A lawyer is a person who is qualified to offer advice about the law , draft legal documents, or represent individuals in legal matters.
137-610: Barristers in England and Wales are one of the two main categories of lawyer in England and Wales , the other being solicitors . Barristers have traditionally had the role of handling cases for representation in court, both defence and prosecution. (The word "lawyer" is a generic term, referring to a person who practises in law, which could also be deemed to include other legal practitioners such as chartered legal executives.) The work of senior legal professionals in England and Wales
274-499: A common law court system has trial courts , intermediate appellate courts and a supreme court . Thus, the lower courts are bound to obey precedent established by the appellate court for their jurisdiction, and all supreme court precedent. The Supreme Court of California 's explanation of this principle is that [u]nder the doctrine of stare decisis , all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise,
411-448: A legal monopoly over the profession. In some countries, litigants have the option of arguing on their own behalf. In other countries, like Venezuela, no one may appear before a judge unless represented by a lawyer. The advantage of the latter regime is that lawyers are familiar with the court's customs and procedures, making the legal system more efficient for all involved. Unrepresented parties often damage their own credibility or slow
548-455: A scrivener or clerk may fill out court forms and draft simple papers for laypersons who cannot afford or do not need attorneys, and advise them on how to manage and argue their own cases. In most developed countries, the legislature has granted original jurisdiction over highly technical matters to executive branch administrative agencies which oversee such things. As a result, some lawyers have become specialists in administrative law . In
685-463: A "senior junior", may exercise a powerful influence on the members, and members often offer informal help and guidance to each other. They are not liable for each other's business (as partners are). Members of the same set of chambers may appear on opposite sides in the same case. Each barrister remains a self-employed practitioner, being solely responsible for the conduct of their own practice and keeping what they earn, other than rent. They do not receive
822-629: A black gown (of a distinct style), wing collar and band and a wig. The question of barristers' and judges' clothing in the civil courts was the subject of review, and there is some pressure to adopt a more "modern" style of dress, with European-style gowns worn over lounge suits. Guidance from the Bar Council has resulted in robes being worn for trials and appeals in the County Court more than formerly. In court, barristers refer to each other as "my learned friend". When referring to an opponent who
959-549: A broad field of legal matters. In others, there has been a tendency since the start of the 20th century for lawyers to specialize early in their careers. In countries where specialization is prevalent, many lawyers specialize in representing one side in one particular area of the law; thus, it is common in the United States to hear of plaintiffs' personal injury attorneys. Lawyers in private practice generally work in specialized businesses known as law firms , with
1096-517: A case and the best way to conduct it. For those who had the means and preference to engage a solicitor, it became useful, then normal and then compulsory, for the solicitor, in turn, to select and engage a barrister to represent the client before the courts. Likewise, it became either useful or normal (but not compulsory) to engage an appropriate barrister when highly specialist advice was required. Many barristers have largely "paper practices" and rarely or never appear in court. Historically, practising at
1233-413: A client are accepted, it is the barrister (rather than the solicitor) who advises and guides the client through the relevant legal procedure or litigation. Barrister must complete a special course before undertaking Public Access work. At present, about 1 in 20 barristers has so qualified. "Licensed Access" is a separate scheme available to certain nominated classes of professional client; it is not open to
1370-404: A determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3)
1507-548: A different three-judge panel. In federal systems the division between federal and state law may result in complex interactions. In the United States, state courts are not considered inferior to federal courts but rather constitute a parallel court system. In practice, however, judges in one system will almost always choose to follow relevant case law in the other system to prevent divergent results and to minimize forum shopping . Precedent that must be applied or followed
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#17327646832791644-434: A few countries, there is a special category of jurists with a monopoly over this form of advocacy; for example, France formerly had conseils juridiques (who were merged into the main legal profession in 1991). In other countries, like the United States, lawyers have been effectively barred by statute from certain types of administrative hearings in order to preserve their informality. In some fused common law jurisdictions,
1781-506: A government agency in order to receive maximum protection under the law. The division of such work among lawyers, licensed non-lawyer jurists/agents, and ordinary clerks or scriveners varies greatly from one country to the next. In some countries, the negotiating and drafting of contracts is considered to be similar to the provision of legal advice, so that it is subject to the licensing requirement explained above. In others, jurists or notaries may negotiate or draft contracts. Conveyancing
1918-518: A grand hall where barristers dine and attend social functions, and include an extensive library. Several rooms are available for conferences and a place for trainee barristers to engage in advocacy practice. Two of the Inns have chapels, and Middle Temple and Inner Temple share Temple Church. All four Inns are set in well-tended gardens and are surrounded by chambers often organised in courtyards and squares. England and Wales has traditionally been divided in
2055-715: A higher court. In civil law and pluralist systems, as under Scots law , precedent is not binding but case law is taken into account by the courts. A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority. Courts may consider rulings made in other courts that are of equivalent authority in
2192-426: A kind of super-stare decisis". The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term "super- stare decisis " now usually refers. The concept of super- stare decisis (or "super-precedent") was mentioned during the hearings of Chief Justice John Roberts and Justice Samuel Alito before
