Perhaps one of the most important implications of hiring a solicitor is because it is the only way the public have access to a barrister, this is why people do not try and gather a case on their own. The solicitors hire the barristers for their client’s cases. This puts a strong link between the two, however they do not work closely with each other, a solicitor can try to hire a different barrister for each of his cases, if s/he so wishes, they do not only work with one particular barrister. The actual link between them is a lot looser than this; the solicitor usually only gives the case to the barrister the night before, or indeed morning of the day that the case appears in court. They do not converse about the case before this.
The barrister’s role in the legal proceedings of a court case is to argue the case they are given by the solicitor. Barristers represent the individuals/organizations in a court hearing or a tribunal. Another role of a barrister is to draft legal documents and give expert legal opinions to the solicitors clients. A barrister is otherwise known as an “advocate” as this sums up the majority of their work; they have to appear in favour of their client’s case, to support it and try to back it up with evidence in court. Advocacy and flexibility has to occur because a barrister can be called upon to prosecute in one case and defend in another.
When analysing and examining the relationship between barristers and solicitors their roles are not that similar; a barrister goes into court and fights the case whereas a solicitor’s job is mainly to compile the case paperwork and advise members of the public when needed.
I noticed many formalities followed by both barristers during the court case I observed, for example; their clothing (they wore long black robes and their wigs) and their language (they addressed each as “my learned friend”, and they each addressed the judge as “my lord” or “lordship”).
The prosecution and defence barristers each have slightly different roles during the case. For example it is the defence barrister’s role, when requested by the court clerk to consent to putting the defendant under the charge of the twelve members of the jury, for the duration of the case.
The prosecution barrister’s first role is to explain to the jury why they are in court and what it is they need to do to help them reach the right decision. For instance, they are told not to reach a decision until all evidence has been presented and all witnesses have been heard. Prosecution then begin presenting the particulars of the case to the jury and if necessary defining any terms used; for example defining what Parliament considers the definition of rape is. These particulars are called the ‘overview’ of the case, it is just an outline, not evidence, however the barrister speaks in very meticulous and ceremonial terms. The prosecution is not only representing the claimant, but also representing the Crown, so sentences are started with “the Crown says”, or “the Crown believes”.
The claimant is then brought to the stand, and it is in questioning her that the barristers differ in their roles. The prosecution runs through the details of the case, paying what seems like close attention to all areas. When asking questions the barrister seems rather patronising, in an aiding or helpful way, leaving answers ready for the claimant to voice.
However the defence barrister’s role when cross-examining her is different. Because the defendant does not want to appear guilty, the barrister pays even more attention to detail than the prosecution. In fact the defence barrister spent a lot of time focusing on a matter of time related issues within the case. He was very tedious in the questions he asked and did not give up asking what seemed like the same question but worded differently each time. The defence barrister made the atmosphere within the court room very tense when questioning the claimant.
It was sometimes quite clear that there was a lack of organisation within the court room. The barristers had to constantly converse with the solicitors and change what they were saying because it was written in the wrong form. Some of these problems are due to the individual solicitors and barristers, because, as mentioned earlier the barristers are sometimes not absolutely familiar with all the material due to lack of time they spend on the case. The main organisational body of the courts is the court clerk. Each clerk has their own courtroom, and they have many roles within the court. The responsibilities of a clerk can range from filling up all of the water jugs in their court room or confirming the personal name and address details, telephone numbers and National Insurance numbers of all those who appear during a case to handing evidence, or papers to necessary participants in the court room (eg) giving something to the judge from one of the barristers.
There are more important roles though, for example the court clerk is in charge of swearing in an interpreter (if needed), swearing in each member of the jury and making whoever steps into the stand swear an oath. The court clerk also requests the consent from the defence barrister to place the defendant under the charge of the jury for the duration of the case. The court clerk is the first person to officially speak about the case; s/he gives the first brief outline of the case once the jury have been sworn in. it could be said that the court clerk is rather an unimportant role within a court case, as there are others, such as the judge for example who could swear people in as he is the figure of most authority. However it could be argued that the clerk is regarded highly within the court system, this can be seen from the formality of the clothes they wear; they dress in the same long, black robes as the barristers and s/he will also wear a wig. This is significant because when you observe a case in court it is clear that the clothes worn are a symbol of stature and importance within the system. The judge is obviously dressed most grandly, then the barristers, even the court usher wears the long black robes, the solicitors wears smart suits, down to the dock supervisor who wears a uniform. Accordingly, for the clerk to wear the same robes and wig as the barristers shows the importance of their role.
As discussed above the judge is often seen as the most important person in a court case. The case I observed was a crown court case as therefore requires a judge, often magistrate court cases do not require judges, there will instead be a barrister acting as a judge. All trials that appear in the crown court will be presided over by a judge. Due to the confrontational nature of our legal system, the judge acts as chair of the debate, to prevent either side from using tactics which are not allowed.
The role of the judge is more important than merely keeping order within court - they assess the validity of the evidence, direct the jury as to what evidence can be trusted, inform the jury on points of law, and, most importantly, pass sentence. In cases where the evidence is overwhelming, it is also the judge’s duty to direct the jury to find the defendant guilty.
Their importance is also seen by how they dress, in the case I observed the judge was wearing long red robes with white fur cuffs and a red sash, he like many other members of the court wore a wig. The judge sits and constantly makes his own notes on the case, for his own summing up of the case. Because of this the judge was frequently interrupting the claimant, witnesses and defendant when they were in the stand. He would do this to make some points more clear for himself and more specifically the jury. Occasionally he would intervene and actually ask his own questions to the person in the stand. His authority was seen when he did this because he did not have to ask the barristers permission he would just speak at an appropriate time and the barristers would allow him to carry on.
It could however be argued that his role is not as significant as others in the legal proceedings, as it is the barristers role to actually put the case forward, present all the evidence and by reasoned argument try to win. A judge has been compared to an umpire, taking relatively little part in the trial itself but presiding over the proceedings.
The one factor that is certain is that the roles of each and every participant in the legal proceedings are vital. Without them all working alongside one another more cases would take even longer than they do already to get to court. A vast majority of cases may never even make it to court, because there would not be the focus and resources there are presently with each participant contributing their skills and wealth within the legal system.
Bibliography
Differences between Barristers and Solicitors:-
Role of a solicitor:-
Role of a Barrister:-
Guidance notes for Court Clerks;-
Role or function of a judge:-
Background Research:-
Partington, M. (2003) Introduction to the English Legal System. (2nd ed) Oxford: Oxford University Press
Rudinger, E. (1985) Taking your own case to court or tribunal. Norwich: Consumers’ Association
Raz, J. (1980) The concept of a legal system: an introduction to the theory of legal system (2nd ed) London: Clarendon Press
Word Count (minus references) = 1,971
