Return to Richmond

Happy homecoming

Saturday night I returned to Richmond, Virginia. I arrived in time to see the last flowers of the dogwood trees on Grove and Monument Avenues, and took a quick trip to visit friends in Washington, D.C., where the cherry blossoms were in full bloom.

I am happy to be back among my family, friends and co-workers at the Court of Appeals, but I will always treasure the experience I had in London among barristers.

My particular thanks is owed to my co-scholar Rebecca (who is presently still traveling in Europe). Her friendship and kindness made the experience all the more enjoyable.

Last week in London

Visit to Parliament

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.

Visit to Belfast

Early start

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.

Following our 'whistlestop tour' of the library, we returned to town and made our way to the guesthouse where we were staying.

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!

Edinburgh and Advocacy Training

Chilly Edinburgh

On Monday, Rebecca and I were guests of the Scottish Faculty of Advocates in Edinburgh. We were shown around the faculty's grounds and library by the Keeper of the Library, Stephen Woolman, and a member of the faculty (and former solicitor) Gail Hawthorne.

Scottish advocates are not organized in chambers, as English advocates are, but are rather members of the collective Faculty of Advocates, and all work out of the faculty's library.

Each advocate keeps a fairly large wooden box in an area of the library where papers are delivered. The box is used by the clerks to deliver bundles of solicitors' instructions. At the end of the day, the advocate places materials in the box, and a courier collects the materials and brings them to the advocate's home. The following morning around 4:30 a.m., a courier collects the materials from a bag outside the door of the advocate's home and brings the materials back to the box for the advocate's use. Mr. Woolman explained that this convention of transportation by courier was developed in an age where it was considered unseemly for gentlemen advocates to be seen in public carrying their materials in their own hands.

The most active area of the faculty grounds is the hall, a large room adjacent to the library where the advocates can be seen walking back and forth in conversation with solicitors or advocates in training (who are called "devils"). Mr. Woolman explained to me that often the first lesson a devil learns is how to "walk the hall." Specifically, devils must match their step to the advocate's step (when he steps with his right, you step with your right), and when walking in a group of two, the duo must turn inwards upon reaching the end of the hall. Mr. Woolman said that he has become so accustomed to thinking while walking the hall that he finds himself wishing to walk whenever he wishes to reflect on a subject.

Because all advocates work out of the faculty library, the library is as full as a law school's just before exams. (Of course the advocates wear suits whereas most law students wouldn't dress up just to work in the library!) Most advocates bring laptops and expropriate a section of shared table space on which to lay out their papers and law books.

Advocates are organized in 'stables,' and each stable is managed by a set of clerks who work in a separate room of the library. Clerks do not earn commission, but there have been recent calls to revise the clerks' compensation and allow commissions to be earned.

Rebecca and I were joined by another advocate as well as Mr. Woolman and Ms. Hawthorne for lunch. Over a lovely meal, our group discussed British and American politics, the differences in our legal systems, the benefits of the Pegasus program, a specific legal problem at issue for one of the advocates, and our views on Britney Spears. Rebecca and I appreciated how conversational and comfortable our guests were, and felt inspired to return to Edinburgh at some point in the future.*

Advocacy Training

Today at 4:30 I tried on the role of a barrister, or at least the role of a pupil, as I participated as the counsel for the respondent in an oral advocacy training exercised organized by Brick Court Chambers' pupilage committee. My learned friend, Sarah Abrams, began her argument with strong opening remarks and quickly launched into a discussion of relevant authority. She spoke with a rapidity that reflected a sharp comprehension of the legal matter at issue, and adjusted her argument to accommodate questions from members of the four-person panel. After about a fifteen-minute presentation, the chairman of the panel and organizer of the event, Charles Hollander, signed that the panel understood the petitioner's submissions and wished to hear from me.

I got off to a good start; I began with a clear statement that outlined the points I wished to make, paused, and turned to my first argument. That went well enough, but at a couple points I couldn't find the exact word I wanted and therefore didn't speak as fluently as I would have liked. Nevertheless, I received a few questions from the panel that tested the logical consequences of the position I was advocating, and answered them to the best of my ability.

After my presentation, the next set of pupils entered the office, took our places, and articulated their submissions. This set used more time to articulate their arguments, and the panel -- sufficiently warmed up to the problems by the first set of advocates -- ratcheted up the difficulty of its questions. Both advocates fielded the questions expertly, without verbal hiccups, and each fluidly moved from responding to questions to resuming argument. It was an impressive sight, particularly since the advocates were pupils who had only recently finished their first six months in chambers.

At the conclusion of the second set of submissions, the panel directed the three pupils and I to leave the room so that they could confer. Following this session, the four of us were invited back to the office to receive feedback. Mr. Hollander, speaking on the panel's behalf, said that I did very well and that the panel was impressed by my willingness to participate. The pupils received constructive comments and praise, and were informed that they would have a mid-pupilage review in a few weeks where their progress would be discussed individually.

