Common Law Lawyers and Judges

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Part of a series of lectures given to German law students at the University of Münster.

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Common Law Lawyers and Judges

  1. 1. Common Law Legal System Lawyers and Judges
  2. 2. LawyersTraditional System Used in U.K, parts of Australia, Ireland Barristers & SolicitorsFused System Used in U.S., Canada and most other common law countries. No longer distinction between barristers and solicitors
  3. 3. Path toBecomingBarrister or Solicitor
  4. 4. Legal Education: Barrister and SolicitorThe academic stage of the education is same forboth barristers and solicitors put another, one does not choose a career path under after completing university studiesTwo Paths LLB – undergraduate degree in law GDL – one year graduate study in law for those who do not have an undergraduate law degreeThere is also a continuing ContinuingProfessional Development requirement whilepracticing.
  5. 5. Solicitors: Legal Practice Course (LPC)First step after university studies to becoming asolicitor.combination of additional study and practicalexercises sanctioned by the Law Society Four Parts: foundational subjects, compulsory subjects, optional subjects, practical exercises. About 15 exams in total, have three chances to pass each. total program lasts about a year.
  6. 6. Solicitors: Training ContractHand-on training conducted by practitionersLasts two yearsTrainee must experience at least three differentareas of law.Trainees are paid a minimum salary set by theLaw Society.
  7. 7. Solicitors: Professional Skills Courserelatively new component of solicitor trainingequivalent of 12 full days of studyCore Modules: advocacy and communication skills financial and business skills client care and professional standardsThis MUST be completed before one can beadmitted to the Rolls (see next slide).
  8. 8. Solicitors: PracticeRights of Audience – traditionally limited tobarristers. Solicitor will accompany client to court and assist barrister with presentation of case..Typical Practice Prepare legal documents, give legal advice, engage in negotiations. Clients come directly to solicitors/solicitor can stand in the place of his client.Solicitor-Advocates special training that allows solicitors to litigate before higher courts.
  9. 9. Barristers: History of the BarBarristers are collectively known as “the Bar”All barristers must belong to one of the four Innsof Court Inns were traditionally responsible for eduction and training. Inns continue to have the sole right to call members to the Bar and execute punishment of members.
  10. 10. Barristers: Bar Professional Training CourtTraditionally offered only by the four Inns ofCourt in London. today the Bar Council allows universities to provide the course as well.Major focus is on practical exercises concentrates on advocacy, drafting legal documents and legal research.Lasts one year.Law clinics offer students early chance for actualcase work.
  11. 11. Barristers: PupilagePractical training with a barrister lasting oneyear, broken into two parts: first six – usually amounts to shadowing “pupil master” (a barrister with at least 10 years experience) second six – has limited rights of audienceOnly one spot for every three applicants
  12. 12. Barristers: Law PracticeSelf-employed, not allowed to establishpartnerships. must join loose association called Chambers after three years can work solo if desiredCourt Work traditionally only barristers had rights of audience most spend majority of their time in courtCounsels Opinions research on specific area of law resulting in advice given to solicitor.
  13. 13. Cab Rank RuleTheoretically, solicitors can choose their client. Barristers cannot because of the Cab Rank RuleThe Rule: A self-employed barrister . . . must inany field in which he professes to practise inrelation to work appropriate to his experience andseniority and irrespective of whether his client ispaying privately or is publicly funded [accept apotential client] and do so irrespective of (i) theparty on whose behalf he is instructed (ii) the natureof the case and (iii) any belief or opinion which hemay have formed as to the character reputationcause conduct guilt or innocence of that person.
  14. 14. Queens Counsel (QCs)Appointed as one of“Her MajestysCounsel learned in thelaw.”Not separate fromlawyers, but verydistinguished.Solicitors can now beQCs as well.
  15. 15. Regulating Solicitors/BarristersSolicitors Barristers Regulated by Regulated by new Bar Solicitors Regulation Standards Board Authority. Code of Conduct New Code of Conduct offers guidance introduced in 2007 Can be disciplined by Can disciplined Standards Board through Solicitors Disciplinary Tribunal
  16. 16. Lawyers in AmericaFused system, so no Solicitors or BarristersEducationTraining & QualificationsGeneral PracticeLicense and Being Admitted Bar Associations
  17. 17. Role of LawyersStand in shoes of client in legal mattersResearch legal issuesGather factual information interviews (client, witnesses) discoveryIn Court – present fact to fact-finder and law to judge prohibited from hiding things from court
  18. 18. Regulating LawyersAmerican Bar Association creates Model Codeof Professional ResponsibilityEach state has own bar associationEach bar association has own rules andregulates own attorneys.Each bar association has own disciplinary board.
