Common Law PDF

COMMON LAW Origins of common law The common law was developed in England following the invasion of the Normans in 1066. Prior to* the invasion of the Normans, England was divided into a number of small kingdoms* , each applying their own system of local laws. The Normans sought to* centralize t...

COMMON LAW Origins of common law The common law was developed in England following the invasion of the Normans in 1066. Prior to* the invasion of the Normans, England was divided into a number of small kingdoms* , each applying their own system of local laws. The Normans sought to* centralize the system of jusƟce in England and over Ɵme developed the common law, as a system of law common to everyone. Different meanings of common law common law countries vs civil law countries (vs religious law countries): It can be used as a general term to describe the system of law that was developed in England and that is now used in many different countries around the world. For example, the common law is the system of law applied in the USA (Australia, India, Canada) and civil law is the system relied on in France. case law vs statute law: It can be used as a general term for case law to disƟnguish case law from statute law, i.e., law adopted by the legislaƟve branch of government. Thus, case law is someƟmes referred to generally as common law. common law case law vs equity case law: Finally, there are two types of case law, one which is referred to as common law case law developed by the King’s common law courts and the other, which is called equity case law, developed by the King’s chancellor (equity is oŌen referred to as the second branch of English law). The term common law is someƟmes used to disƟnguish the law coming from the King’s common law courts from that developed by the Chancellor under the heading of equity. Common law case law vs Equity case law Common law case law was developed from the decisions of the King’s common law courts, established from the 12th century onwards* (the Court of King’s Bench, the Court of Common Pleas and the Court of the Exchequer). However, the system of common law developed by these courts was procedurally very technical and over Ɵme it lost touch with more fundamental noƟons of jusƟce, such as right * prior to (something) : avant * a kingdom : un royaume * seek to : chercher à faire (quelque chose) * onwards : à parƟr de 6 and wrong. They were also said to be slow and expensive. There were also concerns* that juries were inƟmidated by defendants or bribed*. Moreover, the common law courts only offered complainants/plainƟffs one remedy, namely damages. Finally, the royal courts of common law were rigid especially because they operated through the writ system. Claimants were not permiƩed to bring an acƟon before a court unless they had obtained a writ from the Chancellor (i.e., the king's permission to sue). This writ defined their rights and obligaƟons and enabled them to start an acƟon. Those writs contained in the "Register of Writs" were limited in number and in scope. If the writ did not fit the rights of the plainƟff, he had no remedy at common law; thus, he lost the case. In order to miƟgate* the severity or the constraints of common law case law, a more fluid approach in dealing with disputes emerged: equity. Equity case law meant that when claimants did not find any remedy or jusƟce through the common law courts, they could peƟƟon the king to redress their grievances because the King was regarded the “fountain of head of jusƟce”. People appealed to the King’s conscience and mercy for remedy that they could not get from ordinary courts. As the number of such requests grew, the king passed them on to his Chancellor (the “keeper of the king’s conscience”) who was a trusted and learned adviser (a clergyman* , for ex, a bishop* ). By the end of the 15th century, the King set up the Court of Chancery with the Chancellor supervising it. Equity was only applied when the remedy provided by common law case law was inappropriate and this is sƟll the case today. SubstanƟve areas of law created by equity include trusts and succession law. Moreover, in place of the common law remedy, equity developed remedies such as injuncƟons and specific performance to beƩer answer the needs of complainants. For example, forcing a party to perform their contractual duƟes may be beƩer suited than granƟng* damages; or issuing an injuncƟon prevenƟng* someone from doing something might also be more appropriate than awarding compensatory money (ex: trespassing). The courts of common law and of equity existed alongside each other for 350 years, and equity complemented common law unƟl the end of the 19th century. * concerns : des inquiétudes, des préoccupaƟons * bribe = soudoyer, corrompre / bribery : pots-de-vin, corrupƟon * miƟgate : aƩénuer * clergyman : membre du clergé * a bishop : un évêque * grant (sthg to someone) : accorder * prevent someone from V-ing: empêcher qqun de faire 7 The merger* of common law and equity SomeƟmes the rules of common law and those of equity conflicted but it was decided that Equity should prevail* (see The Earl of Oxford's case, 1615). The problem resulƟng from the existence of 2 systems of jusƟce was that, to obtain remedies, a person oŌen had to bring 2 successive acƟons: one in damages before a common law court, another in equity to obtain an order forcing the other party to do something or to stop doing something. The 2 systems were unified with the Judicature Acts, 1873-1875: the old courts of common law and the Court of Chancery were abolished and were replaced by one Supreme Court of Judicature, which could administer both the common law and equity. There was a fusion of the administraƟon of common law and equity, but not a fusion of the 2 systems of law themselves: the rules of equity are sƟll disƟnct from the rules of Common law but both are now open to a plainƟff in one acƟon before the same court. Case law Unlike civil law which is set out in wriƩen codified texts emanaƟng from legislators, the common law is iniƟally derived from case law. Under the case law methodology, certain decisions adopted by higher courts may set a precedent, which must then be followed by all courts of equal or lower standing. Precedents have to be followed later by judges deciding on facts similar to those in the first case, in other words, lower courts are bound by previous* decisions. This is called the doctrine of stare decisis based on the doctrine of binding precedent. When cases do not have any precedent, it's called (a case of) first impression. The judge must look at related laws and facts and parƟcular circumstances. Case law is based on a core principle: it is judge-made law. A court decision can run to hundreds of pages and, obviously, not the whole decision will be considered binding. Instead, it is only the rule of law, or the principle established by the decision, referred to as the raƟo decidendi that binds subsequent* courts. RaƟo decidendi means the “reason for the decision”, that is to say the legal principle on which the case is decided. It is oŌen possible to find it under the word: “held”; it means what the court “held”, i.e., the conclusion it came to. SomeƟmes in a decision, a judge will also issue an opinion on a related maƩer, but one not coming within the actual* facts of the case. Such opinions are called obiter dicta and are no thought to create a binding precedent, it is only a persuasive precedent (like recommendaƟons, remarks in passing). This is because a court is only empowered to rule in law on the actual facts of the case before it. However, although such opinions are not binding, * merge : fusionner / a merger : une fusion * prevail (over) : prévaloir, l’emporter (sur) * previous : (adj.) précédent(e), antérieure * subsequent : suivant, prochain * actual : réel, véritable 8 they can be influenƟal in subsequent cases, especially if issued by a leading judge. EffecƟvely, with obiter dicta a judge is giving his/her opinion on how s-he would have decided the case, had the facts been different. Statute law The most important source of law in common law countries is statute law, which takes precedence over* both common law and equity. Laws adopted by Parliament in the UK are called Acts of Parliament and once they are published in the statute books, become known as statute law. Statute law is wriƩen law but should not be confused with civil law codes, which are normally more detailed. TradiƟonally, common law statutes tend to be broadly* wriƩen, allowing the courts to retain large powers of interpretaƟon. In the civil law system (as in France for ex), the primary source of law is wriƩen codified texts and the role of case law and binding precedent is less important, remaining primarily a secondary and persuasive source of law. That said, just as wriƩen law is taking on more importance in the common law system, case law is playing an increasingly significant role in civil law systems. How higher courts may affect lower court decisions A case may be