Today

A Minor Celebration

It has been rather busy recently – and I have had a holiday – so posting has been non-existent. Normal service will, I hope, be resumed shortly. In the meantime this seemed to merit a quick mention.

The blog moved to WordPress 4 years ago, which suggests that there are 60,000+ hits per annum. That, I think, suggests that I am doing something right, although I suspect it also reflects the paucity of information out there – something which I am delighted to to see being addressed recently.

Thank you all for your visits, your contributions, your comments and your interest. I reiterate – the world’s best job, even in today’s troubled times. Interesting work, largely competent and supportive colleagues, your own boss, doing something absolutely essential to a functioning society and behaving morally as well. The downsides – stress, no plan B, contemptible politicians, 80 hour weeks and the money isn’t as good as it was.

But still, if you can – and lots of you do still seem to want to – then I would. Every time. Good luck.

Career Opportunities

Willsden County Court is looking for duty advisers. It is an opportunity to get some advocacy experience and there are currently four roles the Court would like to fill with BPTC/LPC graduates and current students. The job is limited to London only, but still offers a significant opportunity to some of you. Advisers deal primarily with repossession but there are overlapping legal issues which should mean that you get a chance to look at quite a lot of areas. I sit in general County Court civil and I would have thought that these roles would be challenging, enjoyable and offer real experience that looks good on a CV. It’s also a chance to help other people.

You can find out more by going to the site they have set up for recruitment purposes. You will be supervised by practising solicitors, so there will hopefully be real feedback and support. The application process closes on Wednesday, so you can do it over the weekend. Good luck, and if you get the job, please let me know. I will ask you to write something about it if you would like and will publish your (anonymised or not, as you wish) post.

As for the picture – whilst you are doing your application you can listen to one of the greatest bands who ever made an album.

Forgive a Father’s Pride

And now for something completely different. I don’t usually post about non-pupillage stuff, but my number 4 is cutting her hair off to make a wig for a child with cancer, which seems a worthy enough act for a worthy enough cause to justify a departure from the norm. All sponsorship gratefully received on the Justgiving page.

UPDATE

The deed is now done. Thank you very much to all of you who have donated and spread the word (the page is still open). It all looks a little different now… 

A Diverting Diversion on Diversity

The last post having garnered 50 comments and counting, it seems worthwhile to distill the arguments here. I discern a number of distinct threads. Oddly enough they emerged in almost exactly the reverse order in which I list them here, but the listing is logical:

1. Diversity isn’t a problem.
2. Diversity is a problem but it should be dealt with earlier on.
3. Why bother with diversity, when the Bar (usually expressed as the commercial bar) already picks the best people?
4. Diversity is social engineering under a different name and is thus an invitation to a different form of discrimination.

The first answer stands on its own. The next two acknowledge the difficulty but seek, for different reasons, to ignore it. The last acknowledges that diversity is desirable but suggests that it can’t really be achieved without imposing something even worse.

The Bar does not reflect the society in which we live. That fact seems to me to be unarguable. Should it? There seems to be no good reason why not. There seems to be every good reason why it should. That proposition can be tested by asking whether people would support a bar which was only white and male. They would not. Such a profession would be exclusionary, discriminatory and full of people (from whose ranks the judiciary of the future would overwhelmingly be drawn) who were happy to keep it that way. From a moral, legal and representative point of view there can be no justification for that stance.

Why does the Bar not represent the society in which we live? Unless you are the type of idiot who buys into the proposition that those of different colour, race, religion, physical ability or income are also less intelligent and less equipped with the qualities required, it cannot be anything to do with the applicants. It must, therefore, be something to do with how they are schooled, or how we select them. What else could it be?

Assuming that how people are schooled is a part of the issue, is it sensible of the profession to simply wash its hands of the problem and use that as an excuse? It seems to me that the morality of that can never be justified. I am not particularly interested in belonging to any group of people whose response, faced with obvious injustice, is to say “I’m alright Jack”. When that group of people purport to be delivering justice, the hypocrisy is so obvious that I wonder how stupid someone has to be before they are incapable of recognising it. Not very.

