A Dec. 6 Midlands Voices article by attorney Mike Nelsen criticizes American trial lawyers and unfavorably compares them to British barristers. The American system of justice need not take a back seat to the British system, nor should American trial lawyers be humbled by British barristers.
The jury trial concept was originated in ancient Greece, and a form of it was in use by the 12th century in England under King Henry II. It was well established by the time the colonies were established in North America. One of the major complaints set forth in the Declaration Of Independence was “depriving us, in many cases, of the benefit of Trial by Jury.” Trial by jury is guaranteed in two Articles in the Bill of Rights.
The United States stands alone in the continued use of the jury system to resolve civil disputes. England abandoned jury trial in most civil cases years ago, and in the civil-law countries of Europe jury trials are nonexistent.
America did not adopt the British legal profession system of a split bar. Under the British system, solicitors handle what might be considered an office practice and appear in lesser courts, while barristers are granted the right of “audience” to try cases in higher courts.
British barristers are trained at four very exclusive law schools, known as “Inns of Court.” Admission was limited to the wealthier class, and family connections played a role in admission. The second son of an aristocrat, who did not inherit the family fortune, often was “called to the bar.” To say that it was restricted to the privileged class is not an exaggeration.
Until 2004, barristers could not be retained by the client; a solicitor had to retain the barrister on behalf of the client. There are about 12,000 barristers in England and Wales serving a population of about 53.3 million, compared, for example, with about 5,000 lawyers in Nebraska, of whom less than a thousand try cases on a regular basis, serving a population of 1.7 million.
Barristers are prohibited from using a contingent fee, a fee based on a percentage of the amount recovered.
The British system also provides that the loser pay the attorney’s fees of the opponent. The training is rigorous, the product superb and barristers still wear wigs and robes. But that system, with highly trained and exclusive barristers, effectively barred many, if not most, people from the judicial system.
Barristers are hardly the great check on the establishment and champion of the oppressed – they are the establishment. There is an old saying in England: “The courts are open to everyone, just like the Ritz Hotel.”
In America, the courts are open to all, and the contingent fee has been described as the key to the courthouse. And the American trial lawyer, without a wig and robe, is the backbone of our system.
We have no formal system of specialization. A lawyer who passes the bar exam can practice in any area and in any court, at least in theory.
On-the-job training has been the way of the American lawyer all during our history. Some are more experienced and more effective than others, but, without a doubt, American lawyers are far more socially and economically mobile than their British counterparts and have contributed to the social mobility of this country.
Our legal system has moved toward de facto specialization, and most trials are handled by experienced trial lawyers. Some states provide for lawyer specialization, in one form or another. The Nebraska State Bar Association commissioned a study to explore the possibility of specialization about 25 years ago, but the matter was soundly rejected by the House of Delegates and has never reappeared.
The threat of legal malpractice effectively limits shoddy lawyering, and lawyers typically refer cases to specialists. Specialization is here, but not in name.
The American jury system is a major component to our system of checks and balances, to both corporate and government power. American juries have forced car manufacturers to build safer automobiles; drug manufacturers to provide safer medications; physicians and hospitals to provide safer treatments; and lawyers to provide more competent representation.
Without the American trial lawyer, that check will disappear. These lawyers have made an enormous contribution to American society and should not be traded for British barristers, wigs and all.