Trial by jury
In criminal proceedings, the notion of being tried by a jury of ‘one’s peers’ is frequently regarded as an article of faith in the common law system. And certain civil law jurisdictions also employ juries to determine the guilt or innocence of the accused. In France, for example, the judges sit together with the jury, who are also involved in determining the sentence to be imposed. Jurisdictions differ in respect of the availability of juries. Some restrict them to criminal, and not civil, trials (e.g., France); others prescribe juries for trials of serious crimes (e.g., Canada); while in some countries (e.g., England and Wales) they are used in criminal cases and limited to a few specific civil cases (e.g., defamation). Most conspicuous are the jury trials in the United States, where juries are available for both civil and criminal proceedings. More than 60% of jury trials are criminal trials, the rest are civil and other trials such as family court proceedings.
Among the much-vaunted virtues of the jury trial is the extent to which it operates as a curb on the power and influence of the judge. By involving (usually 12) ordinary citizens in the administration of justice, it is argued, the values of the community may be expressed. A group of randomly selected lay persons, it is claimed, is a more democratic arbiter of guilt than a judge, who is perceived, rightly or wrongly, as an agent of the government.
Critics of the jury, on the other hand, normally express unease about the fact that juries, unlike judges, are not required to give reasons for their decision, thereby opening the door to emotion and prejudice, especially when the race of the defendant may be a factor (as, for example, in the infamous Rodney King trial, which had disastrous consequences, see the box below). Doubt is also voiced in respect of the ability of the average juror to comprehend complex scientific or other technical evidence.
Complex commercial trials, for example, generate an enormous quantity of highly specialized information. This has led to controversial proposals in Britain and elsewhere to abolish juries in these trials.
Alternative dispute resolution
Dissatisfaction with court-centered resolution of disputes has long been sounded by critics who regard it as, amongst other things, unfair, unduly formal, and exclusive. In the United States, a movement championed alternative dispute resolution (ADR) ‘under an umbrella of humanism, communitarianism, and social welfare concerns … objected to the depersonalization, objectification, and distance they associated with courtroom formality and its dependency on legal professionals’. They advocated more user-friendly, less adversarial procedures. This resulted in legislation facilitating greater use of non-judicial arbitration, especially for the resolution of commercial disputes with an international dimension.
The parties submit their dispute to one or more arbitrators by whose decision (called an ‘award’) they agree to be bound. Among the perceived advantages of ADR are its speed, lower cost, flexibility, and the provision of specialist arbitrators in disputes of a highly technical nature. But delays are not infrequent, and the cost may be enhanced by the requirement that the parties pay for the arbitrators. In some jurisdictions enforcement of arbitral awards is problematic.
Race, Rodney King – and a prejudiced jury?
In 1991, in Los Angeles, several police cars chased Rodney G. King, a robbery parolee who was allegedly speeding. After a police chase during which he jumped a number of red lights, King was eventually forced to stop. Though the two passengers in the car complied with police requests to step out of the car and were subdued with negligible resistance, King apparently refused to comply with police instructions, and was physically assisted in doing so. He was struck up to 56 times by officers wielding metal batons, kicked at least six times, and shot with a Taser electronic stun gun. The beating was administered by three Los Angeles police officers, allegedly on the orders of a police sergeant. Twenty-three other law enforcement officers were also present and observed the assault, but apparently made no effort to stop it. A number of bystanders also witnessed the beating, one of whom videotaped the incident. King suffered extensive injuries, including skull fractures and nerve damage to part of his face.
The jury (consisting of ten whites, a Hispanic, and an Asian) acquitted the defendants. Within hours of the jury’s verdict, Los Angeles erupted in riots. When it was over, 54 people were dead, over 7,000 individuals had been arrested, and hundreds of millions of dollars’ worth of property had been destroyed.
Though some of the officers were subsequently convicted by a federal court on charges of violating King’s constitutional rights, and imprisoned, none of the prosecutions specifically alleged racial motivation. In fact, only at the federal trial did King, giving evidence for the first time, testify that he had been racially abused by the police officers, though he subsequently conceded that he was uncertain whether this was in fact the case.