2329-474: A large majority of law students never actually practice, but simply use their law degree as a foundation for careers in other fields. In most civil law countries, lawyers generally structure their legal education around their chosen specialty; the boundaries between different types of lawyers are carefully defined and hard to cross. After one earns a law degree, career mobility may be severely constrained. For example, unlike their Anglo-American counterparts, it
2466-566: A law degree have to undergo further education and professional training before qualifying as a lawyer, such as the Bar Professional Training Course . In other jurisdictions, particularly the United States and Canada, law is taught at the graduate level following the completion of an unrelated bachelor's degree. In America, the American Bar Association decides which law schools to approve for
2603-406: A lawyer can range from completing an undergraduate law degree to undergoing postgraduate education and professional training. In many jurisdictions, passing a bar examination is also necessary before one can practice law. Working as a lawyer generally involves the practical application of abstract legal theories and knowledge to solve specific problems. Some lawyers also work primarily in upholding
2740-537: A lawyer vary greatly across countries. In some countries, law is an undergraduate degree culminating in a bachelors or master's degree in law. In some of these jurisdictions, it is common or even required for students to earn another bachelor's degree at the same time. Where law is taught as an undergraduate degree, legal training after law school may comprise advanced examinations, apprenticeships, and additional coursework at special government institutes. For example, in many English common law jurisdictions, individuals with
2877-501: A license to practice. Some countries require a formal apprenticeship with an experienced practitioner, while others do not. A few jurisdictions still allow an apprenticeship in place of any kind of formal legal education, though the number of persons who actually become lawyers that way is increasingly rare. The career structure of lawyers varies widely from one country to the next. In most common law countries, especially those with fused professions, lawyers have many options over
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#17327646832793014-424: A nonmember caught practicing law may be liable for the crime of unauthorized practice of law . Precedent Precedent is a court ruling that serves as an authoritative guide for resolving future cases with similar facts or legal issues. As a key aspect of stare decisis ("to stand by things decided") , courts are generally expected to follow precedent in their decisions. When a prior court has ruled on
3151-578: A number of circuits for the purposes of administration of justice. Today, they exist as professional associations for barristers. Members of the public may engage the services of the barrister directly under the Public Access Scheme ; a solicitor is not involved at any stage. Barristers undertaking public access work can provide legal advice and representation in court in all areas of law and are entitled to represent clients in any court or tribunal in England and Wales. Once instructions from
3288-470: A practice which was transferred to many countries in South America and Macau . In some jurisdictions, the term "doctor" has since fallen into disuse, but it is still in use in many countries within and outside of Europe. The title of doctor has traditionally not been used to address lawyers in England or other common law countries. Until 1846, lawyers in England were trained by apprenticeship or in
3425-557: A precedent is binding: In a conflict of laws situation, jus cogens norms erga omnes and principles of the common law such as in the Universal Declaration of Human Rights , to a varying degree in different jurisdictions, are deemed overriding which means they are used to "read down" legislation, that is giving them a particular purposive interpretation , for example applying European Court of Human Rights jurisprudence of courts ( case law ). "Super stare decisis "
3562-706: A prefix such as "Miss". Beginning in January 2006, standards for admission to the bar and disciplinary proceedings are administered by the Bar Standards Board (BSB), a regulatory board of the General Council of the Bar . The BSB is not legally separate from the General Council of the Bar, but is set up so as to be independent of it. Previously, barristers were governed by the General Council of
3699-472: A salary from anyone. A barrister in self-employed practice will be instructed by a number of different solicitors ("professional clients") to act for various individuals, government departments, agencies or companies ("lay clients"). By contrast, an "employed" barrister is a barrister who works as an employee within a larger organisation, either in the public or private sector. For example, employed barristers work within government departments or agencies (such as
3836-416: A similar distinction to the common law tradition exists between advocates and procurators . Because each country has traditionally had its own method of dividing up legal work among its legal professionals, it has been difficult to formulate accurate generalizations that cover all the countries with multiple legal professions. Other kinds of legal practitioners include: While some jurisdictions regulate
3973-491: A similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges' decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether
4110-529: A single type of lawyer. Most countries in this category are common law countries, though France, a civil law country, merged its jurists in 1990 and 1991 in response to Anglo-American competition. In countries with fused professions, a lawyer is usually permitted to carry out all or nearly all the responsibilities listed below. In some jurisdictions descended from the English common law tradition, including England and Wales, there are often two kinds of lawyers. A barrister (also known as an advocate or counselor)
4247-677: A sort of binding precedent when they answer legal questions that a court has not, either form of opinion may act as a source of law if they have a direct effect on the administration of government. The courts of England and Wales are free to consider decisions of other jurisdictions, and give them whatever persuasive weight the English court sees fit, even though these other decisions are not binding precedent. Jurisdictions that are closer to modern English common law are more likely to be given persuasive weight (for example Commonwealth states such as Canada, Australia, or New Zealand). Persuasive weight might be given to other common law courts, such as from
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4384-479: A special class of legal professionals–the licensed conveyancer –is also allowed to carry out conveyancing services for reward. In many countries, only lawyers have the legal authority to draft wills , trusts , and any other documents that ensure the efficient disposition of a person's property after death. In some civil law countries, this responsibility is handled by civil law notaries. In many civil law countries, prosecutors are trained and employed as part of
