Michael B. Lopez

PEGASUS TRUST SCHOLAR REPORT

THE ENGLISH SYSTEM AND ITS EFFECT ON AMERICAN LAW

To say that the English system of law and procedure has affected law in the United States would be a tremendous understatement.1 To be sure, there are significant differences between the laws of England

1I am deeply grateful for the opportunities, indeed life-changing opportunities and experiences that I was afforded as a Pegasus Trust Scholar. To that end I wish to thank the Selection Committee of the American Inns of Court, and the American Inns of Court for their generosity in affording this opportunity for two American lawyers to spend a month and a half in London, and to Cindy Dennis, coordinator extraordinaire.

Similarly, I thank Eammon O’Reilly, Cindy’s counterpart in London at Inner Temple Inn of Court for ensuring a rich array of opportunities, from placements with Chambers, to visits with judges. Edward Henry, outstanding lawyer, thinker, and doer, at QEB Hollis Whiteman deserves a singular gratias tibi for making my placement at that Chambers a deeply influential and memorable one. My colleagues Emma Hilliard, Josephine Higgs, Marcus Mander, Sushma Ananda, and John Bignall, at 7 King’s Bench Walk made sure that I never lacked an interesting assignment, and took time from their schedules to intellectually discourse and argue points of law. Calum Wilson showed especial kindness and generosity for making sure that I saw plenty of legal proceedings in Edinburgh, and ensured a great lunch with plenty of discussion of practice oriented issues and problems facing the Bars of England, and Scotland.

The spirit of generosity and hospitality evidenced by the aforementioned Barristers was mirrored by their judicial colleagues, and to that end I thank Lord Justice Moore-Bick, of the Court of Appeal of England and Wales for a thoughtful and inspirational discussion of the demands of judicial temperament and the importance of listening, Lord Justice Malachy Higgins of the Northern Ireland Court of Appeal for a memorable conversation over lunch in chambers, Judge David McFarland for an inspiring and witty discussion of British law, Lord Justice Anthony Hughes of the Supreme Court of the United Kingdom for the opportunity to debate due process over tea and cookies in chambers, and Andrew Wide, Q.C., of the Old Bailey, for a wide-ranging discussion in chambers from law to theology to literature.

However, this remarkable opportunity would not have been possible without the support of dear friends and mentors, and to that end I wish to thank the individuals that made my application for this remarkable opportunity possible, Robert Epstein, Michael McGinniss, Herbert Rowland, Jr., and Larry Woiwode—thank you.

And to Ryan Yates, fellow scholar, future British lawyer, member of Inner Temple Inn, and friend, and Ryan Cicoski, who began as a co-Scholar, and ended as a dear friend—thank you for the cheerful companionship throughout our scholastic endeavors.

Certainly the American Constitution itself is, to some extent, a response to British treatment of the American colonies and their residents. See also, Charles E. Clark,

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and the United States, and the organizational structure of the system of law is, in some ways, radically different. However, opportunities for working with British Barristers, meeting with judges, and observing legal proceedings in various courts in England, Scotland, and Northern Ireland afforded as a Pegasus Trust Scholar illuminated both the differences and similarities between the two systems, and demonstrated the strong ties that continue to exist between our common law traditions.

An effort to catalogue the myriad experiences that the Pegasus Trust Scholarship afforded would be impossible—there were simply too many—and so instead this report will highlight some of the major revelatory experiences that I had while a Scholar.

A. Cumberland Lodge, and the Art of British Legal Education

Early in the Pegasus Trust Scholarship I had the opportunity to go to Cumberland Lodge, a beautiful old lodge (once used by Cromwell) that sits on the vast Royal Windsor Estate (home to Windsor Castle). The purpose for this visit was a weekend-long stay where law students from the four Inns of Court (Gray’s Inn, Middle Temple Inn, Inner Temple Inn, and Lincoln’s Inn), senior barristers (these lawyers enjoy the prestigious title of “Queen’s Counsel”),2 and judges, met to teach and learn trial advocacy. Unlike the usual American experience of a three-year period of legal education leading to a law degree, the majority of British law students that I encountered either studied law as an undergraduate, or were engaged in a one year course of study in law, supplemented by required courses, lectures, and dinners (involving lectures) that take place at one of the four Inns of Court. Membership in the Inns of Court for barristers3 is obligatory, and the Inns have the sole right to call students to become members of the Bar.

