2020 Pegasus Scholar
After two years of pandemic-induced delay, I was delighted to have spent the last six weeks in the US as part of a Pegasus Trust Placement. The scholarship is generously arranged and funded by the American Inns of Court, an organisation dedicated to improving the skills, professionalism and ethics of the bench and Bar.
Our busy schedule meant that we rarely saw the same lawyer twice or stayed in the same location for more than a week. We travelled to DC, Kentucky, California, and New York, with brief visits to Maryland, Virginia, and Delaware, visiting all levels of the legal system - from the state courts and legislatures up to the US Supreme Court and Capitol Hill, and from District attorneys and police chiefs to the Solicitor General and the FBI. It was soon apparent that these states’ laws and procedures could be as different to one another as they are to ours, a problem which we were told often led to disputes over jurisdiction.
As a media and communications law practitioner, I was particularly excited to meet my US counterparts who specialised in first amendment and media law - including in-house lawyers at Paramount, FCC (the American Ofcom equivalent) and IP lawyers at Fletcher, Heald & Hildreth PLC, Chief Administrative Judge Cheney of the International Trade Commission, media defence lawyers David E. Kendall, Stephen Mintz and Stephen Burns, plaintiff lawyer Christopher Whelan, sports lawyer Pam Lester, Meta in-house lawyer (and former member of my own chambers) Yuli Takatsuki and fashion lawyer Uduak Oduok. Whilst I baulked at the size of the US damages awards in libel claims, they baulked at our restrictions on press reporting of court proceedings and the weight our courts afford privacy interests (as one attorney put it - “in the US, if it bleeds it leads”). As the scholarship drew to a close, we were also able to attend the trial of Depp v Heard – a personal highlight for me, having followed its predecessor, Depp v NGN, in London in 2020.
I had not appreciated how much I would also learn from the more informal dinners and events. We attended the Inns of Court dinners (which included presentations and discussions on ethical issues affecting the Bar), the AIC Celebration of Excellence Dinner at the Supreme Court, and dinners at judges’ homes. Even outside of scheduled meetings, we discussed how alike or different our systems and cultures are, and the pros and cons of each, with some of the leading lawyers, lawmakers, lobbyists, and law enforcement personnel.
Frequent hot topics for debate included: the election of judges; jury selection; and the eye-watering expense required to qualify as an attorney (following a 4-year undergraduate degree and 3-year law degree). As to these particular practices I remain sceptical: the barriers to entry to the profession have the potential to lead to an overall lack of diversity; election of judges seems to inhibit meritocracy; and jury selection panels could lead to skewed outcomes (more than one lawyer commenting that the trials are ‘won at jury selection’).
However, there were also many things that I felt we could learn from the ‘American’ system. I observed a much more innovative system of sentencing – primarily driven, I’m sure, by the fact that the US has the highest incarceration rate in the world. In Kentucky, we saw a defendant sentenced to four consecutive weekends in custody for a misdemeanour so that she could arrange childcare. Another alternate sentencing model in Sacramento included a ‘re-entry court’, which provides defendants a tailored and closely monitored programme to address the cause of their offending as an alternate to a custodial sentence. Its participants and graduates receive rewards for compliance and appeared to develop a respect for the court system that may otherwise be lost. Expensive? Probably. But when compared to the cost of housing, feeding, and transporting these defendants throughout their (otherwise lengthy) prison sentences, I am sure that there are long-term savings to be made under this scheme and, beyond that, an opportunity for genuine rehabilitation and a tangible sense that lives were being turned around. It offered a ‘way out’ to criminals who offend because of homelessness, mental illness and substance abuse and encourages them to become contributing members of society.
Another fascinating idiosyncrasy of the US model is the role played by moot courts. Whereas UK barristers may hear this term and nostalgically think back to their time at university or Bar school, mooting in the US remains an essential part of trial and appeal preparation throughout an attorney’s career. It was described to us how it would be at best foolish, and at worst fatal, to go into trials and appellate hearings without having at least one (confidential) dry run before a panel of one’s peers. We watched a moot court at the Georgetown University Supreme Court Institute – which matches the US Supreme Court even down to the patten on its carpet. It gives appellate lawyers the chance to drill down their argument and acclimatise to their surroundings ahead of the hearing, whilst also allowing students to mutually benefit from observing some of the most eminent advocates of their generation.
Finally, I was impressed and alarmed in equal measure by the brevity of US hearings. One of the primary differences was a heavy reliance on the written brief. Judges frequently told us that they would enter the courtroom having already written their judgment and use the hearings to just tease out any stray points or test their conclusions. This partly explains why appellate attorneys are given a short timeslot for submissions (often limited to 15 or 20 minutes per side), while pre-trial applications are given even less. Block-listing hearings in the UK with these restricted timings may help to actively manage our own current backlog and distil the key issues between the parties.
Notwithstanding the differences between our legal systems, UK and US lawyers were united in their willingness to help one another and a determination to do their best for their client.
We were welcomed with open arms wherever we went: we were given an art tour of the ‘Main Justice’ building in DC; Richard Schimel gave us a fascinating tour of DC and took us to Annapolis; Justice Scotland drove us to San Francisco; judges would introduce us to their courtroom; our hosts sacrificed their weekends to show us both the tourist attractions and the local hangouts (including wine and bourbon tours); Parker White organised a limo drive to Muir Woods; our names were displayed on the main board at the Sacramento State Assembly; professors and students at Howard University invited us into the faculty; and we were occasionally surprised with afternoon tea (one featuring Union Jack flags, homemade jammy dodgers and china teacups)!
It was a real privilege to have an insider’s view into a system I had previously never encountered, and I leave with knowledge that I am sure will help me to develop my own advocacy styles, client handling and outlook on our own justice system’s policies.
Thank you to everyone who made this experience so special, with particular thanks to our trip organisers and hosts Jesse Binnall, Eric Nitz and Ellen DelSole in DC, Justice Art Scotland and Parker White in Sacramento, and Judge Lucinda Masterton and Andre Regard in Lexington, their respective Inns of Court, the Pegasus Trust Committee and of course Cindy Dennis, who all gave up so much of their time to look after us and to curate a program beyond what I could have imagined.