Susan Markowitz
Guest
A discussion of the British-US judicial system may seem out-of-place on a Titanic discussion site, but the subject has come up, and it does relate at least tangentially to Titanic. Many of those on ET are not governed by Brit.-US law, and so many be unfamiliar with its, erm, intricacies. I'm hoping this will help everyone better understand, not just the Inquiries, but also any related legal actions.
Please note that over time (and independence
), the British and US systems have diverged, so what I'm writing applies mainly the US.
The British-US system, unlike many others, is founded on the principle that someone being sued -- or charged with a crime -- is presumed innocent, or not liable, until proven otherwise. (In certain legal system, the opposite presumption holds.) The amount of proof necessary depends upon whether it's a civil matter (sounds like a matter of "decency", which, in a way, it is; really, it means that it's not an offense against society); or a criminal matter, which does involve an offense against society.
A civil matter may involve a contract (or agreement between people) that's being disputed, or an insult (slander or libel), or some harm that's been done (a car-accident; a failure to ship goods that were paid for, or to pay for goods or services provided; or, as in some recent cases, manufacturing flaws that resut in injury). There are lots of other sorts of civil cases, too.
A criminal matter is anything that the state, or government, has declared by law as an offense to society as a whole. Misdemeanors are minor wrongs; felonies are major. The exact range is determined by statute.
Before there were courts, people were forced to settle their disputes in other ways, i.e., duels and private revenge. In fact, that was a major issue in Shakespeare's Hamlet: whether Hamlet should take private revenge against his uncle.)
Britain then established what's known as an "adversary system": rather than have a single, professional prosecutor, as some countries do, there would be (at least) 2 advocates, each taking opposite sides. Their job was to provide every possible bit of information helpful to their "client", the person they're representing. (In criminal cases, the state does provide what may appear to be a "professional prosecutor", eg., the district attorney; but often, that person may be no more experienced than the defense counsel.) An impartial judge would then hear both sides, and decide which position had the most merit.
The British system further provided for a "jury of one's peers": ordinary folk with no particular expertise, whose job was to listen to both sides and decide who was right. Jury trials are customary in criminal cases, but convened less often in civil cases. (I'm sure you can understand why, esp. if a civil case involves something highly technical.)
In both civil and criminal cases, it's the job of the plaintiff or prosecutor to prove their case to the satisfaction of the judge (and/or jury); they carry what's called the "burden of proof".
As difficult as it may sound, it is NOT the job of the advocate or attorney to prejudge the merits of their client's case, civil or criminal; that's the job of the judge and jury. Moreover, in criminal cases, even if a lawyer suspects his client may be guilty, once he accepts the job, he must continue to represent that person vigorously, or (in Philadelphia, at least) seek the judge's permission to withdraw. The Code of Professional Responsibility, which governs the conduct of lawyers in the US (there's also a Code of Judicial Responsibility) has a number of disturbing, sometimes conflicting provisions in it (for instance, lawyers are supposed to pursue a case with all vigor, but not bring frivolous lawsuits). The Code has generated much passionate debate (think the salvage and Californian debates get hot-and-heavy?) without, IMHO, a satisfactory resolution of the issues.
At any rate, with discussions here like Californian, this group is intensely aware that all too often, not all the facts may be present, and that it may be difficult, if not impossible, to draw conclusions based on the evidence. The idea is that the lawyers, between them, will bring out every possible fact in their favor, and that all of that will be "on the table" for the judge's consideration.
Judges in the US, are either appointed or elected, and are expected to remain impartial. While, IMHO, the idea of appointing judges according to their qualifications (so-called "merit selection") is sound, I've known extremely competent judges who were elected, too.
At the first, or so-called "trial" level, the judge hears the whole case, facts and all. If there's a jury, the jury is given the task of deciding which facts are correct and whom to believe, and the judge then applies the law to the chosen facts to make a determination. If there's no jury, the judge decides facts and applies law.