History, Systems and Functions of Pleading, 11 VA. L. REV. 517 (1925).2 Queen’s Counsel is a prestigious honor intended to convey high distinction and achievement by barristers in the areas of advocacy in the courts. It is by application only, and the act of being awarded the title of Q.C. is called “taking silk.” Moreover, Q.C.’s are entitled to wear special robes when appearing in court, sit closest to the bench, and typically supervise junior and junior-senior barristers. For general information, see, http://www.qcappointments.org/3 England, Wales, Scotland, and Northern Ireland employ what is called a “split profession.” Thus, in these jurisdictions you have lawyers who are either solicitors or barristers. Traditionally, only barristers have the right to appear in court and argue and present cases on behalf of clients. Additionally, the four Inns of Court do not call solicitors to the Bar; the Inns, instead, are the exclusive call for barristers. As a Pegasus Trust Scholar I worked exclusively in Barristers’ Chambers, QEB Hollis Whiteman, and 7 King’s Bench Walk, respectively.

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From the beginning of my experience at Cumberland Lodge I was singularly impressed by the collegiality and community that the teaching experience created. Students, distinguished lawyers and judges, lived at Cumberland Lodge together over the weekend, ate meals together, and gathered for discussion over coffee, tea, and in the evenings over a glass of wine to discuss trial advocacy, real life experiences, answer burning questions students had, and to share jokes and anecdotes about a variety of subjects. An impromptu comedy/performance session was put together by a Queen’s Counsel on the last evening of the weekend, which involved bringing together the many talents (musical, singing, poetic recitation, etc.) of the attendees. The emphasis, however, of the weekend training course was on trial advocacy, and mornings were spent attending lectures by lawyers and judges, and in the afternoon students would be furiously scribbling in alcoves, or a side-room, preparing their written pleadings before delivering their argument in a mock exercise similar to moot court.

What was, and remains striking, was the emphasis on community that is apparent in much of British barristers’ legal training.4 The act of taking meals together, often formally, of mixing—as much as possible—lawyers, and judges, with law students at the various tables, and the informal after-class gatherings, is a tremendous educational tool, and is one that recognizes that true legal education must prepare students to become members of a profession. Too often our U.S. legal institutions focus on educating students to “think like a lawyer,” but fail to equally acknowledge the necessity of preparing students to become members of a profession that can only succeed as a community of professionals. In this sense, the weekend educational training course was a remarkable insight into how British legal education prepares future barristers for their chosen profession.

Equally impressive (and this was true throughout the duration of the Scholarship), is the tremendous generosity present in the British legal profession. While at Cumberland Lodge the lawyers, judges, and law students, interacted with myself, and Ryan Cicoski, fellow Pegasus Scholar, and our comments were sought out during the various in-class exercises; indeed, biographies of both myself, and Ryan were generously included in the teaching materials for the seminar. The tremendous enthusiasm our British counterparts have for understanding American law and practice is remarkable, and their

4 One excellent feature of the weekend training session was that every participant was bound by the Chatham House Rule which allowed for rigorous debate, and a free exploration of ideas and perspectives. See, http://www.chathamhouse.org/about-us/chathamhouserule

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inclusion of alternative viewpoints exemplifies a charity that is also present in other areas of the British legal system.

