Cameron J.E. Pritchett, Esquire

2023 Temple Bar Scholar

Oscar Wilde once said, “we have really everything in common with America nowadays, except, of course, language.”

Prior to arriving in London as a 2023 Temple Bar scholar, I had a relatively cursory understanding of the English legal system. Because the United States emerged from English rule, I assumed that our systems would operate similarly. Given our common heritage, how different could things really be?  Fortunately, the Temple Bar program provides a comprehensive overview of the English system. The scholarship allowed me to think critically about legal practice in the United States—about what works, what needs improvement, and what could potentially be discarded altogether.  I continue to reflect on a few of the most significant differences.

First, barristers and solicitors. Each time I inquired about a specific tradition, I would receive a thorough and detailed explanation not only about the tradition itself, but also its origins. One tradition that has endured for centuries is the formal bifurcation of legal practice between (1) solicitors—who work directly with clients and build up the case—and (2) barristers—who are brought in to argue before a court. In some ways, the division remains sacrosanct. I was surprised to learn, for example, that barristers and solicitors are trained differently.  The closest parallel I have identified in the U.S. is the dissimilarity between the job of a transactional lawyer and the job of a litigator. While the job of a corporate mergers and acquisitions attorney and that of, say, a criminal trial lawyer may look nothing alike, the formal training requirement remains the same: a law school degree.  A transactional lawyer could, at least in theory, wake up one day and start working on trials. Not so in the U.K. Whereas aspiring barristers must obtain and complete a pupillage (an apprenticeship or training period with a group of barristers), aspiring solicitors receive training under contract with a solicitors’ firm.

Notably, these historical distinctions between solicitors and barristers are slowly eroding. Solicitors, for example, may now seek permission from a court to appear and argue.  But even this development is not universally welcomed.  Perhaps I highlight this feature—the English “split profession,” as it is known—because my practice in the U.S. is an amalgamation of a solicitor’s and a barrister’s work in the U.K., and thus, my own practice would be essentially disallowed in England.

Second, the cab rank rule.  We have all had the experience of trying to hail a cab while standing outside at a busy intersection. When cabs pass by, typically it is because they are either occupied or headed to meet a particular person nearby.  If the cab is not in service, however, then we would expect it to stop and pick us up. Barristers abide by a similar principle when it comes to their legal services. When a client requests a barrister, ethical standards dictate that the representation should be accepted—no matter the client’s likelihood of success. To be sure, certain conditions must be met, including the barrister’s availability and the client’s willingness to pay a reasonable fee. Even so, the structure is worlds apart from ours in the United States. With rare exception, lawyers are generally free to choose the clients they would like to take on and of course to turn down those assignments that they deem undesirable. One positive in our system is that a lawyer is not required to accept a representation that is anathema to her personal belief system. On the other hand, the cab rank framework makes it more likely that a barrister will understand and appreciate both sides of an issue.  For instance, in the United States, we can quickly associate specific Supreme Court advocates with a “side” of a certain topic—Second Amendment, religious liberty, deference to executive agencies, etc. We would have more difficulty doing so for the English equivalents, primarily due to the cab rank rule.

Third, a newer Supreme Court. If the U.S. Supreme Court has existed since 1789, then the U.K. Supreme Court must date back centuries earlier, right? Wrong! When I first learned that the U.K. Supreme Court has been in existence since 2009, I thought I must have misheard. And that was just the start.  My colleagues and I were amazed to learn that two institutions ostensibly serving the same purpose—the highest level of judicial review—have such profound differences.  Just to name a few: (1) Although there are 12 justices, the U.K. Supreme Court hears cases in smaller panels; (2) the U.K. justices do not wear robes; and (3) U.K. arguments last much longer—days longer—than U.S. arguments. Perhaps the most foundational divergence, moreover, is that the U.K. Court abides by a principle of parliamentary superiority.  The Court does not have the authority to nullify an act of Parliament; rather, at most, it can issue a statement of incompatibility—essentially urging Parliament to remedy a potentially unlawful act.  As every first-year law student understands, our Supreme Court, on the other hand, first asserted the authority to strike down laws in Marbury v. Madison—decided shortly after the Founding.  From that key distinction flow numerous other idiosyncrasies between the U.K. and U.S. courts: the nature of cases, how justices are appointed, the intensity of media scrutiny, and so on.

While the items above are a few examples, I have not even scratched the surface of identifying differences between the legal regimes.  And these variations naturally invite the question: which works better?

The short answer is—I do not know. One month is not enough time to reach a conclusion.  But before the Temple Bar scholarship, I would hardly have thought even to ask the question. The Temple Bar program gave me a framework for thinking about that question and about each approach’s advantages and disadvantages. My month in London was among the most edifying of my professional career. The information I learned has not only made me a better lawyer but has also encouraged me to think deeply and critically about the legal profession more broadly.

In closing, I want to extend my deepest gratitude to the Erskine Chambers and 4 Pump Court for their hospitality, and for arranging meaningful opportunities for me to learn from their talented lawyers. Similarly, the week I spent at the Supreme Court provided lifelong memories that I take back with me to the States. I am grateful to Lord Reed for seamlessly integrating the Scholars.  And I thank Lord Stephens for making a visitor like myself feel that I was truly part of his team. Over the coming years, I look forward to building on the relationships I developed through the Temple scholarship.