Having earned the right to relax, the pupils and I went to The Pegasus, a bar connected to Inner Temple, to have a drink and chat. Among other things, we discussed how the pupilage process requires candidates to weather a great deal of stress and uncertainty. It was noted, however, that upon receiving a tenancy, the new barrister is put on an established (if very junior) footing among other self-employed barristers. While certainly a new barrister must continue to earn his or her salt among the members of the bar, tenancy acts like tenure in academia and protects barristers from interfering overmuch in any junior's work.

I was glad I had the opportunity to try my hand as an English barrister (although our hearing was, sadly, unrobed and unwigged). American advocacy is markedly different from English advocacy, and I at least two differences (as well as my obvious North American accent) were evident in my presentation. First, although English barristers certainly do appeal to the equities of an argument (in other words: my position is simply more fair), the tendency is to keep argument intellectual. Because I felt that the side I was representing clearly had the more reasonable position, I stressed this point at various times in my presentation (using facts from the case that illustrated the unfairness of the opposing position). Second, as my previous posts have noted, American argument tends to keep ideas packed tightly, whereas English argument tends to unpack, scrutinize, and organize nearly every possible point. Reflecting this, my argument was essentially limited to two points, and I did not speak for more than my allotted time.

I return to chambers tomorrow to resume my work with Mr. Chamberlain.

* I would, however, pick a warmer weekend than this past one.

Preparing for English-style Advocacy

On Monday I began my new assignment to Brick Court chambers. I was placed with Mr. Martin Chamberlain, a barrister about my age who largely practices public law. Public lawyers may advocate for or against public entities. If I had been born in England and were a practicing barrister, I would want to practice public law.

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."

Weeks Two and Three

Visit to the Court of Appeal

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.

The proceedings

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.

Cumberland Lodge Weekend

It is hard to believe that I am already half-way through my time here in London.

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.

A sitting room at the lodge


* 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.'

Conduct of trial

Few sound bites, more legal analysis

Probably the first thing an American lawyer notices about an English trial (in commercial court, that is), is that there is no direct examination. Instead, the substance of the direct examination is brought in as a 'witness statement,' the authenticity of which the witness testifies to -- noting any corrections or additions -- before the start of cross-examination. The practice of admitting the witness statement as solely a written document is not a universal practice, however, as apparently it is standard in certain employment tribunals to have the witness read aloud his or her statement, even when this requires a day or two of reading.

The second noticeable difference between American and English cross-examination is the near-complete absence of cries of 'objection' from opposing counsel. During the trial I observed, opposing counsel's cross-examination became rather more like an argument, with no question for the witness to respond to specifically. It was explained to me that there was no need for the opposing counsel to object to this circumstance, not only because the judge would have noted it, but also because it was not moving opposing counsel's case forward in any tangible way.

The lack of objection during cross-examination also relates to the differing English practice of reserving issues for appeal. While I do not pretend to understand fully the differences on this point, I know enough to say that counsel need not 'preserve an issue for appeal' as often as is necessary in an American court.

Aside from these points, the most significant difference between a trial 'in the first instance' in England and a district court civil trial in the U.S. is that, here, counsel is obliged to bring the judge through his legal argument orally during his concluding submissions. Accordingly, as in a written brief, counsel begins by telling the judge what he will argue, in short form, and proceeds through his legal argument in issue-rule/authority/analysis/conclusion format, announcing (at some length on occasion) complete passages of authority for the judge, who is directed to read along with counsel from the number of 'authority bundles' (two-ring binders with cases and other materials copied into them, and indexed). The judge may stop counsel at any time and, among other things, question counsel's analysis, ask for more explanation regarding counsel's reasoning, or disagree about the interpretation of the authority cited. While the judge is reading a directed passage of authority, the entire court stops and waits until he finishes reading.

Because the judge may stop counsel at any time to ask questions, first instance legal proceedings are more like appellate oral arguments than trial proceedings in the U.S., because during appellate argument in both countries the judges may stop the advocates at any time to ask any question. Even that analogy is not quite apt, however, because most appellate arguments in the U.S. are only twenty minutes long, whereas each of the barristers involved in the case I saw this week took a full day to present their closing submissions. The claimant's barrister is also given the right to submit a reply submission to the defendant's closing submission, and in this case, that submission took two hours to present.

Differences in the substance of legal arguments

A clear difference between English and American legal argumentation is that the English rely more frequently on treatises and authorities beyond caselaw. It was explained to me that this is at least partially because the legal community is small, and therefore the judge may be either acquainted with the treatise author, or is aware of the author's reputation as a reliable source of analysis.

The other thing that stood out about the arguments I head this week was that they involved international instruments (specifically the Hague Convention related to shipping), documents interpreting these intruments (called travaux prepatoires), references to foreign municipal law (South African law), and national legislation (the UK's Convention on the Sale of Goods). Although I was familiar with the sort of international/national analysis from my experience with the Jessup competition, I had not thought that it existed in the world beyond the International Court of Justice. Indeed it does: in English courts.

