Part 2 Judges, Lawyers, and Clerks

Transcription

1 A Series in Three Parts By: Tim Dibble, Vice President, The Justice Management Institute Part 1 Legal Systems and Culture Part 2 Judges, Lawyers, and Clerks Part 3 Procedure Part 2 Judges, Lawyers, and Clerks The legal system is often a mystery, and we, its priests, preside over rituals baffling to everyday citizens. Henry Miller Part 2 compares and contrasts the training, selection, and retention of professional staff that work in the courts. The legal system for each of the four countries is closely tied to each approach, although cultural differences impact the way the public views these professions and their role in government and society. Training and Selection of Judges Summary The following is a summary of the general jurisdiction judge requirements in the European Union and the other three countries in the study. Table 1 - General Jurisdiction Judge and Prosecutor Requirements European Union Legal training Judge and prosecutor training (often with specialization) National competition (19 countries) University grades/application (7 countries, including France) Province (German lander) appointment (1 country) Voluntary continuing legal, judge, and prosecutor training Japan University grades and bar exam selection for legal training Legal training selection for judge, prosecutor, and law training Judge and prosecutor training (often with specialization) Appointment Required continuing legal, judge, and prosecutor training United Arab Emirates Recruitment judicial experience in other countries Legal training Judge and prosecutor training Appointment contract terms Required continuing legal, judge, and prosecutor training United States Legal training Federal courts lifetime appointment Major state trial courts by election (31 states) 1

2 Appointment by executive/legislative/judicial branches (14 states and federal court) Hybrid election/appointment (5 states) Varied levels of new judge training following appointment/election Required and voluntary continuing legal, judge, and prosecutor training, depending on jurisdiction or state. Civil Law Jurisdictions The training and selection of judges and prosecutors is similar in most Civil law countries and is characterized by a combination of legal and focused professional training. In most Civil law countries, judges and prosecutors are trained, selected, and appointed by the national government and then assigned to a jurisdiction or region. Judges are often trained for specific types of courts. Training to become a judge or prosecutor follows legal training and is generally a function of government-run schools, equivalent to specialization in medicine in the U.S. A judge position is by appointment and similar to a civil service position in the U.S. Appointments, depending on the level of court, may be for short periods of time (two to four years) up to lifetime. Exceptions to these requirements include many limited jurisdiction courts in most countries that may not require judges to have legal training and provide only limited civil service training. Examples of these types of courts include industrial and agricultural tribunals in France that appoint lay judges from local businesses or associations. Common Law U.S. Jurisdictions The training and selection of judges and prosecutors in the U.S., a Common law country, is almost entirely characterized by legal training to become a licensed attorney, followed by election or appointment to a judge or chief prosecutor 1 position. States have varying requirements for years of experience as an attorney, prior to qualifying to become a judge. Following election or appointment to a judge position, the amount of required new judge training substantially differs from state to state, but is typically about two weeks of focused seminars, classes, and group activities. Terms, whether by appointment or election, may be, depending on the state and jurisdiction, from four years (many state courts) to fifteen years (Maryland, general jurisdiction), up to lifetime (federal courts). Exceptions to the above process and requirements include a very few states that have limited jurisdiction courts that do not require a judge to be a licensed attorney. In many states, limited jurisdiction courts have nominal or no formal training for new judges. 2

3 France Judicial and Administrative Training All general jurisdiction and most limited jurisdiction French judges 2, and prosecuting attorneys, including associate attorneys, have approximately two and one-half years of specialized, post-graduate training in each specialty at the École Nationale de la Magistrature 3 (ENM). Acceptance to the ENM is by competitive application and includes a psychological aptitude evaluation. Most applicants have completed a three-year baccalaureate degree and a one-year masters in law at one of 15 law schools across the country. Applicants for specialized training to become judges and prosecutors do not need to have passed the certificat d'aptitude à la profession d'avocat (CAPA), the equivalent to the U.S. bar exam taken at the completion of the one-year masters. Similar to many professions in the U.S., multiple years of experience in the profession without certification may substitute for a one-year masters in law. 4 In France, European Union candidates may be considered. Judge and Prosecutor Training École Nationale de la Magistrature (ENM) The ENM is located in Bordeaux, France and includes judge and prosecutor tracks, although most of the general practice stage is taken together. Judges, prosecutors, and registrars are civil servants and, except for selected regional tribunals, lifetime appointments. Approximately 200 new judges and prosecutors are trained each year. The training includes the following in sequence: 5 General practice stage Three months internship in a court or institution outside of France in commercial companies, government institutions, or foreign courts, designed to see the French legal system from an outside perspective; Eight months academic training (17 full time professors specialists in law, history, sociology, psychology, forensic science, pathology, and accounting) at the ENM; 14 months court internship under a sitting judge or prosecutor, including possible time with a police department, and bailiff s and law office; 6 followed by An exam to qualify for appointment. 7 Specialization Five months specialized training for specific appointments. Judge appointments include: limited jurisdiction (e.g. district or small claims court); investigating; 8 juvenile court; or penalties enforcement. All prosecutor candidates become deputy prosecutors. 3

