What is the difference between working with the case law system and the unified state system of court decision registration? How to become a barrister? What do students in UK prepare for?
David Amos and Ruairi O'Neill, lecturers of the Certificate Program in English Law and Legal Skills from the UKU Law School, told the Yurydychna Gazeta about it.
— Different law systems are based on different cultural (logical) approaches. Define major approaches that underline the common law legal system (besides the weight of judicial precedent). How could a person from civil system get used to it?
— David Amos: I think that one thing that is seen as a core difference between the common law and the civil system is the element of discretion which comes into many aspects of English law
In terms of the system of precedent in my experience lawyers from other jurisdictions find it a bit unclear. They therefore need some time to get used to the approach where legal reasoning is based on previous decisions.
At the same time there is the possibility that we can depart from or distinguish the decision in a previous case when aspects of it are different from the case that we are currently dealing with. So it is a rules-based system that has a lot of flexibility. In my experience, it is that aspect of flexibility and discretion that lawyers from other jurisdictions with civil codes sometimes find a bit more challenging to understand.
So how to get used to it?
The only way is by exchanging information between people from different jurisdictions. That can be the form of education, but it`s also a process when you are working together and exchanging ideas, that you can clearly see how the different legal systems work, and the specific features that the different systems have.
But I`d say that there is a lot of commonality between different legal systems. The structures of them are very much the same and in many ways the legal reasoning is the same. So, if you are good lawyer in another jurisdiction it doesn`t take a lot of time to get to understand the English legal system. It just involves experience and interchange with English lawyers.
— Ruairi O’Neill: About discretion, there are some features of English law that explain why English judges have more discretion. As I understand from the historical perspective, the civil code was designed to emasculate judges and remove some of the power from the judiciary that common law judges still retain. They aren’t supposed to exercise much discretion because the system was created to make sure they simply apply sets of rules to the facts, without much discretion. English judges in contrast a lot of discretion, for example through the use of Equity.
Generally, though, I don’t think that there is a very big difference between common law judges and civil law judges. On paper, you could say that there is less discretion in the civil system, but in practice, it is more or less equalized. For instance, in the UK (where a written constitution is absent) judges have more freedom in one sense, but in another sense they have less freedom because they are answerable to Parliament. So, I`d say that civil law judges have as much discretion as they want to interpret law in a way they choose and the lack of precedent gives them even more power to come up with the answer that they want because they are not bound by other judgments. So in one way, I would say civil law judges have even more discretion than common law judges.
And I`m sure that if a lawyer, who is skilled in the Civil Law tradition, could learn how to deal with the system of precedents, he would be a super lawyer.
— About precedents — In Ukraine, we have a Unified State Register of Court Decisions where you can find some of the court decisions, but that system leaves much to be desired. How is this system established in the UK (especially as regards earlier decisions)?
— Ruairi: In the UK, we have research services like LexisNexis or Westlaw which are slightly different from those available in other countries. With Westlaw, we use as a traffic-light system, which is really helpful when you try to find out what precedent is the most relevant to your case. So you do research on the WestLaw database and there would be a list of cases. One of them would have a green circle with a tick in it, which indicates that it`s the up-to-date precedent. If you want to go further, you can look for a higher court judgment that was applied. If it`s not green, and it`s red with the little white line in it, it means that it has been overruled. So that judgment is not one you can use in court, because it`s not capable of being used as a precedent. If it`s yellow, it means that it is capable of precedent, but it has received negative judicial appraisal, so it`s been criticized by other judges.
— David: Ruairi is right that the internet has changed this a lot. We always had a very established system for court reporting. So if you wanted to find the case that was the most authoritative source, you could do it. It’s an essential element of a common law system.
But now with the advent of the internet and the sort of databases Ruairi is talking about it has become much more straightforward so you can find the case that you want much more easily, Using the system that Ruairi describes it is also much more easy to check that the case has not been overruled. .
On that point it is worth noting that one of the key things that people find difficult about the system of precedent is that the only part of the judgments you could absolutely rely on is what’s called the ratio decidendi. This is the core part of the decision which explains why the decision was made.
That aside, there might be points of law that the judge has commented on which don’t form part of the decision but might be useful in in other cases. This is called obiter dictum. So if you want to rely on the case and use the decision as the basis for your argument, but can’t do it because it`s not quite the same, you can also use obiter dictum.
— New business models are appearing and many countries are trying to adjust the legislation to the needs of business. How does the common law legal system, which is known as the most stable system, cope with it?