  19. 19. Common Law Legal SystemJudges in the Common Law System
  20. 20. Role of Judges Ensure Due Process and Fairness Rule on Procedural Matters Determine applicable law Instruct jury on such in jury trial Can be fact finder bench trial, summary proceedings Hand down sentences Except capital punishment in the U.S.
  21. 21. Judges in the JudicialStructure
  22. 22. Selection of Judges U.K.Constitutional Reform Act of 2005 For first time in 900 years, Lord Chancellor will not have total control over selection process.Mixture of committee recommendations, LordChancellor veto and Queens consent.Statutory retirement age of 70 All appointed positions are for life to 70 Most part-time and unpaid positions are by contract.
  23. 23. Removal of JudgesSuperior Judges can be removed by Queenupon recommendation of both Houses. This has happened once.Inferior Judges can be removed by LordChancellor for misbehavior or incapacity. This has only happened once.Fee-Paid, Part-time Office Holders can havetheir contracts not renewed for a variety ofreasons.
  24. 24. Lord Chief Justice Head of Judiciary but not Supreme Court Nominated by special commission, Lord Chancellor must approve.Lord Judge, The Lord Chief Justice Nominees hold senior judge of England and Wales post. and Head of Criminal Division. Has appointment power for lower courts.
  25. 25. Supreme Court Justice 12 top judges in judicial system. Vacancies filled by special judicial appointments commission with approval of Lord Chancellor. Justices of the Supreme Only superior courtCourt of the United Kingdom judges are nominated.
  26. 26. Courts of Appeal Comprised of “Heads of Division” and Lords Justices of Appeal. Heads selected by fellow Lord Justices Lord JusticesLady Justice Hallett (Dame Heather Hallett)Born 16 December 1949; Called to the Bar (Inner appointed by QueenTemple) 1972; QC 1989;a Recorder 1989-1999;High Court Judge (Queens Bench Division)1999- with “advice” from PM2005; Presiding Judge Western Circuit 2001-2005; Lady Justice of Appeal 2005-. Dress = black robe with short white wig. 37 Justices
  27. 27. High Court Judges Also called Puisne Judges Sit in one of three divisions of High Court (107 Judges) “Appointed” by Queen upon recommendation of Lord Chancellor and Judicial Appointment Comm. Must have “Right of Audience” or be former Circuit Judge Dress depends on division and type of case.
  28. 28. Circuit Judges Sit in Crown (criminal) or County (civil) courts. “Appointed” by Queen upon recommendation of Lord Chancellor and Judicial Appointment Commission Qualification - 10 years right of audience before Crown or County Court. 3 years as either Recorder or District Judge
  29. 29. RecorderPart-time judges in Circuit Courts Not to be confused with title of “Honorary Recorder,” which is given to senior Circuit Judges. Held by practicing lawyers. Restricted to Circuit Bench Work (Circuit Work = Crown or county courts) Can be appointed to hear either criminal or civil matters.Same appointment process as Circuit CourtJudges.
  30. 30. District Judges Sit in County Court (civil) or Magistrates Court (criminal) “Appointed” by Queen upon recommendation of Lord Chancellor and Judicial Appointment Comm. Must have “right of audience” for at least 7 years. Usually sit as Deputy District Judge first. Normally dress in suits.
  31. 31. MagistratesDeal with over 95% of criminal cases Less serious cases in Magistrates CourtReferred to as Justices of the PeaceAppointed by Lord Chancellor on advice of localadvisory committee.Unpaid, trained member of community NOT trained lawyers Sit at least 26 half-days per year About 30,000 in England and Wales
  32. 32. Quick Word About Law LordsThe House of Lords WAS highest court. 12 law lords sit highest court of appeals for both criminal and civil cases. Known as “Lords of Appeal in the Ordinary”Replaced by Supreme Court in 2009 Is highest Court for all of Britain 12 Law Lords in place when Court opens will be first Supreme Court Justices. Replacements will be chosen by committee
  33. 33. Selection of Judges U.S.Federal Court Appointed for life by President with consent by Senate Removal by impeachmentState Courts Election (21 states) Selection by Governor, Legislature or Commission Retention in 17 states Lifetime appointment in 12 Removal usually upon recommendation of committee by state Supreme Court.
  34. 34. Supreme Court Justice Federal Supreme Court has nine appointed by President with consent from Senate. appointed for life. average age of Court is 67 years-old State Supreme Courts varies in composition andChief Justice John Roberts term of service.
  35. 35. Lower Federal Court JudgesCalled “judge” instead of “justice”Appointed for lifeUnlike Supreme Court justices, can move to“senior status” upon reaching 65 AND servingnot less then 15 years on the bench.NOTE: these are not professional judges. They are not trained as judges. They are simply appointees!
  36. 36. State Court JudgesThe highest court judges are also usuallyreferred to as “justices.”Lower court judges are referred to as “judge.”It is common to refer to a judge or justice as“your honor.”The selection of these judges varies widely fromstate to state (more on that in a few weeks).

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