Sunday, March 25, 2007

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!



Tuesday, March 20, 2007

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.

Thursday, March 15, 2007

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."

Tuesday, March 13, 2007

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.

Sunday, March 11, 2007

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.'