Fostering Excellence in Professionalism, Ethics, Civility, and Legal Skills

John M. DeStefano III

DeStefano_JohnM

To be selected as a Pegasus Scholar was a great surprise, and a challenge. Previous lawyers had done so much with this rare opportunity to visit the British court systems. I tried to prepare in advance, but there is no way to prepare for six weeks of nonstop revelation. I tried to keep pace on the trip, but the whirlwind of judges, barristers, courtrooms, and ceremony shot right by. Now, back in Arizona, I try to make sense of all that just happened and in some measure pay it forward, so that this experience-with all of its stories, lessons, and encounters-might enrich our profession at home.

Preparations

Barristers that don't form law firms? Advocates that pace all day to discuss their cases? Addressing the High Court Judge as "My Lord"? The reports of former Pegasus Scholars described so many U.K. curiosities, it was clear that this expedition would be an adjustment. To ease the transition and reduce culture shock, I began a short reading program in the weeks leading up to departure.

First on my list was a standard introduction to English legal history. It had little practical relevance to daily life among barristers, but it provided a context and spiritual backdrop for their institutions. For centuries, the English Inns of Court sustained the traditions of Common Law education apart from the Continental universities. Today, they still serve as the community headquarters and gathering place of the English barristers, as opposed to solicitors who practice out of court. Things like assize courts and serjeants-at-law have faded into history, but the barristers' Inns have carried on through Fire and Blitz.

Legal history also helped me begin to grasp the role of the English courts as a feature of constitutional monarchy, and not a freestanding branch of government. The early history of the English courts reveals how they evolved as practical offshoots of the sovereign, delegates of the monarch's justice. The court of last resort would remain part of Parliament until 2009. English courts continue to be subordinate to the legislature in the sense that they do not exercise judicial review of legislation.

A friend lent me another text surveying the practicalities of the English legal system as it developed up through the late 1980's: the dramatic reorganizations of the 1970's, the arrival of the twentieth-century administrative state. The broad outlines still held true, but there has been rapid change even since then. To describe the English courts as procedurally modern might surprise anyone who has read Bleak House, but freer court reform is an important factor that distinguishes English courts from our own. American courts are tethered to a written constitution, and a delicate balance of federal and state interests. The English constitution, by contrast, is not written except as legislation. This relative freedom makes possible many innovations, such as the general abolition of civil jury trials in England. The expanded use of bench trials might make sense in many contexts, but it flies in the face of our written state and federal constitutions.

Beyond legal history, England is consumed with its larger history, carrying on ancient institutions through centuries of war, upheavals, and the odd colonial rebellion. A short, general history of England went onto the reading list. For more recent history, UK news feeds proved critical, getting me up to speed on European austerity, the Scottish independence movement, and other current events.

I also made rounds at my law firm, talking to partners who had spent time in the UK or worked in relevant areas. Previous years' Pegasus Scholars were very generous with their time spent in briefings. And of course I reached out to old friends who lived in London and could show me to the most reputable Pub Quiz.

With this semblance of preparation and travel guides in hand, I began the journey.

In Chambers

The Inner Temple asked each Pegasus Scholar to indicate areas of law that we wanted to explore while in Britain. The possibilities seemed endless. My practice is focused in the commercial area, with an emphasis in banking disputes. It seemed worthwhile to compare the experience of a similar practice in London. Common reference points would highlight the differences between our legal cultures. I put in for commercial litigation.

Then there was the attraction of maximizing contrast. I took note of the constant headlines covering new developments in EU privacy law, alongside the heated controversy surrounding free speech, privacy, and libel suits in the UK. Suddenly, it dawned on me. The lack of a First Amendment, these aggressive European privacy regimes, the ongoing proceedings in the News of the World phone-hacking scandal-here was a topic that would challenge so much of what American lawyers take for granted.

Through the dedication of the Pegasus Scholarship organizers and a bit of luck, barristers were found who were kind enough to host in both of these areas. My first placement was the chambers known as 7 King's Bench Walk, a sophisticated commercial set known for its work in shipping, insurance, reinsurance, and other commercial matters. It turned out to be the perfect place to find my bearings. I could compare the format of pleadings, the differences in disclosure, and the way briefing is carried out. Attending trials, appeals, and arbitrations on many days, I watched barristers hold forth for hours at a time, tirelessly unpacking every element of fact and law to the judges' satisfaction. Meanwhile, I marveled at the introduction of affidavits ("witness statements") as trial evidence, and the complete absence of depositions from the English discovery process.

The hosting barrister also enlisted me for research projects. Some of these evoked the intersections of US and UK law, and invariably they blossomed into discussions on the relative merits of each. Reading with an English focus, I began to notice that early-20th century American jurists-the likes of Benjamin Cardozo and Learned Hand-would take account of English commercial law in fashioning our own. Contemporary courts in America and England have largely lost that connection. And while one finds mixed attitudes toward international exchange, I am not convinced that constructive judicial dialogue with Britain is beyond reach today, especially in an age of digitized legal research.