Cumberland Lodge also presented opportunities for differences of opinion. The theme of the weekend training seminar was “Gang Violence,” and because the focus inherently involved criminal law and matters of social policy, the subject matter provided ample opportunities to intellectually spar and debate important issues of criminal law and procedure. Among the areas of difference discussed are two crucial aspects of criminal procedure in American law: the constitutional right to confrontation, and the bar on prosecutorial comment on an accused’s right of silence during a police interview.5

In British courts it is possible for a witness to testify from behind a curtain—indeed to go so far as to even disguise their voice. Moreover, prosecutors can, and do, comment on the fact than an accused invoked their right to silence during a police interview, even under the advice of the defendant’s solicitor.6 The differences between British and American law concerning these American constitutionally guaranteed rights provided numerous opportunities for discussion, including the fact that England does not have a constitution comparable to the United States, which led led to an enlarged discussion of criminal law, which included one Queen’s Counsel explaining that in England conspiracy does not require an overt act. It also included spirited debates about the right to confrontation, and the fact that the Framers of the U.S. Constitution enacted many of the Constitution’s restraints on government action because of the treatment experienced by the colonists under British rule.

Indeed, the famous case of Sir Walter Raleigh provided much fodder for Justice Antonin Scalia’s opinion for the Court in Crawford v. Washington, regarding the Sixth Amendment’s guarantee to the right of confrontation for testimonial statements:

The most notorious instances of civil-law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh’s

5 See, e.g., Crawford v. Washington, 541 U.S. 36 (2004) (right to confrontation); Miranda v. Arizona, 384 U.S. 436 (1966) (right against self-incrimination); Doyle v. Ohio, 426 U.S. 610 (1976) (silence in response to Miranda warning cannot be implied as admission); but see Berghuis v. Thompkins, 560 U.S. 370 (2010) (suspect must invoke right to remain silent). 6 See, e.g., The Criminal Justice and Public Order Act 1994, §§ 34-37, https://www.cps.gov.uk/legal/a_to_c/adverse_inferences/

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alleged accomplice, had implicated him in an examination before the Privy Council and in a letter. At Raleigh’s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: ‘Cobham is absolutely in the King’s mercy; to excuse me cannot avail him; by accusing me he may hope for favour.’ Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that ‘[t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . . . .’ The judges refused…and, despite Raleigh’s protestations that he was being tried ‘by the Spanish Inquisition,’…the jury convicted, and Raleigh was sentenced to death.7

Despite the pleas of Sir Walter Raleigh there is still no right to confrontation in England. These differences between American and British legal perspective led to an interesting divergence in legal thought during one of the key academic exercises of the weekend, which was a mock trial regarding gang conspiracy, argued by two distinguished lawyers, and presided over by an actual judge, and based upon a real case. The basic facts involved an alleged member of a gang who may or may not have been present during an attack on an individual in a park by gang members. At the original trial the jury was hung as to whether this member of the gang had been part of a conspiracy to commit murder. The Crown subsequently retried the case, and in the actual case won a guilty verdict. At the mock trial this same case was litigated to the crowd of British law students, lawyers, and judges, and the two American Pegasus Scholars. At the close of the case the Judge asked if anyone believed the accused to be innocent—and, both Pegasus Scholars voted for acquittal. The Judge generously inquired into the reasoning that led to a vote for acquittal, and the explanation hinged on the differences between British and American law for proving a particular mental state required to convict for the alleged underlying criminal offense.

B. The Shared Space: Tradition, History, and Collegiality

The four Inns of Court are a special, indeed, remarkable set of institutions, dating back centuries. And this specialness translates into a transformative experience when you walk past the walls that guard their physical space (and which must be locked once a year to maintain the Inns’ independence from local government). Walking off of one of London’s busy thoroughfares, the moment you pass into the

7 Crawford v. Washington, 541 U.S. 36, 44 (2004) (internal citations omitted).

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Inns you feel a quietude envelop you, and the physical and spiritual presence of history surround you. You see barristers walking with colleagues, clerks hustling with large ‘bundles’ (legal pleadings and evidence), and the occasional tourist taking in this other-world environment. Gray’s Inn has spectacular lawns, Inner has the Pegasus symbol prominently displayed—the medieval symbol of wisdom—and shares an ancient church with Middle Temple, from which organ music could sometimes be heard, a preparation for the free performance given on Wednesdays. At Middle Temple you can dine or attend a lecture in the Hall, a place indelibly united with history and literature as the site of Shakespeare’s debut performance in 1602 of Twelfth Night. And in the splendid peace of Lincoln’s Inn you can visit the old Court of Chancery, which so influenced western literature in the form of Dickens’ Bleak House.

