Thursday, 7 April 2016

The English Legal System vs. the American Legal System

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.

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