They're playing it straight
25 July 1995
26 September 2013
18 October 2013
10 July 2014
18 October 2013
20 September 2013
John Dickey, a US attorney, casts an envious glance at the ceremony and traditions at the heart of the English Bar
The US received its common law and procedure from England but rejected the pomp, ceremony and costumery associated with the dispensation of UK justice.
Not for New World advocates silk or stuff gowns, horsehair wigs, or red robes and ermine for its judges. Nor in our democracy a privileged right of audience. In the US, a lawyer is a lawyer and appears in court as he or she pleases.
Consider first the English advocate's gown and wig. The gown identifies advocate and judge as of the same profession, in which each plays their designated role. Both US and English systems recognise this common endeavour, but the dress of judge and advocate in the UK is a continuing reminder of it to those engaged in the process.
To a US advocate, chambers seem places of refuge conducive to study and reflection. A barrister's chamber has an aura very different to US lawyers' offices which seem more geared to commerce than to contemplation and increasingly look like trading rooms.
And which US advocate is not moved by the history and the ancient traditions of the Bar on entering the Temple for a consultation?
Specialist training and exacting standards and collegiality among British advocates contribute to the high levels of competence there.
I have been privileged to consult, work with and hear many of those most highly regarded, but have observed many others less well-known, who perform to similar high standards.
The same factors also contribute to the skills of the English advocate. They lead to a courtesy and restraint in advocacy and an intellectualisation of argument less often seen in US courts, where advocacy is more robust, directed more to arguing the practical desirability of a particular result than for a 'correct' legal conclusion, and where advocate and court more often seem adversaries than joint participants in a search for 'the answer'.
There are many possible reasons for these differences. The English and US Bars may be microcosms of their countries and their members may reflect national characteristics, though these become harder to identify as time passes, particularly in the US where dramatic changes continue to occur in the ethnic make-up of the nation.
The English Bar is more homogeneous and the outlook of its members perhaps more establishment-oriented, conservative and preservationist. Law remains a body of principles, within which courts, with the assistance of advocates, find 'correct' solutions to particular issues. New law is up to Parliament to declare, not the courts.
Advocates at the US Bar are of a more varied background, likely to be more pragmatic in outlook and their advocacy less constrained by precedent. Law is viewed as a tool or weapon to be used to achieve the purpose of a client or a cause. Congress and legislatures are not viewed as the only law-makers. Courts are expected to make law as well and lawyers to encourage political and social reform through advocacy.
The dramatic difference between UK and US styles of advocacy, however, has less to do with national character or outlook, but with the radically different approach of English and US courts to oral argument and written submissions. A US advocate finds it incredible that his British counterparts spend days reading aloud to the court and affidavits and authorities to one another, arguing their import and meaning. UK advocates find it inconceivable that their US equivalents are allotted 15 or 20 minutes to present arguments in major cases. The US Supreme Court allows only 30 minutes per side and will cut off counsel in mid-sentence when time expires.
These different circumstances require different styles of advocacy. Having addressed the issues in written briefs, US advocates use oral argument to drive home their best points and to address questions from the court, which has read the briefs and authorities and usually cross-examines.
The US advocate must be succinct and to the point, satisfy the court's concerns and sit down. British advocates must lay out orally and at length all their points and authorities and, until recently, to a bench that might know little of them. In consequence, British advocacy is more expansive.
This hugely significant difference between the systems is slowly disappearing. Recent UK practice directions requiring written skeleton arguments and chronologies have set in motion a process which will inevitably lead to a briefing system similar to that in the US, although the declared purpose is to identify points and cases, not to argue them. Practitioners are warned that the skeleton argument is not intended to be a US-style brief.
In fact, to a US advocate who has followed their evolution, skeleton arguments and chronologies increasingly look like briefs. Brief-like argument has been showing up in subtle ways, encouraged by the 'tie-in' provisions of the 1990 direction. Before long this defining difference between the systems will disappear. Written advocacy will become as important in England as it is in the US and the styles of the best advocates at each Bar will become more and more alike.
John Dickey is a member of the Bars of New York and Missouri and a partner in international law firm Sullivan & Cromwell.