(Inner Temple, source: http://en.wikipedia.org/wiki/File:Grand_Inner_Temple.jpg)

But what makes the Inns of Court especially important, in addition to their substantial and lengthy history, is the fact that many Barristers’ Chambers are located within the Inns themselves. (In the photo above one can see Hare Court, home to Barristers’ Chambers, and

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part of Inner Temple Inn of Court.) What this means, practically, is that many of London’s barristers work within close proximity to one another, increasing the reality of a community of practicing lawyers.

When I began my placement at 7 King’s Bench Walk, located in Inner Temple Inn of Court (an Inn which counts Sir Edward Coke among its historical membership), I developed a deep appreciation for this shared community, working in a series of buildings that included ones from the 1600s.8 In these shared spaces lawyers work independently, and yet together. While each lawyer is “independent” they nevertheless come together in “chambers” to share expenses, and the various costs of overhead associated with a law practice. However, while each lawyer is independent, depending on which chamber—called “set”—a lawyer practices from can convey a sense of prestige. Thus, while lawyers are independent they are nevertheless, to an extent, reliant on the perception of their set, which influences, among other things, whether solicitors will refer cases to a particular barrister for representation in court. In many regards then chambers operate similarly to U.S. law firms, and in fact, many of the same issues that American lawyers face are faced by their British counterparts, including, perhaps most importantly, whether a junior lawyer will be able to have a successful practice.9

But the pinnacle of this sense of legal community was reached in Edinburgh, Scotland, and Belfast, Northern Ireland. In these jurisdictions, all barristers work out of a single building. The image of lawyers in Belfast at long tables working next to one another, bundles of files everywhere, gives the impression of one seamless legal entity—a multitude of lawyers working on innumerable matters, but united figuratively and literally in a single place, a source unto itself of law. Unlike the American tradition of different law firms, offices, and spaces, these jurisdictions are intimately connected in a single, shared space, in close proximity to the courts, and usually close to the administrative and legislative functions of government, which as I was told by lawyers in these jurisdictions fosters community, including dining together, going to lectures as a group, and simply knowing one another.

8 See, http://www.innertemplelibrary.org.uk/temple-history/present-buildings/inner-temple-history-the-buildings-kings-bench-walk.htm9 Pupillages, which may or may not lead to a tenancy with a particular set of chambers is competitive. See, e.g., http://www.oknd.uscourts.gov/docs/b7760e19-bd5b-4c61-aa36-6be8fb6b83e7/English_Inns_of_Court.pdf (pages 3-4 discussing legal education and the competitiveness of obtaining a tenancy).

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FAIRNESS, JUSTICE, AND BRITAIN’S GUARANTEE OF REPRESENTATION

One area of the British legal system that seriously warrants American attention, and arguably adoption, is its approach to legal representation. While many lawyers celebrated the recent 50th anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, which established the right of indigent defendants to have government funded legal representation in certain felony matters (later expanded to cover most criminal law matters), the reality is that the promise of Gideon remains elusive throughout our system. Public defenders are routinely overwhelmed, and in some cases have refused to represent clients given their already burdened caseloads, which raises serious Constitutional concerns about our country’s promise of the right to representation for all, irrespective of ability to pay, as embodied in our Nation’s Constitution.10

Putting aside the current problems confronting our own system, however, the British system arguably offers a more humane, just, and fair system for accused individuals, and is one that jurisdictions in America should certainly consider adopting.