Litigation: feisty Americans v sociable English
Although the United States seems more like England than like any other European country, the American national character is virtually the opposite of the English. Deference, fatalism, self-restraint, and non-aggressiveness are just about the last characteristics that one would ascribe to Americans. Litigation is a kind of fighting, and Americans are fighters; the modern English, outside of the soccer stadium, are not … National character may be effect rather than cause, and the character of the legal system may be merely another effect of the same cause, or, more realistically, the same complex of causes. The high degree of physical and social mobility in the United States, the immigrant origins of its population, its racial and ethnic heterogeneity, and the wealth and leisure of its population may be responsible for the feisty and individualistic character of the people and independently for a heavy demand for judicial processes of dispute resolution. A more static, uniform, close-knit society may simply have fewer disputes – because people understand each other better, or because the greater likelihood of continued relations or future encounters with each other puts a premium on avoiding conflict – or better informal methods
of resolving disputes …
Richard A. Posner, Law and Legal Theory in England and America (Clarendon Press, 1996), pp. 109–10
Lawyers are an indispensable - if unloved - feature of every developed legal system. They are vilified, mocked, and disparaged. The humour of a multitude of lawyer jokes springs from their assault on lawyers’ venality, dishonesty, and insensitivity. One jibe asks, ‘How can you tell when a lawyer is lying?’ The answer: ‘His lips are moving’. Another sardonically laments, ‘Isn’t it a shame how 99 per cent of lawyers give the whole profession a bad name?’
Mark Twain is reputed to have quipped, ‘It is interesting to note that criminals have multiplied of late, and lawyers have also; but I repeat myself.’
It seems futile to attempt to explain this antipathy which rests on a combination of legitimate discontent with and misunderstanding of the legal profession in most countries. It is certainly true that, along with estate agents, lawyers attract little affection. An independent bar is, however, a vital component of the rule of law; without accessible lawyers to provide citizens with competent representation, the ideals of the legal system ring hollow. And this is acknowledged in most jurisdictions by the provision of legal aid in criminal cases. So, for example, legal aid is a right recognized by Article 6 of the European Convention on Human Rights. It requires that defendants be provided with counsel and, if they are unable to afford their own lawyer, one is made available without charge.
Hollywood’s heroic depiction of the lawyer – replicated in endless television series - vigorously, eloquently pursuing the cause of justice for their client, is a far cry from the reality of real lawyers’ lives. Advocacy in court represents a small, though important, part of the profession’s work. Most lawyers, however, are preoccupied daily with drafting (contracts, trusts, wills, and other documents), advising clients, conducting negotiations, conveying property, and other rather less glamorous tasks. Yet even if the majority of lawyers never set foot in a court, the essence of lawyering is the battle waged on behalf of the client. In this campaign the skills of advocacy - whether in oral or written form – are paramount. Law is often war, and the lawyer is the warrior.
To many, the English legal profession, adaptations of which exist in common law jurisdictions of the former British Commonwealth, appears bizarre – grotesquely anachronistic with its wigs, gowns, and stilted forms of address. Though some of these quaint, archaic features have been eradicated in a few common law countries, they have shown a remarkable tenacity, especially in England. Polls of practitioners and public have proved inconclusive. Wigs on the heads of many barristers and judges seem firmly fixed for some time yet.
The origins of the common law profession are, of course, steeped in English history – and logic is thus not necessarily among its justifications. It is divided between two principal species of lawyer: barristers and solicitors. Barristers (often called ‘counsel’) constitute a small minority of the legal profession (roughly 10% in most jurisdictions) and, rightly or wrongly, are regarded – especially by themselves – as the superior branch of the profession. Recent years have witnessed a number of fairly sweeping changes, many of which have diminished the privileges of barristers (or ‘the Bar’). These reforms have largely been animated by political unease concerning the soaring costs of legal services as a result of the restrictive practices of the Bar. Barristers have minimal direct contact with their ‘lay clients’. They are ‘briefed’ by solicitors, and it is normally a requirement that during meetings (or ‘conferences’) with clients the solicitor must be present. An exception is, however, made for certain professions, including accountants and surveyors, who may confer with a barrister without the presence of a solicitor. In most cases, however, dealings must be carried out through the solicitor who is responsible for paying the barrister’s fees.
