Kate Marcom
2023 Pegasus Scholar Report
Before embarking on my trip to Britain as a Pegasus Scholar, I wasn’t quite sure what to expect. Of course, I had scrutinized the Pegasus Scholarship Trust website and had a fairly clear idea of what the program might practically entail. I knew I would have the opportunity—as Lord Goff intended when he formed the Trust in 1987—to “learn about the practical working of the common law system” in a country other than my own, and “to form enduring links with lawyers” in that country. I knew I would have the opportunity to meet judges, tour the Inns of Court in London, shadow barristers in chambers, and visit Scotland and Northern Ireland. And, as I had been instructed by prior Pegasus Scholars, I knew I would be wearing a lot of black suits and sensible walking shoes while doing so.
Beyond that, I wasn’t sure what I might learn. I knew the legal systems of Britain and the United States, but given that they are both common law systems, how different could they really be? But at the same time, I knew from media like Silk and Witness for the Prosecution that justice looks fundamentally different across the Atlantic; we lack the drama of horsehair wigs and flowing black robes; our judges only wear black, not red or purple, and criminal defendants sit at counsel table, not in enclosed docks.
I also wasn’t sure what to expect from a personal perspective. Although my father hails from the plains of the Texas Panhandle, I lived in London as a child and have family in Britain. After moving to the Houston suburbs in junior high, I romanticized my time in England—land of Percy Pigs, effective public transportation, and BBC period drama miniseries—and when I eventually earned my Texas law license, I mourned the fact that I likely would have little reason to visit London for anything other than vacation. Now returning after all these years, I couldn’t help but feel some apprehension at going back to a place I had loved so dearly, not knowing how it, and I, had changed in the interim.
I needn’t have worried. Turns out, getting to experience London in my professional capacity as a licensed attorney only deepened my attachment, and I was able to both revisit old haunts and newly appreciate the city through a legal lens. Places I had been before—like Westminster Abbey and the Strand—took on new meaning when returning as a lawyer; the city felt both foreign, yet familiar.
Since my return to the United States—and in preparation for writing this report—I’ve pondered how exactly to articulate my takeaways from this once-in-a-lifetime experience. The memories of the incredible people I met, the places I visited, and the delicious meals I ate will linger in my mind for a long while yet. More valuable, however, is the fundamental shift in my consciousness and thinking about the law and the role of the advocate within it. After coming back to real life, I have been looking at the American legal system through a new, somewhat academic lens, contrasting it against the British system; though the systems are similar, they differ in fundamental ways—again, foreign, yet familiar. In this report, I will attempt to share certain highlights from my journey as a Pegasus Scholar, and also convey my general musings and reflections that followed me home.
Tradition and Precedent
As a former history student, I’m drawn to the practice of law both as a profession and for its academic interest. Litigation is fundamentally the practical application of historical study, in that a system based on following precedent challenges us to orient prior decisions in their historical context, while also grappling with how to apply them in the present. As a result, I was thrilled to embark on a boots-on-the-ground comparison of the English legal system to the American one, including seeing how the law functions in a country with such a long and rich common law tradition, but without a strong focus on a codified constitution like we have in the United States. I was also excited to learn about how such a relatively ancient precedential system (compared to ours) still manages to evolve and serve an ever-changing society, particularly one as diverse as modern Britain.
I was not disappointed. Almost immediately upon arriving for the program, we were confronted with such an evolution. On our first full day in London, we were instructed to be ready early outside the Royal Courts of Justice for a walking tour of the Inns; having mistimed how long the Tube would take the day before, my co-Scholar Erin Wallin and I made our way to the Strand with ample time to spare. As we sipped our coffee and took selfies with the towering spires of the majestic Gothic Revival building, we noticed a steady stream of barristers entering the building, including some bedecked in slightly more elaborate attire—i.e., stockings, buckled shoes, and tailcoats—than the wigs and gowns typical for court. We came to learn it was not any old Monday, but rather an unprecedented event: the swearing-in of Baroness Sue Carr as the new Lady Chief Justice, the most senior judge and head of the judiciary of England and Wales, and in the 755 years that the role has existed, the first ever woman to hold that office. The barristers we observed arriving in droves were hoping to access the courtroom to witness firsthand this historic event. We also learned that there had been some uncertainty as to the title Baroness Carr was going to adopt; the announcement of her appointment stated that King Charles had approved her appointment as “the Lord Chief Justice,” and the media expressed doubt as to the title she’d use, given the lack of precedent.