A. The Right to Representation and State Funding

Similar to the United States, an accused individual in Britain has the right to representation, and the right to state funded representation if the individual is indigent. However, what is most incredible about Britain’s system is its concern for fairness and justice, in that even those with financial means are entitled to state funded representation. Thus, both the rich and poor alike have the right to have the state fund their legal representation, with the caveat that the more financial means at your disposal the greater your contribution to your own representation. This essentially means that everyone will be able to have representation, whether they can pay or not, and more importantly that wealthier defendants will bear a greater burden of their own legal costs, if they are able to pay for them. Finally, all barristers who practice in criminal law and who take on legal aid cases are paid a specific amount of money, depending on the complexity of the case.

10 See, e.g., Albert Utton, The British Legal Aid System, 76 YALE L.J. 371 (1966); Erik Eckholm, Public Defenders, Bolstered by a Work Analysis and Rulings, Push Back Against a Tide of Cases, THE NEW YORK TIMES (Feb. 18, 2014), available at http://www.nytimes.com/2014/02/19/us/public-defenders-turn-to-lawmakers-to-try-to-ease-caseloads.html?_r=0; http://www.abajournal.com/magazine/article/miami-dades_overburdened_pds_office_may_decline_new_clients_florida_court_s/

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Another incredible feature about the British legal system is that in criminal matters the accused has the right to choose who will represent them, and that barrister cannot refuse to represent them unless they would have a professional or scheduling conflict.11 Thus, a poor defendant could select the most celebrated Queen’s Counsel to defend him, and under British law he would be entitled to do so. The reality of this feature of Britain’s criminal justice system was made apparent to me in Northern Ireland, where I had the opportunity to view part of a criminal trial. The accused was a regular person of no apparent significant financial means, yet he was defended by an obviously talented, experienced, and courtroom seasoned Queen’s Counsel. I later learned from the judge in the case that the accused had been acquitted of the criminal offense charged. In our country there is, in my view, no way, absent some incredible circumstances, where a hugely successful partner at a criminal law firm would take on the case of such a poor, petty criminal, especially if the only fee they would receive would be the one paid by Britain’s legal aid.

There is one more innovative feature of Britain’s criminal law system that deserves mention: it used to be that if an accused is acquitted of the offense charged then reasonably expended funds that the accused incurred in defending against the charge are repaid by the Government.12 This tremendous feature arguably deters bad prosecutions, and most importantly signifies a respect for individual rights and liberties by recognizing that an innocent person should not be forced to pay to defend against an unjust prosecution. Contrast that with our American form of criminal defense where the innocent person acquitted at trial is faced with crippling debt, especially if the accused is from the middle-class.

The combination of these factors—state funded representation for all, in spite of the ability to pay, the right to select your legal counsel and have that counsel bound by your choice of representation, and the reimbursement of certain legal costs in the event of an acquittal, are hallmarks of a system of justice that demonstrates a commitment to justice, equity, and fairness, and should be ones that our own system should strive to adopt.

B. The Threats to Legal Aid, the Independent Bar, and the Changing Dynamics of Practice in Britain

11 Earl A. Cherniak, Q.C. and Shelby Z.C. Austin, Standing for Justice: The Lawyer’s Role in the Client Selection Process, http://www.lsuc.on.ca/media/seventh_colloquium_cherniak.pdf12 It should be noted that in 2012 the Legal Aid, Sentencing and Punishment of Offenders Act went into force, which has severely curtailed—if not outright eliminated—the right of acquitted individuals to recover their defense costs.

