Law over the pond

A week or so ago I spent a day observing proceedings at a local County Court in rural West Virginia. It was an interesting experience, that highlighted as many surprising similarities in practice and legal framework as it did differences.

I watched a Circuit Judge swiftly dispatch a raft of motions (applications) covering subjects as varied as road traffic accidents, insurance and contract disputes, criminal sentencing appeals, juvenile matters, and child abuse and neglect investigations. Circuit Judges everywhere are, it seems, expected to know a little of everything.

Noticeable differences:

Juries – juries appear to be much more widely used. Smallish road traffic accidents worth a few thousand pounds, or disputes over the value of goods insured under a policy were all allocated the not insignificant resource of a full jury trial. It seems like a somewhat disproportionate approach to relatively straightforward questions of fact that could and would be determined pretty swiftly by a Judge at home.

Drug tests – on the spot drug testing by urine sample. The local probation officer was at court and where a parent was asserting their absention from drugs or alcohol in order to obtain contact with a child the court was able to form a view on the spot as to whether or not this was just bluff. Of course a urine sample doesn’t show abstinence over a sustained period but it would be a great addition to our system where the question of whether or not a parent is clean remains hanging for a period of probably six weeks before anyone has an answer of any kind.

Informality – court dress, manner of addressing the Judge, toing and froing in and out of court by lawyers, noise levels whilst a matter was being heard, chit chat level between lawyers and the Judge in the intervals between cases (largely about football)  – all far less formal than at home, although I think a little of this is likely to have been local practice, pre-xmas spirit and some very big news in the world of wv sports fans the day before the hearing rather than a state wide norm. In some respects a less starchy approach can’t be a bad thing, but on balance I think I’m more comfortable with the way we do things at home, which I’m surprised to see myself saying.

Framework for family matters – WV has since about 2000/1 a separate family court which deals with divorce and custody disputes. I did not see this court in action. However, the circuit court retains concurrent jurisdiction and takes referrals from the family court wherever an allegation of abuse or neglect is made (which we all know is frequent by one parent against another in private (parental) disputes). I saw several of these abuse and neglect referrals, the closest equivalent of which is a referral by CAFCASS or a parent to social services for investigation (or the early risk assessment model promoted by the use of a C1A) although this would not necessarily result in court involvement. I saw a few of these but none was concluded, and it was difficult to understand what the consequences of an investigation would be if the allegation were made out – what then would the court’s role be? Criminal proceedings or some equivalent of care proceedings? How does this information feed back into and inform the private law dispute? What doesn’t yet seem to have evolved is a way of managing these referrals in a proportionate way so that the circuit court is not clogged with petty allegations that could be dealt with in a more measured way – this method is heavy on court and Department of Health (social work) time and resources, and I sense that the problem of insufficient social work / CAFCASS resources is as much a problem in WV as it is at home.

Judgments – the giving of reasons was pretty succinct. Where we would expect full judgment in any contested application the reasons were given in a far more perfunctory way.

Recording – rather than by tape a summary of the proceedings is spoken (Whispered?) into a face mask by a court reporter. It took me a minute to realise what this was all about!

Court personnel – cases called into court by the bailiff – an ex sheriff in police uniform, armed with a gun.

Similarities:

In fact almost everything was surprisingly easy to understand. Terminology is different, plaintiff and defendant are still used, applications are motions etc, but it was easy to get the gist of what was happening. I was able to have a sensible discussion with my hosting lawyer about the merits or weaknesses of the various arguments put forward without having to know the detail of WV / US law. The biggest differences in framework were in the family / juvenile side of matters where the structure appears to be significantly different.

And sadly from what I can tell, both family and criminal representation work appears to be as badly paid as it is at home, in fact probably more so.

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