It does seem to me, in that case, that the profession must conclude that it is not sensible to wash its hands of the problem. The risk it takes by so doing is that it comes to consist either of fools or of people whose commitment to the system does not extend to living by it. If that becomes the case then the profession will have no answer to those who wish to abolish it, or to so abbreviate its privileges as to abolish it. At the moment we make a huge point of our independence, our ethical stance and our ability to take unpopular stances. Those arguments are worthless if, on examination, we will only be independent, ethical and take unpopular stances if they don’t involve our own behaviour.

Finally, on this point, the argument that schooling is irremediable seems to me to be obviously nonsensical. What, then, is anyone learning in pupillage? Why is a barrister of 2 years’ call not capable of taking a difficult issue to the Supreme Court? We all acknowledge that the profession is one in which good barristers never stop learning. Once that acknowledgement is made, why is the state of learning at the time of application for pupillage so important – other than that it provides an easy way of distinguishing between candidates and encourages those picking the pupils to determine who is most like them?

You will note that all of this grants Oxbridge the place it holds in the hearts of what – to my mind – are far too many of you. The notion that Eton produces a particular type of person, ready to lead the world is now merely an amusing anathema to most of us. Even were it to be accepted (and I do accept it) that Eton produces people with a particular ability to be charming and to speak authoritatively, it would strike us as absurd that such qualities entitled anyone to anything, or could not be acquired later in life, or were the be all and end all of the qualities required for success. The notion that results obtained because one’s parents could afford Eton’s fees or because one was fortunate enough to obtain some sort of bursary to enable attendance there, were a signal of unmatched intellectual prowess would be similarly derided. The notion that Oxbridge provides something similar, together with subtle qualities permitting success in the practice of law – which practice Oxbridge does not even teach strikes me as equally absurd.

That there should be a required standard is not in issue. That the standard may differ from set to set is not in issue. A set might, for  example, decide that particular academic ability is necessary. What is questionable is whether, having made that decision, it is acceptable to determine that such ability is shown by Oxbridge attendance. I see no reason why that should be so. What if the applicant never applied to Oxbridge? If someone applied and was rejected, perhaps they should say so (the reaction of Oxbridge to that would be interesting – how, I wonder, would it view such a disincentive to apply?). Why is success in three A-levels which probably do not include law, and may not include any subject which invites a focus on a primary fact finding exercise and the drawing of conclusions therefrom, any help in assessing the ability required? Why is success at 18 or 19 demonstrative of an ability to develop in your 30s?

It does seem to me that we could do better, and that reliance on a set of indicators which are not aimed at the profession and apply to nothing more than the first few years of practice is simply lazy. That is not even to mention the downside to the current system – which is all too obviously that human beings tend to see reflections of themselves as being most desirable.

That leaves the arguments that attempting to ensure diversity is social engineering and therefore worse, and the argument that the current system works well, so why tinker with it.

I don’t myself accept that social engineering is wrong. Coming from an ethnic group which required an Act of Parliament to enable it to vote it seems to me that the argument is not as clear cut as people might think. If the Bar still took pupils on the basis of who they knew or met (as it did for Fat Bigot and for me) we would have no compunction about changing that system. Thereafter it is only a matter of degree, and it seems to me that those who assume social engineering (a prejudicial phrase if ever I heard one) is bad are actually saying merely that the proposed change is not to their liking. Had that ever been a legitimate ground of complaint the bar would still be a woman, Jew, Muslim and black free zone.