— Ruairi: It`s hard to say. I think in terms of business, UK company law was designed to simplify regulatory issues for businesses. It was supposed to be attractive even for people who don`t live in the UK who wish to use UK corporate structures to engage in their business. So, I guess, there are a lot of UK companies even in Ukraine, which are regulated by UK company law. Besides, the UK gets some extra points for having stable, predictable laws and the court system which creates a positive business environment for companies. As such, don`t open up your company LLP or LTD in New York or Delaware, do it in the UK — you still can avoid the taxes if that’s your thing (laughing)!
— David: I think Ruairi is right. What also matters is the court system. The court system in the UK is seen as relatively fair, because It`s a system where you can get a fair hearing and fair result in reasonable terms. And I think that`s probably quite attractive to different companies.
— Ruairi: The court system is good, contract law is good for doing business and regulatory matters are kept as simple as possible. If you are non-UK resident and you have a company in the UK, you can submit all your accounting documentation online, tax information can be submitted online and you can pay for tax liability online. It`s all designed to be as simple and as open as possible. Nevertheless, the UK should keep legislation up to date with international standards and EU regulations in matters like anti-money laundering legislation or beneficial registers of trusts in property in the company`s shares. Currently, the UK keeps it up with international standards and EU regulations, which has to implement to maintain that idea that it's stable, open and properly-functioning legal system. Violating such standards may be good for businesses, but then it affects the reputation of the system as a whole.
— Could globalization lead to mixing of law systems?
— Ruairi: I think It already does.
— David: I qualified as a lawyer 25 years ago and it has been really quite interesting to see changes in how the legal system operated in that time. One part of those changes is related to being a part of the EU and having to work alongside lawyers from different jurisdictions. The impact of that has changed English law a lot.
— Ruairi: Being a member of the EU, being a member of international organizations, the implementation of international conventions, human rights treaties — all of that has an impact on the development of domestic law.
For example, I think that being a member of International organizations has led to changes in thinking about what civil law is as well as influencing the way EU institutions operate. EU laws have to be compatible with the common law legal system even though that`s the minority in the EU in terms of legal systems. The Court of Justice of the European Union has procedural rules which have derived from English law. For example, they have a system of precedent. And International tribunals and rules of evidence are often based on English rules. UK law has changed, just as other legal systems have changed. We can see regularly that something substantive or procedural which works well in one country, can be implemented as a good idea in another country.
— David: It`s an exchange of information when we learn from each other.
— Ruairi: And that`s why international institutions like the European Judicial Training Network exist. So judges from all the countries who are members (I think, Ukraine is a member as well) would meet fairly regularly and have workshops together. So they could learn from each other’s best practices and everybody improves.
And even on a totally basic level, there are things like Erasmus, when English law students go to Germany or Poland, or Spain for a year. They should acquire some knowledge of how the civil legal systems work. The UK is a very popular destination for Erasmus too. Ukrainians or Russians or nationals from many countries come to UK to qualify as a solicitor and then they may come back to their country and incorporate some of what they learned into their own practice and behavior.
— What skills are required for a young lawyer to be competitive? Which approach is better — to study everything briefly or to keep focused on one thing?
— David: The English system of training lawyers has several stages. Firstly, students do an academic course and then go to a vocational course, where they would be taught basic legal skills. Due to the fact that we have this split between solicitors and barristers, they need different skills and competencies. So there is some difference in how we teach barristers or solicitors. Despite that difference in order to be successful in vocational qualification, they have to be competent in those legal skills.
So the assumption is that by the time they get out to either training as a solicitor or barrister they have a basic level of technical skills. On the other hand, what marksks people out is the ability to interact with clients. To do your work well you have to be aware of your client’s needs. So I would say that soft skills are important too
Connected to that one of the things students have to get used to it is networking, being able to interact well with people, etc.
The other thing is the ability to continuously learn because the legal system changes all the time and if you can`t keep up with that you will get lost.
— Ruairi: The basic skill that a person should have before thinking about qualifying as a solicitor or a barrister in the UK is the ability to research. Because the training is designed in such a way that everyone has the same basic skills, so when a trainee gets the practicing qualification, every single solicitor and barrister in England and Wales has a minimum level of skill. In the UK, we believe that everybody can be taught the skills of a lawyer, so there is no need to be particularly gifted to get such a qualification. But everything that happens after that with the experience would make them better.
— David: Yeah, everyone has the same body of core knowledge, it`s like they have all the core building blocks.
