Michelle S. Stratton
2012 Temple Bar Scholar Report
It was the third week of the 2012 Temple Bar scholarship program, and I was seated in the public galley of an appellate courtroom in the Royal Courts of Justice. A barrister from the set of chambers where I was placed for the week had invited me to observe his argument before a three-judge panel in a case concerning a contractual dispute. The Royal Courts of Justice, which houses the intermediate appellate courts and the civil trial courts for England and Wales, is a magnificent Victorian building with cathedral-like characteristics, but this courtroom was strikingly sparse and modern. Indeed, with its low, tiled ceiling, small size, and florescent lighting, the only thing royal about the room was the crest that hung above the bench. Well, that, and the wigged and robed barristers addressing the members of the panel as "my Lord," opposing counsel as "my learned friend," and the lower court under review as "the learned judge." Otherwise, the style of the arguments seemed less formal than an American appellate proceeding. During counsel's argument, it was not uncommon for opposing counsel to stand up and interject a clarifying comment or factual correction. The junior barristers and instructing solicitors seated behind lead counsel would routinely pass notes to their arguing barrister as he stood before his podium, notes which the barrister would often pause to silently read. Occasionally, after a question from the bench, the arguing barrister would respectfully inform the court that he needed to consult with his junior or seek instructions from his solicitors before answering, and the judges waited patiently while the group conferred. No time limit for the arguments was imposed. Each side likely would have received no more than twenty minutes to argue before a United States Court of Appeals. Here, the argument lasted more than three hours.
I offer this description of my experience in a London appellate court to illustrate the fascinating mixture of ceremony and informality, tradition and modernity, which seems to mark the English legal system. On the first day of the Temple Bar program, the scholars observed the Opening of the Legal Year at Westminster Abbey. The Opening of the Legal Year is a church service attended by the Lord Chancellor and Secretary of State for Justice, the Lord Chief Justice of England and Wales, the President and Justices of the Supreme Court of the United Kingdom, and other judges and members of the legal profession. Garbed in ceremonial wigs and robes, the judges participate in an elaborate processional through the historic Abbey, after which hymns are sung, a sermon is preached, and prayers for wisdom are said for the Queen, for victims of crime and its perpetrators, and for all who administer justice in the realm. It is a sight to behold, but the daily work of the judiciary appears to bear little resemblance-in form or function-to the pomp and circumstance that mark the beginning of the legal year. There are many examples I could give, and my appellate court experience is one, but perhaps the most interesting examples come from the four days that the Temple Bar scholars spent at the Supreme Court of the United Kingdom.
The Supreme Court occupies prime real estate in Parliament Square. Its windows offer fine views of Big Ben, the Houses of Parliament, and Westminster Abbey, and the 100-year-old gothic building communicates the significance of the Court. But while the location and age of the building might suggest a court steeped in history and tradition, the Supreme Court of the United Kingdom is a very young institution. The Court was created by the Constitutional Reform Act of 2005, and it opened in 2009. (Before 2009, members of the House of Lords-the Lords of Appeal in Ordinary or "Law Lords"-served as the highest court of appeal.) The renovations that were performed inside the building-glass doors, light wells, contemporary furniture, and colorful carpet bearing modern interpretations of the symbols of the four countries of the United Kingdom-reflect the youth of the Court.
From the perspective of an American law clerk, what is most remarkable is the degree of informality and accessibility that surrounds the Justices of the United Kingdom and the legal process they oversee. On our first day at the Court, the scholars met the Justices we were to shadow. Bear in mind that most of the Justices are former Law Lords, that all are preeminent experts in various areas of the law, and that just three weeks ago we had seen them decked out in black and gold ceremonial robes and wigs at the Opening of the Legal Year. Today, however, we simply knocked on each Justice's door and he answered…in a suit, and sans wig. No secretary, administrative assistant, or law clerk served as the first point of access. Instead, we were invited directly inside each contemporary-style office for a chat with the Justice before heading off to oral argument.
Oral arguments in the Supreme Court of the United Kingdom differ significantly from those before the Supreme Court of the United States. The distinctions appear to stem from the former's emphasis on creating an informal atmosphere of learned debate among equals rather than of adversarial argument. In stark contrast to their ceremonial trappings, the Justices of the Supreme Court of the United Kingdom-like the advocates appearing before them-wear suits when they sit to hear cases, not wigs and robes. The bench is not elevated above the advocates; instead, the judges and barristers interact on the same physical level. Unlike arguments in the United States Supreme Court, which looks and feels like a carefully guarded inner sanctum, proceedings in the Supreme Court of the United Kingdom are recorded on video for live broadcast, and members of the public may bring electronic devices into the courtroom. And whereas the one-hour-per-case allotted to oral advocacy in America's highest court renders the pre-argument written brief critically important and the oral argument an exercise in performance art, the average argument in the Supreme Court of the United Kingdom lasts two days. Unsurprisingly, then, the presentation of oral argument before that Court is dramatically different as well. Before argument, the parties make written submissions in the form of "skeleton arguments," but as the name implies, they are usually not as comprehensive as an American appellate brief. Consequently, oral argument serves more as a tutorial for the Justices, as barristers lay out their case in painstaking detail, often reading excerpts of authorities or appendices to the Justices.
This more casual, teaching atmosphere appears to extend to the Justices' conferences. During our visit, the Temple Bar scholars were invited to sit in on a meeting of some of the Justices to review applications for permission to appeal, the United Kingdom's equivalent of petitions for writs of certiorari. Also in attendance were some of the Judicial Assistants (JAs), who are roughly equivalent to American law clerks. When the Justices completed their review, they asked the JAs whether and why they agreed or disagreed with the decisions of the panel. I was asked what I thought about the process and how it differs from the United States. (Some observations: Although the substantive standard for granting or denying leave to appeal-an arguable point of law on a question of general public importance-resembles one of the United States Supreme Court's standards, there were many notable procedural differences. The most junior Justice announced his views first and the most senior Justice last. Every application is voted upon; there are no discuss lists. There are, however, only 200 to 250 applications a year, as opposed to some 10,000 filed in the Supreme Court of the United States. The applications are assigned to panels of three Justices rather than considered by the Court en banc, and only one vote is necessary to grant leave to appeal. If the Justices vote to deny leave to appeal, they must publish a reason. Finally, if the Justices grant leave, there is no mechanism to dismiss the appeal as improvidently granted.) The presence of JAs and visitors at this conference starkly contrasts with the practice of the Supreme Court of the United States, where the Justices consider petitions for certiorari in their entirely closed Conference. Law clerks and other Court staff-much less a Court outsider-are not directly privy to the deliberations.
As I reflect on my time in London, I think that perhaps it is the surprisingly informal and approachable nature of the English bench and bar (among other things) that helps make the Temple Bar program such a success. I join the other 2012 scholars in thanking the many members of the English legal community who gave us an up-close-and-personal look at their work. The kindness and generosity shown to us is a credit to the legal profession in the United Kingdom. We are also grateful to the American Inns of Court for the planning and sponsorship that make the Temple Bar program possible.
Michelle S. Stratton received her J.D. from the Louisiana State University Paul M. Herbert Law Center, where she graduated first in her class. While in law school, Ms. Stratton served as a senior associate on the Louisiana Law Review. She earned her B.A. in history, with an English minor, summa cum laude, from Louisiana College. After finishing law school, she worked in the Office of the Solicitor General in the U.S. Department of Justice as a Bristol Fellow. Stratton was selected as one of Washingtonian's "Ten Women to Watch" of 2011. She is currently a judicial clerk for Associate Justice Clarence Thomas of the Supreme Court of the United States.