decided differently by a higher court. There are 4 possibiliƟes. - Affirming a decision A synonym for affirmed is upheld, which means the higher court agrees with the lower court. Although the rules of stare decisis are generally respected, there are means by which a court can avoid following precedent. - Overruling a decision Overruling is where a legal principle that was laid down in one case is changed in a future case. This can only be done by a court that is higher in the hierarchy than the court that had taken the earlier decision. The overruling of a prior decision* means that the raƟo decidendi of this decision will no longer have authority in any court. Overruling lower courts’ decisions too oŌen could have the effect of greatly diminishing the authority of these lower courts. It is therefore important that a superior court should do this with care. This should not be confused with the concept of reversing a decision. * take prececence over : l’emporter sur, avoir priorité sur * broadly : de façon large, de façon générale * a prior decision : une décision antérieure 9 - Reversing a decision Reversing a decision is when a higher court decides differently the same case in appeal. This is not an excepƟon to the rules of precedent that we have seen, since a higher court is not bound by a decision of a court that is lower in the hierarchy. - DisƟnguishing a decision A decision of a superior court is only binding when the facts of the case are similar to those of the case that needs to be decided. Therefore, if the judges consider that the facts are not similar enough, then the prior decision does not have to be followed. This is referred to as “disƟnguishing cases”. Judges decide that the facts are different enough not to be treated alike. The reality of the difference is not always clear but the judge has enough leeway* to establish the disƟncƟon. It is said that when this happens the law has not been modified since the facts are sufficiently different to merit a different soluƟon. However, it is possible that the disƟncƟon is only made as a means of avoiding an undesired precedent. Focus on the US The US is a common law country. American courts originally fashioned common law rules based on English common law unƟl the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law. All laws and legal decisions in the US must be in keeping with *the US ConsƟtuƟon both at the federal and state level. Vast areas of the law, most notably relaƟng to property, contracts and torts are tradiƟonally part of the common law. These areas of the law are mostly within the jurisdicƟon of the states; thus, state courts are the primary source of common law in the country. Though most common law is found at the state level, there is a limited body of federal common law--that is, rules created and applied by federal courts (in the absence of any controlling federal statute). At the state level, legislatures oŌen subsequently codify common law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it somehow (by either expanding or restricƟng the scope of the common law rule, for example) or to replace the outcome enƟrely with legislaƟon. * leeway, laƟtude, marge de manœuvre * in keeping with : en accord avec 10 Vocabulary binding qui lie juridiquement/ contraignant redress grievances réparer les torts commis be bound by être lié par remedy recours, réparaƟon bring an acƟon intenter une acƟon reverse a decision infirmer une décision/un jugement a case of first impression affaire sans précedent case law jurisprudence rule of law ici : la règle de droit, sinon : État de droit, primauté du droit civil law droit civil specific performance execuƟon forcée (d’un contrat) complainant plaignant statute law législaƟon votée par le Parlement defendant défendeur (au civil); accusé(au pénal) statute loi (votée par le Parlement) dispute liƟge succession law droit des successions duty devoir sue poursuivre en jusƟce (au civil) equity ensemble des règles développées au fil des siècles pour palier les lacunes de la common law tort(s) responsabilité civile délictuelle (extracontractuelle) “held” jugement rendu trespassing entrer sans autorisaƟon injuncƟon ordonnance, injuncƟon trust(s) fiducie leading judge juge de plus grande importance uphold confirmer, maintenir (décisions, règles...) overrule / overturn annuler, casser writ system ordonnance émise par le roi autorisant une acƟon en jusƟce par un sujet outcome résultat, issue plainƟff demandeur, plaignant (binding) precedent précédent impéraƟf/obligatoire 11 LAWYERS The legal profession is divided into 2 main branches: solicitors and barristers. Judges are issued from their ranks and so are the Law Officers of the Crown. SOLICITORS 1 - EducaƟon and training The qualificaƟon system for solicitors is changing. From October 2021, the Solicitors Qualifying ExaminaƟon (SQE) will be phased in* to become the new naƟonal centralised way to qualify as a solicitor in England and Wales. For students who have already started a qualifying law degree, conversion course or training contract there are transiƟon arrangements in place for several years to qualify as a solicitor under the former route*. The aim* of this reform is to make the route into the legal profession the same for all applicants, and to make it more financially accessible, as the cost for the SQE will be significantly less than the current cost* for students under the former system of qualificaƟon. Academic requirements Although it will sƟll be possible to get a legal qualificaƟon by compleƟng a 6 year ‘learn-as- you-earn’ apprenƟceship aŌer secondary school (while studying for law related qualificaƟons alongside this), the normal and quickest way of becoming a solicitor will sƟll imply being a graduate* / having a degree * in any subject. Of course, if the degree is not a law degree (LLB), students will surely need to study law and legal pracƟce to get ready for the SQE. It will be highly recommended - although not mandatory to aƩend* a conversion / preparaƟon course offered by universiƟes. The SQE assessments In SQE1, students will be tested on ‘funcƟoning legal knowledge’ which will assess* their applicaƟon of law based on realisƟc client-based scenarios in mulƟple choice quesƟons*. They will have to pass* SQE1 before being eligible to sit* the SQE2 assessments. Many * be phased in : être introduit par étapes * the former (route) : (le parcours) précédent * the aim : le but, l’objecƟf * the current cost : les coûts actuels * a graduate : un étudiant diplômé * a degree : un diplôme universitaire * aƩend (a course, a meeƟng, a conference...): assister à * assess : évaluer, esƟmer * mulƟple choice quesƟons : QCM * pass an exam : réussir un examen * sit / take an exam : passer un examen 12 candidates will likely take SQE1 at the same Ɵme as, or slightly aŌer, they complete their academic educaƟon. SQE2 will be a single, uniform assessment for all candidates, consisƟng of exercises which sample across the skills* and pracƟce areas. SQE2 will test candidates’ legal skills through wriƩen and oral simulaƟons of the tasks that a newly qualified solicitor might have to undertake in pracƟce (criminal liƟgaƟon, dispute resoluƟon, property, probate as well as business organisaƟons, rules and procedures.) It will also test candidates on the pracƟcal legal skills required for pracƟce, including interviewing, advocacy, legal research, legal draŌing or case analysis. Candidates will likely take SQE2 near the end of their qualifying work experience (QWE). The pracƟcal training All candidates will need to complete at least two years full-Ɵme* (or equivalent) qualifying work experience (QWE). QWE aims to be a more flexible approach than the former training period ('training contract'). It will give candidates the opportunity to interact with clients, see how solicitors work in pracƟce, and consider ethical challenges. QWE can be gained in law firms, legal clinics in academic insƟtuƟons, law centres or other appropriate organisaƟons. There will be no minimum length of Ɵme for placements*. Candidates will not have to complete QWE in one block directly before qualifying as a solicitor, as most currently do. They will be able to gain experience as they progress through their educaƟon (possibly through summer work placements or work as a paralegal). However, many employers will conƟnue to take on trainees for a two-year period, as is current pracƟce. The character and suitability assessment The assessment of character will come at the final stage* of the legal training and will be carried out* once the candidate applies to the Solicitors' RegulaƟon Authority (SRA) to be added to the Roll of solicitors (this remains unchanged from the former pre-2021 arrangements). This background check* seeks to assess the future solicitors’ integrity and fitness for the profession. The SRA will take into account the need to “protect the public and the public interest” as well as “maintain public trust and confidence in the solicitors’ profession”. At the end of this process, the newly