English barristers are ‘called’ to the Bar by one of the four Inns of Court, ancient institutions that since the 16th century have governed entry to this branch of the profession. Unlike the overwhelming majority of solicitors, barristers have full rights of audience, allowing them to appear before any court. Generally, solicitors have rights of audience only before the lower courts, though in recent years the position has changed and some solicitors, certified as ‘solicitor advocates’, may represent their clients as advocates in the higher courts. The traditional separation is gradually breaking down. Nevertheless, two major distinctions between the two categories of lawyer remain. First, barristers are invariably instructed by solicitors, rather than directly by the client, whereas clients go directly to solicitors. Second, unlike solicitors, barristers operate as sole practitioners, and are prohibited from forming partnerships. Instead, barristers generally form sets of chambers in which resources and expenses are shared. But it is now possible for barristers to be employed by firms of solicitors, companies, or other institutions as in-house lawyers.
Other transformations have occurred. For example, barristers are now permitted to advertise their services and their fees – a hitherto unthinkable commercial contamination. Nor are they limited to practicing from a set of chambers; after three years’ call, they may work from home.
The split profession has been attacked from a number of quarters. Why, it is not unreasonably asked, should a client effectively pay for two lawyers when, as in the United States, for instance, one will do? The case for fusing the two branches (as has occurred, for instance, in Canada, with the exception of Quebec) has been met by a number of responses. In particular, it is argued by defenders of the status quo that an independent barrister offers a detached, expert evaluation of the client’s case. Also, solicitors, especially those from small firms, who often lack a high degree of specialization, may draw on the expertise of a wide range of barristerial skills. This enables them to compete with larger firms who boast numerous specialists.
A fused profession operates in a number of common law jurisdictions. The United States draws no distinction; all are attorneys. Anyone who passes the state bar examination may appear in the courts of that state. Some state appeal courts require attorneys to have a certificate of admission to plead and practice in that court. To appear before a federal court, an attorney requires specific admission to that court’s bar. Fusion exists also in the states of South Australia and Western Australia, as well as in New Zealand.
A fundamental tenet of counsel’s duty in some common law countries (but not, surprisingly, in the United States) is the so-called ‘cab-rank rule’ under which ‘no counsel is entitled to refuse to act in a sphere in which he practices, and on being tendered a proper fee, for any person however unpopular or offensive he or his opinions may be’. Like a taxi driver who is generally obliged to accept any passenger, a barrister is bound to accept any brief unless there are circumstances to justify a refusal, such as that the area of law lies outside of his expertise or experience, or where his professional commitments prevent him from devoting sufficient time to the case. In the absence of such a rule, advocates would be reluctant to appear on behalf of abhorrent, immoral, or malevolent clients charged, for example, with heinous crimes such as child molestation. Nevertheless, in practice, it is not difficult for a barrister to find a reason why the brief should not be accepted. Apart from the case involving an area of law beyond his or her capability, the human element is always present: time is more easily found for a lucrative brief than one which concerns an intractable or hopeless case. But it represents a sound statement of professional duty, emphasizing the role of lawyer as ‘hired gun’ who acts fearlessly for any client regardless of the merits of their case.
A striking feature of the training of common lawyers has been the role of some form of apprenticeship (see below). Indeed, it was only towards the end of the 19th century that English universities taught any law at all. And large-scale university legal education in the United States, Canada, Australia, and New Zealand had to await the 20th century, though some universities had established law schools earlier (notably Harvard in 1817).
Sir: Of course the legal wig is an anachronism. But then so is the yarmulke, the mitre, the biretta, the bearskin, the mortarboard and all other forms of ceremonial headdress.
I have already been published in the press on the merit of the wig in promoting anonymity and obscuring decrepitude.
Its real importance is, however, a heritage issue. For a family lawyer such as myself, it evidences a golden thread of continuity that stretches back beyond the great statute of 1857, beyond Dr Lushington, and into the wonderful realm of 18th-century family law. It is a heritage recognized whether I appear before the Court of Appeal in London, or before the Court of Appeal of the Cayman Islands, or before the Court of Appeal of Hong Kong (which sits, bewigged, under its vivid red symbol containing fi ve stars signifying the sovereignty of communist China). So far as I am aware, no decision has been made to abolish wigs in civil appeals here and I protest against any proposal to do so. Nicholas Mostyn QC, Temple, London EC4. Letters, The Spectator, 23 June 2007