Kyle Douglas Hawkins
2014 Temple Bar Scholar Report
My first day at One Essex Court began with a surprise. One Essex Court is one of the most prominent barristers' chambers in London, and the chambers that would host me for one week during my Temple Bar Scholarship. The silk who had arranged for my visit met me in the morning to discuss what I could expect from my week in chambers. Day one, he explained, would involve shadowing one of his colleagues, a junior barrister almost ten years past his call. When I met the junior, he shared with me some filings in an ongoing arbitration matter he was handling. And right there on the cover of the filings was the name of opposing counsel: his colleague at One Essex Court, the silk who had arranged for my visit and with whom I had spent my morning. I asked the junior whether I misunderstood; surely his mentor, colleague, frequent collaborator, and downstairs neighbor would not be on the opposite side of a high-stakes arbitration. He explained that, sure enough, he and the silk represented adverse parties, and moreover, that there was nothing unusual or improper about such an arrangement at the English bar.
Of course, because each barrister is technically self-employed, and because barristers' chambers are loose business arrangements designed to pool administrative costs rather than foster chambers-wide teamwork, the apparent intra-chambers conflict is not a conflict at all. It raises no issue of legal ethics, nor creates any appearance of impropriety. But even still, I wondered how such an arrangement would work in practice. During my three years practicing law in large U.S. firms and two years of clerking, I had witnessed very acrimonious proceedings, marked by discourtesy and vindictiveness, all carried out in the name of zealous advocacy. Opposing lawyers, in my experience in the U.S., often could not even share basic courtesies, let alone office space, secretaries, and daily lunch.
Yet that is exactly what happens at the English bar, and so I set about trying to understand how two members of the same chambers could oppose each other in court on Monday but serve as teammates in another matter on Tuesday. During our month in London, my fellow Temple Bar Scholars and I received a comprehensive introduction to the English legal system. Our first week was devoted to tours of courts and meetings with prominent judges and barristers. Our next two weeks were spent shadowing barristers in their chambers. And our final week was devoted to the Supreme Court of the United Kingdom, where we observed oral argument and met frequently with the Justices to learn about the Court. Over the course of the month, I came to believe that the success of the English barrister regime, including the surprising-to-me practice of allowing barristers in the same chambers to represent adverse parties, can be explained at least in part by the English bar's unique dedication to the virtue of civility.
Both in England and in the U.S., lawyers are formally expected to remain professional and cordial in dealings with opposing counsel, but at least as far as I observed, the English bar pursues that aspirational goal more vigorously. The English promote civility, for example, through various formal channels, including the ceremony at Westminster Abbey to open the legal year, an event my fellow Scholars and I were honored to attend. The guest list was a who's-who of the English bar, all sitting together in robes and wigs listening to prominent judges read from the Bible and lecture on their duties as barristers while an Anglican minister offered a sermon incorporating legal themes. At the end of the ceremony, the attendees rise to sing "God Save the Queen" before processing off to celebratory lunches. The American legal system has no real analog for this ceremony. To be sure, most U.S. cities hold a traditional Red Mass each year, and the Red Mass at St. Matthews in D.C. usually is well attended by Supreme Court justices and other D.C.-based judges and advocates. But I would guess that only a small fraction of the D.C. bar is even aware of the Red Mass's existence, and even fewer would consider attending. By contrast, every barrister I met in London knew all about the Westminster ceremony. That gathering undoubtedly serves as the type of centralized community-wide event that fosters a sense of oneness. And in turn, I suspect it plays some role, however small, in preserving a genteel bar marked by civility.
Beyond the pomp and circumstance, I noticed over the course of the month more subtle ways the English legal system promotes civility. For example, what American litigators combatively call a "motion to compel" is referred to in the English courts by a more genteel name - a "disclosure application." English lawyers not only rise when the judge enters and leaves the courtroom, but they also bow to the bench when they themselves enter and leave, as though to remind themselves that they are servants of justice.
Beyond these sorts of symbolic gestures, another explanation for the English dedication to civility may lie in the English concept of a lawyer's duty. If an American lawyer were asked to whom he owed the highest loyalty, he probably would point to his client. But, as my colleagues and I learned during our visit to the Bar Council and the Supreme Court, an English barrister likely would give a different answer: the court. I suspect that when a barrister views the tribunal as the entity to which he carries the most profound obligations, the vicious scorched-earth litigation tactics all too common in American litigation seem unnecessary. After all, when the most important part of your job is to be truthful to the court, there is rarely cause to demean opposing counsel.
The English custom of collegiality undoubtedly flows in part from the sense of community the barrister training system fosters. Each aspiring barrister must become a member of one of the four Inns of Court, and all four lie in central London within a few hundred yards of one another. Barristers from all chambers often take lunch together each day in the same dining halls in which they did their legal training, where they sit under the portraits of the prominent lawyers from history who served as that Inn's leaders (or "benchers"). Thanks to our gracious hosts, my colleagues and I were honored to tour each of the four Inns of Court-Inner, Middle, Gray's, Lincoln's. As we learned about the history of these venerable institutions, we came to see that barristers took pride in their Inn and its place in English legal society. And, I suppose, it becomes more important to take a civil and collegial approach to litigation when the barrister and his opponent share a place of pride representing the centuries-old society that trained them.
I came away from my time in England convinced that the English bar's dedication to civility is worth emulating in our U.S. legal culture. I am glad that the American Inns of Court devote themselves to, among other things, promoting a culture of civility across the U.S. Serving as a Temple Bar Scholar provided a unique view of how valuable that mission is.
Kyle Hawkins currently serves as a law clerk for Associate Justice Samuel Alito of the Supreme Court of the United States. Born and raised in South Africa, Hawkins earned his undergraduate degree in History and Literature at Harvard University before enrolling at the University of Minnesota Law School. He graduated summa cum laude from law school, where he served as editor-in-chief of the Minnesota Law Review and was honored with the William B. Lockhart Award for Excellence in Scholarship, Leadership, and Service. Hawkins has also served as law clerk to Judge Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit and has worked in litigation at Faegre & Benson, LLP, and Gibson, Dunn & Crutcher, LLP. He speaks and teaches Japanese.