4521-472: A system whereby the members contribute to these common expenses by paying a certain percentage of their gross income. However, there is no profit-sharing as in a business partnership . Individual barristers keep the fees they earn, beyond what they have to pay towards professional expenses. The Bar remains a highly individualistic profession, and earnings vary widely – from some newly qualified (usually criminal) juniors who are lucky to earn £25,000 per year to
4658-627: A tenancy and choose to go into commercial or academic work. Those choosing not to practice continue to be recognised as "barristers", although may not provide legal services under this label, and remain subject to some limited regulation by the Bar Standards Board. One who wishes to become a practising barrister must first obtain a " pupillage ". This is a competitive process which involves some 3,000 students applying for some 300 places each year at Authorised Education and Training Organisations (AETOs). The online pupillage application system,
4795-496: A traditional preference for full-time law programs, while in developing countries, students often work full- or part-time to pay the tuition and fees of their part-time law programs. Law schools in developing countries share several common problems, such as an over reliance on practicing judges and lawyers who treat teaching as a part-time commitment, a concomitant scarcity of full-time law professors), incompetent faculty with underqualified credentials, and textbooks that lag behind
4932-424: A waiver from the Bar Standards Board. Pupillage consists of a period of 12 months, where the pupil studies with and under a practising barrister of at least 5 years' experience. The time is traditionally served in two six-month periods under different pupil supervisors(three-month periods are becoming increasingly common), usually in the same AETO. Traditionally, the pupil was paid nothing and could earn no fees until
5069-404: Is a lawyer who typically specializes in arguing before courts, particularly in higher courts. A solicitor (or attorney) is a lawyer who prepares cases and gives advice on legal subjects. In some jurisdictions, solicitors also represent people in court. Fused professions, where lawyers have rights of both barristers and solicitors, have emerged in other former English common law jurisdictions, such as
5206-415: Is a process that has its origins in the English common law. Most state attorney opinions address issues of government finance or the authority of political bodies within the state. Often, these opinions are the only available authority interpreting rarely‑litigated statutes and constitutional provisions. By and large, courts treat state attorney general opinions as persuasive authority. The opinions lack
5343-448: Is a solicitor, the term used is "my friend" – irrespective of the relative ages and experiences of the two. In an earlier generation, barristers would not shake hands or address each other formally. The rule against shaking hands is no longer generally observed, though the rule regarding formal address is still sometimes observed: at Gray's Inn , when toasting other barristers, a barrister will address another only by surname, without using
5480-546: Is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power, or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned. In 1976, Richard Posner and William Landes coined the term "super-precedent" in an article they wrote about testing theories of precedent by counting citations. Posner and Landes used this term to describe
5617-534: Is also possible to "double-dine" on various special occasions, by which the student is credited with two sessions. The origins of this date from the time when both students and practitioners dined together; students learned elements of their education from their fellow diners and from readings given by a senior member of the Inn (Master Reader) after the meal. At the successful completion of the vocational component (where continuous assessment, as well as examinations, are now
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5754-519: Is commonplace. Some large businesses employ their own legal staff in a legal department. Other organizations buy in legal services from outside companies. In some jurisdictions, either the judiciary or the Ministry of Justice directly supervises the admission, licensing, and regulation of lawyers. Other jurisdictions, by statute, tradition, or court order, have granted such powers to a professional association which all lawyers must belong to. In
5891-451: Is contemplated or is in progress. In these jurisdictions, even conveyancers and corporate in-house counsel must first get a license to practice, though they may actually spend very little of their careers in court. Some jurisdictions have made the violation of such a rule the crime of unauthorized practice of law . In other countries, jurists who hold law degrees are allowed to provide legal advice to individuals or to corporations, and it
6028-489: Is difficult for German judges to leave the bench and become advocates in private practice. Another interesting example is France, where for much of the 20th century, all judiciary officials were graduates of an elite professional school for judges. In a few civil law countries, such as Sweden, the legal profession is not rigorously bifurcated and everyone within it can easily change roles and arenas. In many countries, lawyers are general practitioners who represent clients in
6165-497: Is divided between solicitors and barristers . Both are trained in law but serve differing functions in the practice of law . Historically, the superior courts were based in London , the capital city. To dispense justice throughout the country, a judge and court personnel would periodically travel a regional circuit to deal with cases that had arisen there. From this developed a body of lawyers who were on socially familiar terms with
6302-696: Is entitled to professional privilege against disclosure. New entrants to the employed bar must have completed pupillage in the same way as those in self-employed practice. Pupillage for both employed and self-employed practice is regulated by the independent Bar Standards Board . There are approximately 17,000 barristers, of whom about ten percent are King's Counsel and approximately twenty percent are young barristers (i.e., under seven years' Call). In April 2023, there were 13,800 barristers in self-employed practice. In 2022, there were about 3,100 employed barristers working in companies as "in-house" counsel, or in local or national government, academic institutions, or
6439-665: Is irrelevant if they lack a license and cannot appear in court. Some countries go further; in England and Wales, there is no general prohibition on the giving of legal advice. Singapore does not have any admission requirements for in-house counsel. Sometimes civil law notaries are allowed to give legal advice, as in Belgium. In many countries, non-jurist accountants may provide what is technically legal advice in tax and accounting matters. In virtually all countries, patents , trademarks , industrial designs and other forms of intellectual property must be formally registered with
