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.
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.
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