Communications and Marketing Manager
Mid-Year Attendees Compare U.S. and Scottish Law
NEW BRUNSWICK, NJ—NJSBA members explored the differences and similarities between U.S. and Scottish law while experiencing history first-hand at the recent NJSBA Mid-Year Meeting 2004 in St. Andrews Bay Scotland. Scottish sheriffs–judges who preside over a court of initial jurisdiction similar to Superior Court–barristers and advocates were participants on all of the educational programs along with New Jersey jurists and attorneys that included New Jersey Supreme Court Associate Justice James R. Zazzali, retired Associate Justice James H. Coleman and U.S. District Court Chief Judge John W. Bissell. The U.S. and Scottish panelists gave participants a flavor for what happens in the courts on both sides of the Atlantic.
The Opening Session began with a welcome from NJSBA President Edwin J. McCreedy who introduced three keynote speakers from the Scottish bar. The primary speaker, Hon. Lord McEwan, a judge of the Court of Session (civil) and High Court of the Justiciary (criminal), the Supreme Courts of Scotland, entertained the assembly with a poem suitable to St. Andrews and the home of golf. An avid golfer, McEwan’s poem compared golf to life and the practice of law. The president of the Law Society of Scotland, Duncan Murray, spoke to mid-year attendees about cooperation between the American and Scottish bar, a topic familiar to Duncan who has attended meetings of the American Bar Association. The third Scottish keynote speaker was Neil Brailsford, Queen’s Counsel and treasurer of the Faculty of Advocates. The Faculty of Advocates are barristers in Scotland.
On a tour of the Court of Sessions conducted later in the week, it was explained that there are between six and seven thousand solicitors in Scotland who practice real estate and lower court work. There are 463 advocates who do upper court work, which is similar to New Jersey’s Appellate and Supreme courts. The tour was conducted by Andrew Stewart, clerk of the Faculty of Advocates and included the Advocates Library and one of the courtrooms in the Parliament House in Edinburgh where the Court of Sessions hears cases.
In the Court of Sessions, attendees were shown a great hallway where cases are settled while still maintaining confidentiality. During settlement negotiations, solicitors must pace up and down the hallway so that others cannot hear the discussion. Participants can pace up and down the hallway upwards of 20, 30 or 40 times before finalizing the matter. One mid-year attendee asked if onlookers could determine the difference in cases according to how many laps it takes to settle.
The Opening Session rolled into a program that illustrated what to do and what not to do in New Jersey and Scottish courts. Justice Coleman described a story told by one of his fellow panelists, a member of the Scottish bar, akin to what happened in the popular movie, “My Cousin Vinnie.”
“The solicitor had hoped to embellish his case and when he put a document before the client to read, the client put on glasses that were as thick as the bottom of a coca cola bottle. If the client couldn’t see, how could he have witnessed something that occurred from 20 feet away?” Coleman said.
The program “Environmental Rights and Accessing Justice” was interesting for participants and garnered interest from the local press in Scotland.
“The seminar focus gathered the U.S. experience on citizen’s rights to prosecute environmental claims and access environmental information and compare that to the Scotland experience as there is currently a debate on citizen’s rights in that area,” said Brian S. Montag, program moderator. While some Scottish laws are similar to the Freedom of Information Act, allowing some degree of access to environmental information, “citizens do not have anything close to filing claims to enforce environmental laws,” he said.
A part of the system very different from the U.S. is the position held by panelist Kevin Dunion, the Scottish Information Commissioner. In this role, Dunion has the power to prosecute and investigate claims and to access the courts.
“His position is akin to an environmental prosecutor,” said Montag. “He can initiate both civil and criminal proceedings if warranted.”
Another difference between U.S. and Scottish environmental practice is the usage of Community Forums, a way that companies conduct outreach with public. The forums obtain feedback from citizens on environmental issues.
Another panelist, Duncan McLaren, a chief executive from Friends of Earth of Scotland, advocated an environmental court that would act as an expert in environmental claims. The courts would have judges who are experts in environmental law, but in the U.S., the courts defer to the expertise of environmental agencies.
“Friends of Earth want de novo review,” said Montag.
Another fascinating program, “International Family Law Issues,” demonstrated interesting differences in matrimonial practice and children’s rights.
“In Scotland’s family court, an alimony obligation is generally satisfied by a division of assets, it is not alimony plus equitable distribution,” said Superior Court Judge Daniel M. Waldman, a panelist on the program. The Scottish courts maintain that equitable distribution will satisfy an alimony obligation and one Scottish solicitor felt that alimony is a device that rarely should be used for more than just a few years, he added.
Panelist Francesca S. Blanco noted that the Scottish panelists were very interested in the Early Settlement Panel concept and the Association of Family and Conciliation Court, where the bench and psychologists work together to settle cases.
Blanco discussed children’s rights and pointed out that for children born out of wedlock, a father is obligated to pay child support, but has no further rights.
“A father and mother must sign off on some sort of parenting agreement for additional rights,” she said.
Also worth noting is that Scotland does not have many post judgment motions. “Once you’re divorced and the Scottish court puts it through, that’s it,” said Blanco.
In addition to the educational programs, attendees attended social events that included a taste of Scottish history.
Among the touring experienced during Mid-Year 2004 in Scotland, attendees visited Edinburgh; Glamis Castle, where the Queen Mother lived as a child; and Roslyn Chapel, which was described in “The DaVinci Code” as the place where tradition holds the Holy Grail or some clue to it can be found.
Mid-Year 2004 featured a golf tournament at the legendary home of golf and participants enjoyed the true Scottish golf experience complete with wind, rain and ultimately, sunshine.
President McCreedy reminded the golfers of a Scottish saying, “Nae wind, nae rain, nae golf,” which translates to without wind and rain in Scotland, you don’t have golf.
Mid-Year Meeting 2004 attendees enjoyed wonderful weather and beautiful blue skies in Scotland, and many returned to say it was one of the best mid-year meetings ever.
The New Jersey State Bar Association, incorporated in 1899, is dedicated to the continuing education of lawyers and the public, to reforming and improving the legal system and to aiding in the administration of justice.
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