qualified solicitor will be issued with a pracƟsing cerƟficate to be renewed annually, as is the case today. * skills : compétences * full-Ɵme : à plein temps (≠ part-Ɵme : à temps parƟel) * (work) placement : un stage * a stage : une étape, un stade * carry out (a task, a survey...): réaliser * background checks : vérificaƟons des antécédents (recherches sur le passé de qqun) 13 2 – Role of solicitors They are the main advisers to the public: they are the first contact for a person who needs legal advice. Their funcƟons include non-contenƟous work: the drawing up of wills, probate, conveyancing (transfer of property), the drawing up of contracts, advice on employment law and the formaƟon and winding up of companies. They are also involved in contenƟous work: matrimonial cases (divorce and child care), personal injury cases, negligence cases, breach of contract and criminal cases. Concerning contenƟous work, they can try to seƩle the case out of court by reaching an agreement with the other party. If a seƩlement out of court is impossible, they play the part of an intermediary (= a go-between) between the client and the barrister: they engage* the barrister and prepare the various documents (=the brief) necessary for the barrister's pleadings. But they can also represent their clients in court. The 1990 Act established that, contrary to the past, solicitors could now appear in higher courts if they obtained a cerƟficate from the Law Society proving their competence to do so; they finally obtained that right in 1993. To get right of audience and advocacy the solicitor has to undertake* a Higher Rights of Audience course then pass 3 assessments (wriƩen and oral exams and advocacy assessment). If successful, s-he then becomes a solicitor- advocate. There is an increasing tendency for solicitors to specialize: for example, they may choose to become a tax lawyer, a matrimonial (divorce) lawyer, a criminal lawyer... 3 - Solicitor-client relaƟonship Solicitors are on an equal fooƟng with* barristers before the European Court of JusƟce. Solicitors have a contractual relaƟon with their clients, so they may be sued by them for negligence (but, unƟl July 2000, not for work done in court) and they can sue their clients for non-payment of fees. The solicitor-client relaƟonship is regarded in Equity as a fiduciary relaƟonship, i.e., a relaƟonship based on good faith, so anything said by the client to the solicitor is in strict confidence, which is called privileged informaƟon in the US. Any breach* of the pracƟce rules will result in a prima facie allegaƟon of misconduct by the solicitor. Such allegaƟons are invesƟgated by the Law Society under the umbrella of the Consumer Complaints Service. * engage : (ici) impliquer * undertake : entreprendre * be on an equal fooƟng with : être sur un pied d’égalité avec * breach : non-respect, violaƟon 14 VOCABULARY advocacy plaidoirie (le fait de plaider) paralegal assistant juridique an applicant un candidat, un postulant (work) placement (UK) = internship (US) stage breach of contract rupture du contract brief dossier, affaire contenƟous work travail lié aux liƟges pleadings = submissions conclusions (droit civil), mémoires (droit public), actes exposant les faits conveyancing transfert de propriété criminal law droit pénal pracƟce rules déontologie employment law droit du travail privileged info info confidenƟelle fee(s) honoraires probate homologaƟon, validaƟon (d’un testament fiduciary relaƟonships (relaƟons) fiduciaires (de confiance) right of audience droit de plaider a go-between un intermédiaire seƩle a case (out of court) régler à l’amiable good faith bonne foi a seƩlement règlement à l’amiable Law Society Ordre professionnel des ‘solicitors’ sue (someone) intenter une acƟon contre / poursuivre en jusƟce (au civil) law centre centre d’aide juridicƟonnel indépendant et à but- non-lucraƟf tax lawyer avocat fiscaliste legal clinic service ou programme universitaire d’aide juridicƟonnelle proposé par les étudiants en droit trainee (UK) =intern (US) stagiaire legal draŌing redacƟon de documents juridiques a will un testament mandatory obligatoire wind up a company meƩre une entreprise en liquidaƟon misconduct faute professionnelle 15 BARRISTERS Barristers specialize in advocacy. They are known individually as counsel, and collecƟvely as the Bar, and are called advocates in Scotland. The General Council of the Bar is responsible for the maintenance of the honour and independence of the Bar, the maintenance of professional standards and the consideraƟon of complaints of professional misconduct against members of the Bar. The educaƟon and training* of students is governed by the Council of the Inns of Court. 1- EducaƟon and training - The academic stage* It is similar to that of solicitors. The only difference is that it is necessary for students to pass their degree at or above the level of Lower Second Class Honours. - The vocaƟonal stage The student must then apply to one of the Inns of Court, which are in London, near the Law Courts (Lincoln's Inn, the Inner Temple, the Middle Temple and Gray's Inn). They are colleges for barristers, daƟng back to medieval Ɵmes and they are responsible for the training and the professional discipline of barristers. AŌer a candidate has been accepted by an Inn, there is a one-year course of training, the BPTC (Bar Professional Training Course): aƩendance is compulsory and the course is based on conƟnuous assessments* throughout the year ending with the Bar Finals in June. During this period, the student must also "keep terms": it means he/she has to dine in the Hall of his/her Inn a fixed number of Ɵmes during the 4 terms of the legal year; this custom* offers students the opportunity to meet senior* members of the profession and to learn from them. Students who have completed the vocaƟonal stage successfully are now referred to as Barristers-at-Law. Because of the increasing number of applicaƟons for vocaƟonal training, a selecƟon system was introduced in 1990: the intake to the vocaƟonal course is now limited each year. * training : formaƟon * stage : étape, phase * conƟnuous assessment : évaluaƟon conƟnue * a custom : une coutume * senior (member) : de rang plus élevé, plus expérimenté 16 - The pracƟcal stage Students who want to pracƟse must serve an apprenƟceship called "pupillage", which lasts a year, with a pracƟsing barrister in barristers' chambers (this is the term used for the offices where barristers work – singular: a set of chambers); they are paid a salary. During the first six months, a student learns to draŌ pleadings, to prepare cases and he aƩends* court hearings. He takes part in "mock trials" (mock trials simulate lower-court trials) and "moots" (Moot court involves a simulated appellate court (appellate advocacy) or arbitral case). At the end of this first period, the student is given a PracƟsing CerƟficate so he can now accept work for himself and appear in court during the second period. At the end of the second period, he is awarded* a Final CerƟficate. - StarƟng pracƟce Then the young barrister must find a "tenancy" in barristers' chambers. He/she shares the chambers and the services of a Clerk. The clerk does the administraƟve work, in parƟcular he is the link with solicitors. He arranges court dates and he collects fees. But even if the barrister shares chambers, he/she remains independent and self-employed*. Since the Courts and Legal Services Act 1990, barristers have been allowed to work in partnership in order to favour internaƟonal opportuniƟes, parƟcularly in the EU; they may do so with the approval of* the General Council of the Bar. 2 – Role of barristers The role of barristers is advice (they give legal advice to solicitors and their clients) and advocacy (they represent them in court). They have right of audience in every court from the Magistrates' Courtsto the House of Lords (the new Supreme Court). Barristers sƟll wear gowns and wigs* , mostly in criminal trials. All barristers (no maƩer what age) are called junior counsel, unless they have taken silk. To "take silk", a barrister must be experienced, s-he must have pracƟced at least 10 years (i.e., s-he must be a barrister of 10 years' standing) and he must have earned a reputaƟon. Then s-he can apply to become a King's Counsel (KC); if successful, s-he will be appointed by the King on the recommendaƟon of the Lord Chancellor. This will enƟtle* him/her * aƩend (a meeƟng, a conference...) = assister à * be awarded : être décerné * be self-employed : indépendant, à son compte * the approval of someone : l’accord de / l’autorisaƟon de * a gown and a wig : une robe (d’avocat) et une perruque * enƟtle someone to do : conférer (donner) le droit à qqun de / autoriser 17 to wear a silk gown and to appear in court assisted by junior counsel; that's why KCs are also called leading counsel or leaders. About 1 barrister in 100 is a KC. A KC deals with the more important cases and s-he may hope to become a member of the judiciary, as we will see soon. However, in recent years there has been a debate about the relevance and use of the rank of King’s Counsel. NB: Solicitors can also become KC and judges. 