1975, September, Pg. 1745. Peeling The English Onion: A Visit with the English Barrister.

• Author: by Gordon L. Kane, Jr.

4 Colo.Law. 1745

Colorado Lawyer

1975.

1975, September, Pg. 1745.

Peeling The English Onion: A Visit with the English Barrister

1745Vol. 4, No. 9, Pg. 1745Peeling The English Onion: A Visit with the English Barristerby Gordon L. Kane, Jr.

Onion: A round bulb made up of close, concentric, easily separable layers. It has a notably strong, sharp smell and taste. It is considered, by the Irish at least, to be edible. In England the onion is considered the subject of litigation. Peeling the onion takes the English a great deal of time and, when finished separating all the layers, they are likely to discover that, like litigation, nothing is contained therein.

The foregoing observation was the result of a week's visit by members of the Litigation Section of the American Bar Association with the English barrister and his cherished Inns of Court. Unlike most professional junkets and conventions, this visit was a working experience which kept the attendants productively occupied from eight o'clock in the morning to eight o'clock at night. No doubt some crypto-Puritan was responsible for the turgid schedule, but nevertheless we were able to engage in a modest degree of conviviality and weight-gaining.

Our visit was inspired in part by Chief Justice Burger's anglophilia and in part by the Bar's now desperate search for competence. You may rightly ask, "Why search in England?" The answer is that we share a common origin with the present English system, yet that system has not suffered the same or even similar disintegration of public confidence, personal corruption, or pervasive incompetence. In England, scandal is the dancing ground of defense ministers, hairdressers and soccer players. Admission to the Bar is not deemed a prerequisite to paths of glory or shame, but rather a call to a time-honored craft where competence is presupposed and excellence in artisanship is "a consummation devoutly to be wished."(fn1)

Before seeking to rescind the Declaration of Independence, however, one should consider the differences in the two systems. The English system is unitary as distinguished from federal. It is noted for its flexibility. Each court has plenary power so that cases may be transferred from one to the other. As The Hon. Mr. Justice Ackner, Judge of the High Court, Queen's Bench Division, told us, the strength of the system is its deep-rooted force of specialization on both the bench and the Bar. Judges are certified in special areas of competence such as commercial litigation, wills, trusts, tax and criminal law. Nevertheless, the same Judge Ackner advised us

1746that he was presiding over a case involving a mechanical onion peeler that would undoubtedly take nine months to try! A patent lawyer from Connecticut commented that he tried a patent case in five days; in England, the case involving the same patent and the same parties took six weeks.

The Nature of English LitigationThe character of litigation in England is considerably different from ours. There, courts encounter no great variety of complex litigation---no anti-trust cases, no environmental litigation, no class actions, no civil rights' cases, and rarely are they plagued with stockholders' derivative actions. Most cases in the English High Court are founded upon tort, contract, commerce, or landlord and tenant. By far, the majority of cases involve personal injury. The total number of actions is less than two million and of those, one-third result in default in the High Court. One-half result in judgment without trial in the County Court. Only two percent of the cases are listed for trial, of which roughly 1,500 are actually tried in the High Court. There is no serious delay in proceedings; a trial in the High Court may be had within one year or two years at the very most. Judges work...