We purport to sign up to the view that all are equal and that what distinguishes the failed applicant from the successful one – apart from the inevitable elements of luck – is ability. If we don’t measure ability as well as we might – and we don’t – then why is an alternative route inherently objectionable? That would be a difficult question even if we could assert that the current system actually does pick the best applicants. I don’t know many barristers who would make that argument (see the picture illustrating this post). Paradoxically, the huge glut of applicants means that the system we use can be pretty appalling and it doesn’t matter. Arguably, we are in the same position as a prospector at the beginning of the gold rush: we might be colour blind and be using our bare hands instead of a sieve but there’s so much gold around that anyone can emerge with a nugget. The difference, of course, is that the nuggets left behind have feelings and have paid a whacking sum of money to lie on the river bed.

Procedural fairness – publicising the qualities required, the way to demonstrate them and the respective weight placed upon them – would show applicants and ourselves what we actually look for. It would force the profession to articulate it – which we often don’t. It would allow for testing of whether those things are what really makes a good barrister. It would permit challenge. It would produce better applicants and it would discourage those who really do not have what it takes. It would be fair, in a profession which exists to argue for fairness.

Diversity and Selection

This is an (enormously) expanded version of the article in this month’s Counsel. It responded to a proposal by Andrew Neish QC of the Commercial Bar Association to improve the system whereby those sets doing big commercial work end up with pupils who are overwhelmingly from Oxbridge and with first class degrees. In my view that happens because when those sets design their criteria for pupillage they prioritise academic achievement to an extent that a UN Secretary General with a 2.1 from a Redbrick University would find a problem obtaining a pupillage (I exaggerate slightly). In Andrew Neish’s view the relevant sets are focussed on academic achievement.

The proposal was that there would be ‘wild cards’ for each pupillage round, so that applicants without the appropriate qualifications would be invited for interview, chosen at random. I applaud the recognition that change is needed. But the idea of a wild card is, I believe, a bad one.

We ought surely to begin with why diversity is a good thing. I think, firstly, that there is an advantage to the Bar in representing the society in which we operate and which we seek to serve. There is a moral dimension to this as well: non-diversity is too close to discrimination to be comfortable. Secondly, restricting our selection to a particular group – however academically talented – risks missing those who would be the most able barristers. Our focus on academic excellence also plays into diversity in another way. Not only is there a lack of diversity in taking students primarily from particular institutions: doing so exaggerates the effect of the diversity issues pertaining to those institutions themselves. The reality is that almost half the graduates from Oxbridge come from private schools. That this is not remotely a reflection of the society in which we live is obvious, but that is not really the point in a profession which does demand academic ability. The point is that Oxbridge is not selecting the brightest and best. It does not even pretend that it is – hence its emphasis on widening the pool of applicants and increasing contacts with those schools educating about 80% of our children.

The wild card idea has these drawbacks: firstly, it removes the responsibility for diversity from Chambers. The proposal is that wild cards are allocated or randomly selected: Chambers should be capable of designing criteria which reflect other achievements than the academic. Secondly, it reinforces the idea of academic quality as the major determinant: Chambers should be encouraged to discover other qualities. Thirdly, it stops at interview: if the interview is designed to discriminate between candidates with superlative academic qualifications, it is unlikely to be a tool capable of choosing someone without them.

Setting up a system in which hopeless candidates are randomly selected for an interview designed to choose someone with wholly different qualifications is not diversity. Diversity is an acknowledgement that the current requirements are either too restrictive or are being operated in a way which prevents them having an equal impact on all applicants. There seems to be a view that those not at the starting gate by the end of their 3^rd year at University are deemed to have missed the race altogether. The proposition, thus stated, sounds so nonsensical that it is difficult to accept any of us really believes it. In my view, although this job demands academic ability to a considerable degree, it very rarely and very inconsistently demands academic brilliance. Nor do I accept that academic brilliance can only be ascertained by particular results and qualifications from particular universities at particular times of a (young) person’s life. I do not regard this as a particularly contentious proposition, but it throws into sharp relief the issue of whether concentrating on results is even the way to identify academic brilliance.