3 – Barrister-client relaƟonship The relaƟonship between a barrister and his client is now contractual; since the Courts and Legal Services Act, 1990, a barrister has been allowed to sue for his fees. Consequently, barristers can now be sued both for negligence concerning the way a case has been conducted in court and for negligent advice or preparaƟon during the pre-trial period. A barrister is enƟtled to brief fee (which covers the preparaƟon and the first day of trial), then they are paid extra fees for addiƟonal days in court. But the Courts and Legal Services Act, 1990, provides for a "condiƟonal fee agreement". It is also called the "no win, no fee" system whereby a barrister earns money if he wins the case (based on a “success fee” percentage on top of the normal fee), but no fees if he fails (the lawyer takes the risk and bears the costs* of all legal proceedings). There is a rule that barristers should accept any brief he is offered in the courts where they normally pracƟce: this is someƟmes called the "cab-rank" principle, but in pracƟce the rule is oŌen not respected and a client on legal aid may have difficulty in geƫng a parƟcular barrister. Management and employment structure of a (US) law firm Partners Law firms are run and managed by their partners. Senior partners are responsible for the overall* management and direcƟon of the law firm. They are experienced lawyers who have been with the firm for a significant amount of Ɵme and have a high level of experƟse. A junior partner is a partner whose parƟcipaƟon is limited with respect to both profits and management. In other words, a junior partner is a person whose level of involvement, responsibility, risks, and rewards* are comparaƟvely lesser than that of the senior partners. Partners are responsible for everything that occurs in the firm and can be likened to the directors of a company, with one partner elected as managing partner, the equivalent of a CEO*. In order to be elected partner in a law firm, it is normally necessary to have worked in the firm as an associate for a minimum of 5 years. * bear the costs : supporter les coûts * overall : général, global * reward : récompense * Chief ExecuƟve Officer : PDG, 18 Partners can also be divided into equity partners/full partners and non-equity partners. An equity partner is part-owner in the firm, i.e., s-he has equity in the firm and thus shares directly in its profits and its losses*. Non-equity partners, also called paid partners have no actual ownership in the firm. Associates They are the rank and file members of a law firm. They can be divided into junior and senior associates. Normally aŌer working in a firm as a lawyer for a period of 3 years, a successful junior associate will be promoted to senior associate. Senior associates are expected to put in long hours in the hope of being considered for a posiƟon as junior partner. Support staff Law firms especially large full-service firms (also called mulƟ-jurisdicƟonal law firms, specialized in many different areas contrary to bouƟque law firm specialized in a parƟcular area of law) tend to employ many people under the heading of support staff. There are paralegals that carry out work of semi-legal nature, for example research work, and filing documents (with the court), etc. There are also personal assistant (PAs) and general secretarial staff. Some PAs will be paid as much as junior associates and will be considered as important to the firm. What future for the legal profession? As has just been seen, the difference between barristers and solicitors is not as clear as it used to be, which has led, in the past few years, to a debate on a possible fusion of the two professions into a single one. Its supporters argue that, on the one hand, it would make good sense for all law students to have the same foundaƟon training, and, on the other hand, it would reduce legal costs and simplify access to jusƟce for clients. This has, however, met with some resistance from the Bar, which is sƟll deeply aƩached to its independence and specializaƟon in advocacy, and some concern from small law firms, whose future might be jeopardized* in the process. So, due to several other recent changes or trends in the legal world, some change is expected in the future. Indeed, following the introducƟon of the AlternaƟve Business Structure (ABS) in 2011, legal services can now be provided by companies that are not exclusively law-based, a pracƟce known as ‘Tesco Law’. The intenƟon of the new rules is to establish a greater variety of legal services providers, thus broadening and diversifying the market for the consumer* , which has, however, been criƟcized for favouring large companies at the expense of small law firms and reducing the quality of legal service. More recently, many law students have become legal execuƟves and becoming a Chartered Legal ExecuƟve is now viewed as an interesƟng alternaƟve to becoming a lawyer, since, despite * losses : les pertes * jeoparize (be in jeopardy): meƩre en péril, compromeƩre, menacer * a consumer : un consommateur 19 a narrower training than that of solicitors but by specializing in one area of the law, one can become a partner in a law firm or a judge, like a solicitor. To become a Chartered Legal ExecuƟve (UK), one needs to get the CILEX qualificaƟons (the Chartered InsƟtute of Legal ExecuƟves which is the official body regulaƟng the sector) which break down into 3 major parts (a 2-year Level-3 module containing 6 core legal units; a 2-year Level 6 module containing one legal pracƟcal unit, 2 law units and 2 professional skills units; and finally a 3-year’s qualifying employment period). Focus on the United States: Law school in the United States Unlike in the EU, in the US students do not start legal studies aŌer finishing high school. First, they have to complete an undergraduate course * in any subject in a university and pass a BA* (Bachelor of Arts) or BS (Bachelor of Science) for four years. Many universiƟes suggest a pre-law curriculum, but it is not required for entrance to law school. They then take a naƟonal exam for admiƩance to law school it is called the LSAT (Law School Admission Test) Once they have passed this exam, they send applicaƟons and submit their resumes* to the universiƟes of their choice. A ranking of the best universiƟes is published by magazines every year. They can also consult the guidance offices of their undergraduate universiƟes. The universiƟes do not only take the students' educaƟonal background* into account (although the students who have obtained the best grades* during their undergraduate course stand a beƩer chance of being selected, of course), they also value all the extra-curricular acƟviƟes in which students have been involved. The best universiƟes tend to select the brightest students. Scholarships* are available for the students from underprivileged background*. Most law schools are accredited by the American Bar AssociaƟon, which has promulgated a set of academic requirements. In law school, which takes three years (they complete a Juris Doctor (J.D) degree, the students' curriculum includes a set of core subjects (Civil procedure, US consƟtuƟonal law, Contracts, Criminal law, Property, Torts, Legal research, Legal wriƟng) * undergraduate course : (cours de) licence * a BA : une licence * a resume: un CV * educaƟonal background: le parcours scolaire * a grade : une note * a scholarship : une bourse (d’étude) * underprivileged background : milieu défavorisé 20 But in the third year, students can specialize in a parƟcular field. While students are in law school, they oŌen have internships in law firms during the summers. AŌer compleƟng law school, students decide in which state they wish to pracƟse law. They then prepare for the Bar Exams of that state. Each state has its own legal requirements. If they pass the Bar Exams (a mulƟ-day wriƩen examinaƟon), they are eligible to pracƟce law in that state. They become AƩorneys at Law. If they move to another state, they must take another Bar Exam (or the mulƟ-state bar exam). VOCABULARY (the) Bar l’examen du Barreau legal costs frais de jusƟce, dépens barristers’ chambers (UK) = law firm (US) un cabinet d’avocats legal services provider fournisseur de services juridiques complaint (file a) une plainte law firm cabinet d’avocats compulsory obligatoire law school fac de droit counsel avocat, conseil Magistrates’ Court tribunal de première instance (civil et pénal, UK) court hearing audience (legal) proceedings procédures criminal trial un procès en pénal pracƟce law praƟquer le droit draŌ pleadings rédiger des conclusions law pracƟƟoner un juriste field un domaine paralegal assistant juridique file documents déposer full-service firms cabinet d’avocats généralistes internship stage rank and file (members) de la base, de première ligne judiciary ordre judiciaire take silk devenir King’s Counsel legal aid aide