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.