The other thing to be aware of is that the structure of the legal system is slightly changing in England. When I first qualified there were a lot more overall general practitioners; people who used to cover everything for a client. Now there are more narrow specializations. So if a young lawyer wants to be successful nowadays he or she should probably look into some specialization. That being said I wouldn`t suggest that at too early a stage because if you go down a particularly niche route, then the law could change or even disappear so you need a backup plan. But specialism is probably more what firms are asking for now.
— In your opinion, what legal school is the best one?
— Ruairi: The City Law School [both are laughing]!
— David: That is a difficult question for me to answer. There are schools that are better at different things. Ruairi has mentioned about City — previously we were the only school where you could train to be a barrister, and still, we are the largest school that provides barrister training. So I can say, without a doubt, that if you want to become a barrister or solicitor, if you wanted to be trained vocationally as a lawyer, you would come to City.
I can say without fear of contradiction that City is a good law school, but there are a number of very strong schools. Obviously, Oxford and Cambridge academically are tremendous — world leaders.
— Ruairi: I would agree with that: obviously Oxford and Cambridge are fantastic because of the way they provide the teaching. They have a huge amount of resources to do that, for students to have one-on-one sessions with world-class professors. But it is also extremely competitive, and very difficult to get into a law school in Oxford or Cambridge for the vast majority of UK students.
But in saying that, I don’t necessarily believe that they have to be the best law schools. A lot of people who had gone to Oxford and Cambridge who went on to become solicitors, barristers, or judges wouldn’t have studied law at undergraduate level, but rather something else — geography, classics, philosophy — and they then go on to do a one-year conversion course in law. That’s something that makes the English legal system very special — that you don’t have to have a pure legal background to be a very good lawyer. One of our most famous judges, Lord Denning, who was a very controversial judge, trained as an accountant.
So I would say if you are looking for a law school in the UK, you should know what you want to get out of it. Because access to a profession is very competitive, if you want to get into a career you have to look for the best law schools.
— David: And also, different law schools have different strengths, so if you have a particular idea about what it is you want to do, do the research about what the different law schools are offering. There is quite a range of choices that you can make.
If the question is ‘you are a Ukrainian student and you’re thinking about coming to England’ — I think that London might be one of your best choices because of the diversity of opportunities after you finish a law school. The only problem with London is that it’s an expensive place, so you might factor that into your decision.
— Ruairi: It’s not the question that you have asked, but I think it is important follow on: a lot of students ask ‘What should I do? I want to go to the UK and to qualify as a solicitor; I have a law degree in Ukraine’, and my advice is: qualify as a lawyer here and apply to a law firm in the UK once you are qualified. Because it is one of the most competitive career paths in the world, I think, to qualify as a solicitor or barrister in the UK. And I’ve seen many people from Poland or the Czech Republic, for example, who had gone to England, done a GDL conversion course after getting a law degree in their own country, and they haven’t been given a trainee contract, and there they`ve been doing paralegal work for five years to build up experience for law firms to accept them.
I think it’s so much easier to stay home, get the qualification, and then travel to the UK with some national experience already gained.
— How not to become disappointed in the profession? What should students prepare for?
— David: It is a very competitive environment and you have to be realistic about what you actually want. You shouldn’t give up on your goals, be realistic about how you are going to achieve your goals. Maybe you actually have to do a period of working in a firm where you are not at the level you hoped to be at, in order to have some progress.
— Ruairi: Have realistic goals and constantly evaluate them. I`d say also to have friends who are lawyers. I think it`s really healthy to have friends who can give you advice, so find them early and keep them.
— David: I think that’s important because it gives you a framework. The other thing is just not only being prepared for hard work but be prepared to learn, be persistent and don’t give up on things.
— Ruairi: From the other perspective, it`s very important to take care of mental health. For example, the Bar is not the kind of profession where a person gets qualified as a barrister and that’s the end of the story. Barristers are constantly being evaluated. If you can get into the bar training course and you see that you are competitive then there’s the cycle of stress that comes after that. Once you pass the exams, you have to apply for pupillage and that’s very stressful. Once you finish your pupillage then you have to get a tenancy, which is very competitive too. And once you get tenancy then you have the next stage if you want to become a QC. All your life you are being evaluated by other people and that can have a negative effect on mental wellbeing. So be prepared for an extremely competitive workplace.
— What advice would you give to your students?
— David: In terms of advice that I would give to students I think just be prepared to learn, be flexible and try always being the best you can be in any situation.
— Ruairi: I would rephrase exactly the same point — always question everything, always think about whether you are right from the other side, like if you were the other person. Because if you are a lawyer you need to understand the motivation of both sides. So from all life perspectives, question yourself all the time. If you question yourself, you`ll always learn something new.