A Philadelphia Lawyer in the London Courts

by Thomas Leaming

COURTS OF APPEAL

THE COURT OF APPEAL—HOUSE OF LORDS—DIVISIONAL COURT—JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.

The Court of Appeal—the last resort except for occasional cases which reach the House of Lords and Colonial appeals which go to the Privy Council—is, perhaps, the most perfectly working tribunal for the adjustment of conflicting rights which the wit of man in any age has devised. It is divided into two parts of three judges each, sitting simultaneously. The Lord Chancellor, the Chief Justice, or the Master of the Rolls presides over the respective parts and two associate Lord Justices of Appeal compose the court.

Printed briefs are not used, though the advantage of this omission is not apparent. There is no bill of exceptions and the appeal is in name, as well as in fact, a motion for a judgment the reverse of that rendered below or, in the alternative, for a new trial, and everything which transpired is open to review. Three barristers—the leader, junior and devil—together with the solicitors, are usually found on either side.

The leader for the appellant opens, stating the case with great particularity, and reads from the evidence, documents and charge to the jury at great length. Much time is thus spent because, for no discoverable reason, but probably due to ancient custom and lack of enterprise, the material is all in manuscript, often illegible and with occasional errors in the copies of the Court and opposing counsel. The result is tedious and prosy and an American auditor gets an unfavorable impression at this stage of the argument; an impression, however, which is later dispelled.

During the irksome opening, the court has been getting a grasp of the case, as becomes apparent when the argumentative stage is reached, for then there ensues a good tempered, courteous, informal debate between the several gentlemen, comprising the court and counsel. There is no "orating" and no declamation. The positions of the opponents are stated rapidly and smoothly. Each, as enunciated, is taken up by one or more members of the court and distinct intimation given whether the court agrees with the speaker. In case it does, he may pass on. On the other hand, deferential dissent may warn him to strengthen his position, or a frank expression of doubt may be accompanied by a friendly invitation to the other side to contribute suggestions.

At the conclusion, judgment is rendered orally, in nine cases out of ten, by the presiding Lord Justice, as the last speaker resumes his seat. Then follow the opinions of the associate Lord Justices of Appeal, concurring or dissenting, all expressed with the utmost frankness and spontaneity. These are taken down stenographically, and, after revision, sometimes by the judge himself, find their way into the books to become authorities. Occasionally a "considered judgment" is reserved to be delivered within two or three days.

The contrast presented by these methods (for the system is not essentially different) to the average American appeal is very great. In America, only the ablest men know by a kind of intuition upon what points their cases will turn, and one often hears a more or less stereotyped speech delivered to a court sitting like silent images, without the slightest intimation to the speaker whether he is wasting effort upon conceded points, or slighting those upon which he may discover by the written opinion—delivered months afterwards—he has won or lost.

Sometimes these friendly debates in an English court of appeal are witty, and they are often rather amusing. In a case recently argued, the defendant, a real estate owner, appealed from a judgment for £300. against him for wrongfully evicting his tenant, the plaintiff, and putting his sick wife and furniture out on the sidewalk in the rain. There was not much to be said in his favor upon the merits of his act, but his counsel argued that plaintiff's advocate had used inflammatory language in his speech to the jury.

The judgment was immediately affirmed, the Lord Chancellor delivering an opinion to the effect that the control of the language used was a matter of discretion for the court below and could not be examined by the appellate court. Both of the associate Lord Justices concurred, but one proceeded to give quite different reasons. With the preliminary words: "Speaking only for myself, but not for his Lordship," and with a slight inclination of his head towards the Lord Chancellor, he said he was for affirming for an entirely different reason—not because he could not examine the language used below, but rather that he had done so. He then proceeded to rehearse the brutal conduct of the defendant, and wound up by declaring, "If it had been my sick wife and my furniture which had been set out in the rain under the circumstances described, I do not think the English vocabulary contains the language I should wish my counsel to use in addressing the jury." This was received, as is not uncommon in England, but unheard of in America, with frequent laughter and even subdued applause, and the "London Times" in its regular legal column the next day, reported the opinions and indicated the "laughter" and "loud laughter" in brackets. The opinions in the books, after being toned down by the reporter, often bear but faint resemblance to the actual utterances.