Finally, although the same is true in American courts (or perhaps all courts of law), English counsel's primary difficulty is to credibly re-articulate what a judge meant in a given decision. I suppose that I imagine U.S. law to be more grid-like, involving more rules and less reasoning, or generally giving advocates less room to argue the interpretation of a given case.

Cross-examination in a criminal trial at the Old Bailey

If one is attempting to get a sense of legal London, and wishes to see something of criminal practice, it is mandatory to go to the Old Bailey, which is London's Central Criminal Court. I have a chance to attend a trial in progress at the Old Bailey this afternoon.

The trial here was the first I had seen with barristers in their traditional robes and wigs. Although it does make the barristers look distinctive, I preferred to see the barristers without this attire. That is probably because the wigs are so odd-looking to me that I have difficulty accepting them as normal or attractive. If American lawyers had a practice of wearing small pumpkins on their heads in court, I expect English lawyers would be equally unsure about the practice.

This trial was of at least eight defendants, and involved inter-family violence of some sort. All week long there has been cross-examination of witnesses, and it was not easy to keep my attention focused on the proceedings. The barrister conducting the cross-examination took his time between questions and was sure to elicit testimony in distinct, accurate sections; the overall effect of his methods, however, was that the proceedings were very dull.

Other aspects of London life

Londoners spend a good deal of time getting from place to place in the city. About every second time I take the tube something goes wrong -- either there is a delay (everyone just sits or stands and waits), or, in one case, everyone gets off the train because the delay is announced to be extensive. I am hopeful that these experiences are more the exception than the rule.

After the conclusion of legal arguments on Thursday, the barristers and solicitors invited me to join them 'down at the pub' right by the Royal Courts of Justice. It was delightful to be in a more relaxed setting with these men and women, and we all had a great evening.

Following this, I took a bus to a neighborhood near the Tower of London to meet up with the London chapter of the American Bar Association's Women in International Law group. I had expected a cocktail party with perhaps thirty women and was surprised to find a table of only ten. There were about three American attorneys working in London as solicitors or in-house counsel, two solicitors who were not native to the UK (one from continental Europe and the other from South America), four English solicitors, and one English barrister. I had a particularly engaging and animated discussion with a woman who is a partner with an English solicitor's firm, and she gave me a good deal of practical advice about navigating the difficulties of practice as a young lawyer.

Lastly, this afternoon in the chambers library I met my first barrister pupil, a woman named Lucinda who is one of three women pupils in their first six. She explained that she was near to the end of the first six, and that it was unclear whether all three pupils would be retained for a second six, or whether one or more of them would be let go. For a system that is known for its courtesy among members of the bar, it sure seems harsh towards its would-be members.

Shipping-related trial in a court of justice

Fast pace!

I arrived at the door of Quadrant Chambers Monday morning, and was let in by a barrister with a security key. I introduced myself at the reception desk, and the barrister who let me in the building came back up to me and said, rapidly, "Are you the guest from the Second Circuit? You’ll actually be with me today, we have a trial that starts at noon. Have you done any shipping work?"

They told me I should be expected to start the program running, and here it was!

I explained that I worked for the Fourth Circuit, not the Second, and that I hadn’t done any shipping work, but that I could read. (I felt I had to add something positive at the end. My literacy was all that came to mind.)

"Right," he said, and explained that I would meet with my barrister contact, Mr. Matthew Reeves, and that we would meet again before court so he could explain the case. He also mentioned that he had practiced for ten years in California.

Mr. Reeves appeared then, and we took the elevator up to his office. Mr. Reeves explained that he had been up all night working on written submissions for his first case he had on his own before the House of Lords. The submissions were up to eighty pages. He quickly showed me around the floor, swiftly made me a mug of tea, and ushered me into his rather spacious office that he explained I was free to use as a "home base." The brisk pace of our first comments to each other changed when we sat down in the sitting area in front of his desk, and he took a moment and asked, very sincerely, "how are you?"

I laughed and explained that I was very well, that I had adjusted to the time change and looked forward to seeing the work of chambers. We took a few minutes to discuss my interests as a lawyer and junior academic, and as expected from a person who asks excellent questions for a living, he asked me several things about my work. Mr. Reeves then explained that I would be paired with the gentleman I had met in the lobby, Chirag Karia, to observe a trial beginning that day in the Courts of Justice. The following week I would likely work with another colleague of his on a trial she had up in Manchester (although it wasn’t clear if they would send me to Manchester with her), and for the last week they weren’t sure where to place me, but perhaps I would assist him on his House of Lords case. We then walked upstairs to Mr. Karia’s office, and true to expectation, Mr. Karia cleared off the table next to his desk for me to work. He had just given me a copy of the skeleton of the argument (a paper that outlines a barrister’s initial position and arguments to the court) when we were joined by a French advocate in training named Sebastian, who would also join us at the trial.