It might be said that Chambers are not equipped to teach candidates, and so we are stuck with the results they have thus far obtained. It might be said, but it would be wrong in my view. People learn every day and performance improves through practice and experience (otherwise we could send the brilliant pupil straight to the Supreme Court). Nor does that argument address the mature applicant who brings something quite different to the job and who almost every Chambers says is welcome.

I believe we should try to identify potential through our own efforts and widen the pool of pupils. When there was only one Bar School, non-practising barristers were entitled to use the name, and – critically – financial support was available to at least some of those attending via grants and not just scholarships or awards, the position was different. There was then a case having lots of pupils exploited those pupils. Nowadays we expect our applicants to invest £13,000+ for a useless qualification and a small chance of a tenancy. If there are set of chambers that truly believe that the work they do can only be done by the exceptionally academically gifted and that such gifts must be manifested at an early age or by those practising as solicitors and and then changing over, they ought to say so fairly and squarely. A proposal that an application by those with other qualities might be met with a random opportunity to be interviewed by a panel looking for quite different qualities is insufficient. If the Chambers concerned are members of OLPAS then it is worse than insufficient, given that applicants would effectively be wasting a choice.

A start might be made by paying less. That would reduce the punt-taking considerably and would increase the number of pupillages, assuming that the investment in pupils remained the same. Is it really the position that talented candidates would go elsewhere because they were only paid £30,000 to train? Is it really the case that the profession is desperate to attract those who will only join if they get £60,000 as they train? The advantage of additional pupils is that Chambers has more to go on when it comes to choosing the best candidates. It also permits more tenancies to be offered than Chambers originally envisaged – helpful if a number of pupils do particularly well. One difficulty at present is that the concentration on academic results produces a vicious circle whereby candidates feel that post-graduate degrees are essential. That, in turn, generates another year of expense for which candidates can be recompensed by obtaining a pupillage at the Chambers with the highest awards. In reality, very few postgraduate degrees add anything and it may be helpful if we said so.

It is disturbing that a common thread running through this issue is the profit made by the institutions providing the necessary qualifications. It would, in my view, be a forward step if any institution wishing to offer professional qualifications was obliged to submit accounts, quantify the investment per student and correlate that against the academic results – which should be independently marked – and against the success of those students in securing pupillage, tenancy and professional advancement. I believe that this should include Universities offering law degrees. Especially now they are to charge students it would be fair for those students to know more than simply the general reputation of their institution: how good is the law department?

We should also impose procedural fairness. It is surprising, in a profession in which advancement is assisted by a clear statement of the competencies required, that it is not compulsory to offer candidates for pupillage the same opportunity. Chambers ought to publish – on their websites, on the Portal and in paper form, the qualities (the dreadful civil service word is ‘competencies’) they look for in order to allow candidates to demonstrate those qualities. At the moment we ask people to guess.

I suspect that we so often adopt the attainment of ever more stratospheric academic heights as the principal mechanism by which we choose pupils because academic achievement is simultaneously easy to measure and deeply flattering to those doing the measuring. On analysis, professional success also requires other qualities: judgement; lucidity; robust self-belief; an ability to move on; a willingness to work hard at uncongenial tasks; an ease with many different people. That list is almost certainly incomplete yet, to the extent that these qualities are looked for at all, it is hard to argue that they are scrutinised in anything like the same detail or given anything like the same significance. The other side of procedural fairness is allowing the candidates to know how the qualities required are assessed and prioritised by Chambers. Chambers ought to publish their marking schemes. If they attribute half the available marks to academic achievements and 10% to non-legal, non-academic attainment candidates could at least  know what was required of them. Indirect discrimination thereby caused (not many traditional Muslim women go to University a long way from home, for example) could be identified and addressed. The process would be transparent. When schoolchildren take public examinations they are told how much each question is worth. A profession ought to meet the same standard.

For those sets in the happy position of being able to afford two well-paid pupils why not design two different sets of criteria, both open to all? One pupil would be accepted according to each. They could slug it out and Chambers would make its decision – both, one or none – in the usual way. The ability to refine both sets of criteria as the project progressed would be a useful benefit. The ability to reflect the society in which we all operate would be another. The opening of eyes to the possibility of merit arising other than from brilliance would be a third. Even clients might like it.

