The British are coming!

What’s the difference? For our purposes, you don’t really need to know.

The key point to keep in mind is that if you are litigating in the UK, you are probably in England. England and Wales are two of the UK’s four constituent countries and share a legal system. Scotland and Northern Ireland have separate and – certainly in Scotland’s case – quite different legal systems. “British law” is a misnomer. English law is the term you want and, aside from cricket, is undoubtedly our most popular export.

The Channel Islands do their own thing. Jersey and Guernsey might look like quintessential British seaside villages, but they have their own legal systems and aren’t part of the UK.

The UK is no longer in the European Union (this has been the subject of some controversy), but for the time being we do still follow their laws.

Unlike in the US, a law firm usually isn’t a “one-stop shop” for conducting litigation. England has a split legal profession comprised of solicitors and barristers.

• Solicitors are organized into law firms (usually LLPs), which look very similar to their Americans counterparts. Solicitors at the top of the profession are usually partners at their firms.
• Barristers, or counsel, are technically self-employed, but are typically organized into chambers when they are called to the bar. Barristers at the same set (another word for chambers) will usually be specialists in the same areas of law. Barristers at the top of the profession may become Queen’s Counsel – also known as a QC, leading counsel, leader or silk.

As always, there are exceptions: barristers are sometimes employed by law firms where their day-to-day jobs may look identical to those of solicitors.

These days both solicitors and barristers would answer to the term lawyer – but they won’t answer to attorney. We have patent attorneys and powers of attorney, but no attorneys-at-law.

We also don’t make a habit of appending “Esq.” to our names, but we like it when you do it.

So, what’s the difference between solicitors and barristers?

Traditionally, barristers would be responsible for pleading the client’s case, legal opinions and court advocacy, and solicitors would handle everything else (such as the client relationship, finances, inter partes correspondence, document production witness and expert evidence, settlement negotiations and so on).

Solicitors will be the client’s point of contact and will run your case. They will be the operations hub – engaging experts, liaising with witnesses, and instructing counsel. Barristers’ involvement tends to be more sporadic. Like a really specialized garden tool, you might not use them all the time, but if you have the need then nothing else will do.

But the lines are blurrier these days:

• Some solicitors have higher rights of audience which allow them to conduct advocacy in senior courts. Some solicitors even become QCs.
• Some barristers can take direct access instructions, which means that they can be instructed directly by a lay client (otherwise, the client must instruct a solicitor who must then instruct a barrister). All barristers can be instructed directly by overseas lawyers, but they can’t conduct litigation without solicitors.

As with all good varsity rivalries, this side-by-side jostling produces ungenerous stereotypes: barristers do the brainy complex work but live in ivory towers and are incapable of normal human conversation. Solicitors, on the other hand, can’t breathe without running it past counsel, but have their feet firmly planted in the real world.

If you set out to design a legal profession from scratch, you might devise something simpler – but our system does have its advantages!

• Any firm can instruct any barrister. Barristers’ specialisms can be endlessly niche (the law of hedgerows, anyone?), which opens up the range of options for a given case.
• For that reason, legal teams can also scale up and down at the drop of a wig, depending on requirements from month to month.
• With solicitors performing the client-facing role in the run up to trial, the counsel team can focus solely on preparing for trial without interruption.
• Not being ‘under the same roof’, barristers and solicitors can draw on their separate experiences and provide valuable and independent second opinions.

From orbit, the route of cases through our civil justice system may look familiar. Claims are usually articulated before litigation is commenced, and if they don’t settle, about 2 years later they will end up at trial.

Closer to the action, the process can be significantly different.

We ditched writs, Latin and a host of other terminology that would have been more familiar to Americans over 20 years ago. We now start litigation by way of claim form. A plaintiff is a claimant but a defendant is still a defendant (some things are sacred).

Pleadings are now called Statements of Case. They’re as turgid as they are important, setting out the facts alleged, admitted and denied that will frame the battlegrounds for the rest of the case. Next, the court will usually give case management directions to trial.

Discovery is now called disclosure. Disclosure is limited to documents, though, and parties don’t have the chance to grill opposing witnesses in depositions.

One of England’s proudest innovations, which the courts now generally regret, are witness statements. These documents set out a witness’s evidence-in-chief, usually some months before trial, so that when the witness takes the stand at trial he is launched straight into cross-examination. The idea is that they save valuable time at trial, but the reality is that they are long and over-lawyered and judges are repeatedly saying these days that less is more.

Trial will look familiar to our American counterparts, save for the fact that advocates wear gowns and wigs, and of course there is no jury. Judges are rarely docketed here and we only find out who will be hearing the case shortly before trial, so there is not much opportunity to cut the case-cloth accordingly.

We do like damages, but we don’t like doubling or trebling them.

During this wild ride, any number of interim applications may come before the courts – summary judgment and freezing injunctions are common and will be familiar ground.

Perhaps the most unnerving aspect to US lawyers of engaging in English litigation is costs-shifting. We operate a loser pays system which (subject to a whole host of exceptions) means that the winning party can expect to recover most of the costs it incurred in the litigation.

This occurs both on a macro level, in terms of the costs of the entire proceedings that will be awarded by the judge following trial, and also on a more micro level where the losing party in an interim application may find itself paying the winner’s costs.

Arguing over costs can get meta: trial costs will be subject to a detailed assessment, which is a costly process in itself, and gives rise to disputes over the costs of the costs.

The civil court system in England is fairly straightforward:

• County courts are the lowest tier of civil courts. Since cases where more than £100,000 is in dispute can be issued in the High Court, inbound Americans aren’t likely to find themselves here and if they do they may have taken a wrong turn at Heathrow.
• The High Court is the highest level of first instance court and comprised of various specialist divisions and lists. Of these, the Commercial Court does what it sounds like and is also the supervising court in London for all arbitration-related litigation.
• The Court of Appeal hears first appeals from the High Court. The Court sits in the Royal Courts of Justice, a Victorian neogothic triumph full of soaring arches, turrets and buttresses and scoring a perfect 10 on the Hogwarts imitation scale.
• The Supreme Court is the end of the judicial line. In case the name sounds familiar, it was only set up in 2009 when we finally realized that drawing the nation’s highest court from one of its legislative arms (the House of Lords) wasn’t exemplary practice from a separation-of-powers perspective.

And addressing judges can feel like being a peon in Game of Thrones:

• In some High Court divisions, most interim applications will be heard by masters. They are addressed, “Master…” (whether male or female), which can feel a little like being back at school.
• District Judges are called “Sir” or “Madam” and Circuit Judges are the only judges whom you should call “Your Honour”.
• More senior judges in the High Court, Court of Appeal and Supreme Court are addressed as “My Lord” or “My Lady” (but doffing one’s cap is not necessary).