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As discussed, supra, some of the remarkable features of Britain’s approach to criminal law are also mirrored in the right to representation in civil and family law matters. However, one of the major subjects of discussion in various legal circles were the unprecedented cuts to the fees paid to barristers for performing criminal defense and family law work, which were then either being proposed or implemented by the Ministry of Justice.13 Most severe were the cuts to both solicitors and barristers of the criminal bar, and as a result, during the tenure of the scholarship I had the unprecedented opportunity to be witness to historic action by the criminal bar, which staged a series of strikes and demonstrations over the proposed cuts—the first time since the 15th century that criminal law lawyers refused en masse to perform their legal duties.14

(Source: http://rt.com/news/u-barristers-first-strike-cuts-236/)

In Britain barristers are self-employed. In theory they do not take marching orders from any senior partner or government overseer, and 13 Hugh Muir, The Legal Aid Cuts Have Descended into Farce, Chaos, and Confusion, THE GUARDIAN (May 2, 2014), available at http://www.theguardian.com/commentisfree/2014/may/02/legal-aid-cuts-farce-chaos-confusion-broken-judicial-system14 First Criminal Barrister Strike in History of England Over Legal Aid Cuts, RT (Jan. 6, 2014), available at http://rt.com/news/uk-barristers-first-strike-cuts-236/; James Cusick, Don’t Call it a ‘strike’: Barristers withdraw labour and courts including Old Bailey fall silent for the first time in centuries over legal aid cuts, THE INDEPENDENT (Jan. 6, 2014), available at http://www.independent.co.uk/news/uk/home-news/courts-hit-as-lawyers-stage-unprecedented-national-walkout-over-legal-aid-cuts-9040222.html

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instead exercise their own independent judgment in performing their legal duties. This is also, amazingly, the same for lawyers retained by the Government to advocate on behalf of the Government. Thus, while I was at QEB Hollis Whiteman, it was not uncommon to talk to lawyers who were representing a criminal defendant, and in that same conversation to talk about that lawyer prosecuting a different defendant as a lawyer for the Government. This is in stark contrast to our own system where the prospect of a public defender also prosecuting cases on behalf of the Government, or a public prosecutor taking up the cause of defending the accused, would be viewed with considerable surprise. Initially, as an American trained lawyer, I had some bias against the British approach, but I was gradually won over. I came to see how keeping an open mind, seeing both sides of the issue, and having the opportunity to advocate either position, as warranted by the facts, is crucial to retaining a lawyer’s independent judgment, not only with respect to individual cases, but equally to maintaining a sense of independent judgment about the totality of the American legal system and the policies underlying it.

Too often, I fear, in our own system this independent judgment becomes subsumed under the banner of the side we represent, as opposed to principles that undergird our legal tradition. Indeed, as one lawyer posited to me, the British government has never particularly liked the independent bar, because a lawyer retained to represent the Government in a particular case can go on, nevertheless, to be a prickly thorn in the Government’s attempts to advance other causes in litigation—and this is so, because the barrister is independent. In short, as this barrister explained it to me, the independence of barristers is an important check on power in all its forms, and in ensuring the independence of legal representation in Britain.

Finally, there was significant concern among criminal law barristers that if the proposed legal aid cuts went through that its result would be the end of the independent bar. This is because no one would be able to afford to become a criminal law barrister. Indeed, a pupil—someone qualified as a barrister, but who is taken on in chambers for a probationary period to ascertain whether chambers wishes to offer that individual a ‘tenancy’—in a commercial chambers could make 40-60,000£; in contrast, a criminal law pupil might make about 12,000£ in that same year. Moreover, with an increasing number of law students in Britain graduating with some form of student debt, combined with severe cuts to legal aid, the likelihood that any but a handful of practitioners could make an adequate living from criminal law work looked, to most criminal law lawyers, especially bleak. Because of the harsh reality that these proposed cuts presented,

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lawyers were concerned that the Government’s efforts to destroy the independent bar would result in the creation of a public defender’s office, similar to what is utilized in most jurisdictions in the United States. This possibility was anathema to number of lawyers I spoke with, because barristers in England would cease to be ‘independent’ and instead become employees, something that many British lawyers felt to be intolerable to their profession’s history of independence from the Government, and independence from the traditional law firm setting.

