Lawyering in America and England

George Bernard Shaw once wrote, “England and America are two countries divided by a common language.” As an American who chose to pursue my legal career in London, I really enjoy considering legal issues from both an American and an English perspective, as I’ve done with Taylor Swift and defamation lawsuits, or the concept of celebrity “publicity rights”. But what about the differences in the legal system itself, or the education and training needed to become a lawyer? I’ve answered a few common questions below…

England and the United States are both “common law” jurisdictions. What does that mean and why does it matter?

Most legal systems are based on either Civil Code or Common Law. The system in which a lawyer practices can tell you a lot about their approach to their job, or legal philosophy more generally.

There are four main legal systems, including Civil (shown in blue) and Common Law (shown in pink). The other two systems are Religious law (Muslim, Jewish, etc) and Customary (indigenous, tribal, etc).

In Civil Law jurisdictions, which are also known as “Napoleonic” or “Roman” systems, the core principles are codified into a written collection of laws and procedures set out in the civil code. Lawyers are inquisitorial rather than adversarial, and it is the judge (or judges), who ask questions and demand evidence. In a civil law system, lawyers present arguments based on the evidence the court finds. The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code.

Common Law, by contrast, puts great weight on court decisions, which are considered “law” with the same force of law as statutes. As such, common law courts have the authority to make law where no legislative statute exists, and statutes mean simply what courts interpret them to mean. In most scenarios, the two sides of a dispute argue before a neutral judge, who then makes a decision.

The United States, like most Commonwealth countries and former colonies, is an heir to the common law legal tradition of English law. Of course, certain practices traditionally allowed under English common law have been expressly outlawed by the American Constitution, such as bills of attainder and general search warrants. Practically speaking however, most Americans and Brits will have the same understanding of the roles of lawyers, trials, contracts, and much more.

Fun Fact: “Common law” derives its name from being common to all the King’s courts across England following the Norman Conquest of 1066. 

Why do you say “English law” or instead of “UK law”?

The United Kingdom is one nation – a constitutional monarchy – comprised of four separate countries: England, Wales, Scotland, and Northern Ireland. England and Wales share the same system, whereas Northern Ireland and Scotland have their own distinct systems. I studied and practice English law (as do the majority of lawyers in the UK), and my formal title is “Solicitor of England and Wales.”

These separate systems are not to be confused with the legislation itself. Some legislation and acts apply throughout the whole of the UK, whereas others apply to one, two, or three of the specific countries. This is similar to “federal” versus “state” law in the United States.

Fun fact: As of August 2018 there are just under 144,000 solicitors in England and Wales. By contrast, there are 168,746 lawyers in California alone!

What’s a solicitor and what’s a barrister?

A popular analogy is that of a general practitioner versus a surgeon, but I don’t like this analogy. I feel it’s too simplistic and may imply that the surgeon (the barrister) is somehow more skilled, specialised or learned: this simply isn’t the case. But it has some merits: not everyone who visits the doctor needs surgery. Likewise, most (if not all) of a client’s legal work can be handled entirely by a solicitor.

Image result for silk barristers
Barristers as depicted on the legal drama, Silk.

Put differently, barristers are the self-employed advocates who wear the wigs and represent their clients in court. Solicitors will perform the majority of their legal work in a law firm. About 95% of lawyers in England are solicitors, with the remaining 5% being barristers.

For most non-contentious work, solicitors will run the deal from start to finish. When the deal becomes tricky or some sort of nuanced issue arises, we sometimes instruct barristers for provide legal opinions. Even for disputes and criminal matters that end up before a judge, a litigant (or defendant) will have their first contact be with a solicitor.

How do you become a solicitor in England?

The most straight-forward route to becoming a solicitor is to study law as an undergraduate. If another subject is studied, the prospective solicitor must undertake a conversion course (Graduate Diploma in Law) which crams the three year undergraduate law degree into an intensive year.

After undergraduate studies (or undregrad plus the conversion course) a prospective lawyer must decide if they want to become a barrister or a solicitor. Future solicitors undergo a year of practical vocational studies known as the Legal Practice Course. Following completion of the LPC, graduates join a law firm as a “trainee solicitor,” during which time they will complete rotations in various departments.

Securing a training contract is notoriously difficult, and most firms look to recruit trainees two years in advance. A trainee solicitor becomes a “qualified solicitor” after they successfully complete the training contract.

*Note: the qualification system is due to change in 2020, with the introduction of the solicitors qualifying examination (SQE).

How do you become a lawyer in the United States?

American lawyers may study whatever they wish at undergraduate level, which typically is a four-year degree in the United States. Remember the film, Legally Blonde? Elle Woods studied fashion merchandising! Following their undergraduate studies, a prospective lawyer will need to obtain a satisfactory mark on the Law School Admissions Test (LSAT) and successfully complete law school. Law school in America usually takes three years and culminates with the awarding of the Juris Doctor (JD).

