David J. Zimmer

2013 Temple Bar Scholar Report

From our first arrival in Legal London, I knew we were in for a fascinating month. Exiting from the Temple Tube and walking up Essex and down Fleet Street, we were immediately surrounded by legal institutions, from the beautiful, ancient buildings of Middle Temple, to sleek barristers' chambers, to the historic Royal Courts of Justice. Coming from the United States, the compactness of London's legal world was striking from the start. And as we visited the Inns and spoke with barristers, it was clear that this compactness helps bring a sense of community to the barristers' profession; a community that seems to foster remarkable civility and cooperation. Although perhaps harder to bring about back home because the American legal profession is so dispersed-not just within cities but across the country-the civility and collegiality we observed during our time in London would be a great benefit to the practice of law in the United States, and I certainly concluded my month in London with a renewed commitment to that important goal of the American Inns of Court.
As the month went on, I quickly got used to being able to walk nearly everywhere, and became more immersed in the substance of Legal London, not just its physical landscape. I had known little about British or English law before arriving in London, and every day brought new insights. And as those insights piled up, I became increasingly impressed by one theme in particular: the juxtaposition of a long and illustrious history with an incredible flexibility and adaptability.

Our month began with a journey into history. On one of our first days in London, we were fortunate enough to attend the opening of the legal year at Westminster. It is hard to imagine a more historic, or spectacular, event. The wigs, although themselves impressive, were nothing compared to the elaborate and beautiful robes and gowns. All the outfits, and the event as a whole, evoked the long and storied history of English law. That same week, we were very generously hosted by each of the Inns of Court. Visiting those institutions, and speaking with the Under Treasurers and barristers who run and inhabit them, similarly gave a sense of the great history and tradition of English law. To have lunch in the same hall that witnessed the premiere of Shakespeare's plays, and to see a table constructed from Sir Francis Drake's ship, provided a journey into the past that could not be imagined in the United States. Our visit to the Royal Courts of Justice in its spectacular old building on the Strand was similarly evocative.

But just as I began to get the impression that the dominant feature of Legal London was its history and tradition, we were taken on a wonderful tour of the relatively new Commercial Court by Lucy Colter, the chair of the Young COMBAR committee. The Commercial Court could not be more of a contrast from the Royal Courts of Justice. Where the Royal Courts could easily be a castle, the Commercial Court could just as easily be a new office building. And whereas the judges in the Royal Courts for the most part wore wigs and gowns, the Commercial Court judges not only wear no wigs but also wear no gowns. In that sense the Commercial Court judges are even further from historical practices than judges in the United States, who all still wear gowns.

And the adaptability of the English and British systems extended well beyond formalities. The Commercial Court was a response to the modern increase in complex civil litigation, and especially complex international civil litigation; it was designed to provide a more effective forum for resolving these complex disputes. The Court has been so successful that many suits brought there involve neither parties nor facts that have anything to do with England or the United Kingdom. And while these parties are certainly motivated in part by the historic English respect for the rule of law, they are equally motivated by the modern facilities and judges well trained in modern commercial transactions that the Commercial Court provides.

Perhaps the most interesting example of the combination of tradition and adaptability I observed came when, during my week at Blackstone Chambers, I was lucky enough to spend several days observing a trial in the Commercial Court. Having worked on a large civil trial in the United States, I was curious how the two experiences would compare. Although there were many differences between the two systems (and many similarities), the most striking difference for me was that in the Commercial Court, unlike in the United States, there are no juries in civil trials. This led to a very different feeling in the courtroom. In the United States, one of a lawyer's primary goals in a complex civil trial is framing a case in a way that a layperson can understand it. This leads to a lot of analogies and theatrics; in the trial I worked on we brought an actual filing cabinet into court to show how certain computer code functioned like a filing system. In the trial I observed in London, however, there was no need for analogies or theatrics. The judge, after all, had heard and decided many cases with similar issues and did not need to have the case simplified in order to understand it.

