WIGS AND GAVELS DON’T MIX!

When I retired last year after almost twenty years as a Judge Advocate,  a miltary source announced my departure as follows:

Judge Robert Seymour laid down his gavel for the final time last month after spending the previous five years as the resident judge at Colchester’s Military Court Martial Centre. The occasion was marked by the band of the Parachute Regiment .

What happened was that I “progressed” together with my wife, Jane, in a Second World War Landrover specially brought in for the occasion with the band playing in front! A tremendous send-off by the Army for whom I retain enormous respect, admiration and affection.

But, in one matter, the report was wholly inaccurate.

I never ever used a gavel!

Such things are unknown in English criminal procedure. The idea comes solely from the USA and has mistakenly been superimposed, for heightened effect, on English legal drama.

In fact,  judges have never, at any time, used gavels in England.

A judge in an English criminal court knows that a simple word from him will bring order to any proceedings being conducted in his presence – and that’s where wigs come in.

Wigs, which date from the 18th century and are worn by the advocates and the judge, lend our proceedings a sense of dignity and formality so gavels aren’t necessary.

So why do American judges use them?

Perhaps because they don’t get the respect which they are entitled to by virtue of their office without banging the table!

Oh, and there’s one other aspect of the American system which seems quite extraordinary to an English judge. I’ll set the scene.

A witness is being examined in a an American court and suddenly an objection is raised by one of the counsellors.

The judge barks “sustained or “overruled” without further ado.

Now, an English judge would invite the jury to retire and hear both sides before giving detailed reasons for his decision.

Which is better? I invite you to draw your own conclusions.

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5 Comments on “WIGS AND GAVELS DON’T MIX!”

  1. Andrea Says:

    If gavels were never used in England, were they used in other countries which contributed to American immigration? In fact,does anybody know which other countries still use them today?
    Andrea

  2. Rich Cassidy Says:

    Charles (or Robert?)

    As an American lawyer, I would have to say that things don’t sound quite as different as you might think.

    Yes, American judges seem always equipped with gavels, but I rarely, if ever, see them used.

    I am not a judge, but occasionally sit as a specially assigned judge in small claims court, and have never felt the need to bang the gavel. In fact, I did, I would feel like I had let things get out of control.

    On objections, certainly many American judges will rule based on the objection alone, but sometimes the basis of it is unclear, or both lawyers have arguments to make. When that happens, it usually happens out side the hearing of the jury, sometimes in whispered tones at the bench, sometimes by sending the jury out and occasionally, in the judge’s chamber.

    Rich Cassidy

    • Robert Seymour Says:

      Rich
      So, as you say, things aren’t so different.It shows how TV programmes distort reality for dramatic effect by depicting the judge constantly banging his gavel, shouting for order.
      Mind you, the same applies with wigs back in the UK.
      People often assume that we still wear the full-bottom, “Spaniel’s ears ” wig in court because the official picture of a judge, released to the press, has him(or her)in a wig only worn for ceremonial purposes.
      Nowadays, a short “bench wig” is worn but only in the criminal courts.The present Lord Chief Justice did away with them (probably quite rightly)generally, but criminal lawyers, as a whole, wanted to retain them as they bind the judge, prosecutor and defender together as part of the court structure.
      I believe all judges wear a gown in the USA but does it vary in design? What do the Supreme Court Judges wear for instance?
      Kind regards, Robert

      • Rich Cassidy Says:

        Robert,

        Well, you are right. Television does distort (and as I have suggested, some times affect) reality. See my post, “Life Imitates Art,” http://onlawyering.com/2010/06/life-imitates-art/

        I must admit that I find the traditional English barrister/solicitor distinction attractive, although I understand it has mostly disappeared. The idea of wig and gown sounds great, although, I am not sure I would want to wear either.

        But I do think being a courtroom lawyer is very different from transactional work and I think our bar would be better off with some similar distinction. But I don’t expect to see it.

        Most, but not all, American judges wear a robe. I do not when I sit as a specially assigned small claims judge, as it would feel like an affectation. I would if I were appointed as a regular judge.

        Most American judges here wear a simple black robe, although I have seen a maroon one. Our former Chief Justice, the late William Rehnquist, added some gold stripes to his.

        I like simple black to emphasize that it is the Rule of Law, rather than individual judgment that we seek.

        Best,

        Rich

  3. Renganath Says:

    Robert,

    To add to Rich’s explanation Irving Wallace details the varied situations – a terse “sustained”/”overruled” and a whispered argument argument at the Bench, but not the other two, subject to correction – in his “Seven Minutes”. I’d lean east of the Atlantic in 9.5 cases out of 10, but I suppose it has to be admitted that in this case the varied American approach is more flexible and practical.

    Regards,
    Renganath


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