6576-438: Is known as binding precedent (alternately metaphorically precedent , mandatory or binding authority , etc.). Under the doctrine of stare decisis , a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under
6713-406: Is not binding precedent but that is useful or relevant and that may guide the judge in making the decision in a current case. Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts versus federal courts in
6850-418: Is often hard to distinguish from the ratio decidendi (reason for the decision). For these reasons, the obiter dicta may often be taken into consideration by a court. A litigant may also consider obiter dicta if a court has previously signaled that a particular legal argument is weak and may even warrant sanctions if repeated. A case decided by a multijudge panel could result in a split decision. While only
6987-440: Is still mandatory to "keep terms" before the student can be called to the bar . The student must participate in 10 qualifying sessions. It used to be a prerequisite that 24 dinners were eaten before call, but the number was reduced to twelve and now ten. Dining credits are available for participating in specified training events (e.g., a weekend at Cumberland Lodge organised by one of the Inns credits attendees with three dinners). It
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#17327646832797124-553: Is the drafting of the documents necessary for the transfer of real property , such as deeds and mortgages . In some jurisdictions, all real estate transactions must be carried out by a lawyer. Historically, conveyancing accounted for about half of English solicitors' income, though this has since changed, and a 1978 study showed that conveyancing "accounts for as much as 80 percent of solicitor-client contact in New South Wales ." In most common law jurisdictions outside of
7261-512: Is the mechanism to achieve that goal. Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and subordinate legislation (that is, regulations promulgated by executive branch agencies, in the form of delegated legislation (in UK parlance) or regulatory law (in US parlance)). Case law , in common-law jurisdictions,
7398-413: Is the set of decisions of adjudicatory tribunals or other rulings that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law, which is guided by previous rulings, for example, previous decisions of a government agency. Essential to the development of case law is the publication and indexing of decisions for use by lawyers, courts, and
7535-624: The American Law Institute . Some bodies are given statutory powers to issue guidance with persuasive authority or similar statutory effect, such as the Highway Code . In federal or multijurisdictional law systems, conflicts may exist between the various lower appellate courts. Sometimes these differences may not be resolved and distinguishing how the law is applied in one district , province, division or appellate department may be necessary. Usually, only an appeal accepted by
7672-564: The Crown Prosecution Service ), the legal departments of companies, and in some cases for firms of solicitors. Employed barristers will typically be paid a salary, and in most circumstances may do work only on behalf of their employer, rather than accepting instructions on behalf of third parties (such as their employers' customers). They remain subject to the Bar Council 's Code of Professional Conduct, and their advice
7809-611: The High Court and the Court of Appeal are each bound by their own previous decisions. The Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely does so. A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is wrong. Even if an intermediate judge issues a ruling inconsistent with existing or subsequent precedent, if
7946-706: The Supreme Court of the United Kingdom , which took over the judicial functions of the House of Lords in 2009. In civil law and pluralist systems, precedent is not binding but case law is taken into account by the courts. Binding precedent relies on the legal principle of stare decisis . Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedent from past cases are applied in principle to new situations by analogy . One law professor has described mandatory precedent as follows: Given
8083-482: The common-law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedent, which record how and why prior cases have been decided. Unlike most civil-law systems, common-law systems follow the doctrine of stare decisis , by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts. For example, in England and Wales,
8220-502: The court of last resort will resolve such differences, and for many reasons, such appeals are often not granted. Any court may seek to distinguish its present case from that of a binding precedent, to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish
8357-457: The legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law." Judges are bound by the law of binding precedent in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In other countries, particularly in mainland Europe, civil law means that judges take case law into account in
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#17327646832798494-482: The "cab rank rule", to accept instructions for a case in an area in which they held themselves out as practicing, at a court at which they normally appeared and at their usual rates. Legal advice is the application of abstract principles of law to the concrete facts of the client's case to advise the client about what they should do next. In some jurisdictions, only a properly licensed lawyer may provide legal advice to clients for good consideration , even if no lawsuit
8631-502: The 20th century, solicitors closed the gap greatly, especially in terms of earnings, and by the early 21st century the social gap was far less important than formerly. Until recently, the most obvious differences between the two professions were: These differences have been eroded by recent deliberate changes, although in many fields of legal practice, the distinction is largely retained. Barristers have full rights of audience to appear in all courts, from highest to lowest. Solicitors, on
8768-481: The BSB Handbook. A barrister is in principle required to act for any client offering a proper fee, regardless of the attractions or disadvantages of a case and the personal feelings of the barrister towards the client. This is known as the " cab-rank rule ", since the same rule applies to licensed taxi-cabs. Modifying conditions include that the barrister is available to take the case and feels competent to handle
8905-625: The Bar and the individual Inns of Court . There are four Inns, all situated in the area of London close to the Law Courts in the Strand . Gray's Inn is off High Holborn , Lincoln's Inn off Chancery Lane , the Middle and Inner Temples , situated between Fleet Street and the Embankment . The Inns provide a social and professional hub where barristers and jurists can meet. They comprise
9042-640: The CPE ( Common Professional Examination ) or PGDL (Postgraduate Diploma in Law), and now known simply as a GDL (Graduate Diploma in Law), having initially graduated in a subject other than law. The student joins one of the Inns of Court and takes the [vocational component] at one of the accredited providers. Formerly known as the Bar Professional Training Course (BPTC), the vocational component can now be taken through four different routes: It