juridicƟonnelle tort(s) responsabilité civile délictuelle (ou extracontractuelle) COMMON LAW Origins of common law The common law was developed in England following the invasion of the Normans in 1066. Prior to* the invasion of the Normans, England was divided into a number of small kingdoms* , each applying their own system of local laws. The Normans sought to* centralize the system of jusƟce in England and over Ɵme developed the common law, as a system of law common to everyone. Different meanings of common law common law countries vs civil law countries (vs religious law countries): It can be used as a general term to describe the system of law that was developed in England and that is now used in many different countries around the world. For example, the common law is the system of law applied in the USA (Australia, India, Canada) and civil law is the system relied on in France. case law vs statute law: It can be used as a general term for case law to disƟnguish case law from statute law, i.e., law adopted by the legislaƟve branch of government. Thus, case law is someƟmes referred to generally as common law. common law case law vs equity case law: Finally, there are two types of case law, one which is referred to as common law case law developed by the King’s common law courts and the other, which is called equity case law, developed by the King’s chancellor (equity is oŌen referred to as the second branch of English law). The term common law is someƟmes used to disƟnguish the law coming from the King’s common law courts from that developed by the Chancellor under the heading of equity. Common law case law vs Equity case law Common law case law was developed from the decisions of the King’s common law courts, established from the 12th century onwards* (the Court of King’s Bench, the Court of Common Pleas and the Court of the Exchequer). However, the system of common law developed by these courts was procedurally very technical and over Ɵme it lost touch with more fundamental noƟons of jusƟce, such as right * prior to (something) : avant * a kingdom : un royaume * seek to : chercher à faire (quelque chose) * onwards : à parƟr de 6 and wrong. They were also said to be slow and expensive. There were also concerns* that juries were inƟmidated by defendants or bribed*. Moreover, the common law courts only offered complainants/plainƟffs one remedy, namely damages. Finally, the royal courts of common law were rigid especially because they operated through the writ system. Claimants were not permiƩed to bring an acƟon before a court unless they had obtained a writ from the Chancellor (i.e., the king's permission to sue). This writ defined their rights and obligaƟons and enabled them to start an acƟon. Those writs contained in the "Register of Writs" were limited in number and in scope. If the writ did not fit the rights of the plainƟff, he had no remedy at common law; thus, he lost the case. In order to miƟgate* the severity or the constraints of common law case law, a more fluid approach in dealing with disputes emerged: equity. Equity case law meant that when claimants did not find any remedy or jusƟce through the common law courts, they could peƟƟon the king to redress their grievances because the King was regarded the “fountain of head of jusƟce”. People appealed to the King’s conscience and mercy for remedy that they could not get from ordinary courts. As the number of such requests grew, the king passed them on to his Chancellor (the “keeper of the king’s conscience”) who was a trusted and learned adviser (a clergyman* , for ex, a bishop* ). By the end of the 15th century, the King set up the Court of Chancery with the Chancellor supervising it. Equity was only applied when the remedy provided by common law case law was inappropriate and this is sƟll the case today. SubstanƟve areas of law created by equity include trusts and succession law. Moreover, in place of the common law remedy, equity developed remedies such as injuncƟons and specific performance to beƩer answer the needs of complainants. For example, forcing a party to perform their contractual duƟes may be beƩer suited than granƟng* damages; or issuing an injuncƟon prevenƟng* someone from doing something might also be more appropriate than awarding compensatory money (ex: trespassing). The courts of common law and of equity existed alongside each other for 350 years, and equity complemented common law unƟl the end of the 19th century. * concerns : des inquiétudes, des préoccupaƟons * bribe = soudoyer, corrompre / bribery : pots-de-vin, corrupƟon * miƟgate : aƩénuer * clergyman : membre du clergé * a bishop : un évêque * grant (sthg to someone) : accorder * prevent someone from V-ing: empêcher qqun de faire 7 The merger* of common law and equity SomeƟmes the rules of common law and those of equity conflicted but it was decided that Equity should prevail* (see The Earl of Oxford's case, 1615). The problem resulƟng from the existence of 2 systems of jusƟce was that, to obtain remedies, a person oŌen had to bring 2 successive acƟons: one in damages before a common law court, another in equity to obtain an order forcing the other party to do something or to stop doing something. The 2 systems were unified with the Judicature Acts, 1873-1875: the old courts of common law and the Court of Chancery were abolished and were replaced by one Supreme Court of Judicature, which could administer both the common law and equity. There was a fusion of the administraƟon of common law and equity, but not a fusion of the 2 systems of law themselves: the rules of equity are sƟll disƟnct from the rules of Common law but both are now open to a plainƟff in one acƟon before the same court. Case law Unlike civil law which is set out in wriƩen codified texts emanaƟng from legislators, the common law is iniƟally derived from case law. Under the case law methodology, certain decisions adopted by higher courts may set a precedent, which must then be followed by all courts of equal or lower standing. Precedents have to be followed later by judges deciding on facts similar to those in the first case, in other words, lower courts are bound by previous* decisions. This is called the doctrine of stare decisis based on the doctrine of binding precedent. When cases do not have any precedent, it's called (a case of) first impression. The judge must look at related laws and facts and parƟcular circumstances. Case law is based on a core principle: it is judge-made law. A court decision can run to hundreds of pages and, obviously, not the whole decision will be considered binding. Instead, it is only the rule of law, or the principle established by the decision, referred to as the raƟo decidendi that binds subsequent* courts. RaƟo decidendi means the “reason for the decision”, that is to say the legal principle on which the case is decided. It is oŌen possible to find it under the word: “held”; it means what the court “held”, i.e., the conclusion it came to. SomeƟmes in a decision, a judge will also issue an opinion on a related maƩer, but one not coming within the actual* facts of the case. Such opinions are called obiter dicta and are no thought to create a binding precedent, it is only a persuasive precedent (like recommendaƟons, remarks in passing). This is because a court is only empowered to rule in law on the actual facts of the case before it. However, although such opinions are not binding, * merge : fusionner / a merger : une fusion * prevail (over) : prévaloir, l’emporter (sur) * previous : (adj.) précédent(e), antérieure * subsequent : suivant, prochain * actual : réel, véritable 8 they can be influenƟal in subsequent cases, especially if issued by a leading judge. EffecƟvely, with obiter dicta a judge is giving his/her opinion on how s-he would have decided the case, had the facts been different. Statute law The most important source of law in common law countries is statute law, which takes precedence over* both common law and equity. Laws adopted by Parliament in the UK are called Acts of Parliament and once they are published in the statute books, become known as statute law. Statute law is wriƩen law but should not be confused with civil law codes, which are normally more detailed. TradiƟonally, common law statutes tend to be broadly* wriƩen, allowing the courts to retain large powers of interpretaƟon. In the civil law system (as in France for ex), the primary source of law is wriƩen codified texts and the role of case law and binding precedent is less important, remaining primarily a secondary and persuasive source of law. That said, just as wriƩen law is taking on more importance in the common law system, case law is playing an increasingly significant role in civil law systems. How higher courts may affect lower court decisions A case may be decided differently by a higher court. There are 4 possibiliƟes. - Affirming a decision A synonym for affirmed is upheld, which means the higher court agrees with the lower court. Although the rules of stare decisis are generally