"Have you done any shipping work?" Mr. Karia asked. Sebastian explained that he had, and articulated the extent of his experience. Mr. Karia then printed us both copies of the skeleton arguments from the claimant and defendant, and explained that he was the junior of Mr. Parsons, Q.C. ("Queen’s Counsel"), who would be arguing on behalf of the defendants.

Sebastian and I then retreated to the chambers’ library to review the skeleton arguments.

Mr. Karia collected us at 11:45, and Sebastian and I quickly introduced ourselves to Mr. Parsons on the brisk walk over to an auxiliary courthouse to the Courts of Justice, called St. Dunstan’s (presumably because it is located nearly next door to the church of the same name). Just outside the door of the courthouse we met two solicitors from whom the barristers had received instruction, and the group of us entered the court building together and proceeded up to the courtroom.

I should mention that no one was wearing traditional barrister regalia (robes or wigs). They explained that there had been changes in the requirements to wear these items, and that in certain cases, as now, they didn’t wear them.

The courtroom was rather like a large hotel conference room, only without carpeting, and chock full of wood tables set up in rows, most of them with long boxes on them. There was a raised area where it was clear the judge would sit, and an area to the judge’s right where one would imaging a witness would testify (but it was not a traditional witness box, and had a full table before it on which binders were set out), and a row of three ladies sitting facing the gallery. The middle lady was the court stenographer, and the other two ladies assisted the court with the transmission of documents from the barristers to the judge.

The barristers set themselves up in the first row facing the ladies, and each side had a podium area (a table-top podium). Our side arrived first, and the barrister on the claimant’s side, although a Q.C., was arguing the case on his own (formerly Q.C.’s were required to have junior counsel with them at court). Behind the barristers sat the instructing solicitors, two in the row directly behind them, and sometimes one more in the row beyond that. Sebastian and I sat in the fourth and last row of the courtroom, on the Defendant’s side.

Proceedings began with a quick announcement of "Silence: All Rise," and a judge in a regular business suit entered the courtroom and took a seat. The judge first apologized for beginning proceedings late and explained that his bicycle had been stolen, and he was delayed on that account. After a few preliminary matters, the claimant’s barrister began his opening submission.
Opening submissions from each barrister took about 45 minutes each. The barristers set forth the claims and legal arguments they expected to make, mentioning along the way the cases or authorities on which these claims would rely.

The court took a break at 2 p.m., whereupon the group of us on Defendant’s side went out to Fleet Street to get a quick bite for a late lunch. When court resumed, the Claimant’s first witness was sworn in, and after swearing to the authenticity of his witness statement, became available for cross-examination.

After court, I was invited to observe the barristers and solicitors as they prepared for the next day of witness testimony.

Walking in Central London on a Busy Sunday

Busy streets and Quiet Inns

Today was my first visit to the grounds of two Inns of Court, Inner Temple and Middle Temple. I didn’t see much of the grounds, but was immediately struck by their calm and quiet. Central London was enormously busy with Londoners of all varieties and scads of tourists (I was asked for directions again today!), but the grounds of the Inns were unpopulated, often green, and peaceful. Before entering the Inn grounds, I located the entrances to the chambers I’ve been assigned to: Quadrant Chambers and Brick Court. Rebecca kindly timed how long it took us to get from our flat to chambers, and I will rely on her estimate since I opted to travel into the City by double-decker bus.

I also had a chance to walk a bit around Harrods, which was quite busy. I have been in several large department stores, but Harrods is more like a labyrinth than any I’ve previously seen. There are just so many “halls” that connect together in odd places. I looked only at the wares and food halls on the ground level and yet it nearly felt, especially in the jewelry section, as though I were in a museum. A museum where extraordinarily well-off people get to take home the exhibits!

Finally, although I didn’t stay long, I did take the opportunity to walk through “Speaker’s Corner” of Hyde Park. Here, all you need do is set yourself up on a little step stool or soapbox and start speaking loudly, and passers by may decide to crowd around you, listen, and interrupt you with questions. Although I had looked forward to seeing the place, I didn’t stay long because I was already quite tired on my feet and the overwhelming majority of people both speaking and listening were men. I will make another visit, there, however, when I am more amenable to standing in place.

Arrival

Off to a good start

Rebecca and I arrived safely to Heathrow. Our flight was entirely full. Mrs. Heaton greeted us upon our arrival in Hammersmith, and after a bit of chat in the flat’s kitchen, we all went out to see a bit of the neighborhood.