This threat to legal aid is far from over. While the Minister of Justice proposed staying legal aid cuts to barristers, substantial cuts would still go into effect where criminal law solicitors are concerned. And whatever the outcome, there is this sense in legal circles that the practice of law where legal aid is concerned has fundamentally altered (indeed, these alternations have arguably become the norm since the Blair government began the first cuts to legal aid in 1997), and perhaps most worrisome is the persistent fear (shared by judges and barristers) that exceptionally qualified law students will be hesitant to enter the practice of criminal law.

A MORE GENTLE PROFESSION

A. Dickens and the Court: A Modern Perspective on British Practice

As an outsider with an unprecedented inside view, influenced by my own background in literature and Dickens’ representations of British law and the courtroom, it was with great excitement that I watched a number of arguments during my tenure as a Pegasus Scholar. From the Old Bailey, to Scotland’s Court of Appeal, to the Supreme Court of the United Kingdom, the Court of Appeal for England and Wales, and trial court in Belfast, Northern Ireland, I saw Dickens’ vision of British law recede into a more modern practice.

Perhaps the largest and most visible changes have been to the robes that judges wear. While judges in Scotland still wear elaborate wigs and robes of bright royal red, the justices of the Supreme Court of the United Kingdom wear, by choice, business attire. Judges in the Commercial Court similarly wear business attire, while justices of the Court of Appeal wear simple robes of black with two stripes running lengthwise from collar to the bottom of the robe. Barristers usually, though not always, wear black robes and wigs and sit at long tables in order of seniority—Queen’s Counsel sits closest to the bench, and junior attorneys behind the Q.C. “My Lord,” and “My Lady,” continues to be the way that barristers address the court, and to

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opposing counsel each barrister refers to them as “my learned friend.”

It might be tempting to critique these elements of British practice as still being reminiscent of Dickens’ views—tradition and hierarchy over justly dealing with the matter at hand. But such is not the case. There is a deep and abiding respect that is apparent between judges, and lawyers. In fact it was this professionalism and courtesy that so impressed Judge Wallace of the Ninth Circuit Court of Appeals, who in turn proposed the formation of the American Inns of Court to Chief Justice Warren Burger.15

Perhaps the symbolic embodiment of this professionalism and mutual respect is the relatively new Supreme Court of the United Kingdom, founded in 2009. Unlike many other judges in Britain, and unlike our judges in the United States, the justices of the Supreme Court of the United Kingdom are not elevated above the practitioners appearing before them. Instead they sit at the same level as the lawyers arguing the case to the Court.

While there must always be professional objectivity exercised by both judges and lawyers, the recognition as embodied in a level judiciary with the lawyers appearing before it echoes the foundational principles of our profession: that we are all equal to one another, part of a system that seeks through rationality, justice, equity, fairness, and logic to persuade, and that while there must be judges and lawyers we are nevertheless seeking the right outcome. More than anything this leveling between judges and lawyers maps a course for engagement and discourse about these foundational principles of law within our own profession, in what could be characterized, and indeed has been, a particularly partisan time in our nation’s dialogue.16

B. Listening and Patience: An Enduring British Lesson in Advocacy

Barristers are advocates. To that end the role of the written brief has, arguably, less importance than the skills of oral argument. Ironically, as I explained to our British counterparts, in many U.S. law schools

15 J. Clifford Wallace, Birth of the American Inns of Court, 25 BERKELEY J. INT’L LAW 109 (2007). 16 Sandra Day O’Connor and John Glenn, An Open Letter to American Citizens on Constitution Day, HUFFINGTON POST (Sep. 19, 2013), available at http://www.huffingtonpost.com/sandra-day-oconnor/constitution-day_b_3941693.html; Margaret Warner, David Souter Gets Rock Star Welcome, Offers Constitution Day Warning, PBS (Sep. 17, 2012), available at http://www.pbs.org/newshour/rundown/conversation-justice-david-souter/