My time in the commercial set was also notable for what I found to be missing. American lawyers build careers bringing and defending class actions, while class actions are something of an affront to English procedure. And the classic "English rule" of fee shifting (what the English call "cost shifting") effectively deters many individuals from bringing suits against parties with vastly superior resources. It became easy to see why America seems too litigious to many English judges and lawyers.

The second half of my visit I spent with 5 Raymond Buildings, a leading practice in the area of media, entertainment, and privacy law. As soon as I began, I was watching proceedings in the Leveson Inquiry, convened under Lord Justice Leveson in the wake of the phone hacking scandal to examine the relationship between the press, politicians, and police.

The days to follow would bring one revelation after another as I experienced the practice of media law without the First Amendment. While English courts have adopted certain legal protections for opinion and the discussion of public issues, English libel law remains much more hospitable to plaintiffs than libel law in America. In England, it is generally the defendant's burden to prove true or justify speech that is prima facie defamatory. And because England's is a legal system where the loser must pay the winner's attorney's fees-compounding even the slightest risk of loss on the merits-defendants proceed with great caution and often capitulate. The English courts exert remarkable influence upon the practices of the press. It is hard to imagine American judges doing this sort of journalistic regulation.

Of course, the United States and the United Kingdom are nations that pride themselves on freedom, nations with robust and highly participatory democratic institutions. This makes it all the more surprising that we have such divergent attitudes toward the regulation of speech. Where the differences manifest themselves, they are difficult to overstate. Talking to barristers and judges around London, I found it challenging to convey the depth of American faith in the freedom of the press. Our countries trade on vastly different assumptions when it comes to the protection of dignitary rights, the meaning of responsible journalism, and the importance of adjudicating truth. It would take many more pages to explore our differing instincts and habits of thought in this area-an assignment for another day.

The differences are also vast when it comes to the protection of privacy rights, but not in the same way. Here, the European Union has taken a pathfinding role in developing privacy as a human right for the modern age. And Europe embraces a durable concept of confidentiality that is not vitiated by implied consent and waiver at every turn, as it is in the United States. As American privacy law stumbles into the digital age with limited tort remedies and a hodge-podge of statutory protections, we would do well to take note of deeper European privacy concepts that are perhaps more responsive to the realities of our time. This is particularly true where conflicts between European and American privacy standards threaten our commercial interchange.

In America

My Pegasus Scholarship lasted six weeks. As quickly as it went, six weeks was the perfect amount of time to spend immersed in a new legal system. By the end, my mind and notebooks were so full of reflections, article ideas, research points, and anecdotes that I had reached a saturation point. To put it another way, the experience had given me far more than I deserved.
This short account does not attempt to cover many of the most extraordinary moments. From visits with judges at all levels of the English court system to dinners in the regal halls of the Inns of Court, from tours of courthouses in Edinburgh and Belfast to a convivial legal retreat in Windsor Great Park, there are too many stories to tell in one place or one article.

If there is one thing that my trip confirmed, it is that it is impossible to overestimate the depth of assumptions in every legal culture. And nothing upsets these assumptions-and stimulates the legal imagination-like visiting a foreign legal system. Even a short trip across the pond to visit our close friends, our legal cousins and forebears, offers a world of difference to explore.
The Pegasus Scholarship holds practical importance as well. In an age of ongoing globalization, where our country finds itself toe to toe with more and more foreign cultures, nations, and economies, it is all the more important to look beyond our borders and foster the amity and understanding that is the sustenance of peace and prosperity. We stand to learn from Britain's example as it reinvents itself to continue on as a forum for world financial and legal affairs. Britain's close ties with EU and Commonwealth nations on several continents make it a crucial economic and diplomatic gateway to the world.

I have been overly fortunate at every stage of my education and legal career. I have clerked for two venerable federal judges and practiced in a major law firm that is committed to the highest ideals of the profession. Set upon this foundation, the Pegasus Scholarship was as deep and extraordinary as any professional or educational experience I have had. I am extremely grateful to the many barristers, judges, and law students I met who were willing to compare experiences with an open mind-particularly my host barristers in chambers at 7KBW and 5RB, who took hours upon hours out of work to reflect upon ideas and help me learn. While I struggle to live up to their generosity, I can only hope that more American law students, lawyers, and judges will seek out exchange opportunities like the Pegasus Scholarship.

John DeStefano practices litigation in Phoenix, Arizona, with the firm of Snell & Wilmer. Before entering private practice, DeStefano served as a law clerk to the Honorable William C. Canby Jr. of the U.S. Court of Appeals for the Ninth Circuit and to the Honorable Neil V. Wake of the U.S. District Court for the District of Arizona. DeStefano obtained his A.B. in Classics from Harvard University in 2001, and his J.D. from the University of Arizona in 2007, where he was recognized for having the highest academic achievement in his graduating class.  His published writing includes a formal examination of literary reference in judicial opinions stretching as far back as Lord Coke. DeStefano serves his community through participation in the Volunteer Lawyers Program of Arizona and the Ninth Circuit's pro bono appellate program. He is a member of the Lorna E. Lockwood American Inn of Court.