Section Review

Boston Lawyer in London Finds Striking Differences in Appellate Practices Between the United States and England

Stephen B. Hrones is a managing partner in the law firm of Hrones and Garrity in Boston. His civil practice focuses on police misconduct, lead poisoning and personal injury.

Four trips to ye olde London to prosecute a serious brain damage case on behalf of an American Navy man hit by an automobile was an assignment I did not mind. It sure beats Kansas City or Podunk as a venue to try a case. Not only was the case profitable and challenging professionally, it gave me an extraordinary opportunity to compare the English and American civil law systems. As the retained English lawyers did the heavy lawyering, I had the time to critically observe the English process. I found that the English appellate phase was as different from ours as was the trial procedure.

In England, there is no automatic right of direct appeal of the trial judgment. The party desiring an appeal must apply to the trial judge for the right to appeal. If the request is denied, application must be made to a single justice of the appellate court by filing a "skeleton," which is what it suggests - an approximately 10-page outline of the proposed legal basis for the appeal. The opposing party has no right to respond to the "skeleton" unless invited to do so by the judge.

Normally the decision is made on the written submission. If the appellate judge requests oral argument, the prevailing party can also request the opportunity to be heard. If the judge denies the application, the case is over. If, as in our case, the right to appeal is granted, a date is set down some 10 months later for oral argument before a three-judge panel of "lord justices," who sit below an emblem of the English "Crown."

The most striking difference between the two systems is that in England there are no detailed briefs with extensive discussion of the legal precedent filed before oral argument. The only pre-hearing submission is the "skeleton" and the relevant transcripts and exhibits of the proceedings below (the "case bundle"). To compensate, the lawyers are given up to two full days of oral argument to present their cases.

In our system, the argument is set out in our detailed brief and oral argument is short (10 to 15 minutes). In our system, oral argument is only intended to highlight the most significant points and allow the court to pose questions for clarification. In fact, we often wonder if oral argument has any influence on the ultimate judgment and many times the case is submitted on the briefs without oral argument.

In contrast, oral argument in the English system is absolutely critical because the prior submissions are only "skeleton" in nature. It is difficult to imagine an American appellate court sitting and listening to counsel argue for two days on one case.

Counsel in England tend to not be as well organized in their oral presentations at the appellate level because they generally have as much time as they want to orally argue their cases. In our system, with only 10 to 15 minutes for oral argument, counsel must be well organized to present his case succinctly. The English barristers, who not only try the case but argue it at the appellate level, tend to proceed in a disorganized fashion, after reading long passages from the transcript. I must say I nodded off from time to time in the course of a long day of oral appellate argument. The judges, however, were very attentive throughout and took copious notes.

The English appellate court tends to involve itself more deeply in the factual determinations of the trial judge while claiming it is not sitting to hear the case "de novo." Perhaps this is a result of the lack of juries in the trial court. The English appellate court is not reluctant to overrule the trial judge as to detailed factual findings. The judges nevertheless claim they are giving due deference to credibility determinations by the lower court.

As in the trial courts, the appellate justices and barristers (trial specialists who take on the case only after the "solicitor" has prepared it for trial), but not the solicitors, wear white wigs with rows of curls. The clerks ("ushers") wear robes but not wigs. Upon leaving the bench, the presiding justice acknowledges the contributions of counsel by stating, "We are grateful to counsel for presenting their submissions." They then bow out of respect to counsel as they rise and leave.

In our case, the justices rose early in order to get their "flu-jab." The Court's early termination of proceeding for their flu shot in November gave a certain informality to the formalism of the proceedings. As in the trial court, all lawyers and clerks who leave or enter the court at any time bow to the judge out of respect.

The respectful language of counsel is in contrast to the American system. Every reference to opposing counsel or the judge is "my learned counsel," "brother" or "friend," or "learned judge." Any criticism of counsel by the court is responded to by the criticized party with, "I am grateful to your lordship."

Some of the interesting uses of language I observed included, "I don't want to extend too much into advocacy at this point" (introduction to argument), "I will take you later to that area," "while paying proper heed (to that issue)," "my learned friend has set out," "I was greatly impressed," "regretfully the learned judge (trial judge) was manifestly wrong," "the issue has been well advertised in the paper submissions," "the learned trial judge was beguiled by the expert witness," "you taxed him" (you pressed him on cross-examination), and "perhaps we should turn to it."

As in the trial court, counsel showed the utmost respect to the judges, almost to the point of being obsequious. When there was an issue of an improper cite to the transcript in counsel's skeleton brief, counsel profusely responded: "My lord, it's my fault, I do apologize." In America respect is shown to the court, but an "I apologize" is considered a proper response to a minor failure.

Another startling contrast is that, in spite of an absence of extensive all-encompassing briefs before oral argument, the judgment of the court is often announced at the very conclusion of the oral argument with the written opinion to follow. The court may take the matter under advisement and render opinion later, but unlike most courts in the United States, the decision is rendered in open court.

The expenses mount at the appellate stage as each side had at least four lawyers on the payroll. First there was Queen's counsel - the expensive "elite barrister" and the "ordinary barrister," as well as the senior solicitors and the solicitor's associate who did most of the nitty gritty preparation for trial and the appeal. Thrown in for good measure is a law school graduate who is in the process of doing a paid internship before being admitted to the bar.

Although no well-researched brief was done and the appellate issues were rather clear-cut, the lawyers managed to bill over $70,000 for the appeal. The barrister received a flat fee of some $25,000. The senior solicitor, who didn't argue the case, billed at the rate of $425 per hour. Usually, the party who prevails on the appeal recovers 60 percent to 75 percent of his attorney fees. However, if there is no obvious winner in the decision, the parties may agree to cover their own counsel fees, which is what happened in our case. If not, the fee issue is fully litigated in open court.

In conclusion, both the American and English systems have strengths and weaknesses. Both sides of the Atlantic could improve justice by examining closely each other and adapting each other's strengths to their advantage.

©2014 Massachusetts Bar Association