge does not consider fruitful. English judges, by contrast, appear willing to entertain a greater variety of arguments, including some likely to be ultimately discarded.* It appears more important for these judges to determine, accurately, what the logic of the advocate’s argument is, and what evidence and authority exists to support that argument.
Visit to a murder trial at the Old Bailey
Although I had previously watched proceedings at the Old Bailey from the public gallery, I was enthusiastic about the chance Rebecca and I were given to observe proceedings as a judge's marshall. Rebecca and I were hosted by Mr. Justice Giles Forrester, a former criminal law barrister who presides over a Crown Court in the Old Bailey.
Judge Forrester was kind enough to allow Rebecca and I to sit right up on the bench beside him -- giving us a view of a murder trial that we are likely never to see again! The presentation of evidence was nearly its close, and the second of two defendants used the day to elicit testimony from several character witnesses.
As is sometimes the case in American trials, the quality of representation could not be described as uniformly superb. At one point in the proceedings, albeit outside the presence of the jury, one advocate suggested that possibly his Lordship would consider a text message from his junior's cell phone as evidence in support of an application for an arrest warrant. His Lordship declined the offer, and a way around the problem was eventually found.
Rebecca and I were obliged to attend an event at Lincoln's Inn at 4:30, and so had arranged with Justice Forrester to leave the Old Bailey at 4 p.m. Just before 4 p.m., however, the defendant's brother was on the stand, and upon indication by the Crown that cross-examination would last only another five minutes, we told the judge that we preferred to stay until the end of the witness's testimony. The prosecutor continued with her examination, and elicited a very damaging admission from the brother. It would be difficult to succinctly describe the nature of the admission, but it is sufficient to say that the brother's slip-up created a stir in the courtroom. Although we had to walk very quickly to make our appointment, we both felt that the decision to stay was the right one.
Call ceremony at Lincoln's Inn
When students finish the yearlong Bar Vocational Course, they may be 'called to the bar' of their Inn of Court. Technically, I suppose, this means that the student is a barrister, but without a pupilage or tenancy, one is not really a barrister; rather, one is merely qualified to be a barrister.
At any rate, because the Inner Temple had only a few students to call to the bar, Rebecca and I were the guests of Lincoln's Inn, the oldest Inn of Court. Lincoln's Inn has an impressive Great Hall and a beautiful and historic Old Hall. The ceremony and dinner were conducted in the Great Hall, and a mid-event reception was conducted in the Old Hall, so we had the chance to see both venues.
During the call ceremony, the Treasurer of the Inn, who is the Inn's chief, calls the names of two students, who step forward from the back of the Hall to stand in front of him. The Treasurer then pronounces them qualified members of the bar of the Inn. He then calls the names of the next two students. The first students called have been members of the Inn the longest; the last student called is the class's most recent Inn member.
Rebecca and I had a delightful evening after the call ceremony. We walked in the neighborhood around Lincoln's Inn and had an enjoyable discussion with a silk who was seated between us at dinner. It was also my first occasion to join in a toast to, who else? The Queen!
* As I am sure my fellows with the U.S. Court of Appeals would like me to point out, however, English judges have a greater ability to indulge advocates because their caseload pressures are not as great as those of their U.S. counterparts.
Sunday, March 11, 2007
I have just returned to the flat after a weekend at Cumberland Lodge, an English country house located in Windsor Great Park. From Friday evening until this afternoon, I observed several legal education workshops for barristers-in-training (students in the midst of completing the Bar Vocational Course).
I was looking forward to the weekend, among other reasons, because I have been unable to play piano since my arrival here and I guessed that the lodge would have a piano I could use. As expected, just after check-in, I found a grand piano in the 'tapestry room' of the lodge and promptly unpacked my music. I had a good few minutes of playing without much company, but as time went on people came into the tapestry room to read newspapers and hang out, so I became a bit anxious about missing notes.
After I finished playing, I figured out which of the many unlocked rooms in the main lodge was assigned to me. I found Rebecca and walked over with her to a neighboring building where we would sit and listen to a lecture on sports law, the area of law featured that weekend, delivered by a member of Blackstone Chambers, Michael Beloff, Q.C. Mr. Beloff's speech was peppered with jokes and political humor, and made sports law sound more interesting than I expected.
Saturday morning I took a long walk on the grounds and discovered the nearby polo club. I returned to the lodge and practiced piano on a better grand I discovered in the drawing room. In the comfort of the empty drawing room, I was asked whether I wanted to participate in the evening's 'entertainments,' and thought it would be a good idea to take up the offer and play and sing something for the group.
For the remainder of the day, while doing other things, I fretted about the decision to play and sing something. I had told the organizer I would sing a rather ambitious song, and felt committed to going through with it. I reminded myself that other students were offering to sing karaoke in front of the group, so I shouldn't feel so self-conscious.
There is, as I discovered, a real difference between karaoke 'Summer Nights' sung by a group of four or five moderately tipsy law students and assisted by the audience and sitting down to play a sing a musical number from Dreamgirls, as I had chosen.* For one thing, when you miss a note singing a verse in karaoke, it's obviously just a silly thing, so it's funny. When you can't find the right keys at the right time while singing full voice like a motown diva, the feeling is more uncomfortable, like, gosh, look at that . . . effort.
It was not, however, such a disaster. As expected, the audience rewarded me for having considered the 'entertainments' a quasi-serious exercise, and for being brave enough to sing and play in front of them without entirely falling on my face. On top of that, I've lived long enough to know that people tend to largely forget exactly what you sounded like even five minutes after the performance, and instead remember just a couple things about it.** On the reasoning that at least one of those things was most likely positive, I stopped obsessing about my performance.
My contribution aside, the entertainment was great fun, as the law students told jokes, sung karaoke Jon Bon Jovi (moderately bizarre considering the English accents of the singers), recited poetry, and play acted in funny sketches. Also, one Q.C. sung a song that started off about a hippopotamus, and to my amazement, the entire audience joined in the chorus, which was about 'glorious mud.'
On Saturday night I spoke with a number of law students and senior barristers who were assisting with the weekend's substantive activities. I found that the law students I spoke with frequently referenced events in history, philosophical ideas and politics generally. Rebecca also found that dinner conversation at the lodge was more intellectual (but also more 'combative' -- we were among barristers!) than the average dinner conversation back home.
I also observed that the senior barristers I met at the lodge were very kind, approachable people. Although this was certainly a self-selected group of bar leaders interested in training new barristers, I got the feeling that the new barristers were in the hands of a great cadre of mentors. As with other experiences I have had in the past three weeks, I felt honored and inspired to be a lawyer among such professional and collegal barristers as I met over the weekend.
* Note: If the song you feel like singing in public is sung in a movie by Beyonce, and you are not, in fact, Beyonce (or Whitney Houston), pick another song.
** And, as I learned when I sung a few bars in a freshman undergraduate lecture (on the professor's invitation), when you sing in front of people, they tend to remember your existence, if only as 'The Singer.'