The Royal Courts of Justice.
Precedent and tradition, we learned, account for quite a lot of the legal system in the United Kingdom. This was clearly demonstrated to us during the Opening of the Legal Year ceremony, where judges, King’s Counsel, barristers, and dignitaries gather in Westminster Abbey for a religious service to mark the beginning of a new “legal year,” a custom dating back to the Middle Ages. The ceremony marks the end of the period from July to October, during which courts are in vacation, and the beginning of the first of four legal terms making up the legal year. (Side note: this “court in vacation” concept is an excellent idea that should be adopted in the United States as soon as possible). Attendees come dressed in full ceremonial regalia, including full-bottomed wigs, heavy robes of varying colors and trims, depending on rank and position, and for some, heavy gold chains draped around their shoulders. Each type of judge has an associated traditional dress, and with a bit of study, you can identify the type of judge based on their clothing; the Lord Chancellor, for example, wears a black gown with gold lace, whereas High Court Judges wear red robes with white trim, and Circuit Judges wear violet robes, with a red sash when presiding over criminal cases.
Westminster Abbey at the Opening of the Legal Year.
We also learned that legal roles occasionally have honorific titles that (naturally) are steeped in history and tradition. We met with the Master of the Rolls, the second most senior judge in England and Wales, and so named because the role initially involved responsibility for keeping the “rolls,” or records, of the Court of Chancery. We were given a tour by the entertaining and knowledgeable Robin Griffith-Jones, the “Reverend and Valiant Master” of the Temple at Temple Church. Senior barristers who apply and are accepted as King’s Counsel are occasionally referred to as “Silks,” due to the robes they wear. The jargon was similarly complicated—and occasionally confusingly different—when we traveled to Scotland and Northern Ireland; trainee barristers in England and Wales are called “pupils,” but in Scotland, they are referred to as “devils,” and the supervising barrister, a “devil master.” Similarly, barristers in Scotland are called “advocates,” and rather than grouping together in a set of chambers, belong to “stables.” To American ears, the effect is rather like living inside a Charles Dickens novel.
The names of barristers’ chambers—i.e., a group of barristers who join together and share in communal overhead expenses, analogous to a law firm—are likewise traditional in nature. Most chambers are named after the physical address where they are located; for example, I spent a week shadowing a barrister from 2 Bedford Road Chambers. However, we were warned to always double check and never assume that the chambers is actually at the place indicated by its name; chambers have been known to move locations but retain their original address as the name, resulting in a potentially confusing situation for those unfamiliar with such traditions!
Although the British legal system is clearly preoccupied with precedent, history, and tradition—what with the pomp and circumstance, ceremonial dress and titles, and the pure Britishness of it all—it would be wrong to assume that it is inflexible or static. On the contrary, the system has grown and evolved over the years. For example, the Supreme Court of the United Kingdom is a relatively recent creation, established by an Act of Parliament in 2009. Before then, the court of last resort was the Appellate Committee of the House of Lords in Parliament. The Supreme Court was created as its own independent governmental structure, establishing a clear separation of powers among the judiciary, the legislature, and the executive, while also making its work more accessible and visible to the public.
Against the backdrop of tradition and precedent dictating seemingly every facet of English law, the notion of creating a new court wholesale—and a supreme court at that—to me is almost revolutionary. More surprising still was the fact that, because the Supreme Court is brand new and lacks any preexisting precedent or tradition, it operates relatively differently than other courts. I spent a wonderful week shadowing Lord Burrows of the Supreme Court and observing oral argument, and learned that, because there is no tradition of wearing wigs and gowns at the Supreme Court (since it is new), the judges and barristers don’t wear court attire, opting instead for business suits. Similarly, rather than an elevated bench, the Justices sit at tables that are intentionally at the same level as the litigants. There is also a concerted effort at the Supreme Court to establish new traditions that are thoughtful and inclusive; the building, décor, and court seal are all intentionally designed to reflect the jurisdictions within the United Kingdom, and the courthouse contains art paying tribute to various causes, such as artwork celebrating women in the law. We also heard from the Justices that an important priority is to increase the public’s access to the work of the Supreme Court; argument are live-streamed and available online, and outside, there are signs inviting the public at Parliament Square to come watch proceedings.