9179-539: The District of Columbia alone, and up to seven states. Each panel of judges on the court of appeals for a circuit is bound to obey the prior appellate decisions of the same circuit. Precedent of a United States court of appeals may be overruled only by the court en banc , that is, a session of all the active appellate judges of the circuit, or by the United States Supreme Court —not simply by
9316-816: The Inns of Court, with no undergraduate degree being required. Although the most common law degree in the United States is the Juris Doctor , most J.D. holders in the United States do not use the title "doctor". It is, however, common for lawyers in the United States to use the honorific suffix "Esq." (for " Esquire "). In French ( France , Quebec , Belgium , Luxembourg , French-speaking area of Switzerland ) and Dutch -speaking countries ( Netherlands , Belgium ), legal professionals are addressed as Maître ... , abbreviated to M ... (in French) or Meester ... , abbreviated to mr. ... (in Dutch). In Poland ,
9453-528: The Pupillage Gateway, enables applicants to submit their details to AETOs (chambers or employers). The Pupillage Gateway system is used by most AETOs to recruit their pupils; many, however, do not, and such AETOs must be contacted directly by applicants. There is no limit to the number of non-Gateway AETOs that an applicant can contact. The application timetable runs between November and May each year, and AETOs must follow that timetable unless they have
9590-630: The Second Circuit (New York and surrounding states) is especially respected in commercial and securities law, the Seventh Circuit (in Chicago), especially Judge Posner, is highly regarded on antitrust, and the District of Columbia Circuit is highly regarded on administrative law. The doctrine of vertical precedent states that each court is bound by the decisions of higher courts in its jurisdictional area or tribunal hierarchy. Generally,
9727-638: The Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the committee chair, Senator Arlen Specter of Pennsylvania, wrote an op-ed in The New York Times referring to Roe as a "super-precedent". He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept. Persuasive precedent (also persuasive authority ) is precedent or other legal writing that
9864-551: The Supreme Court says that the First Amendment applies in a specific way to suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher court changes
10001-401: The U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the Supreme Court, and underneath are lower federal courts. The state court systems have hierarchical structures similar to that of the federal system. The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S. Constitution. For example, when
10138-461: The U.S., such associations are known as mandatory, integrated, or unified bar associations . In the Commonwealth of Nations, similar organizations are known as Inns of Court , bar councils or law societies . In civil law countries, comparable organizations are known as Orders of Advocates, Chambers of Advocates, Colleges of Advocates, Faculties of Advocates, or similar names. Generally,
10275-479: The United States), statements made in dicta , treatises or academic law reviews , and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc. In a " case of first impression ", courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by
10412-401: The United States, India, and Pakistan. On the other hand, civil law jurisdictions do not have "lawyers" in terms of a single general-purpose legal services provider. Rather, their legal professions consist of a large number of different kinds of legally-trained persons, known as jurists , some of whom are advocates who are licensed to practice in the courts. In some civil law countries,
10549-534: The United States, this monopoly arose from an 1804 law that was introduced by William Pitt the Younger as a quid pro quo for the raising of fees on the certification of legal professionals such as barristers, solicitors, attorneys, and notaries. In others, the use of a lawyer is optional and banks, title companies, or realtors may be used instead. In some civil law jurisdictions, real estate transactions are handled by civil law notaries. In England and Wales,
10686-631: The Virgin Islands) is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), since the Circuit Courts of Appeals have jurisdiction defined by geography. The Circuit Courts of Appeals can interpret the law how they want, so long as there is no binding Supreme Court precedent. One of
10823-437: The appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning , first of the High Court of Justice , later of the Court of Appeal , provided a famous example of this evolutionary process in his development of
10960-535: The armed forces. The appearance and form of address of a barrister is bound by a number of conventions. A barrister's appearance in court depends on whether the hearing is "robed" or not. In England and Wales, criminal cases in the Crown Court are almost invariably conducted with the barristers' wearing robes, but there is an increasing tendency in civil cases to dispense with them. The vast majority of County Court hearings are now conducted without robes, although
11097-479: The bar (or in court) was a more socially prestigious profession than working as a solicitor. In the 18th and 19th centuries, the bar was one of the limited number of professions considered suitable for upper-class men; politics, the Army and Navy , the established clergy, banking and the civil and diplomatic services being the others. Many leading 18th- and 19th-century politicians were barristers; few were solicitors. In
11234-432: The bar use the title "Avvocato", abbreviated in "Avv." Some lawyers, particularly barristers and advocates, argue the legal cases of clients case before a judge or jury in a court of law. In some jurisdictions, there are specialist lawyers who have exclusive rights of audience before a court. In others, particularly fused legal jurisdictions, there are lawyers who specialize in courtroom advocacy but who do not have
11371-424: The barrister, being one step removed from the client, could reach a more objective opinion of the merits of the case, working strictly from the evidence that would be admissible in court. In addition, being less involved in the current affairs of clients, including many matters that might never come to court, barristers had more time for research and for keeping up to date with the law and the decisions ( precedent ) of
11508-441: The case is not vacated on appeal the decision will stand. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, the court may either hold that the precedent is inconsistent with subsequent authority, or that the precedent should be "distinguished" by some material difference between the facts of the cases. If that decision goes to appeal,