I should mention that the flat is far more spacious than I expected, and will serve me and Rebecca very well during our stay. There is a locked door to the building, and the front door to the flat has no doorknob, but is locked by a regular bolt lock and a skeleton-key lock. Rebecca and I have our own (guest) bedrooms with wardrobes in which to hang our things, and cubbies along the wall to use as additional storage. There is a separate sitting room with its own door, a larger kitchen than expected (including a dishwasher!), a utility room with a washer and dryer, and two full bathrooms (one off the kitchen, the other off the main bedroom). The only hitch so far is that the wireless network is security-enabled, and we don’t have the security key, so I can’t yet post from home.

Mrs. Heaton mentioned that she had never sent a Pegasus scholar to Quadrant Chambers, but that the barrister I will be paired with (at least initially) is a former Pegasus scholar to the United States. Rebecca learned that her chambers, Blackstone Chambers, is based out of a building right in the Inn of Court area, and therefore has no address other than “Blackstone House.”

Overall, the trip is off to a great start.

Orientation

I don't think I can move my luggage single-handedly

My hope is that I will not really have to move it all by myself. It's a risk, admittedly.

Orientation this morning was lovely. I met Rebecca by the elevators at the hotel and we walked over to the Inn of Court's offices together. After going over some things to expect in London, the two of us had lunch with Cindy Dennis, the scholarship coordinator, and David Carey, the American Inns executive director.

Rebecca and I get along swimmingly, and I believe our experience will be even better because we are sharing an apartment and can swap stories when we get home. Rebecca is also in favor of cooking meals at home, at least on occasion, and I think this is a great idea.

Next post will be from London!

Nearly set to go

Busy days of preparation

With a week to go until I depart Richmond to start my travels, I have my hands full getting things squared away. Rebecca and I discovered this week that we will be staying in the Hammersmith area of London, not far from Holland Park. My friend Anne in London says the flat (as Londoners call apartments) will be an easy commute to my work assignment on Fleet Street.

Ms. Heaton has let us know that a cab will be there to meet us at Heathrow, and this, for me, seems a great luxury.

While my research on the history of American law is lagging (I was hoping to learn more about when and how the American system diverged from the English before I started my trip), I have been able to review some materials on barristers' clerks. The first, by John Flood, was more of an essay of the difficulties he ran into as a student researcher attempting to study barristers' clerks. (Among these was the problem that the clerks drank rather more than he did, and expected him to drink with them. As a result, he said he often had difficulty discerning the substance of the research notes he would make on the tube home from the pubs.) The second, written more recently in 1999, also by Flood and Andy Boon, is a study of the reactions of members of the English legal profession to the advent of solicitor advocates in the 1990s.

I learned that barristers' clerks manage the barristers' schedules and arrange for substitutions of barristers within chambers when necessary. They also act as brokers between barristers and solicitors with respect to fee setting. It is not entirely clear to me whether this is still the case, but at least formerly, clerks received a portion of the barrister's fee, and therefore could be handsomely compensated for their work.

In addition to managing my trip preparations, I have also been busy working with the Jessup moot court team that I co-coach with a member of the local US Attorney's Office. For the past four weeks or so, the team has conducted oral argument practice thrice weekly for three or four hours at a stretch, in preparation for their Regional competition, which takes place the weekend of February 17. I am terribly proud of the students on my team, and regret that, because of my trip, I will be unable to see them during the competition.

The T. C. Williams School of Law Jessup Moot Court Team and coaches.

Here is a photo of the team with me (I'm not actually that short!) and co-coach, Stephen Miller of the Richmond United States Attorney's office. The photograph was taken by the team's excellent 3L coach, David Killion.*

Finally, this weekend I will be able to bid my students, friends, and family goodbye a little early, as I have a bon voyage cocktail party set for Saturday night. My co-workers at the court will join me for a farewell lunch on my last day at the office, next Thursday.

* "3L" is a short reference for a third-year law student.

Waste in the appellate process

Cultural differences in litigation

A dear friend of mine once said that litigation occurs when two parties having serious personality defects disagree on something. The import of the comment was that, when people are reasonable, there is no litigation -- they accept settlement. Similarly, I have heard that often litigation results in an award not to the "better" party, but to one of two equally difficult parties.

During the course of my work at the court of appeals, and particularly because I am employed to process appeals where the law is settled (and identify appeals where the law is not sufficiently settled), I review a number of very unmeritorious appeals. The most painful cases to review are those where a party refuses to accept an outcome or decision in a situation, and fights against reason and the law to get the result reversed. They go through as many options for redress as are available, and in the American system, there are many levels.*

In some cases, I understand that appeals having no legal merit nevertheless make sense to the litigant: If you would be removed from the country if you were not otherwise pursuing avenues of appeal, and you really wanted to stay in the country, I would expect you to file whatever you can. By the same token, I understand the filmsy arguments of incarcertated persons, who often write pro se appeals (without the benefit of a lawyer), because it is a common failing of humanity to interpret information as favorable even when it isn't.**

Beyond criminal litigants, however, I am least pleased with litigants who bring unmeritorious claims that are clearly blind to the application of the established law to (reasonably) settled facts. Either because litigants lack adequate legal advice regarding the merit of their claims, or because they are stubborn and ridiculous in the face of such advice, appeals seem to be submitted as if relief were awarded by lottery. Ah yes, let's see ... this one: 1 million dollars for you. Thanks for playing and paying your filing fee.

