As an attorney who practiced as a litigator for many years, and as a follower of law firm management issues for the past three decades, I watched the recent PBS Masterpiece Mystery episodes of Silk with great fascination.
On one level, Silk was a British version of L.A. Law (1986-1994), the network television drama that made the practice of law glamorous. Both series feature lots of sex and office intrigue, while debating significant social issues through the frame of courtroom battles. I thought Silk was hugely successful as a courtroom drama—interesting cases argued effectively in court by a compelling cast of characters.
On another level, Silk was a lesson in the differences between the American and the British roles of trial counsel. This is the aspect that impressed me the most about Silk, and here are some of the differences I noted:
1. Conflicts of Interest
The British series portrayed it ordinary for the prosecutor and criminal defense attorney opposing each other in a case to practice in the same chambers. That would be like two opposing counsel in an American lawsuit both being partners in the same law firm—something that is forbidden by our rules of legal ethics.
There are apparently some differences between the two legal systems to justify what would be serious conflicts of interest in the U.S. British barristers view themselves as self-employed, each barrister responsible for his or her own cases and each compensated for the cases they handle, rather than as partners jointly sharing fees. Even where the chambers decided to build a “Chinese wall” between the prosecuting barrister and the defense barrister—which American firms do on occasion also—the wall was easily breached.
2. Non-Lawyer Managers
In Britain, the non-attorney clerks are responsible for rainmaking with the solicitors to obtain cases, for scheduling the barristers within their chambers, and for collecting fees for the barristers. A large part of the plot involved intrigue between two factions of barristers, one of which was upset about the senior clerk’s management of the chambers.
Certainly, law firm partnerships in the U.S. have similar disputes, but few partnerships turn over so much of the firm management to non-lawyers. In fact, there are ethical limits in the U.S. about fee-sharing with non-attorneys.
3. Case Preparation
It shocked me that a barrister would go into court barely having read the case file, and sometimes without having met the accused defendant he or she was representing. The solicitor who had worked up the case might be sitting right behind the barrister in court, but that doesn’t put the facts of the case in the barrister’s head when examining a witness.
The dramatic impact of the courtroom scenes was enhanced because the viewers didn’t know how the barrister was going to succeed. But as an attorney trained in the American system of lengthy depositions and document discovery, I was appalled that the barristers were hampered by what I perceived as lack of knowledge of their cases.
The film depicted subtle sexism toward the senior female barrister, Martha Costello, who was pregnant during Season 1. The male clerks and barristers were protective of her in ways that I found offensive—worrying about which cases to assign her and making excuses for an emotional speech she gave in one hearing. I would not have wanted to have been treated that way when I was practicing law.
However, I’m not sure this is a British thing. I mentioned my reaction to my husband, who said, “Yeah, that’s what we do. We protect the species,” as if it were perfectly normal to treat a pregnant colleague differently.
This post probably seems quite naïve to my British colleagues. If I have misstated anything about the British court system, I hope someone will correct me.
In the meantime, I look forward to seeing Season 2 of Silk. If you didn’t catch Season 1 on PBS, you can still watch it here until October 8, 2013.
Did anyone else have questions about the British legal system after watching Silk?