In the upper level courts, in the US known as "Court of Appeals" ("Superior" in some states) or "Supreme", the facts are taken as-is and not reconsidered; the judges decide whether the lower, trial court correctly applied the law to those facts, or whether something went wrong procedurally. (They do other things, too, but that's the basic idea.)
The British courts tend to be more formal, both in dress and demeanor, than the US courts; but they still following the adversary-system. The more serious cases, as I recall, are brought before the "Queen's Bench", or "QB". (We had the privilege of observing a QB trial while in London, years ago, and chatting with the barrister trying the case. (Another difference there: Britain's advocates are divided between the higher-level "barristers", who can appear in court, and "solicitors", who are less prestigious, and tend to do more office-type law, like drawing up wills.)
Now, as for lawyers being unscrupulous... It may be that our profession has more than its share. One problem is the role itself: we're expected to be "hired guns", and to fight as hard as possible for the client; our income depends on it. It's all too easy for some rather over-eager souls to cross-the-line. (I should point out, tho, that the "surprises" you see lawyers pull on each other on TV and in the movies are "poetic license": lawyers are required to share that sort of thing with the other side beforehand, to eliminate the element of surprise.) All the same, I daresay that lawyers who engage in questionable conduct often find themselves in trouble with the Disciplinary Board or the judiciary.
The other point is that lawyers only do what their client asks them to do. Of course, there will always be some enterprising soul who will sue a fast-food restaurant on behalf of an "injured plaintiff" because they coffee was too hot... but it's the jury, not the lawyer, who makes the award. And judges do have a certain amount of discretion to overturn a jury verdict if it's egregious.
Many people have trouble with the idea of someone representing, say, a known mobster or criminal; but under our system, even they have the right to a fair trial, with everything (such as it is!) in their favor presented.
One final thought -- as with so much that's been discussed here, eg., fashion, navigation, etc., the legal world was a VERY different place in 1912. It was not until the Lindbergh-kidnapping-trial (which, BTW, for those interested, is re-enacted every summer at the original courthouse in New Jersey) that people started taking a hard, critical look at the way trials were conducted (and journalists, lawyers, politicians, et al., conducted themselves).
Hope I haven't bored the lot of you! I'll be happy to discuss any of this, privately or otherwise, if you like.
Regards to all -- Susan
Please note that over time (and independence
), the British and US systems have diverged, so what I'm writing applies mainly the US. The British-US system, unlike many others, is founded on the principle that someone being sued -- or charged with a crime -- is presumed innocent, or not liable, until proven otherwise. (In certain legal system, the opposite presumption holds.) The amount of proof necessary depends upon whether it's a civil matter (sounds like a matter of "decency", which, in a way, it is; really, it means that it's not an offense against society); or a criminal matter, which does involve an offense against society.
A civil matter may involve a contract (or agreement between people) that's being disputed, or an insult (slander or libel), or some harm that's been done (a car-accident; a failure to ship goods that were paid for, or to pay for goods or services provided; or, as in some recent cases, manufacturing flaws that resut in injury). There are lots of other sorts of civil cases, too.
A criminal matter is anything that the state, or government, has declared by law as an offense to society as a whole. Misdemeanors are minor wrongs; felonies are major. The exact range is determined by statute.
Before there were courts, people were forced to settle their disputes in other ways, i.e., duels and private revenge. In fact, that was a major issue in Shakespeare's Hamlet: whether Hamlet should take private revenge against his uncle.)
Britain then established what's known as an "adversary system": rather than have a single, professional prosecutor, as some countries do, there would be (at least) 2 advocates, each taking opposite sides. Their job was to provide every possible bit of information helpful to their "client", the person they're representing. (In criminal cases, the state does provide what may appear to be a "professional prosecutor", eg., the district attorney; but often, that person may be no more experienced than the defense counsel.) An impartial judge would then hear both sides, and decide which position had the most merit.
The British system further provided for a "jury of one's peers": ordinary folk with no particular expertise, whose job was to listen to both sides and decide who was right. Jury trials are customary in criminal cases, but convened less often in civil cases. (I'm sure you can understand why, esp. if a civil case involves something highly technical.)