All this means that I am paid by the government to spend my days sifting through many wacky claims. I often find myself reporting to the judges of the court that despite the litigant's claims to the contrary, the law does not permit them to: get out of federal prison; avoid paying taxes; keep their job after violating the law and company policy several times; or stay in the country after entering it several times illegally and lying about it under oath. And after I have moved on in my career, the members of this office will continue to process appeals just like these.

The indelibility of this system irks me. In short, American law and its various levels of appeal work to prolong the acceptance of an outcome that a litigant does not like, but must ultimately accept. And I do not like litigants to be so strung out. I wish the system would move people out of denial sooner.

In going to London, I expect the culture generally encourages the average litigant to move from denial to acceptance sooner than here in the states. My hunch is that people are told to "get over it" by more people earlier in the process of dispute resolution, and so good legal bureaucrats like me are less needed. I wonder, also, if English people have less confidence in the law providing them justice, or if they simply take more responsibility for things not going their way.

Finally, I am curious about the barrister's role in deflecting unmeritorious appeals. I would expect it to be quite strong, and the division between barristers and solicitors quite helpful.

* My critique on the number of levels is a post for another day.
** Additionally, I don't expect people whose conduct ran afoul of the law to fully understand the law or its consequences. I suppose this is part of my naive belief that no one who understands the law's penalties, and the realities of incarceration, would ever opt to flout it.

Chambers assignment

36 days to go

Today Ms. Heaton let me know that I will be working with Quadrant Chambers for the first three weeks of the scholarship. She is still waiting to hear from the chambers where I might be placed for the second half of my trip. Rebecca, my co-scholar, will serve with Blackstone Chambers and Serle Court.

Ms. Heaton is also making arrangements for Rebecca and I to visit Edinburgh and Belfast over a weekend.

When I run into co-workers at the office, they often ask me to remind them when I am leaving for London and how long I will be away. I have also collected from them several questions that interest them about the English legal system. Among them are:

Are English lawyers compensated as well as American lawyers?

Who decides how many judges are needed, and how are they appointed?

Are there administrative courts?

How do the courts manage their caseloads?

How is entry to the profession of barrister limited?

Is it easy to choose law as a second career?

Are appellate standards of review similar to the standards used in the federal courts of appeal?

How do barristers manage their fees?

Additionally, because I have been interested in oral argument practices in the U.S. Courts of Appeals, I am similarly curious to know how cases proceed to oral argument in the English system, and the extent to which the role of oral argument is different there than here.

The Structure of English Courts

Or: how I came to appreciate federalism (again)

As I explained in my last post, English barristers generally practice out of chambers. Because I was unfamiliar with this terminology, when the Inner Temple's Pegasus Scholarship coordinator, Clare Heaton, e-mailed me to request that I specify what sort of chambers I would like to be placed with, I erroneously thought that she was referring to judicial chambers. I next concluded that I should inform myself a bit about the structure of the various courts of law in England (and Wales).*

My first attempt to understand the structure of English courts was a miserable failure that ended in frustration and a jumble of words that sounded familiar, but lacked meaning.** Based on the reports of previous scholars, I determined that civil and criminal cases are considered by different courts (but the word "generally" fell in there somewhere), and that there are different routes of appeal, circuits outside of London, High Courts, magistrates, the House of Lords, and something called the Privy Council.***

Instead of completing sufficient additional research to straighten myself out, I sought the advice of a former Pegasus scholar from Britain to the United States, with whom I had been in e-mail contact. This former scholar, Heather McMahon, had been the guest of my local Inn of Court in Richmond, Virginia, the John Marshall Inn of Court, in 2004.

Heather reminded me that the United States and Britain are "two countries divided by a common language," and informed me that "chambers" describes "a set of barristers working out of one building and sharing administrative staff and expenses." Nearly the same day, Ms. Heaton clarified that I needn't specify which individual chambers I would like to be placed with (this would be the equivalent of asking, "Ah yes, please set me up to observe the litigation team at Skadden, Arps in New York City, post haste"), but rather what areas of law I have experience in and would like to see in the English context. She added that I should try not to be too obscure -- as an example, she mentioned that "equine law" would be too narrow -- and suggested that a general commercial/chancery set might be appropriate.****

Ms. Heaton's suggestion not only forced me to rule out my narrow practice interests,***** but also pushed me in a welcome direction, as I have approximately no experience with the practice of law. (This is not to diminish my experience as a law clerk for law firms large and small, or for a federal Court of Appeals, but rather recognizes that my understanding of the law is largely intellectual.) At any rate, I requested to be placed with a set specializing in commercial law and one focused on garden variety criminal law.