What is interesting about this differences between the two systems is that it is a direct result of the adaptability of the legal system in the United Kingdom compared to that in the United States. After all, the constitutional right to a civil jury trial in the United States is tied to English law at the time the United States constitution was written (the test under the Seventh Amendment is, in fact, whether English common law would have required a jury trial in 1791). But whereas the United States, through the constitution, has locked itself into civil jury trials (absent an extremely unlikely constitutional amendment), the United Kingdom has decided that, as civil trials become increasingly complex, it is best to put them before more highly-trained judges. Although I (unlike many people) actually think there is something to be said for jury trials even in complex civil cases, I also found it interesting to observe how the legal system in England is adaptable enough to recognize the growing complexity of civil disputes and adapt to it in a way that is not realistically possible in the United States despite the English origins of the American jury trial right.

The week we spent at the Supreme Court had a similarly interesting combination of historical tradition and adaptability. During the amazing four days we spent there (and we owe an incredible thanks to the warmth and generosity of the Justices who hosted us) we witnessed the ways the Supreme Court, although new, remains tied to historic institutions; for example its continuing service as the Privy Council. At the same time, the Supreme Court is a new institution, and has gone further than any other court in the country (or the U.S. for that matter) in abandoning the historic ceremony of judges: The Justices wear no wigs or robes, and do not sit on an elevated bench but sit at a conference table level with the lawyers before them.

Of course, much of what we observed also focused on challenges facing the English and British legal systems that will require future adaptations. The most complicated issues that arose repeatedly in our conversations were how to adjust to having appeals in certain cases go beyond the Supreme Court to the European Courts, and how to deal with drastic budget cuts to legal services. But although these are hard questions, from what I saw I am confident that the legal systems will be able to adapt.

In conclusion, my month in London was eye-opening, intellectually stimulating, and thoroughly enjoyable. I feel very lucky to have been selected for the Temple Bar Scholarship and want to thank the American Inns of Court for making this opportunity possible, as well as the four British Inns of Court for hosting my colleagues and me throughout the first week. I also want to thank the numerous individuals who made our time in London so enjoyable. First, I want to thank Cindy Dennis for all her hard work in organizing the month, and Justice Donald Lemons and Thomas Leighton for accompanying us during our first week. Likewise, thanks to Joe Smouha QC for hosting us at a wonderful dinner, and for his excessively generous introductions at the Temple Bar reception. My hosts at both Blackstone Chambers (Tom Weisselberg and Robert Anderson QC) and Three Verulam Buildings (Jonathan Davies-Jones QC) were all fantastic, and gave me the opportunity to witness literally every level of the legal system in London, from the county courts upwards. I would also like to think Suzanne Wiseberg from Mishcon de Reya for a very interesting last day of the program. And last, but certainly not least, a special thanks for the incredible generosity of the Supreme Court Justices who hosted us, and Lord Kerr of Tonaghmore in particular for hosting me. Never in our wildest dreams could we have anticipated the generosity we received during our time there.

David J. Zimmer---may be the only Temple Bar Scholar ever to have climbed Mount Kiliminjaro. Pursuing an eclectic career path, Zimmer has worked variously in Los Angeles, Liberia, and Sierra Leone. He was an associate on the legal team that defended Google in the suit brought by Oracle over the use of Java in Google's Android software. Zimmer serves currently as a clerk to Associate Justice Elena Kagan of the Supreme Court of the United States. He earned his J.D. magna cum laude from Harvard Law School; a Master's in Public Administration from Harvard's Kennedy School of Government; and a bachelor's degree in Social Studies from Harvard College. While at Harvard Law, his honors included Best Team and Best Oralist in the Ames Moot Court Competition. Zimmer has served as Special Assistant to the Minister of Justice in Monrovia, Liberia, and as a research assistant to the government of Sierra Leone through the MIT Poverty Action Lab and the World Bank.