The seal of the Supreme Court of the United Kingdom.
Thus, while tradition is still clearly very important, the Supreme Court is an example of a judicial system that is both self-reflective and capable of making adjustments to reflect an evolving society’s changing needs. Our visit with the Master of the Rolls provided another example of efforts to adjust the role of the courts to match this modern age. Specifically, the Master of the Rolls is a champion of using artificial intelligence to provide a better, quicker, and more cost-effective dispute resolution process. He shared with us his vision of a digital justice system, one that uses AI to help triage cases and funnel pro se or unsophisticated litigants to the appropriate forum for resolution, and even, in some cases, using robo-judging to dispose of small matters. Such visionary ideas seem like they would be nigh-impossible to adopt in the United States, but in the United Kingdom, where the second-most senior judge in England and Wales is personally championing such solutions to the problem of access to justice, such solutions seem attainable.
The role of precedent and tradition, thus, represents one of the great contradictions that I encountered with the British legal system: how does a system so steeped in history and ancient practices simultaneously makes such big, unprecedented steps in the pursuit of justice? Like the other big questions I encountered during my time in London, I don’t pretend to have the answers. At minimum, tradition and history feature heavily in the next “general musing” I continue to mull over after coming home: the importance and significance of barristers as officers of the court to the overall functioning of the British legal system.
A Question of Honor
As someone who adores being in court, observing courtroom proceedings in the United Kingdom prompted the “familiar, yet foreign” feeling I mentioned earlier. In terms of the fundamentals, being in a trial court in London and Belfast (where I was lucky enough to observe court proceedings) felt similar to being at home in the United States: it’s a large room, with a bench, witness stand, jury box, and tables for the legal advocates. There are many small differences, including: the wigs and robes (discussed previously); the court clerk announces “all stand” when the judge enters (instead of “all rise”); in criminal cases, barristers ask for permission to “turn their back” whenever they need to walk to the dock and speak with their client; and barristers charmingly refer to one another as “my learned friend.”
In addition, there are several big differences, the most significant being that the UK has a split profession: attorneys are either “barristers” or “solicitors.” With limited exceptions, only barristers are granted “rights of audience,” i.e., the right to appear in court on behalf of their client; they are the oral advocates, similar to trial attorneys in the United States except with a narrower purview. Solicitors, in contrast, handle everything else a lawyer might be expected to do, from providing legal advice, drafting witness statements and documents, negotiating contracts, and “instructing” barristers on the client’s position. Thus, rather than the “one size fits all” approach that we employ in the United States, the British system separates courtroom specialists—the barristers—from all other legal roles.
There are two other major differences that fundamentally separate the British system from ours. First, barristers are self-employed; although they group themselves into chambers for purposes of sharing overhead expenses, they operate as independent agents for hire. Second, barristers are not permitted to refuse a case they are asked to take (provided they are qualified and available). This rule is called the “cab rank” rule, and practically means that barristers cannot discriminate between clients or refuse to take a case on ideological grounds.
I believe it is these differences—the split profession, the cab rank rule, and the independence of barristers (helped along by the courtroom traditions of wigs and robe, which give a certain air of formality and respectability)—are a big reason why barristers collectively seemingly have a much higher standard for conduct, civility, and professionalism than we do in the United States, and by extension, a much better reputation within society. Barristers don’t seem subject to the frequent lampooning of lawyers that happens in U.S. media and society, including, for example, “lawyer jokes” or caricatures as being ruthless guns for hire, willing to do or say anything for their clients. And although barristers are still subject to regulation through the Bar Standard Board, the threshold for sanctionable behavior and serious consequences appears to be much lower than I expected. For example, I came across an article on a mainstream news website describing a barrister being publicly sanctioned by the Bar Standards Board for making an inappropriate gesture in court; the regulator concluded that the barrister had behaved in a way "which was likely to diminish the trust and confidence which the public places in him or in the profession." Although such an infraction would likely result in some sort of consequence in the United States, I doubt that this conduct alone would have resulted in the same degree of public naming-and-shaming.