The question of chambers put to rest, I revisited my interest in the structure of the English legal system, and discovered the following.

The English system is a bear

It is not merely that civil and criminal courts follow separate paths, and that the distinction between law and equity persists, but it is also that, unlike our system of federalism, which sets one elegant structure alongside fifty complex structures, the English system is one structure (and one that happens to give you a headache). Since it would require unnecessary effort to summarize the courts' structure myself, I will use quotations from internet sources instead.

From the British Department of Constitutional Affairs, I learned:

Most minor criminal cases, called summary offences, are heard in local magistrates' courts either by a panel of lay magistrates assisted by a legally-trained clerk, or by a legally-trained district judge sitting alone. Magistrates' courts also house family proceedings courts and the youth courts. The most serious offences, called indictable-only offences, are passed on by the magistrates' courts to the Crown Court to be heard, usually by a judge and jury. Some cases fall in between, called either-way cases, and may be heard in either court. Only Crown Court judges have the power to pass sentences above a certain level of severity, and so some cases may be transferred from magistrates' courts for sentencing once a verdict has been reached. There are 78 Crown Court centres throughout England and Wales.

The majority of civil actions are heard in the 218 county courts, which also handle some family and bankruptcy hearings. The manner in which each case is dealt with depends on the value of the claim, so that the time and cost spent on the case is appropriate to its value.

The High Court sits at the Royal Courts of Justice in London, as well as at some major court centres around the country. The work is handled by three divisions, depending on its subject:

Chancery Division: equity, trusts, tax, bankruptcy
Queen's Bench Division: contract, tort, commercial matters
Family Division: divorce, children, probate.

The Divisional Court of the High Court sits in the Family and Chancery Divisions, and hears appeals from the magistrates' courts and county courts. The Administrative Court in the Queen's Bench Division deals with a variety of judicial review matters.

The Court of Appeal also sits at the Royal Courts of Justice. The Criminal Division hears appeals from Crown Court cases, while the Civil Division receives appeals from the High Court, tribunals and, in certain cases, county courts.

For most legal cases in England and Wales, the House of Lords is the final point of appeal, although a small number of cases each year may be referred to the European Court of Justice, which has jurisdiction on matters of European Community law. All appeals to the House of Lords are about the meaning of the law, rather than the evidence in a case. The Appellate Committee of the House of Lords receives appeals from the courts in England and Wales and Northern Ireland, and in civil cases from Scotland; in addition, they sit as the Judicial Committee of the Privy Council to hear appeals from those Commonwealth countries whose legal systems are still linked to the UK.

I found helpful the following chart of the English courts:

As if all this weren't enough, the English system recently enacted the Constitutional Reform Act, which shifted things a bit, and established a Supreme Court for the United Kingdom. This court is still in the making, and will begin operation in October 2009.

* Scotland and Northern Ireland have their own legal systems.
** My social science friends will forgive me for writing that I had language, but no verstehen. Everybody else will pick on me for shoehorning German into my blog.

*** The Privy Council sounded particularly odd, because among my imaginings of British people is this idea that they have several, and to American ears, unusual words to refer to the bathroom, including the word "privy." But of course then it is being used as a noun, not an adjective, and that makes all the difference.
**** Had I not moved to Virginia, and stayed in New York State (which has its own eccentric rules of civil procedure), I might not have recognized the word "chancery," and rather might have mistaken it for a word to describe the dynamic an attractive single woman experiences when she finds herself seated in a busy bar on her own. However, as a result of my education in Virginia Civil Procedure, which retains the distinction between remedies at law and in equity, I understand chancery to be related to equity jurisdiction (the court's power to grant relief other than money).

*****My comically narrow legal interests are in peat mining and mishaps arising out of extreme ironing feats.

Becoming a Barrister

The long road from law student to barrister

One requirement of the Pegasus scholarship is that its recipients must submit a report to the Board of the American Inns of Court following their return to the United States. Until recently, several of these reports were available through the American Inns of Court website, and I was able to print-out and review them. Additionally, one of the 1997 scholars published her report.*

Most reports begin by explaining that the English legal profession is divided between solicitors and barristers. Solicitors provide legal advice to members of the public, whereas barristers are specialists in courtroom advocacy. Barristers wear the traditional robes and wigs that Americans think of when imagining English lawyers. The Pegasus program focuses on barristers, although scholars receive some exposure to the work of solicitors by observing solicitors' conferences with barristers.

The reports do not discuss in detail the educational and vocational path that is required to become a barrister. What follows is what I have learned about the extensive preparation and training required to be "called to the bar" as an English barrister.

Because the terminology can be confusing, I note here that barristers work out of "chambers," and groups of barristers with a common specialty practice are called a "set." Chambers are led by experienced barristers, and often have a common clerk who, among other things, distributes work among members (who are also called "tenants").

