[Raymond_Wacks]_Law_A_Very_Short_Introduction

Law

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

Courts

15. Atticus Finch: the lawyer-as-hero as depicted by Gregory Peck in the film of the novel To Kill a Mockingbird. Finch unsuccessfully defends a black defendant charged with raping a white woman.

A number of American attorneys have claimed that the character inspired them to enter the profession

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.

Lawyers

Law

Big wigs

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 recognised 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 five 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

(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.

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 practising 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 practise 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 practises, 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

Lawyers

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).

Civil lawyers

Lawyers in the civil law world differ fundamentally from their common law colleagues. Indeed, the very concept of a legal profession in the major civil law jurisdictions of Europe, Latin America, Japan, and Scandinavia is problematic. In the words of a leading authority on the subject, ‘The common law folk concept of “lawyer” has no counterpart in European languages …’ Civil law jurisdictions recognize two categories of legal professionals: the jurist and the private practitioner. The former comprises law graduates, while the latter, unlike the position in common law countries, does not represent the nucleus of the legal profession. Instead, ‘other subsets of law graduates take precedence – historically, numerically, and ideologically. These include the magistracy (judges and prosecutors) … civil servants,

law professors, and lawyers employed in commerce and industry.’

Students in civil law countries typically decide on their future after graduation. And, as mobility within the profession is limited, in many jurisdictions this choice is likely to be conclusive. They may choose to pursue the career of a judge, a public prosecutor,

a government lawyer, an advocate, or notary. Private practice is therefore generally divided between advocates and notaries. The former has direct contact with clients, and represents them in court. After graduating from law school, advocates normally serve an apprenticeship with experienced lawyers for a number of years, and then tend to practise as sole practitioners or in small firms.

Lawyers