Image result for elle woods gif

After law school, a lawyer requires “admission to the bar” in order to practice. Admission is usually granted after passing a particular state’s bar exam. Each of the 50 American states has a separate exam, although some aspects are the same and may overlap.  As explained by the American Bar Association, because state-specific information is so important (and so variable) in the lawyer-licensing process, law students must contact the board of bar examiners in the state(s) in which they are most likely to practice law. A lawyer who is admitted in one state is not automatically allowed to practice in any other.

Fun Fact: Delaware (then known as The Delaware Colony) created the first bar exam in 1763, 13 years before the United States declared independence from Great Britain!

If you have to take a bar exam in the USA, does that mean all lawyers in America are “barristers”?

Nope! Unlike most common law jurisdictions, the United States legal system does not distinguish between lawyers who plead in court and those who do not. Lawyers in the USA are often called “attorneys” or “counselors,” although the latter term is usually reserved for court appearance or in-house lawyers.

If you don’t go to law school in America, how can you become an American lawyer?

Most states do require a JD degree from an American law school in order to sit for the bar exam. There are some exceptions however, including California, New York, and Washington State. The provisions regarding who is eligible are complex however, and may involve a lengthy investigation into your educational background (especially if your degree was not awarded in an English-speaking country) so always look at each state’s bar association requirements.

Fun Fact: There are 205 American Bar Association approved law schools in the United States. In the United Kingdom, there are 29 universities where you can complete the Legal Practice Course. 

If you don’t go to law school in England, how can you become an English solicitor?

There are several ways to practice law in England. If you’re already a lawyer and wish to become an English solicitor, passing the Qualified Lawyers Transfer Scheme (QLTS) is one option. Alternatively, if you are a lawyer from a common law jurisdiction – including much of the Caribbean, Australia, Canada, Hong Kong or even the United States – you may be able to practice in England provided that you don’t hold yourself out as being a “solicitor.” I know several lawyers from commonwealth countries who work in London: their email signatures and business cards simply state associate (qualified in Country) rather than solicitor. 

The Chartered Institute of Legal Executives (CILEx) also offers paths for legal executives and paralegals who wish to become solicitors.

Which Constitution is better: the Constitution of the United States, or the United Kingdom?

Trick question! The United Kingdom doesn’t have a Constitution! Well, one that is written down, anyway…

The Constitution is the Supreme Law of the United States, and begins with one of the most famous lines in political history: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity.

The body of the Constitution sets out the national framework of government. It is regarded as the oldest written and codified national constitution still in force and, despite the profound changes to society and technology since its creation in 1787, the US Constitution has been amended only 27 times. The first ten amendments are known as “the Bill of Rights,” and provide specific protections of individual liberty and justice, and place restrictions on the powers of government.

Because the Constitution is the Supreme Law of the USA, all legal decisions, laws, regulations, government actions (and so on) must be “Constitutional.” Many topical debates – including those around campaign finance and firearms – circle back to whether or not regulating certain activities are “Constitutional.” As Alexis de Tocqueville, wrote in Democracy in America, “there is hardly any political question in the United States that sooner or later does not turn into a judicial question.”

This print from 1625 is the earliest representation of the House of Commons, where Members of Parliament sit at the Palace of Westminster (from the British Library)

Unlike the United States, the United Kingdom has no singular document of fundamental importance which sets out the structure of government and its relationship with its citizens. As explained by The Constitution Unit at the University College London, many countries have experienced revolution or regime change, whereby it has been necessary to start from scratch or begin from first principles, construct new state institutions, and define in detail their relations with each other and their citizens. By contrast, the British Constitution has evolved over a long period of time.

As such, the UK has what is known as an unwritten constitution, although describing it as uncodified is perhaps more accurate, on the basis that many UK laws are of course in fact written down in Acts of Parliament or based upon court judgments. Put simply, “what the Queen in Parliament enacts is law.” In other words, Parliament uses the power of the Crown to enact law which no other body can challenge. The judges then interpret the law, as is the Common Law system.

This Parliamentary sovereignty is makes Parliament the supreme legal authority in the UK. Generally, the courts cannot overrule legislation and no Parliament can pass laws that future Parliaments cannot change. Rather than having a Supreme Law of the land, Parliament – the representation of the people, which changes and adapts with society – is the Supreme Law maker.

What’s the difference between legal “practise” and “practice”?

I didn’t realize realise this when I first moved to the UK, but in British English, practise is a verb wheras practice is a noun. This can be tricky for Americans who are used to practicing law as well as having a legal practice. In the UK, you’d say that “After university I chose to practise law,” or that you “currently work for a well-regarded commercial law practice,” or even that “it took a lot of practice before you became an expert.” In America, “practise” is never used.

simples

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