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.