Candice Chiu

2012 Temple Bar Scholar Report 

The Temple Bar program afforded an unparalleled opportunity to compare and contrast the American and British legal systems over the course of a month-long immersion in London's legal circles. In that time, we observed differences, both large and small, in real-world settings, from legal ceremonies (attending the Opening of the Legal Year at Westminster Abbey) to legal practice (shadowing barristers and solicitors) to legal proceedings (observing trial and appellate proceedings). We were privileged, moreover, to discuss and debate such differences with our unfailingly gracious and distinguished hosts-British judges and practitioners who accompanied us at each step along the way.

My initial impression was that a distinct sense of formality pervaded London's legal profession. The relative newness of the American legal system seemed apparent everywhere we looked, from the ornate Gothic architecture of our surroundings, to the pomp and ceremony of the horse-hair wigs and gowns of British judges (criminal judges, though no longer their civil counterparts) and barristers (in lower courts, though no longer in the Supreme Court) in the courtrooms. As we toured the four Inns of Court-professional associations for barristers, which have long overseen legal education and have the exclusive right to call candidates to the bar-it was astonishing to think that each institution could trace its history to the mid-14th Century. To imagine the likes of Sir Thomas More and Oliver Cromwell once roaming the hallways of Lincoln's Inn boggles the mind. All in all, it was hard not to be awed by a sense of the British legal system's storied heritage and solemn, centuries-old traditions.

At the same time, I was surprised to find that many parts of the British legal system appear far more informal than the American system. In many basic, day-to-day aspects of legal practice, where the American legal profession has implemented and enforced formalized rules and procedures, our British counterparts appear to have adopted comparatively looser, relaxed conventions.

One example of this was in judicial panel assignments. In the United States, chief judges of the U.S. Courts of Appeals go to great lengths to ensure that the selection of judges for three-judge panels is transparent and random. A strictly randomized system avoids the perception that panel composition could be manipulated to favor any particular outcome or judge. By contrast, in the United Kingdom, the Lord Chief Justice on the Court of Appeal of England and Wales enjoys full discretion over panel assignments. Randomization is not only not required; it is regarded as problematic because it makes it impossible to account for judges' subject matter expertise on a case-by-case basis-for example, to ensure that judges with experience in contract law sit on a contract interpretation case. In other words, singling out individual judges for specific cases is, rather than a source of controversy, expected and even appreciated to some degree.

The relatively uncontroversial nature of this flexible, ad hoc process is all the more notable because discretionary panel assignments occur at the British Supreme Court level as well. On the nine-member U.S. Supreme Court, all nine Justices will hear each case unless there is a recusal. On the twelve-member British Supreme Court, however, cases are assigned to select panels of three, five, seven, or nine Justices (depending on the perceived complexity of the case).

A second area of surprisingly relaxed British practice was written submissions. The U.S. Supreme Court rules spell out in detail everything from the subsections that a merits brief shall contain and the order in which they shall appear, to the typeset, font size, paper, margins, binding, word limit, and cover color. By contrast, written submissions in British appellate courts do not follow a uniform format. During the time I spent with different barrister sets, I saw "skeleton briefs"-outlines of points upon which a barrister will elaborate at oral argument-that varied substantially in structure, organization, length, formality, and even font and font size. (My impression was that skeleton briefs are not all that "skeletal"; submissions often matched the length and comprehensiveness of American briefs.) Rather than take the American judiciary's approach of striving for general consistency, the British judiciary appears far more accommodating of variations and willing to defer to the individual lawyer's preferences and judgment.

Yet another area where looser, more ad hoc conventions hold was oral argument. Appellate advocates in the United States adhere to rigid time limits that are frequently enforced down to the second: 30 minutes per side in the U.S. Supreme Court and 10-20 minutes per side in the U.S. Courts of Appeals. Barristers, however, do not operate by strict time constraints. Their arguments, not infrequently, span several days. At such a relaxed pace, barristers can walk the judges through their case in stages, cover secondary or fallback arguments, and read out large portions of opinions and exhibits-an exercise far removed from the rapid-fire parrying of essential points of law that American advocates engage in. Barristers, moreover, generally have leeway to bring their case to a natural close. Although I often heard judges prod advocates as to when they expected to wrap up, I just as often saw such benchmarks be revised and adapted to as arguments progressed.

There is also no requirement in British courts that opposing parties receive equivalent argument time, in sharp contrast to the American premium on parity. One judge indicated that, in his experience, the appellant's advocate almost always took up more time than the respondent's advocate. Opposing parties agree on their collective argument time, and in so doing frequently accept that that time will be divided unequally between them.

Of course, this handful of discrete examples hardly produces any sweeping conclusions. They simply highlight that, for all the ceremonial trappings of the British legal system that wowed us at the outset, many everyday aspects of the American legal system must similarly strike the unaccustomed British observer as highly formalized. More broadly, they serve as a reminder that, for all the age-old traditions of the British system, many areas of U.K. legal practice are still evolving-sometimes in tandem with the American system, and perhaps sometimes with an eye to longer-established American models.

In any event, gaining a more nuanced picture of how the British judiciary and bar function-and simultaneously gaining a better grasp of distinct features of our own system-is what the Temple Bar program is all about. Whatever the differences between our two systems, and whatever their respective merits, having firsthand exposure to some of those differences was a deeply enriching and eye-opening experience. I am very grateful to the American Inns of Court, Cindy Dennis, and our hosts in London for providing the Temple Bar Scholars with this unique opportunity.

Candice Chiu received her J.D., cum laude, from Harvard Law School, where she served as Supreme Court chair of the Harvard Law Review and as editor of the Harvard Journal of Law and Public Policy. Ms. Chiu received her A.B., magna cum laude, in social studies with an honors thesis. While at Harvard, Chiu was a USA Today 2004 College Academic Awards recipient. After completing law school, Chiu served as an associate at King and Spalding LLP, an international law firm. She is currently a judicial clerk to Associate Justice Sonia Sotomayor and retired Associate Justice Sandra Day O'Connor of the Supreme Court of the United States.