Transatlantic Advocacy
By Andrew Otchie
For over 20 years, groups of young Barristers have been going over to the USA and partaking in the Florida Bar’s Advanced Trial Advocacy Programme in Gainesville. At a time when the distinction between Barristers and Solicitors in this Jurisdiction seems to be becoming ever more blurred and akin to an American model where a single lawyer can handle a case from start to finish (by Public Access or Higher Rights), the Florida Bar is now being divided between those that wish to term themselves as Trial Attorneys, as opposed to Litigators. Moreover, as a mark of distinction, those at the top of such vocation may seek to become a Board Certified Specialist and therefore are entitled to use the designation “B.C.S.” after their name (of approximately 90,000 registered Attorneys in the State of Florida, not more than 1,070 , or 1% are so qualified).
But how does the American law school system prepare and determine the advocacy skills of the Attorney when they reach the courtroom? (or a classroom, made to seem as realistic as possible). The USA has 50 different State Bars all with varying requirements for admission and practice, however in general, an Attorney must obtain a 4 year liberal arts (humanities) degree from College (University) before they can study for a J.D. (equivalent to our LL.B.), then pass a bar exam (held twice a year over 2-3 days, comprising both essays and multiple choice questions on much of everything they have learnt), and there is no requirement to undertake any work-based training such as pupillage before becoming licensed to practise law. A Barrister on the other hand, may typically study for a law degree after completing “A levels” and then does the BPTC (Bar Professional Training Course) for another academic year. Taken then from the point of finishing High School, the entire process for an American is upwards of 7 years and with factoring in gaps between study, other financial commitments, opportunity cost and other common circumstances, a delegate at this year’s course estimated the total financial commitment may be something like $300,000. The debt problem for aspiring Barristers is also dire, and before committing one’s self to a career in advocacy, the apparent risk remains in the problematic shortfall of pupillage places available, which continues to get worse. With this background in mind, I wondered what the comparisons and differences would be between a Barrister and Attorney, when it comes to exercising courtroom skills.
Objection!
The Florida programme focuses on the (once real) medical malpractice case of Coker v Z-Mart Inc, et al. (pronounced Coke –err and Zee -mart). The emphasis is upon how an advocate would persuade a jury and in making his closing argument during a faculty demonstration, an African American Attorney referred to Negligence “as being like when Bill Cosby from the Cosby show would forget to do things he should have, and clumsily do things he shouldn’t”. This seemed to go down well with the jury in a setting that was supposed to be taken as realistically as possible, and when coming to determine the young golfer plaintiff’s damages, came up with a figure of $7,000,000, which typically an Attorney would be paid 40% of on a contingency fee basis.
The participants being offered scholarships from the South-Eastern Circuit to attend this year were Andrew Otchie (12 Old Square Chambers), Alexander Robson (Littleton Chambers), Catriona Stirling (Cloisters) and Elizabeth Humphreys (Henderson Chambers). The QC was Simon Browne (Temple Garden Chambers) who impressed the American colleagues no end with a demonstration of how to cross-examine an expert as to the future earnings potential of the plaintiff. The course was intensive with working lunches on ethics, an evening gathering on materials science (the expert evidence subject matter), and daily sessions of advocacy critiques with reviews by senior practitioners and judges from the Florida Bar, being done in the classroom and with the opportunity to see a performance again in video review. There was also an opportunity to sample some of the local fun things to do in Gainesville, such as visit the swamp bar and eat giant size pizza.
Training for the Profession
The facilities at The University of Florida Levin College of Law were excellent and comprised of the Bailey courtroom and the Advocacy Center, set out as a mock American courtroom, and boasting of several large-screen TVs, which were used to display power-point presentations during the course of the faculty demonstrations on opening and closing speeches, which would be done as a matter of course in a real trial. The Americans also seemed to appreciate our presence very much, remarked upon how an English accent made the content of what we said seem so important, and gave Simon Browne a standing ovation for his after-dinner speech (and jokes).
When in practise, lawyers are often critical of the time and expense spent in legal training, yet there was much mutual benefit for all participants and the opportunity to work together in discussing all things interesting pertaining to advocacy was appreciated during the course. On display were many different advocacy styles, which were influenced by such factors as personality, dress, demeanour and attention to detail. Despite many differences we have in training, there is a common desire shared to display good and effective advocacy, by lawyers from both sides of the Atlantic.