In civil matters in England, summary judgment motions are rare, as are discovery motions. Discovery motions are not necessary because an English barrister considers every other barrister to be honorable, ethical, and professional, and will turn over to the other side all documents that have any bearing on the case at hand. If it turns out at trial that a document has not been disclosed, the judge may exclude it from evidence.

In trial, both barristers and the judge will wear a robe and a wig. If a solicitor is appearing, he or she will wear suitable business attire, without a robe or wig. Once in trial, in both civil and criminal matters, a barrister rarely, if ever, objects to questions posed by the opposing barrister. The reason for this is the understanding that every barrister is well-trained, professional, and ethical and would never ask an improper question in judicial proceedings. American trial lawyers have a slightly different outlook.

In a criminal case, the accused has a right to a jury trial, but that principle just about ends the similarity with the American criminal justice system. First, jury selection takes minutes, there being no extensive voir dire. Second, no alternate jurors are selected. If jurors drop off, a jury of ten will be sufficient to reach a verdict. Third, a jury verdict need not be unanimous. A majority verdict of 102 is sufficient to convict. If the jury has been reduced to ten, a verdict of 9-1 is sufficient.

Perhaps one of the more pronounced differences in the two systems is that the English trial judge sums up both the evidence and the law for the jury. The judge will remind the jurors that it is their duty to determine the facts, and then will proceed to summarize the facts that the judge deems pertinent. Since a transcript will not be available to the judge at the time of summing up, he or she must rely on notes taken during the trial. A relatively simple summing up (as characterized by the judge who met with our group) takes about four hours. The barristers have a right to argue their case to the jury after the judge has finished summing up.

With a few exceptions (e.g. libel and slander cases), a civil litigant in England has no right to a jury trial. Thus, civil cases are presided over by a single judge sitting without a jury. At the conclusion, the judge issues a decision including the amount of damages awarded, if any. The decision may be announced from the bench as soon as the matter is concluded, or it may be taken under submission for a written or oral ruling at a later date. In civil litigation, the losing party pays the winning party's costs of suit and attorneys' fees. This principle weeds out doubtful cases from ever being filed, and certainly is a factor in convincing the parties to settle their dispute without going to trial. There is no contingent fee system, but the attorney and client may enter a "Conditional Fee Agreement." By entering such an agreement, the client agrees to pay a success fee of a specified amount up to 100% of the lawyer's costs (i.e., the lawyer's fee would be doubled). The lawyer may then obtain (and usually pay for) "after the event" insurance coverage against the risk of losing. Assuming that both the agreement and insurance were obtained, the result of the case would be as follows: If the insured party prevails, the losing party would have to pay for the costs of the litigation including attorney's fees, the success fee agreed upon, and the premium on the insurance policy. Ouch! If the insured party loses, the lawyer will receive nothing and the prevailing party's costs and fees will be paid by the insurance company. In either case the client of the insured attorney is not out of pocket.

The losing party from a High Court civil trial does not have an automatic right to appeal. That party must first obtain the certificate from the trial judge that the case presents an issue that should be presented to the Court of Appeal. If this is denied, the party may file a petition for writ in the Court of Appeal, similar to a writ of certiorari, requesting the Court of Appeal to decide on its own to permit the appeal. Assuming this hurdle is overcome by the appealing party, the next step is for the barristers on both sides to file their appellate briefs.

All cases on the appellate docket are set for oral argument. The Court takes no steps to discourage barristers from appearing and arguing their case. Immediately following oral argument, the appellate justices, while still on the bench and in the presence of the barristers, will usually orally render their decision after voting thereon. One justice will express his or her view with reasons for the decision, the next justice can agree or disagree, and can adopt the views expressed by the first justice or announce his or her own separate views. The third justice then weighs in, to break the tie, make it unanimous, or express a dissent. Taking cases under submission is the exception and not the rule. Appellate justices do not have research attorneys so their preference is to rule on the spot.

The Court of Appeal is the end of the line for most cases since the House of Lords, currently serving as the English Supreme Court, has discretionary jurisdiction and hears only around one hundred cases a year. In the next year or so, when the Supreme Court Building is complete, the legislation creating the Supreme Court as England's highest court will go into effect. At that time the judicial function of the House of Lords will cease.

In some cases in which the law of the European Community applies, such as multinational commercial transactions, an appeal may be taken to the Court of the European Union from the judgment of the Court of Appeal (or House of Lords/Supreme Court if the matter was heard at that level). English Judges must be cognizant of the law of the European Community and apply it in the proper case, including criminal cases, where the Protocol on Human Rights of the European Community may apply.

Although the American legal system was modeled on that of England, the legal systems of the two countries have grown apart in their practices and institutions. Now it appears that England is making changes based on the American model, such as the creation of an English Supreme Court apart from the House of Lords. Future changes are inevitable as England moves closer to its European neighbors.

This has been only a brief snapshot view of selected areas of the English legal system, and not a comprehensive analysis. For those readers who wish to delve further into the subject, the following references are offered: Michael Zander, Cases and Materials on the English Legal System, 9th ed. 2003, Cambridge University Press and Kate Malleson, The Legal System, 2nd ed. 2003.

January/February 2007