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In the UK, the legal profession is divided into two kinds of lawyers: solicitors, who generally advise clients and prepare legal documents, and barristers (called advocates in Scotland) who argue cases in court. In cases where a trial is necessary, a client has to hire a solicitor, who will advise them and then retain a barrister on their behalf. Solicitors have traditionally dealt with any legal matter other than conducting proceedings in court, although nowadays solicitors may appear in the lower courts and also if they have higher “rights of audience” (i.e. the right to appear in court on behalf of another person) in the higher courts. Barristers, who have a general right of audience in all courts, represent clients in court and provide specialist advice on complex legal matters. The easiest way to distinguish the two is to look at how they dress – barristers are the ones wearing wigs and gowns (yes, even in the 21st century), whilst solicitors will invariably be decked out in a dark suit.
barrister
solicitor
More information on the words discussed in the video, including sound files, examples of usage, common mistakes and encyclopaedic information, can be found in TransLegal's Legal English Dictionary.
Hi, I'm Matt. Thanks very much for joining us.
Today I'm going to be talking about a few terms that are easily confused. And these are some Legal English words that often come up during my Legal English classes. If you have a look on the board, you've got some sets of terms there that have very similar but yet distinct meanings and the differences are very important. I'm going to give you a couple of moments to have a look at the first three sets of words. We have solicitor and attorney. Act of God and force majeure. Damages and compensation. And I'd like you to think about what these words mean and what the difference is between each of these sets of words.
Let's have a look at these first two, solicitor and attorney. You're probably familiar with the term attorney. Attorney is a common term in American Legal English for lawyer. Solicitor is not quite the same. Solicitor is particular to England and a lot of Commonwealth countries, and it's a particular type of lawyer. And in the UK we contrast the term solicitor with another branch of the legal profession, the barrister. Now, one of these, the solicitor or the barrister has rights of audience at court. That means that they can go and represent clients at court and carry out the advocacy work. One of them does the preparation – all of the work that leads up to the actual advocacy work in court. Which one do you think is which? OK, it's the solicitor that does the initial litigation, the initial work or the preparatory work and generally speaking if it's, say, a breach of contract case, or a non-criminal matter, the case usually begins and ends with a solicitor, because most cases end in an out-of-court settlement. If the parties can't settle then the solicitor will get a barrister's advice. The barrister if often seen as the expert in particular areas of law and then the barrister will take the brief, the file, the documents from the solicitor that cover all of the facts of the case and will then represent the client in court. The solicitor will generally speaking go to court as well, In the higher courts he doesn't have rights of audience. He can't represent a client. What he can do is instruct the barrister. So the barrister may need to ask questions of the solicitor during the court case, and the solicitor will be there to support the barrister. In the lower courts, the courts of first instance, the solicitor can also represent the client and carry out advocacy work, but generally speaking that work is undertaken by the barrister.
Let's have a look at these other sets of terms here. Act of God and force majeure. Now, there's an important distinction here, and sometimes what is actually a force majeure in, for example, a German contract, is falsely translated as an act of God. Now there's a difference. A force majeure is anything that happens that can be unforeseen by the parties, that is completely out of their hands and that causes the end of the contract or causes the contract to be breached. For example it can be an act of terrorism, an act of war, it could be a military coup, it could be something like a natural disaster – extreme weather conditions, and these are examples, the latter two – so a natural disaster, extreme weather conditions – these are examples of an act of God. So an act of God is a particular type of force majeure. If I can't carry out the contract because, let's say, we're contracting to sell a car and the car is struck by lightening than that's an act of God. There's nothing that either party could have done to prevent that. So an act of God is a type of force majeure. Force majeure is a more general term.
And the last two words that we'll have a look at – damages and compensation. So what do you think the difference between these terms is? OK, well damages is a remedy. It's what you are asking the court for when you sue somebody. So let's say we have a contract, there's a breach of contract case. I contract with you, you fail to fulfil you side of the bargain and that costs me money. I would sue you for damages. And damages is the legal English term for what is sometimes referred to in more general English as compensation. Compensation has a much more general meaning. It's anything that I can do or someone can do to make up for a bad situation they've caused. Let's say I've been caused an injury. I can maybe get compensation from someone's insurance company. But damages is a specific remedy. It's a specific legal English term. So if I go to court, I'm suing you for breach of contract, I'm suing for damages. Let's say a thousand euros in damages. I'm being compensated, it's a form of compensation but the technical legal English term is damages. And notice its damages. We always use the "s" on the end. You could cause damage to my car.. so damage.. and I would so you for damages.
Well that's all I'd like to look at today. Next time we're going to have a look at these terms: Freehold and leasehold; void and voidable; mistake and fraud in the inducement. Again these are terms that are very similar but have very distinct meanings and you can find out what these words mean by going to the TransLegal Learners' Dictionary of Law. So if you have time between now and then, have a look at the dictionary, look at these terms, see if you can find out what the differences are and we'll go through them next week.
Thanks very much.
What would you call a Spanish “procurador” in English?
According to the post, maybe “procurador” is a barrister.
Thanks for your comments. In civil law countries, a procurator (note that it has a different spelling in English) is a person who represents people in court in civil law systems (rather than in common law systems). This is very similar to the British and Commonwealth barrister, who is a lawyer that is qualified to represent people in both the lower and higher courts.
However, it is important that lawyers from civil law countries avoid using terms that are particular to foreign (eg common law) jurisdictions when describing their work. For example, if a Spanish lawyer described herself as a barrister, this might lead people to believe that she had qualified in the UK. Likewise, it would be wrong to describe yourself as a solicitor if this was not your actual position. Indeed, to describe yourself as such could lead to someone (possibly wrongly) believing that you were not qualified to represent them in court. The safest option may simply be to use the term lawyer, and then to briefly outline what area you work in (commercial law, contract drafting, litigation etc).