OLPAS – The System’s Unloveable Quirks

Welcome to those who have come to this site from LawCareers.net, which reproduced the Help post and made a donation to the Middle Temple scholarship fund for doing so, which was kind. I am grateful to the anonymous author whose post is reproduced below. One the one hand it does rather justify everything that you love to hate about the profession’s attempt to move your applications into the 20th century. On the other hand, at least it may help you to understand that a failure to communicate isn’t necessarily rudeness. Also: fill in your dates to avoid and – although I find it bizarre that this needs saying – fill in your full contact details. After all, you are hoping that Chambers get in touch with you.

I’ve read your blog for a few years and I thought I might follow your invitation to get in touch to offer a few thoughts about the administration of the Pupillage Portal. I think you have said that you are not involved in recruitment in your sets, so I hope this will be of vague interest in explaining why some things are almost inevitably going to be unsatisfactory and why some are more likely to go wrong than others. Assuming, that is, that you have not heard the others in your set grumbling about them already…

A major issue is that the parts of the software which chambers use to run the application process is very awkward to use (I think mirroring the parts which candidates use). To give a trivial example: it is very easy to trip up on its mail-merge facility since it doesn’t have a preview function, making it all to easy to send out messages which start “Dear [name]“. It is also slightly unclear sometimes just how many ‘confirm’ buttons one has to hit before the email actually gets sent, making it quite straight-forward to send out more than one set of rejecting emails. However, that said, if you were rejecting people en masse on the Portal, it did only require the ticking of an extra check box to send them an email at the same time so there is no sensible reason why some sets do not manage to do this, nor change the default Portal text to something a bit more friendly. Equally, for those getting good news, it requires just another tick to send them a text-message; something I think more sets could use.

It also appears that the software which runs the Portal was adapted from one designed for much larger organisations, with rolling recruitment and designated recruitment officers. This means it has dozens of features which I don’t think are ever used for pupillage. One example is that each application is allocated a status which slowly advances through the system. However, because there are so many statuses, to reject someone following an interview you have, for example, first to advance them from “invited for interview” to “interview booked” and then “interview attended” even if you were doing all the timetabling off the system. I think this may explain both why so many sets stop using the Portal to process the applications after the first interview stage and why sometimes someone’s status will mysteriously change (e.g. from “under consideration” to “in screening”) if the person administrating it needs to move everyone up before being able to do anything sensible with the applications.

In terms of pre-interview and first-round interview rejections, it might be helpful to know that the only sensible way of sending out the messages is to invite those who were going to the next stage first, and then (having double- and triple-checked) do a “select all” on those remaining in the current category and “bulk process” (this being the Portal’s rather charming terminology, not mine) them to “rejected”. This is why rejections can end up being sent a while after invitations for the next round, particularly if there are some borderline candidates whose fate must be determined before the main batch can be processed. Although, as I mentioned above, this is no excuse for sending out any information to those rejected once a final list is chosen since it only requires a couple of mouse clicks.

It is also easy to underestimate how much work is required just to keep on top of the applications. For example, when printed out, I think chambers had about 4,000 pages of text to deal with last year, so I can see a strong temptation not to furnish every member of a large panel with every application form before a first round interview. I was also surprised at how extremely keen candidates were: interview slots were booked within minutes of emails being sent out, although surprisingly few had filled in their “dates to avoid” on the form, which would have helped the process enormously. Though not as much as full contact details (e.g. phone numbers where people can actually be reached) and I wonder if a lack thereof might have a detrimental effect on an application if a junior tenant is doing the administration! That said, it was usually straight-forward to accommodate requests to move people around, if necessary, so I perhaps wouldn’t worry about asking (assuming there is a good excuse!) as much as some people obviously do, reading through the posts.