respected, there are means by which a court can avoid following precedent. - Overruling a decision Overruling is where a legal principle that was laid down in one case is changed in a future case. This can only be done by a court that is higher in the hierarchy than the court that had taken the earlier decision. The overruling of a prior decision* means that the raƟo decidendi of this decision will no longer have authority in any court. Overruling lower courts’ decisions too oŌen could have the effect of greatly diminishing the authority of these lower courts. It is therefore important that a superior court should do this with care. This should not be confused with the concept of reversing a decision. * take prececence over : l’emporter sur, avoir priorité sur * broadly : de façon large, de façon générale * a prior decision : une décision antérieure 9 - Reversing a decision Reversing a decision is when a higher court decides differently the same case in appeal. This is not an excepƟon to the rules of precedent that we have seen, since a higher court is not bound by a decision of a court that is lower in the hierarchy. - DisƟnguishing a decision A decision of a superior court is only binding when the facts of the case are similar to those of the case that needs to be decided. Therefore, if the judges consider that the facts are not similar enough, then the prior decision does not have to be followed. This is referred to as “disƟnguishing cases”. Judges decide that the facts are different enough not to be treated alike. The reality of the difference is not always clear but the judge has enough leeway* to establish the disƟncƟon. It is said that when this happens the law has not been modified since the facts are sufficiently different to merit a different soluƟon. However, it is possible that the disƟncƟon is only made as a means of avoiding an undesired precedent. Focus on the US The US is a common law country. American courts originally fashioned common law rules based on English common law unƟl the American legal system was sufficiently mature to create common law rules either from direct precedent or by analogy to comparable areas of decided law. All laws and legal decisions in the US must be in keeping with *the US ConsƟtuƟon both at the federal and state level. Vast areas of the law, most notably relaƟng to property, contracts and torts are tradiƟonally part of the common law. These areas of the law are mostly within the jurisdicƟon of the states; thus, state courts are the primary source of common law in the country. Though most common law is found at the state level, there is a limited body of federal common law--that is, rules created and applied by federal courts (in the absence of any controlling federal statute). At the state level, legislatures oŌen subsequently codify common law rules from the courts of their state, either to give the rule the permanence afforded by a statute, to modify it somehow (by either expanding or restricƟng the scope of the common law rule, for example) or to replace the outcome enƟrely with legislaƟon. * leeway, laƟtude, marge de manœuvre * in keeping with : en accord avec 10 Vocabulary binding qui lie juridiquement/ contraignant redress grievances réparer les torts commis be bound by être lié par remedy recours, réparaƟon bring an acƟon intenter une acƟon reverse a decision infirmer une décision/un jugement a case of first impression affaire sans précedent case law jurisprudence rule of law ici : la règle de droit, sinon : État de droit, primauté du droit civil law droit civil specific performance execuƟon forcée (d’un contrat) complainant plaignant statute law législaƟon votée par le Parlement defendant défendeur (au civil); accusé(au pénal) statute loi (votée par le Parlement) dispute liƟge succession law droit des successions duty devoir sue poursuivre en jusƟce (au civil) equity ensemble des règles développées au fil des siècles pour palier les lacunes de la common law tort(s) responsabilité civile délictuelle (extracontractuelle) “held” jugement rendu trespassing entrer sans autorisaƟon injuncƟon ordonnance, injuncƟon trust(s) fiducie leading judge juge de plus grande importance uphold confirmer, maintenir (décisions, règles...) overrule / overturn annuler, casser writ system ordonnance émise par le roi autorisant une acƟon en jusƟce par un sujet outcome résultat, issue plainƟff demandeur, plaignant (binding) precedent précédent impéraƟf/obligatoire 11 LAWYERS The legal profession is divided into 2 main branches: solicitors and barristers. Judges are issued from their ranks and so are the Law Officers of the Crown. SOLICITORS 1 - EducaƟon and training The qualificaƟon system for solicitors is changing. From October 2021, the Solicitors Qualifying ExaminaƟon (SQE) will be phased in* to become the new naƟonal centralised way to qualify as a solicitor in England and Wales. For students who have already started a qualifying law degree, conversion course or training contract there are transiƟon arrangements in place for several years to qualify as a solicitor under the former route*. The aim* of this reform is to make the route into the legal profession the same for all applicants, and to make it more financially accessible, as the cost for the SQE will be significantly less than the current cost* for students under the former system of qualificaƟon. Academic requirements Although it will sƟll be possible to get a legal qualificaƟon by compleƟng a 6 year ‘learn-as- you-earn’ apprenƟceship aŌer secondary school (while studying for law related qualificaƟons alongside this), the normal and quickest way of becoming a solicitor will sƟll imply being a graduate* / having a degree * in any subject. Of course, if the degree is not a law degree (LLB), students will surely need to study law and legal pracƟce to get ready for the SQE. It will be highly recommended - although not mandatory to aƩend* a conversion / preparaƟon course offered by universiƟes. The SQE assessments In SQE1, students will be tested on ‘funcƟoning legal knowledge’ which will assess* their applicaƟon of law based on realisƟc client-based scenarios in mulƟple choice quesƟons*. They will have to pass* SQE1 before being eligible to sit* the SQE2 assessments. Many * be phased in : être introduit par étapes * the former (route) : (le parcours) précédent * the aim : le but, l’objecƟf * the current cost : les coûts actuels * a graduate : un étudiant diplômé * a degree : un diplôme universitaire * aƩend (a course, a meeƟng, a conference...): assister à * assess : évaluer, esƟmer * mulƟple choice quesƟons : QCM * pass an exam : réussir un examen * sit / take an exam : passer un examen 12 candidates will likely take SQE1 at the same Ɵme as, or slightly aŌer, they complete their academic educaƟon. SQE2 will be a single, uniform assessment for all candidates, consisƟng of exercises which sample across the skills* and pracƟce areas. SQE2 will test candidates’ legal skills through wriƩen and oral simulaƟons of the tasks that a newly qualified solicitor might have to undertake in pracƟce (criminal liƟgaƟon, dispute resoluƟon, property, probate as well as business organisaƟons, rules and procedures.) It will also test candidates on the pracƟcal legal skills required for pracƟce, including interviewing, advocacy, legal research, legal draŌing or case analysis. Candidates will likely take SQE2 near the end of their qualifying work experience (QWE). The pracƟcal training All candidates will need to complete at least two years full-Ɵme* (or equivalent) qualifying work experience (QWE). QWE aims to be a more flexible approach than the former training period ('training contract'). It will give candidates the opportunity to interact with clients, see how solicitors work in pracƟce, and consider ethical challenges. QWE can be gained in law firms, legal clinics in academic insƟtuƟons, law centres or other appropriate organisaƟons. There will be no minimum length of Ɵme for placements*. Candidates will not have to complete QWE in one block directly before qualifying as a solicitor, as most currently do. They will be able to gain experience as they progress through their educaƟon (possibly through summer work placements or work as a paralegal). However, many employers will conƟnue to take on trainees for a two-year period, as is current pracƟce. The character and suitability assessment The assessment of character will come at the final stage* of the legal training and will be carried out* once the candidate applies to the Solicitors' RegulaƟon Authority (SRA) to be added to the Roll of solicitors (this remains unchanged from the former pre-2021 arrangements). This background check* seeks to assess the future solicitors’ integrity and fitness for the profession. The SRA will take into account the need to “protect the public and the public interest” as well as “maintain public trust and confidence in the solicitors’ profession”. At the end of this process, the newly qualified solicitor will be issued with a pracƟsing cerƟficate to be renewed