4 Continuing Education In Service Training Continuing education is voluntary but funded and includes up to five days every year at the Ministry of Justice 9 in Paris. Training subjects include the following: legislative change, changes in jurisdiction or case law, specialist skills, European and international law, non-legal subjects, court operations, ethics and codes of conduct, and societal problems. Court Administration Training and Preparation in France 10 The French judicial system under the Ministry of Justice includes a separate administrative function that supervises personnel, organizational policies, and performance and work methods, similar to state or federal administrative offices in U.S. courts. Most of the judicial and administrative staff that work in courts are trained at the École Nationale des Greffes 11 (ENG) in Paris. Court and regional administrators are the highest level clerks and are often referred to as registrars. Training for clerks is a separate specialty and does not require a law degree, but does require a threeyear baccalaureate or equivalent civil service experience, followed by a competitive exam for admission, and 18 months of legal and administrative training at the ENG, including apprenticeships at local courts. Candidates must commit to at least five years of service. Categories of clerks include: chief clerks (registrars), clerks of court, and subordinate clerks, typically ranked by seniority and promotion. Continuing education is also provided at the ENG. Japan Judicial and Administrative Training The Japanese judicial system has arguably the most competitive and restrictive process to become a lawyer, prosecutor, or judge in the world. The judicial system is highly centralized under the Supreme Court of Japan and administers a unified training system for judges, prosecutors, and practicing attorneys. 4

5 Judicial Training and Research Institute (JTRI) 12 All judicial, prosecutor, certification training is provided at the Judicial Training and Research Institute of Japan. University students may enroll in a four-year baccalaureate with a law degree. Following 2004 reform of the Japanese legal system, the government permitted the certification of two and three-year graduate law school programs that have since been accredited at over 90 universities. The law school curriculum was adapted to some degree from U.S. law school programs. As of 2012, fewer than 5,000 are students are admitted to law schools from over 70,000 applicants from both undergraduate law and other degree programs. At the completion of law school, approximately 2,000 students are permitted to pass the bar exam and are enrolled as legal apprentices in the JTRI. Tuition is not paid by the government. The legal apprenticeship training is a one-year course that is required for all lawyer, judge, and prosecutor certification in Japan. Lawyers are trained in similar courses as judges and prosecutors in trial practice, advocacy, and legal writing. Tensions in the legal profession continue between highly restrictive government policies, concern about the increasing numbers of lawyers, and advocacy for full deregulation. 5

6 Following completion of the JTRI and a competitive appointment process, judges and prosecutors must undertake two years as assistant judges or prosecutors, followed by lifetime appointments. Administrative judges also receive additional specialized training. Continuing Education Judges are required to enroll in annual continuing education. The programs are based on independent development that have some minimum, basic requirements that must be met over multi-year cycles. Programs include the following: Basic field workshops civil, criminal, domestic, juvenile Specialized field workshops administrative, labor, intellectual property rights Comprehensive workshops human rights, urban problems, and mental and physical health Dispatch training private corporations, media, intellectual property rights Japan Clerk and Administrator Training and Preparation The Training and Research Institute for Court Officials (TRICF) is also under the administrative authority of the Supreme Court. Requirements for clerks and court officials of any type begin with a restrictive entrance exam with successful candidates limited to court needs for each year. The exam is limited to candidates with a baccalaureate degree. Training programs take 18 months and include the following: Legal training constitution, civil and penal codes, codes of civil and criminal procedure, and family and juvenile case law and procedure Operational training case initiation and document management, records management, trials, and docket management Continuing education administration and secretariat for general & financial affairs 6

7 Ongoing parts of this series will be featured in the Justice Management Institute s newsletter and website: Part 1 Legal Systems and Culture, last month, compared the structure of civil and common law legal systems and assessed their impact on the rate of civil litigation, numbers of judges and lawyers, doing business rankings, and intangible cultural factors in each of the four countries. Part 2 Judges, Lawyers, and Clerks, next month, will feature comparative analysis of the U.A.E. and U.S. training and preparation approaches for judges and clerks with reference to lawyers and court administrators. Part 3 Procedure, will return to the procedural differences between Civil and Common law legal systems and the ways in which they have evolved in the four countries and by cross-fertilization between each of the countries. 1 The author knows of no U.S. jurisdictions in which associate or deputy prosecuting attorneys are elected. Only the chief or lead prosecutor is the elected position, although a number of states have appointed chief or lead prosecutors, often referred to as the district attorney, county attorney, or state s attorney. 2 Referred to as judges of courts of first instance, or trial judges. 3 French National School for the Judiciary. 4 Requirements vary, but typically eight years of practicing as an associate (similar to a law clerk) in a law firm, or as a practitioner in a selected specialty, qualifies. 5 See, 6 Typically, two months are spent at a law office to teach judges about pleadings at the bar of the court. 7 A candidate that does not pass the exam may be invited to repeat the general training courses again. 8 An investigating judge is typically the junior judge on a three-judge panel for general jurisdiction civil and criminal (felony) cases. In limited jurisdiction courts, one judge presides on each case. 9 Ministre de la Justice. 10 Olga, Ruda, Overview of Court Administration in France, Germany, the Netherlands, and the United States, Support to Judicial and Legal Reform in the Republic of Kazakhstan, American Bar Association Rule of Law Initiative, with funding by USAID, est, National School for Judicial Clerks 12 Shigenori, Matsui, Turbulence Ahead: The Future of Law Schools in Japan, Journal of Legal Education, Volume 62, Number 1, Association of American Law Schools (August 2012). See: 7