I found myself pondering the origins of this tradition of extremely high standards for the collective honor of individual barristers to serve as loyal officers of the court. On first glance, barristers—courtroom representatives who literally cannot say no to a potential client—seem closer to the metaphorical “gun for hire” than American attorneys, but the system doesn’t feel that way in practice. Instead, the British system seems simultaneously more and less adversarial than the American one, in ways that I think are enviable. On the one hand, no one is deprived of the representation of your choice (provided you can pay), and thus the playing field is more even regardless of your litigation position. On the other hand, it incentivizes barristers to be collegial and professional towards one another, given that neither can be assumed to be personally invested in their respective client’s case, and given the relatively small size of the bar, the potential that they will appear opposite one another—or even aligned—in the future is relatively high. Indeed, having participated in several heated meet-and-confer meetings as an associate, the atmosphere in the barristers’ robing room, where prosecuting and defending barristers hung out side by side during breaks and ate lunch together, felt almost unsettlingly harmonious in comparison. I was pleasantly surprised, given that, in my experience, agreeable and accommodating opposing counsel are usually the exception, not the norm.
Another example of trust in the profession are the ramifications from the fact that barristers are self-employed, and therefore are independent from other barristers, including those within the same chambers. Unlike in the United States, where an ethical conflict of one attorney is imputed to the entire firm, barristers from the same set of chambers can represent clients on opposite sides of a dispute without issue, and can even take turns prosecuting criminal cases one day, or defending the next. But despite the fact that barristers can—and frequently do—work across from one another within the same set of chambers, there are no concerns about confidentiality or constructive knowledge of privileged information being imputed to others within a firm, or the need for “walls” within a firm to ethically screen attorneys from matters they are conflicted from working on.
For example, we had the great fortune of having afternoon tea with Constance Whippman and Jamil Mohammed of 33 Bedford Row, who gave us a tour of their chambers, including the mailroom. The mailroom contained open shelves on which each barrister received the papers for his or her upcoming cases, including client instructions that discuss case strategy and, presumably, privileged information. When we asked about precautions that chambers take to make sure that confidential or privileged information doesn’t end up in the wrong hands—for instance, in the hands of the opposing barrister who may be in the same chambers and use the same mailroom—Jamil merrily told us that such precautions are not necessary because, in his words, barristers just simply wouldn’t do that kind of thing. Moreover, tradition (of course) mandates that barristers use a highly advanced technology—pink ribbon—to keep solicitors’ confidential instructions secure.
Jamil Mohammed of 33 Bedford Row was kind enough to let the author try on his robe and horsehair wig.
Perhaps I am exposing myself as a cynical American, but I can’t help but look at the British system and be impressed that the system can rely so confidently on barristers’ collective honor to function effectively. In making this observation, I do not mean to besmirch the U.S. system or suggest that American attorneys are lacking in scruples or honor; on the contrary, in my experience, most American attorneys take their professional oaths and duties to their clients and the court extremely seriously. I am merely observing that, in the United States, the system generally requires additional safeguards beyond an implicit belief that a lawyer will act appropriately—for example, the ethical walls or imputed conflicts of interest discussed previously, or certification requirements when filing with the court.
I believe the separation of barristers from solicitors contributes to this atmosphere of honor and barristers’ reputation as trustworthy officers of the court. I was told that a barristers’ primary duty of loyalty is to the court, not the client, and barristers do not have the same fiduciary responsibilities or duties to clients as attorneys in the states often do. Moreover, because barristers are in court appearing before the same judges all the time, the need to maintain an impeccable reputation for trustworthiness and credibility before the court is sacrosanct. I wonder too if the relative distance between barrister and client in light of the split profession—barristers, I was told, often meet clients for the first time in the hallway outside the courtroom—renders it much easier to make the right choice when confronted with competing duties between court and client.