annually, as is the case today. * skills : compétences * full-Ɵme : à plein temps (≠ part-Ɵme : à temps parƟel) * (work) placement : un stage * a stage : une étape, un stade * carry out (a task, a survey...): réaliser * background checks : vérificaƟons des antécédents (recherches sur le passé de qqun) 13 2 – Role of solicitors They are the main advisers to the public: they are the first contact for a person who needs legal advice. Their funcƟons include non-contenƟous work: the drawing up of wills, probate, conveyancing (transfer of property), the drawing up of contracts, advice on employment law and the formaƟon and winding up of companies. They are also involved in contenƟous work: matrimonial cases (divorce and child care), personal injury cases, negligence cases, breach of contract and criminal cases. Concerning contenƟous work, they can try to seƩle the case out of court by reaching an agreement with the other party. If a seƩlement out of court is impossible, they play the part of an intermediary (= a go-between) between the client and the barrister: they engage* the barrister and prepare the various documents (=the brief) necessary for the barrister's pleadings. But they can also represent their clients in court. The 1990 Act established that, contrary to the past, solicitors could now appear in higher courts if they obtained a cerƟficate from the Law Society proving their competence to do so; they finally obtained that right in 1993. To get right of audience and advocacy the solicitor has to undertake* a Higher Rights of Audience course then pass 3 assessments (wriƩen and oral exams and advocacy assessment). If successful, s-he then becomes a solicitor- advocate. There is an increasing tendency for solicitors to specialize: for example, they may choose to become a tax lawyer, a matrimonial (divorce) lawyer, a criminal lawyer... 3 - Solicitor-client relaƟonship Solicitors are on an equal fooƟng with* barristers before the European Court of JusƟce. Solicitors have a contractual relaƟon with their clients, so they may be sued by them for negligence (but, unƟl July 2000, not for work done in court) and they can sue their clients for non-payment of fees. The solicitor-client relaƟonship is regarded in Equity as a fiduciary relaƟonship, i.e., a relaƟonship based on good faith, so anything said by the client to the solicitor is in strict confidence, which is called privileged informaƟon in the US. Any breach* of the pracƟce rules will result in a prima facie allegaƟon of misconduct by the solicitor. Such allegaƟons are invesƟgated by the Law Society under the umbrella of the Consumer Complaints Service. * engage : (ici) impliquer * undertake : entreprendre * be on an equal fooƟng with : être sur un pied d’égalité avec * breach : non-respect, violaƟon 14 VOCABULARY advocacy plaidoirie (le fait de plaider) paralegal assistant juridique an applicant un candidat, un postulant (work) placement (UK) = internship (US) stage breach of contract rupture du contract brief dossier, affaire contenƟous work travail lié aux liƟges pleadings = submissions conclusions (droit civil), mémoires (droit public), actes exposant les faits conveyancing transfert de propriété criminal law droit pénal pracƟce rules déontologie employment law droit du travail privileged info info confidenƟelle fee(s) honoraires probate homologaƟon, validaƟon (d’un testament fiduciary relaƟonships (relaƟons) fiduciaires (de confiance) right of audience droit de plaider a go-between un intermédiaire seƩle a case (out of court) régler à l’amiable good faith bonne foi a seƩlement règlement à l’amiable Law Society Ordre professionnel des ‘solicitors’ sue (someone) intenter une acƟon contre / poursuivre en jusƟce (au civil) law centre centre d’aide juridicƟonnel indépendant et à but- non-lucraƟf tax lawyer avocat fiscaliste legal clinic service ou programme universitaire d’aide juridicƟonnelle proposé par les étudiants en droit trainee (UK) =intern (US) stagiaire legal draŌing redacƟon de documents juridiques a will un testament mandatory obligatoire wind up a company meƩre une entreprise en liquidaƟon misconduct faute professionnelle 15 BARRISTERS Barristers specialize in advocacy. They are known individually as counsel, and collecƟvely as the Bar, and are called advocates in Scotland. The General Council of the Bar is responsible for the maintenance of the honour and independence of the Bar, the maintenance of professional standards and the consideraƟon of complaints of professional misconduct against members of the Bar. The educaƟon and training* of students is governed by the Council of the Inns of Court. 1- EducaƟon and training - The academic stage* It is similar to that of solicitors. The only difference is that it is necessary for students to pass their degree at or above the level of Lower Second Class Honours. - The vocaƟonal stage The student must then apply to one of the Inns of Court, which are in London, near the Law Courts (Lincoln's Inn, the Inner Temple, the Middle Temple and Gray's Inn). They are colleges for barristers, daƟng back to medieval Ɵmes and they are responsible for the training and the professional discipline of barristers. AŌer a candidate has been accepted by an Inn, there is a one-year course of training, the BPTC (Bar Professional Training Course): aƩendance is compulsory and the course is based on conƟnuous assessments* throughout the year ending with the Bar Finals in June. During this period, the student must also "keep terms": it means he/she has to dine in the Hall of his/her Inn a fixed number of Ɵmes during the 4 terms of the legal year; this custom* offers students the opportunity to meet senior* members of the profession and to learn from them. Students who have completed the vocaƟonal stage successfully are now referred to as Barristers-at-Law. Because of the increasing number of applicaƟons for vocaƟonal training, a selecƟon system was introduced in 1990: the intake to the vocaƟonal course is now limited each year. * training : formaƟon * stage : étape, phase * conƟnuous assessment : évaluaƟon conƟnue * a custom : une coutume * senior (member) : de rang plus élevé, plus expérimenté 16 - The pracƟcal stage Students who want to pracƟse must serve an apprenƟceship called "pupillage", which lasts a year, with a pracƟsing barrister in barristers' chambers (this is the term used for the offices where barristers work – singular: a set of chambers); they are paid a salary. During the first six months, a student learns to draŌ pleadings, to prepare cases and he aƩends* court hearings. He takes part in "mock trials" (mock trials simulate lower-court trials) and "moots" (Moot court involves a simulated appellate court (appellate advocacy) or arbitral case). At the end of this first period, the student is given a PracƟsing CerƟficate so he can now accept work for himself and appear in court during the second period. At the end of the second period, he is awarded* a Final CerƟficate. - StarƟng pracƟce Then the young barrister must find a "tenancy" in barristers' chambers. He/she shares the chambers and the services of a Clerk. The clerk does the administraƟve work, in parƟcular he is the link with solicitors. He arranges court dates and he collects fees. But even if the barrister shares chambers, he/she remains independent and self-employed*. Since the Courts and Legal Services Act 1990, barristers have been allowed to work in partnership in order to favour internaƟonal opportuniƟes, parƟcularly in the EU; they may do so with the approval of* the General Council of the Bar. 2 – Role of barristers The role of barristers is advice (they give legal advice to solicitors and their clients) and advocacy (they represent them in court). They have right of audience in every court from the Magistrates' Courtsto the House of Lords (the new Supreme Court). Barristers sƟll wear gowns and wigs* , mostly in criminal trials. All barristers (no maƩer what age) are called junior counsel, unless they have taken silk. To "take silk", a barrister must be experienced, s-he must have pracƟced at least 10 years (i.e., s-he must be a barrister of 10 years' standing) and he must have earned a reputaƟon. Then s-he can apply to become a King's Counsel (KC); if successful, s-he will be appointed by the King on the recommendaƟon of the Lord Chancellor. This will enƟtle* him/her * aƩend (a meeƟng, a conference...) = assister à * be awarded : être décerné * be self-employed : indépendant, à son compte * the approval of someone : l’accord de / l’autorisaƟon de * a gown and a wig : une robe (d’avocat) et une perruque * enƟtle someone to do : conférer (donner) le droit à qqun de / autoriser 17 to wear a silk gown and to appear in court assisted by junior counsel; that's why KCs are also called leading counsel or leaders. About 1 barrister in 100 is a KC. A KC deals with the more important cases and s-he may hope to become a member of the judiciary, as we will see soon. However, in recent years there has been a debate about the relevance and use of the rank of King’s Counsel. NB: Solicitors can also become KC and judges. 