A blog from one of our recent work experience students from Boston University, Maryrachel Durso.
Upon
spending five months studying about and doing work experience within the field
of law in England, I have come to realize that, while the American legal system
is directly descended from the English legal system, there are many differences
in the way the two systems operate. I have outlined five major differences
below:
1) Legal Education
In
the United States, the decision to pursue a career in law can be made quite
late in life and is a relatively short process. To receive a Juris Doctor
degree, one must receive a standard undergraduate education, attend an
accredited law school for three years, and pass the bar exam in a state of
their choosing. There is no specific undergraduate degree required for someone
pursuing law school. Therefore, a student could graduate university with a
degree in biology, then decide he wants to go to law
school, and be able to do so without any issues or other requirements. Many
students take a great deal of time off between university and law school –
sometimes up to 10 years. Once one has successfully completed law school, they
must take a bar exam in the state they intend to practice in. At that point,
they may generally practice law in any field.
In
the United Kingdom, one must decide early on if you wants to pursue a career in
law. A student must first go to university; although most aspiring lawyers will
study an undergraduate law degree, others will study a wide variety of other
subjects. If the student did not study law at undergraduate level, he or she
must then ‘convert’ their degree by doing a one-year course called the Graduate
Diploma in Law. This is in effect viewed as a second undergraduate degree,
albeit shorter. After that, the student must choose between becoming a solicitor
or a barrister. To become a solicitor, the applicant must take a one-year Legal
Practice Course and then obtain a training contract for two years with a
solicitor’s firm. If the applicant chooses to pursue a career as a barrister,
they must be a member of one of the four Inns of Court; complete the one year
Bar Professional Training Course; and be called to the bar after completing
many activities, lectures, and courses; and then obtain and complete pupillage,
which is one year spent being trained by a pupil master. The process of
becoming a lawyer in England is much more competitive, taxing, and extensive
than the process in the United States.
2) Roles of Lawyers
In
the United States, litigators and non-litigators are not separately licensed.
As outlined above, when someone passes a bar exam in a specific state, he is
licensed to practice in any way that he pleases. Some choose to advocate in
court and are known as “litigators”. Others choose to do more legislative work
and are referred to based on their area of work such as a civil disputes
attorney or a real estate attorney. However, these non-litigators have the
ability to advocate in the high courts if they wish to do so.
In
the United Kingdom, there is a stronger distinction between those who undertake
advocacy in court and those who do not. Barristers all have the right of
audience in the higher courts, although some choose not to exercise them; some
solicitors apply for rights of audience in higher courts, although they do not
obtain these automatically upon qualification, as barristers do. Most
solicitors do not have ‘higher rights’, as these rights of audience are termed;
however, the number of solicitor higher court advocates is increasing all the
time, particularly in areas such as criminal law.
3) The Decision to Issue an
Indictment
In
the United States, before a case goes to trial, there is a grand jury hearing,
in which a jury decides if there is enough evidence to serve the defendant with
an indictment. The indictment is what allows the criminal case to proceed to a
full trial. Except for in very rare cases, the right to a grand jury is ensured
by the Constitution.
In
the United Kingdom, however, the Crown Prosecution Service and the police make
the decisions as to whether someone should be charged with an offence. The
police are empowered to make a variety of charging decisions; those that cannot
be made by the police alone are made by the Crown Prosecution Service. Grand
juries were abolished in the United Kingdom many decades ago. Then the
indictment, if the offence is serious enough to go to the Crown Court, is
usually drafted by Counsel on behalf of the Crown Prosecution Service.
4) The Constitution
In
the United States, there is a constitution from which the law is derived. The Constitution
acts as the supreme law in America, sets out the guidelines that one must
adhere to, and is followed at all times.
In
the United Kingdom, there is no sole central document such as a constitution.
Instead, the English legal system is build around precedent and acts of
parliament.
It
is important to note, however, that both the United States and England use the
common law system, in which past judgments are used to set a precedent for
future judgments.
5) Jury Selection
In
the United States, the jury pool is first selected by randomly summoning a
large group of people from the voter registration and divers license renewals
lists. From this list, a panel of jurors is assigned to a courtroom and then a
smaller group is randomly selected to sit in the jury box. At this stage,
lawyers on both sides of the case are allowed to interview, analyze, and
challenge the jurors. The jurors are cross-examined to determine their
suitability. The two sides must agree on each juror that is selected and, if
they do not, the juror is dismissed.
In
the United Kingdom, the process is slightly different. The English court system
selects jurors at random from an electoral register on a computer. Just like in
America, the jurors are assigned a courtroom and then a portion of them are
randomly selected to sit in the jury box. However, there is no
cross-examination. The only reasons that the lawyers can protest any member of
the jury is if they or their client has a personal relationship with him, they
believe the jury was chosen in an unfair way, or provide another valid reason for
disqualification of the juror. This process seems much more democratic and
assures that the juries that are chosen are diverse and representative of the country’s
population as a whole. It prevents both prosecutors and defence Counsel from
selectively choosing jurors based on their opinions or personal
characteristics.