In both civil and criminal cases, it's the job of the plaintiff or prosecutor to prove their case to the satisfaction of the judge (and/or jury); they carry what's called the "burden of proof".
As difficult as it may sound, it is NOT the job of the advocate or attorney to prejudge the merits of their client's case, civil or criminal; that's the job of the judge and jury. Moreover, in criminal cases, even if a lawyer suspects his client may be guilty, once he accepts the job, he must continue to represent that person vigorously, or (in Philadelphia, at least) seek the judge's permission to withdraw. The Code of Professional Responsibility, which governs the conduct of lawyers in the US (there's also a Code of Judicial Responsibility) has a number of disturbing, sometimes conflicting provisions in it (for instance, lawyers are supposed to pursue a case with all vigor, but not bring frivolous lawsuits). The Code has generated much passionate debate (think the salvage and Californian debates get hot-and-heavy?
) without, IMHO, a satisfactory resolution of the issues. At any rate, with discussions here like Californian, this group is intensely aware that all too often, not all the facts may be present, and that it may be difficult, if not impossible, to draw conclusions based on the evidence. The idea is that the lawyers, between them, will bring out every possible fact in their favor, and that all of that will be "on the table" for the judge's consideration.
Judges in the US, are either appointed or elected, and are expected to remain impartial. While, IMHO, the idea of appointing judges according to their qualifications (so-called "merit selection") is sound, I've known extremely competent judges who were elected, too.
At the first, or so-called "trial" level, the judge hears the whole case, facts and all. If there's a jury, the jury is given the task of deciding which facts are correct and whom to believe, and the judge then applies the law to the chosen facts to make a determination. If there's no jury, the judge decides facts and applies law.
In the upper level courts, in the US known as "Court of Appeals" ("Superior" in some states) or "Supreme", the facts are taken as-is and not reconsidered; the judges decide whether the lower, trial court correctly applied the law to those facts, or whether something went wrong procedurally. (They do other things, too, but that's the basic idea.)
The British courts tend to be more formal, both in dress and demeanor, than the US courts; but they still following the adversary-system. The more serious cases, as I recall, are brought before the "Queen's Bench", or "QB". (We had the privilege of observing a QB trial while in London, years ago, and chatting with the barrister trying the case. (Another difference there: Britain's advocates are divided between the higher-level "barristers", who can appear in court, and "solicitors", who are less prestigious, and tend to do more office-type law, like drawing up wills.)
Now, as for lawyers being unscrupulous...
It may be that our profession has more than its share. One problem is the role itself: we're expected to be "hired guns", and to fight as hard as possible for the client; our income depends on it. It's all too easy for some rather over-eager souls to cross-the-line. (I should point out, tho, that the "surprises" you see lawyers pull on each other on TV and in the movies are "poetic license": lawyers are required to share that sort of thing with the other side beforehand, to eliminate the element of surprise.) All the same, I daresay that lawyers who engage in questionable conduct often find themselves in trouble with the Disciplinary Board or the judiciary. The other point is that lawyers only do what their client asks them to do. Of course, there will always be some enterprising soul who will sue a fast-food restaurant on behalf of an "injured plaintiff" because they coffee was too hot... but it's the jury, not the lawyer, who makes the award. And judges do have a certain amount of discretion to overturn a jury verdict if it's egregious.
Many people have trouble with the idea of someone representing, say, a known mobster or criminal; but under our system, even they have the right to a fair trial, with everything (such as it is!) in their favor presented.
One final thought -- as with so much that's been discussed here, eg., fashion, navigation, etc., the legal world was a VERY different place in 1912. It was not until the Lindbergh-kidnapping-trial (which, BTW, for those interested, is re-enacted every summer at the original courthouse in New Jersey) that people started taking a hard, critical look at the way trials were conducted (and journalists, lawyers, politicians, et al., conducted themselves).
Hope I haven't bored the lot of you!
I'll be happy to discuss any of this, privately or otherwise, if you like. Regards to all -- Susan