I believe that this trust in the collective honor of individuals working within the legal system—judges and barristers—extends to an overall faith in judicial institutions and governmental bodies to execute their duties faithfully and honorably. Upon meeting us Americans, British barristers and judges would frequently express dismay and disbelief at the politicization of the judiciary in the United States, both publicized and contested appointments to the federal bench, and in some states, judicial elections. But conversely, we were routinely astounded by the lack of transparency of certain aspects of the British legal system. For instance, judges are appointed by a committee after consideration of a pool of applicants. Although I asked several different barristers and judges, no one seemed particularly bothered by how those decisions are made or the identity of the committee members. Similarly, we learned that the assignment of judges to particular cases is not done by random assignment—as it is typically done in the United States—but rather by a civil servant based on seemingly murky criteria, such as prior experience with the subject matter. Again, the judges and barristers I spoke to largely seemed not to be bothered by the lack of knowledge or information about the behind-the-scenes machinations, again trusting implicitly that those in charge would do the right thing and exercise their powers faithfully.
I find the British system, and the seriousness with which it prioritizes honor, professionalism, civility, and trust—as well as faith in institutions and those with decision-making power—to be enviable. I find myself wishing that the United States had such faith in our institutions and participants, as opposed to the often partisan, political sideshows that frequently fill the headlines. I also wonder if such trust is possible in the United States. We are taught from elementary school that transparency and checks and balances are necessary protection against the misuse of power and tyranny; given that our Founding Fathers incorporated such principles into our government in response to the revolutionary war and the British monarchy, I wonder whether our national skepticism makes it impossible for us to truly believe that someone in power will do the right thing simply because they say they will. At minimum, on returning to the United States, I find myself more appreciative of the need for attorneys and judges to maintain credibility with the public and earn that trust which barristers and judges are so protective of in the United Kingdom.
Law in Common
A primary purpose of the Pegasus Trust Scholarship program is for scholars to learn about the practical workings of a common law system in other countries. As a relatively young jurisdiction, compared to Britain, the United States borrowed certain common law principles from Britain, and thus there is substantial overlap in our fundamental, blackletter law. Once adopted, however, those concepts and ideas have evolved and diverged over time in each respective jurisdiction, resulting in interesting distinctions in between our laws, and again prompting the “foreign, yet familiar” feeling that followed me throughout my trip. Some of these divergences became apparent to me during a one-week criminal sexual assault trial at the Basildon Crown Court, which were both surprising and forced me to confront my own assumptions that the American approach is the only or best way to solve legal issues.
Basildon Crown and County Court.
Consider, for example, jury selection, or “voir dire.” In the United States, this is a lengthy proceeding and can span hours or even days; in Atlanta, jury selection in the criminal RICO jury trial for Young Thug, a famous rapper, took almost ten months. The purpose of voir dire is to uncover improper biases, excuse ineligible jurors, and give the parties an opportunity to ascertain the suitability for individual jurors to serve. As a result, it is a huge aspect of trial preparation and strategy, and litigants can pay tens of thousands of dollars to jury consultants in an effort to identify favorable jurors. In contrast, the voir dire I observed in England took all of two minutes and consisted of asking the jury pool whether they recognized any of the witnesses or litigants and selecting twelve names from a hat.
I was told that barristers and clients are largely unconcerned about unknown biases improperly affecting the result of the trial, on the grounds that, to the extent there are any biases within the panel, they will likely “balance each other out” and not impact the jury’s ability to reach a just result. I understand that line of thinking but became more skeptical after learning that juries in Britain do not have to be unanimous in making their decisions, and in certain cases, can convict with only 9 jurors in agreement. (In the UK, juries are only used in criminal cases). If you skip jury selection because the biases will balance themselves out in the wash, but also permit convictions without all jurors agreeing to the result, isn’t there danger that the more numerous biases will prevail? Again, I wonder whether my skepticism stems from America’s history, including the use of discriminatory tactics to keep Black people and minorities from serving on juries. On the other hand, would a system that precludes the striking of potential jurors for any reason result in juries that are more reflective of racial and social makeup of society? I’m not sure, but at minimum, I am envious of the efficiency of the British system.