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there is an emphasis on oral advocacy, and it is a skill highly prized. A colleague who took a case to the U.S. Supreme Court says he was flooded with offers by some of the top law firms in the country who wanted to assist, i.e. argue the case before the Court. And yet, it is questionable whether our system really does encourage oral advocacy. Too often I have found we are in a hurry—a hurry to hear the status of a case, a hurry to get through law and motion arguments, and certainly our modern Supreme Court is not known for being patient, or willing to indulge advocates’ arguments for any great length of time. In fact, I would say our system claims to place primacy on oral argument, but in fact largely relies on written submissions and the research of student law clerks (something most British judges neither have nor use).

What I discovered in my court visits and discussions with judges was that instead of our frenzied pace of litigation and oral arguments there exists a gentle desire to listen, with the intent of getting it right. In conversation I asked one of the most esteemed judges in England why the Court had allowed one advocate to argue her case for more than five hours. “We have to make sure we get it right, and that we understand what the case is really about.” The gentleness of this judge was underscored by an earlier case I sat through. That case involved a student who had overstayed a visa, and who had sought review of his case with the Home Secretary, and had had his request for relief denied. Based upon my conversation with the judge I thought that the request for relief from the Court would almost certainly be denied. To my surprise at the close of oral argument the judge granted the student’s request to challenge the Home Secretary’s review and denial of his application on procedural grounds. I asked the judge after the hearing why he had decided to grant the request. “Whenever you have a doubt about what might have happened below, you have to resolve that in favor of the individual petitioning for relief.” That the kindness, intelligence, thoughtfulness, a willingness to listen and reflect, and gentleness that this judge embodied should be a role model for every judge is, I think, apparent—to my surprise I discovered that many British judges exhibited these qualities.

It was routine for judges to permit lawyers to argue well beyond allotted times for oral argument, to file briefs in excess of those permitted by the rules, and to largely let the lawyer argue without being peppered by questions. (The closest comparison between this mentality and our own courts would certainly be Justice Clarence Thomas, who has said he believes that there is too much questioning during oral arguments—and that advocates deserve to argue their

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case.)17 This was not because the judges hadn’t read the papers (they had), or because there weren’t other matters on the docket (there were), instead this emphasis on generosity of time and thought was motivated by making sure the judge or judges got it right.18 Coming from one of the largest jurisdictions in the country, with millions of active matters in the courts, under strain from budgetary pressures, I think our courts try to make the time to hear matters out thoroughly. But something is still lost in our process. Something of that generosity of time and thought is lost in hurrying on to the next matter, in the practical constraints. And I think we should engage in active resistance against our desire to cut the matter short, cease oral argument, and take the matter as submitted in the papers. As one senior judge put it to me in England, “This is the advocate’s case, and it’s about somebody’s life. They deserve to argue that case.”

More than anything, it was this deference by judges and by lawyers to one another, to hear every matter out thoroughly, review every point made in detail, in an effort to understand the matter as thoroughly as possible that was, for me, a revelation. It struck me as the pinnacle of professionalism, and courtesy, and reminded me, as I suspect it did Chief Justice Burger when he saw British practitioners in action, that we achieve the highest in our profession when we exhibit charity, generosity, and listen with an open mind to what we say and advocate, so that in the end we preserve our system of justice, and as a singular British judge reminded me, “get it right.”

17 Thomas: My Colleagues Ask Too Many Questions, CBS (Apr. 6, 2012), available at http://www.cbsnews.com/news/thomas-my-colleagues-ask-too-many-questions/18 This same sentiment was expressed to me by members of the Supreme Court of the United Kingdom, where each side in oral argument is routinely granted considerably more time to make their case than in the U.S. Supreme Court. In the case I heard at the UK Supreme Court, each side was granted two hours to make their case, with an additional thirty minutes allotted to appellants for rebuttal, with occasional questioning and minimal interruption of the advocates by the UK Supreme Court.

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