11645-412: The client and then brief a barrister, usually in writing. The barrister then researches and drafts the necessary court pleadings, which will be filed and served by the solicitor, and orally argues the case. In Spanish civil law, the procurator merely signs and presents the papers to the court, but it is the advocate who drafts the papers and argues the case. In other civil law jurisdictions, like Japan,
11782-404: The client-lawyer relationship begins with an intake interview where the lawyer gets to know the client personally, following which the lawyer discovers the facts of the client's case, clarifies what the client wants to accomplish, and shapes the client's expectations as to what actually can be accomplished. The second to last step begins to develop various claims or defenses for the client. Lastly,
11919-404: The common reasons the Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the meaning of a federal law. There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. "A balance must be struck between the need on one side for
12056-532: The concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130. Judges may refer to various types of persuasive authority to reach a decision in a case. Widely cited nonbinding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England , or the published work of the Law Commission or
12193-449: The course of their careers. Besides private practice, they can become a prosecutor , government counsel, corporate in-house counsel, administrative law judge , judge , arbitrator , or law professor . There are also many non-legal jobs for which legal training is good preparation, such as politician , corporate executive , government administrator, investment banker , entrepreneur , or journalist . In developing countries like India,
12330-412: The court down as a result of their inexperience. Often, lawyers brief a court in writing on the issues in a case before the issues can be orally argued. They may have to perform extensive research into relevant facts. Also, they draft legal papers and prepare for an oral argument. In split common law jurisdictions, the usual division of labor is that a solicitor will obtain the facts of the case from
12467-454: The courts in this way came to be called "barristers" because they were "called to the Bar", the symbolic barrier separating the public—including solicitors and law students—from those admitted to the well of the Court. They became specialists either in appearing in court to represent clients, or in the process of using the courts, which would include giving oral or written advice on the strength of
12604-462: The courts. Theoretically, this prohibition has been removed. In certain areas (but not crime or conveyancing ), barristers may now accept instructions from a client directly ("Direct Access"). However, barristers must have additional authorisation to conduct litigation for the client. Furthermore, only a solicitor may undertake any work that requires funds to be held on behalf of a client; barristers are not permitted to handle client money under rC73 of
12741-423: The current state of the law. Some jurisdictions grant a " diploma privilege " to certain institutions, so that merely earning a degree or credential from those institutions is the primary qualification for practicing law. Mexico allows anyone with a law degree to practice law. However, in a large number of countries, a law student must pass a bar examination (or a series of such examinations) before receiving
12878-562: The decisions based on significant differences in the facts applicable to each case. Or, a court may view the matter before it as one of " first impression ", not governed by any controlling precedent. When various members of a multi-judge court write separate opinions, the reasoning may differ; only the ratio decidendi of the majority becomes binding precedent. For example, if a 12-member court splits 5–2–3–2 in four different opinions on several different issues, whatever reasoning commands seven votes on each specific issue becomes precedent, and
13015-420: The distinction between solicitors and barristers. The distinction remains, however, because a solicitor's role has certain aspects which a barrister is not able to undertake. A prospective barrister must first complete the academic component of their legal education by obtaining a law degree . In lieu of a formal law degree, however, the individual may undertake a one-year law conversion course, formerly known as
13152-525: The doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state , and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept
13289-531: The entrances of many of the staircases of the buildings within the Inns are the names of the tenant barristers (and occasionally distinguished members now prominent in judicial or political life) practising from the chambers in those buildings. Some of the principles and traditions that have given the profession its unique character have been caricatured in John Mortimer 's Rumpole of the Bailey tales and
13426-520: The exception of English barristers. The vast majority of law firms worldwide are small businesses that range in size from 1 to 10 lawyers. The United States, United Kingdom and Australia are exceptions, home to several firms with more than 1,000 lawyers after a wave of mergers in the late 1990s. Notably, barristers in England, Wales, Northern Ireland and some states in Australia do not work in law firms. Those who offer their services to members of
13563-433: The force of law that statutes and judicial opinions have. But, they still have the potential to act as a sort of pseudo‑law if they constrain the activities of public officials or the public. Oftentimes, this effect depends on the "formality" of the opinion. Opinions can be either formal, meaning they are published, or informal, meaning that they are sent directly to the opinion requestor. Although formal opinions can act as
13700-550: The form of apprenticeships or special clinical courses. Others, like Venezuela, do not. A few countries prefer to teach through assigned readings of judicial opinions (the casebook method ) followed by intense in-class cross-examination by the professor (the Socratic method ). Many others focus on theoretical aspects of law, leaving the professional and practical training of lawyers to apprenticeship and employment contexts. Some countries, particularly industrialized ones, have
13837-401: The framework of a set of Chambers. Under a tenancy agreement, they pay a certain amount per month ("rent") or a percentage of their incomes, or a mixture of the two, to their chambers, which provides accommodation and clerical support (including the crucial function of booking, and sometimes of finding, work). The Head of Chambers, usually a King's Counsel (also referred to as "KC" or "Silk") or
13974-429: The general public, in the form of law reports . A precedent is a historical setting example for the future (though at varying levels of authority as discussed throughout this article), some become "leading cases" or "landmark decisions" that are cited especially often. Generally speaking, a legal precedent may be: In contrast, civil law systems adhere to a legal positivism , where past decisions do not usually have