I was also struck by the differences in rights for criminal defendants, and in particular the lack of certain protections enshrined in our Constitution. In Britain, criminal defendants do not have the right against self-incrimination, and the judge instructs the jury that it can draw an adverse inference against the defendant should he or she choose not to take the stand. This is completely opposite to the United States, where defendants are free to remain silent, and juries are expressly instructed not to draw any conclusion from that decision whatsoever. When discussing this distinction, criminal barristers told me this was unrealistic, and that regardless of what the judge tells them, juries expect defendants to share their side of the story and will hold it against them (and think it is evidence of guilt) if they fail to take the stand. So, according to barristers, why pretend differently?
British courts diverge from our criminal procedure in other ways. Perhaps in recognition of the fact that requiring victims to revisit and discuss the specifics of a crime at trial—in the presence of the accused—can retraumatize victims, or even discourage bringing suit at all, courts in the U.K. adopt various strategies to minimize victim impact. Some of these strategies include using screens to physically block the sightlines between witness and defendant, so that the jury can still observe the witness’s demeanor, but the victim does not have to see the defendant. In addition, in lieu of a victim having to give direct testimony in court—which may include, for example, describing details of the crime—courts will permit the playing of the victim’s recorded interview with police when he or she reported the crime. The advantages of this approach are twofold, in that not only does the recording constitute the most contemporaneous account of the victim’s story, but it also avoids forcing the victim to relive the crime, which in the case of assault or rape, may be extremely traumatic. The victim or witness would then appear live in court for cross-examination.
The adoption of such courtroom strategies is admirable and goes a long way in attempting to balance the interests of justice while protecting victims. And while such measures would be welcome in U.S. courts, I doubt that they would be legally permissible under our current system. Permitting a witness to testify behind a screen or by playing a prerecorded wholesale implicates a host of evidentiary and hearsay issues, not to mention the Confrontation Clause of the Sixth Amendment, which grants the accused the right “to be confronted with the witnesses against him.” But the fact that such measures are successful in the United Kingdom—and, I’m guessing, increase the number of prosecutions that may otherwise be dismissed due to victims reluctant to testify—makes me wonder whether we should consider how to make such approaches work here. If the courts of England and Wales—what with their ancient, storied traditions and precedent—can adopt new measures and change courtroom procedure in the hopes of improving their system, we should at least consider doing the same.
Sincere Thanks
My time in England as a Pegasus Scholar was, in a single word, incredible. Incredible that such a program even exists. Incredible in the sheer level of hospitality, warmth, generosity, and kindness we were shown by every judge and barrister we encountered during our time in the UK. And incredible that I was lucky and fortunate enough to have been chosen for such an adventure. As I frequently retorted to Erin whenever overcome by whatever magical experience, we were having that day, “I simply cannot believe we get to do this!”
I owe a tremendous debt of gratitude to everyone who helped facilitate this wonderful experience for me. Extra special thanks to Cindy Dennis, the American Inns of Court, Brigadier General Dunn, and the Pegasus Trust who organized and paid for this amazing program. To the barristers and chambers that hosted me—Jim Sturman KC, Nick Bonehill, and Matt Kingswell of 2 Bedford Row, and Jonathan Metzer and Rebekah Lee of 1 Crown Office Row—thank you for making me feel welcome, answering my incessant questions, and giving me a peek into the daily life of a barrister. At the UK Supreme Court, thank you to Lord Burrows, Lord Reed, Lord Stephens, Lord Briggs, Lord Hodge, and Lord Lloyd Jones for the most magical and enjoyable dinner at the Athenaeum Club; I will treasure memories of that meal forever. Thank you to Pete Kerr-Davis for answering my questions, and to Ayo Onatade for organizing our program.
To Judge Lynn and everyone back in chambers, thank you for letting me take the time to do this, and picking up the slack in my absence. A huge thank you to the wonderful Temple and Pegasus scholars I shared this experience with; you made this experience extra fun, and I can’t wat to see what amazing thing you all get up to in your careers. And finally, a big thank you to Erin, the best roomie I could have asked for; I cherish our memories of the Thistle Street Pub in Edinburgh and traipsing around the Titanic Museum!