The path to becoming a barrister

Most people wishing to become a barrister begin with a university degree in law, or a first degree.** This foundational degree takes three years and results in a bachelor of arts.*** This degree completes the academic phase of English legal education, although certainly some barristers may complete advanced degrees.

The next phase is called the vocational phase. This phase involves an application to work alongside a barrister as a pupil for up to a year (a pupillage), and completion of a one-year specialized course (the Bar Vocational Course). It culminates in the honor of being called to the bar of one of the four English Inns of Court: Lincoln's Inn, Inner Temple, Middle Temple, and Gray's Inn. (I note here that the Pegasus scholarship is associated with the Inner Temple, whose crest features a Pegasus).

While in university, many students opt to undertake one or two "mini-pupillages" in barristers' chambers. During a mini-pupillage, which generally lasts a week, the student may observe a barrister's courtroom proceedings, attend the barrister's conferences with solicitors, discuss cases, and complete written assignments. Students use these mini-pupillages to determine whether they like the work, and to establish a professional relationship with an experienced barrister.

After completing the law degree, aspiring barristers apply for a limited number of pupillages with barristers' chambers, and membership in one of the four Inns. Before commencing the pupillage, however, students must complete the Bar Vocational Course, which takes one year. This course emphasizes practical skills and professionalism, and classes often incorporate role-playing exercises. The course also tests students' knowledge regarding civil and criminal litigation, evidence, sentencing and two other areas of law (out of a choice of six).

Having completed the Bar Vocational Course, a student transitions into the pupillage (or apprenticeship), which is split into six-month periods or "sixes." During the first six, the student observes and assists a barrister in chambers, who is called his pupilmaster or pupilmistress. If the student finishes his first six successfully, he receives a certificate enabling him to take on work of his own within the barristers' chambers during the second six.**** Pupils are also required to attend compulsory courses in advocacy and practice management, and must attend a number of formal dinners at his Inn.

At the end of the second six, a pupil hopes to be offered a tenancy in chambers. Students not offered tenancies may opt for a "third six," after which they again hope for a tenancy. Barristers also work for the Government Legal Service, Crown Prosecution Service, the Association of Magistrates' Courts, the armed forces, and in other public service positions.

Reflections on the education of barristers

I was happy to read that English barristers commonly have junior "shadows" that are expected only to watch and learn because that will be my role when I arrive in chambers. The pupillage requirement also added to my understanding of one vignette from a previous Pegasus scholar. On the day she arrived in chambers, the barrister that she was assigned to cleared off the end of his desk for her to use, and comfortably conducted his professional and personal affairs in her presence. The scholar was taken aback by this behavior, not only because she was accustomed to the privacy of her own office, but also because it would not be expected from an American litigator of comparable experience. Now that I understand that the English system requires the pairing of junior and senior practioners in close quarters, the story makes more sense.

Other scholars also commented that they sensed that barristers' extensive apprenticeship periods fostered greater professionalism. I would have to agree that, even merely understanding pupillages as an institution from this side of the Atlantic, the focus on practical skills training (forcing students to address situations and determine what is the proper behavior in a variety of situations) is bound to instill a deep committment to professionalism.

I also think that it is relevant that English barristers are chosen essentially as if they are joining a social organization or mixed-sex fraternity (at least one scholar mentioned that Inns conduct "rush" to attract law students). Overall, the institutional structures that vet law students seem to directly scrutinize how the student behaves as an advocate, negotiator, and colleague. The system also continues to monitor a barrister's behavior, through Inn membership, and the practice of dining among members of the Inn.

Put simply, it seems to me that in the English system, if you behave like an inconsiderate, unprofessional litigator, you will have no chance of obtaining a very competitive pupillage. And, should you turn into such a litigator after you win a tenancy, you will find yourself friendless at dinner.

Although the American system of legal education does not place as much value on the development of new lawyers' interpersonal skills, it has been my experience that lawyers with these skills are nevertheless valued in the profession. In other words, while I do not think that American legal education nurtures professionalism or good lawyering in any deep sense, if a student comes to the profession with an ability to navigate social situations without compromising his ethics or integrity, that skill will help establish the junior lawyer's reputation as a good lawyer among lawyers.

I am interested to know what barristers consider to be the disadvantages of their system of legal education. I would imagine that a logical downside of a socially focused group is that it would supress individuality among barristers. Additionally, the pupillage system apparently presents a significant financial burden for a junior barrister, and the expense may limit the number and type of candidates seeking the join the bar.

* Allison L. Alford, O Yea! O Yea! An Alabama Lawyer Goes to London, 59 Ala. Law. 383 (1998).
** A law degree is not necessary, however. Aspiring barristers with a university degree in another subject may also take a one-year "conversion course." For more information, I recommend this website.
*** Students select a law specialization (what we would think of as their major field of study) at the start of their second year of university.
**** I employ the male pronoun merely because the English language does not offer an elegant and inclusive alternative pronoun.