14111-486: The general public. It is an early 21st-century development to enable barristers to accept instructions directly from clients; it results from a change in the rules set down by the General Council of the Bar in July 2004. The Public Access Scheme has been introduced as part of a larger effort to open up the legal system to the public, and to make it easier and cheaper for individuals to obtain access to legal advice. It reduces
14248-416: The general public—as opposed to those working in-house — are generally self-employed. Most work in groupings known as "sets" or "chambers", where some administrative and marketing costs are shared. An important effect of this different organizational structure is that there is no conflict of interest where barristers in the same chambers work for opposing sides in a case, and in some specialized chambers this
14385-441: The hierarchy. A district court, for example, could not rely on a Supreme Court dissent as a basis to depart from the reasoning of the majority opinion. However, lower courts occasionally cite dissents, either for a limiting principle on the majority, or for propositions that are not stated in the majority opinion and not inconsistent with that majority, or to explain a disagreement with the majority and to urge reform (while following
14522-581: The influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision. In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade ), that side can protect its position from being reversed "by
14659-414: The judges, had training and experience in the superior courts, and had access to a greater corpus of research material and accumulated knowledge on the interpretation and application of the law. Some would go "on circuit" with the court to act on behalf of those requiring representation. By contrast, solicitors were essentially local to one place, whether London or a provincial town. Lawyers who practised in
14796-436: The judiciary. They are law-trained jurists, but may not necessarily be lawyers in the sense that the word is used in the common law world. In common law countries, prosecutors are usually lawyers holding regular licenses who work for the government office that files criminal charges against suspects. Criminal defense lawyers specialize in the defense of those charged with any crimes. The educational prerequisites for becoming
14933-473: The law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court. The doctrine stating that a judge is bound by (or at least should respect) previous decisions by the same court is called horizontal stare decisis . For example, in the United States federal court system , the intermediate appellate courts are divided into thirteen "circuits", each covering some range of territory ranging in size from
15070-410: The law. Historically, the role of lawyers can be traced back to ancient civilizations such as Greece and Rome. In modern times, the practice of law includes activities such as representing clients in criminal or civil court, advising on business transactions, protecting intellectual property, and ensuring compliance with laws and regulations. Depending on the country, the education required to become
15207-402: The lawyer explains her or his fees to the client. In England, only solicitors were traditionally in direct contact with the client, but barristers nowadays may apply for rights to liaise with clients directly. The solicitor retained a barrister if one was necessary and acted as an intermediary between the barrister and the client. In most cases barristers were obliged, under what is known as
15344-453: The legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district. Courts may consider obiter dicta in the opinions of higher courts. The Dicta of a higher court, though not binding, will often be persuasive to lower courts. The phrase obiter dicta is usually translated as "other things said", but due to the high number of judges and individual concurring opinions, it
15481-436: The majority in the outcome). Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings persuasive will vary widely with elements such as the reputation of the author and the relevance of the argument. In the United States, every state attorney general is permitted to issue advisory opinions on questions of law. It
15618-416: The majority opinion is considered precedential, an outvoted judge can still publish a dissenting opinion. Common patterns for dissenting opinions include: A judge in a subsequent case, particularly in a different jurisdiction, could find the dissenting judge's reasoning persuasive. In the jurisdiction of the original decision, however, a judge should only overturn the holding of a court lower or equivalent in
15755-408: The new barrister must find a seat or "tenancy" in a set of chambers or an employed position. Chambers are groups of barristers and tend to comprise between 20 and 60 barristers. The members of a Chambers share the rent and facilities, such as the service of "clerks" (who combine some of the functions of agents, administrators and diary managers), secretaries and other support staff. Most chambers operate
15892-458: The other hand, have traditionally been able to appear only as advocates in the lower courts (that is, the magistrates' and county courts) and tribunals . The bulk of such work continues to be handled by solicitors. Under section 17 of the Courts and Legal Services Act 1990 , solicitors with appropriate advocacy experience are entitled to acquire higher "rights of audience", enabling them to appear in
16029-417: The other might). Until 2004, barristers were prohibited from seeking or accepting "instructions" (that is, being hired) directly by the clients whom they represent. The involvement of a solicitor was compulsory. The rationale was that solicitors could investigate and gather evidence and instructions and filter them – according to the interests of the client – before presenting them to the barrister; in return
16166-402: The parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings. In law , a binding precedent (also known as a mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems . In English law it is usually created by the decision of a higher court, such as
16303-509: The phrasing of the principle in the Latin maxim Stare decisis et non quieta movere : "to stand by decisions and not disturb the undisturbed". In a legal context, this means that courts should abide by precedent and not disturb settled matters. The principle can be divided into two components: The second principle, regarding persuasive precedent , reflects the broad precedent guidance a court may draw upon in reaching all of its decisions. In
16440-407: The precedential, binding effect that they have in common law decision-making; the judicial review practiced by constitutional courts can be regarded as a notable exception. Stare decisis ( / ˈ s t ɛər r i d ɪ ˈ s aɪ s ɪ s , ˈ s t ɑː r eɪ / ) is a legal principle by which judges are obligated to respect the precedent established by prior decisions. The words originate from
