I will depart from my usual law and motion fare to offer a brief comparative analysis of the English Legal System. This summer, along with Judges Henke and Sheppard of the Sacramento Superior Court, and twenty or so judges from other counties, I had the pleasure of attending the California Judges Association's Oxford Program. The attendees were temporary residents and students at Merton College (founded c. 1350), part of Oxford University. We were treated to a series of lectures by professors, barristers and judges concerning English law, as well as taken on field trips to many law related sites.

In order to place everything in context, I must begin with a brief outline of the English legal system, which encompasses England and Wales. Since the term “Great Britain” refers to England, Scotland, and Wales, the term “British legal system” is technically incorrect since that system does not embrace Scotland. Scotland has its own courts and legal system. Scottish law has its roots in the codes of Justinian and is not based on English common law. The term “English legal system” is also technically incorrect since it includes Wales as well as England. Despite these technicalities, I will use both terms. The reader will understand that whenever I use these terms, I am referring to the legal system of England and Wales.

The English Court system, like ours, consists of trial courts, courts of appeal, and a supreme court. There are three sometime overlapping levels of trial court in England: Magistrate's Court, County Court (civil) and Crown Court (criminal), and High Court. The Magistrate's Court hears traffic and minor criminal matters. The judges are not required to be lawyers, but generally sit in a panel of three where at least one will be a lawyer. A County Court hears most of the civil litigation and the Crown Court conducts criminal trials and hears appeals from Magistrate's Courts. High Courts have four divisions: Division Courts, Chancery Division, Family Division, and Queens Bench Division. The Division Courts have limited appellate jurisdiction over Magistrate, County, and Crown Courts. The Chancery Division hears matters involving equity, trusts, complex probate matters, bankruptcy, and tax issues. The Family Division is self-explanatory. The Queen's Bench hears admiralty and commercial matters, as well as civil matters that exceed the jurisdiction of the County Court.

The Court of Appeal has a criminal division that hears appeals from a Crown Court in felony cases and a civil division that hears civil appeals from the High Court and County Court. The Court of Appeal, like our Third District, is made up of a number of judges, who sit in panels of three. On the civil side, unlike our system, appellate justices are assigned to a panel on the basis of their subject matter expertise with respect to the pending case. For example, the Appellate Justice that spoke to our group had been a specialist in family law as a barrister. Insofar as feasible, he would be assigned to hear all family law matters that appear on the appellate docket.

The English Supreme Court is currently the House of Lords where Law Lords (members of the House of Lords who have had legal training and who have practiced law), along with the Lord Chancellor as chief justice, sit as the highest appellate court. Parliament has recently enacted laws to abolish the office of Lord Chancellor and has transferred the responsibility for being the highest appellate court from the House of Lords to a newly established Supreme Court.

Prior to the enactment of the recent legislation, the office of Lord Chancellor exercised legislative (a voting member of the House of Lords, Britain's upper house), executive (appoints judges and Queen's counsel), and judicial (equivalent to Chief Justice) powers. With the abolishment of the position, these functions will be transferred to three different persons or committees.

As most people know, Britain has a divided bar, with solicitors doing transactional and legal counseling work and barristers handling most litigation. The division is not quite so simple any more. Due to recent changes in the legal system, solicitors are permitted to appear in the trial courts on behalf of their clients. Solicitors handle routine family law matters and minor criminal offenses.

A client who needs legal representation will first retain a solicitor. In criminal cases and in some civil cases, a litigant who qualifies will be given funds through a legal aid program to hire his or her solicitor. There are no appointed counsel in criminal matters; the accused makes his or her own choice of solicitor. Should the matter result in litigation requiring the employment of a barrister, the solicitor will make the decision on whom to retain.

While solicitors are authorized to form partnerships, barristers are not. Each barrister operates as a sole practitioner, although for convenience and to share overhead expenses, barristers are permitted to share “chambers” with other barristers. Each set of chambers consists of the barristers, the support staff, and a clerk. The clerk is the most important, and usually is the best compensated, person in the chambers, receiving 5 to 10% of all fees paid to the barristers in those chambers.

When a solicitor seeks to hire a barrister, he or she will contact the clerk of the chambers where the desired barrister has his or her offices. The clerk will determine the availability of the barrister, negotiate the fee, and collect the fee when earned. If the barrister sought is not available, the clerk will try to match the case with another barrister in those chambers of equivalent experience and skill. The clerk will then negotiate the fee and collect it when due for the second barrister.

A barrister does not directly negotiate, charge, or collect fees, a tradition that goes back to the wearing of a fee bag. A small cloth bag used to be attached to the back of the barrister's robe into which the solicitor would place the fee while the barrister was not looking. Although English judges did not receive payments by this method, today many American judicial robes have a loop in the back, symbolizing where the fee bag once was attached.

Barristers may specialize in different fields of law such as employment law, crimes, personal injury law, libel law, and intellectual property. They do not specialize in representing a particular side of the dispute; hence there are neither plaintiffs' lawyers nor defense lawyers, as we understand those terms. A barrister who specializes in personal injury law may represent an injured plaintiff in one case and when that trial is completed, represent a defendant sued for personal injuries in the next case. By tradition, barristers rarely turn down a case that is presented to them, assuming that their calendar permits and no conflict of interest exists.

Either at the time of retention or shortly thereafter, the solicitor will present the case file that he or she prepared to the barrister. The file consists of virtually all of the information needed to try the case and is presented in a logical form that can be used as the barrister's trial book.

A summary of the facts is set forth accompanied by supporting documents, including witness statements, business records and other documentary evidence, an investigator's notes and report, and similar material needed to try the case. The file is prepared in such a fashion that if need be, it could be delivered to the barrister the day before the trial, as sometimes happens. As litigators know, the length of a trial is often hard to predict. A clerk may have accepted a case for barrister number one in the expectation that the trial he or she has scheduled will conclude before the new case commences. If the trial goes longer than anticipated, the clerk will find another barrister in the chambers who is available and, in essence, assign him or her to the case. The second barrister will obtain the file, stay up late that night familiarizing him or herself with the matter, and appear in court the next morning ready to go.

The obvious question that arises, at least in the American lawyer's mind, is when does the barrister interview the witnesses? The answer is that he doesn't; that work has already been done by the solicitor. The American lawyer will always want to meet and personally talk to the witness before putting him or her on the stand to testify. While not prohibited by any law or rule, a barrister may choose not to speak to a witness before that witness takes the stand. The theory is that to talk to the witness before hand there may be construed as coaching the witness, which a barrister simply does not do. In an American setting it is probably malpractice per se if the trial lawyer puts a witness on the stand without talking to him or her, while the British barrister would hardly have a second thought about it.

This has been the first of two installments. The next installment will be published in the January/February 2007 issue of Sacramento Lawyer.

November/December 2006