3 – Barrister-client relaƟonship The relaƟonship between a barrister and his client is now contractual; since the Courts and Legal Services Act, 1990, a barrister has been allowed to sue for his fees. Consequently, barristers can now be sued both for negligence concerning the way a case has been conducted in court and for negligent advice or preparaƟon during the pre-trial period. A barrister is enƟtled to brief fee (which covers the preparaƟon and the first day of trial), then they are paid extra fees for addiƟonal days in court. But the Courts and Legal Services Act, 1990, provides for a "condiƟonal fee agreement". It is also called the "no win, no fee" system whereby a barrister earns money if he wins the case (based on a “success fee” percentage on top of the normal fee), but no fees if he fails (the lawyer takes the risk and bears the costs* of all legal proceedings). There is a rule that barristers should accept any brief he is offered in the courts where they normally pracƟce: this is someƟmes called the "cab-rank" principle, but in pracƟce the rule is oŌen not respected and a client on legal aid may have difficulty in geƫng a parƟcular barrister. Management and employment structure of a (US) law firm Partners Law firms are run and managed by their partners. Senior partners are responsible for the overall* management and direcƟon of the law firm. They are experienced lawyers who have been with the firm for a significant amount of Ɵme and have a high level of experƟse. A junior partner is a partner whose parƟcipaƟon is limited with respect to both profits and management. In other words, a junior partner is a person whose level of involvement, responsibility, risks, and rewards* are comparaƟvely lesser than that of the senior partners. Partners are responsible for everything that occurs in the firm and can be likened to the directors of a company, with one partner elected as managing partner, the equivalent of a CEO*. In order to be elected partner in a law firm, it is normally necessary to have worked in the firm as an associate for a minimum of 5 years. * bear the costs : supporter les coûts * overall : général, global * reward : récompense * Chief ExecuƟve Officer : PDG, 18 Partners can also be divided into equity partners/full partners and non-equity partners. An equity partner is part-owner in the firm, i.e., s-he has equity in the firm and thus shares directly in its profits and its losses*. Non-equity partners, also called paid partners have no actual ownership in the firm. Associates They are the rank and file members of a law firm. They can be divided into junior and senior associates. Normally aŌer working in a firm as a lawyer for a period of 3 years, a successful junior associate will be promoted to senior associate. Senior associates are expected to put in long hours in the hope of being considered for a posiƟon as junior partner. Support staff Law firms especially large full-service firms (also called mulƟ-jurisdicƟonal law firms, specialized in many different areas contrary to bouƟque law firm specialized in a parƟcular area of law) tend to employ many people under the heading of support staff. There are paralegals that carry out work of semi-legal nature, for example research work, and filing documents (with the court), etc. There are also personal assistant (PAs) and general secretarial staff. Some PAs will be paid as much as junior associates and will be considered as important to the firm. What future for the legal profession? As has just been seen, the difference between barristers and solicitors is not as clear as it used to be, which has led, in the past few years, to a debate on a possible fusion of the two professions into a single one. Its supporters argue that, on the one hand, it would make good sense for all law students to have the same foundaƟon training, and, on the other hand, it would reduce legal costs and simplify access to jusƟce for clients. This has, however, met with some resistance from the Bar, which is sƟll deeply aƩached to its independence and specializaƟon in advocacy, and some concern from small law firms, whose future might be jeopardized* in the process. So, due to several other recent changes or trends in the legal world, some change is expected in the future. Indeed, following the introducƟon of the AlternaƟve Business Structure (ABS) in 2011, legal services can now be provided by companies that are not exclusively law-based, a pracƟce known as ‘Tesco Law’. The intenƟon of the new rules is to establish a greater variety of legal services providers, thus broadening and diversifying the market for the consumer* , which has, however, been criƟcized for favouring large companies at the expense of small law firms and reducing the quality of legal service. More recently, many law students have become legal execuƟves and becoming a Chartered Legal ExecuƟve is now viewed as an interesƟng alternaƟve to becoming a lawyer, since, despite * losses : les pertes * jeoparize (be in jeopardy): meƩre en péril, compromeƩre, menacer * a consumer : un consommateur 19 a narrower training than that of solicitors but by specializing in one area of the law, one can become a partner in a law firm or a judge, like a solicitor. To become a Chartered Legal ExecuƟve (UK), one needs to get the CILEX qualificaƟons (the Chartered InsƟtute of Legal ExecuƟves which is the official body regulaƟng the sector) which break down into 3 major parts (a 2-year Level-3 module containing 6 core legal units; a 2-year Level 6 module containing one legal pracƟcal unit, 2 law units and 2 professional skills units; and finally a 3-year’s qualifying employment period). Focus on the United States: Law school in the United States Unlike in the EU, in the US students do not start legal studies aŌer finishing high school. First, they have to complete an undergraduate course * in any subject in a university and pass a BA* (Bachelor of Arts) or BS (Bachelor of Science) for four years. Many universiƟes suggest a pre-law curriculum, but it is not required for entrance to law school. They then take a naƟonal exam for admiƩance to law school it is called the LSAT (Law School Admission Test) Once they have passed this exam, they send applicaƟons and submit their resumes* to the universiƟes of their choice. A ranking of the best universiƟes is published by magazines every year. They can also consult the guidance offices of their undergraduate universiƟes. The universiƟes do not only take the students' educaƟonal background* into account (although the students who have obtained the best grades* during their undergraduate course stand a beƩer chance of being selected, of course), they also value all the extra-curricular acƟviƟes in which students have been involved. The best universiƟes tend to select the brightest students. Scholarships* are available for the students from underprivileged background*. Most law schools are accredited by the American Bar AssociaƟon, which has promulgated a set of academic requirements. In law school, which takes three years (they complete a Juris Doctor (J.D) degree, the students' curriculum includes a set of core subjects (Civil procedure, US consƟtuƟonal law, Contracts, Criminal law, Property, Torts, Legal research, Legal wriƟng) * undergraduate course : (cours de) licence * a BA : une licence * a resume: un CV * educaƟonal background: le parcours scolaire * a grade : une note * a scholarship : une bourse (d’étude) * underprivileged background : milieu défavorisé 20 But in the third year, students can specialize in a parƟcular field. While students are in law school, they oŌen have internships in law firms during the summers. AŌer compleƟng law school, students decide in which state they wish to pracƟse law. They then prepare for the Bar Exams of that state. Each state has its own legal requirements. If they pass the Bar Exams (a mulƟ-day wriƩen examinaƟon), they are eligible to pracƟce law in that state. They become AƩorneys at Law. If they move to another state, they must take another Bar Exam (or the mulƟ-state bar exam). VOCABULARY (the) Bar l’examen du Barreau legal costs frais de jusƟce, dépens barristers’ chambers (UK) = law firm (US) un cabinet d’avocats legal services provider fournisseur de services juridiques complaint (file a) une plainte law firm cabinet d’avocats compulsory obligatoire law school fac de droit counsel avocat, conseil Magistrates’ Court tribunal de première instance (civil et pénal, UK) court hearing audience (legal) proceedings procédures criminal trial un procès en pénal pracƟce law praƟquer le droit draŌ pleadings rédiger des conclusions law pracƟƟoner un juriste field un domaine paralegal assistant juridique file documents déposer full-service firms cabinet d’avocats généralistes internship stage rank and file (members) de la base, de première ligne judiciary ordre judiciaire take silk devenir King’s Counsel legal aid aide juridicƟonnelle tort(s) responsabilité civile délictuelle (ou extracontractuelle)