16577-526: The purposes of admission to the bar. Law schools in the United States and Canada award graduating students a J.D. ( Juris Doctor ) as a professional law degree. In a handful of U.S. states , one may become an attorney (a so-called country lawyer ) by simply " reading law " and passing the bar examination, without having to attend law school first, although very few people actually become lawyers that way. The methods and quality of legal education vary widely. Some countries require extensive clinical training in
16714-625: The rule of law, human rights, and the interests of the legal profession. Some jurisdictions have multiple types of lawyers, while others only have one or two. England, the mother of the common law jurisdictions, emerged from the Middle Ages with a complexity in its legal professions similar to that of civil law jurisdictions, but then evolved by the 19th century to a single division between barristers and solicitors . Several countries that originally had two or more legal professions have since fused or united their professions into
16851-652: The rule), and completion of the requisite number of dining nights, students are entitled, subject to various formalities, to be "called to the Bar" at a ceremony in their Inn. This is conducted by the Masters of the Bench, or Benchers , who are generally senior practising barristers or judges. Once called to the bar, the new barrister has a choice whether or not to pursue a career in practice. As there are far more applicants for "tenancy" in barristers' "Chambers" (see below) than there are places, many barristers are unable to obtain
16988-429: The ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of the law. Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal district court that falls within the geographic boundaries of the Third Circuit Court of Appeals (the mid-level appeals court that hears appeals from district court decisions from Delaware, New Jersey, Pennsylvania, and
17125-415: The same or a closely related issue, subsequent courts are encouraged to align their decisions with the earlier ruling to maintain consistency and predictability in the law. Common law legal systems often view precedent as binding or persuasive, while civil law systems do not. Common-law systems aim for similar facts to yield similar and predictable outcomes, and observing precedent when making decisions
17262-810: The second six-month period, when he or she was entitled to undertake work independently. All sets are now required to pay their pupils in line with the Living Wage (higher in London). Some pay considerably more than that. The Bar is a highly varied profession, both in terms of the specialism (or otherwise) of individual sets of chambers, and in the financial rewards available. For sets doing predominantly publicly funded work, earnings are low for new practitioners. In more specialised areas serving private clients, such as commercial, tax, or chancery work, earnings are far higher, and at least comparable to those of similarly experienced solicitors in big city firms. After pupillage,
17399-408: The seven-judge majorities may differ issue-to-issue. All may be cited as persuasive (though of course opinions that concur in the majority result are more persuasive than dissents). Quite apart from the rules of precedent, the weight actually given to any reported opinion may depend on the reputation of both the court and the judges with respect to the specific issue. For example, in the United States,
17536-400: The significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant. In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent. Under
17673-422: The silk gowns of King's Counsel) and North Square . Lawyer The exact nature of a lawyer's work varies depending on the legal jurisdiction and the legal system , as well as the lawyer's area of practice. In many jurisdictions, the legal profession is divided into various branches — including barristers , solicitors , conveyancers , notaries , canon lawyer — who perform different tasks related to
17810-446: The superior courts. Solicitors who attain these rights are known as solicitor-advocates . But, in practice, there are rather few of these solicitor-advocates, and solicitors often continue to engage a barrister to undertake any required advocacy in court. Not only is this division traditional; in higher-value civil or more serious criminal cases, it is often tactically imperative to engage a specialist advocate (because if one side does not
17947-481: The television episodes based on them. Novelist Caro Fraser also wrote a popular series of books about a fictional series of barrister's chambers called Caper Court. In television the bar was popularised by actor John Thaw 's portrayal of the title character in Kavanagh QC . Peter Moffat (who created Kavanagh QC ) also later created a further television series about barristers called Silk (in reference to
18084-476: The territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among
18221-489: The title Mecenas is used to refer to advocates and attorneys at law, although as an informal title its status is not protected by law. In South Africa and India, lawyers who have been admitted to the bar may use the title "Advocate", abbreviated to "Adv" in written correspondence. Lawyers who have completed two years of clerkship with a principal Attorney and passed all four board exams may be admitted as an "Attorney". Likewise, Italian law graduates who have qualified for
18358-401: The top King's Counsel (KCs or "silks" as they are known, from their silk gowns) making well in excess of £1 million a year (with a handful of tax and commercial KCs reported to earn more than £2 million a year). Although not all barristers practise from the Inns (for reasons such as the limited amount of space available), the majority still practise from chambers. The names placed on boards at
18495-565: The traditional attire continues to be worn in High Court proceedings. At a robed hearing, barristers wear a horsehair wig , an open black gown , dark suit and a shirt, with strips of white cotton called "bands" or "tabs" worn over a winged collar, instead of a tie. Female barristers wear either the same shirt or a special collar which includes the bands and tucks inside a suit jacket. KCs wear slightly different silk gowns over short embroidered black jackets and striped trousers. Solicitors wear
18632-489: The use of the title "lawyer", others do not. Historically, lawyers in most European countries were addressed with the title of doctor. The first university degrees , starting with the law school of the University of Bologna in the 11th century, were all law degrees and doctorates. Therefore, in many southern European countries, including Portugal, Italy and Malta, lawyers have traditionally been addressed as "doctor",
18769-559: The work (rC30 of the BSB Handbook). A barrister who specialises in, for example, crime is not obliged to take on employment law work if they are offered it. They are entitled (and even obliged) to reject a case which they feel is too complicated for them to deal with properly. Barristers work in two main contexts: in self-employed practice (formerly known as "independent practice") or in "employed" practice (i.e. salaried). Most barristers are in self-employed practice, but operate within
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