Still A Job Worth Doing

I have been debating the value of going to the criminal bar in Legalweek. I am occasionally said to be too gloomy. But it’s not as bad as Alex says. This is still a job worth doing

New Tenants’ Survival Guide: Part 2 Concluded

On with the way to climb the greasy pole…

Thirdly, front it up. Every so often there is a piece of evidence or information which is damning. The Judge peers at you and says pleasantly, ‘But if this is right then it poses a significant problem for you Mr Jones, does it not?’ You say ‘Yes my Lord’. Again, it can be difficult to do – especially if the point is one which you had taken considerable care to obscure. But you have to confront the weaknesses in your case. You win brownie points for dealing with matters this way – the Judge will appreciate the fact that you understand the problem and will be more receptive to what you say next, which will hopefully be something like ‘but not fatal unless your Lordship makes the 2 decisions on law and 3 findings of fact to which I now turn’.

As you go on and know your Judge it can help to get there before the Judge does, starting by saying ‘I anticipate that your Honour will have reservations about this issue because my submission appears to be that no duty of care is owed to a neighbour. Would it be of assistance to deal with that immediately?’. The Judge will not only be grateful for the realism but may also perk up at the prospect of an early day.

However, judgement is key in all things as exemplified by the fourth matter which can help you climb the internal ladder – don’t be a sycophant. Good Judges are as alive to this as anyone (bad Judges less so, alas). Your primary obligation is to your client and his case. Abandoning that case in the face of a demonstration of judicial hostility is unhelpful to your client and to you. If the Judge destroys your case by picking up on its most prominent weakness and you do not have an answer (save – and I have heard it said – ‘I was hoping your Honour wouldn’t raise that point) then for what, precisely, have you been paid? If you have thought about it then you should have an answer and that answer should be pressed – politely to be sure but firmly.

It can happen that, in the course of argument and discussion, you change your mind. So what? You are not being asked to judge the case, nor to believe in it. Clients sometimes like to feel that you believe in their case. The adage that a man who acts for himself has a fool for a lawyer comes to mind. Your job is to take an objective view. Your own feelings are at best irrelevant and at worst an impediment. If you have reassessed then the discussion is with your own client in private. It may be too late to change anything by then. You may change your view back when under less pressure. You know what your case is; you have analysed it and understood it: so, put it. Later on, if you have to retreat, do so having exhaustively discussed the point with your client and your solicitor and do it with grace.

Fifthly, be prepared. Neither your Judge nor your opponent will give you any credit for a brilliant skin-of-your teeth performance unless the matter to which you are reacting is really brand new. Unless you are one of the very few geniuses (and there are a few) who genuinely require no real preparation time, do the prep. The man who once said to my father as the prosecution opened its case ‘I’m so glad I haven’t read this. It lets me get a jury’s eye view’ was one of those people who didn’t need the prep time; the case was simple and he wasn’t telling the truth anyway.

Sixth, be pleasant. Of course you can always mash your opponent’s face into the floor and make his client cry. You can sometimes humiliate the Judge. But unless these really are critical parts of your case (they may be – it’s amazing how many people are prepared to settle after something bruising has happened) don’t do it. You will meet your opponent and your Judge again. If they dislike you then the next time will not be smooth. As you go along you will inevitably make mistakes: you will need your opponent’s forbearance and the Judge’s kindliness. Whether you will have them will be very largely up to you. That does not mean you must not press the advantage, should you have it. But don’t be nasty or brutal for fun.

Next, play a part in the profession. Everything the Bar does save work is voluntary. We regulate ourselves; we educate ourselves; we entertain ourselves; we promote the profession ourselves; we look after each other in sickness and health; we guide ourselves; we help each other; we organise events for ourselves. All of those things take a massive amount of work: they benefit everyone and it helps to be a part of it.

The paths to professional involvement are the specialist bar associations, the circuits, the Inns, the bar Council and the BSB. There is also plenty of work to be done within individual sets of Chambers. Of course, barristers are as prone to anyone else to comments about politicians and pushers. But still, get involved. Find something you enjoy doing and which you think you do well and then offer your services. You will meet people whose company you will enjoy, you will learn things from them, you will actually be contributing to your profession and – if asked – they may one day say nice things about you. But it does need to be in that order.

Finally, be unfailingly kind and gracious about everyone else. This is, of course, impossible. So in default of that do be prepared to take it. Don’t expect your status as person first with the news of Bloggins’ unfortunate misquote in front of HH Judge Sarcastic to make you immune and, if you laugh at the misfortune of others, you should be prepared to not only laugh at your own but to tell others about them. Have a sense of humour and learn to laugh at yourself.

At bottom, what Barristers and Judges are doing when talking about each other is assessing whether the person being talked about has reached the level at which he is incompetent. That is to some extent an objective view. The internal ladder is its subjective element. People will judge you kindly if you have climbed it. That is not only because they think well of you but also because you are actually good at the job. Of course, you don’t have to climb the internal ladder. Plenty of barristers are content with a niche they find for themselves and are not troubled by ambition. There is nothing at all wrong with that – such people tend to be happy, married (still) and relaxed. Naturally people hate them.

However, the Bar is unique because it offers the chance of a change of career at a time when other people in other jobs are being gently sidelined and put out to grass. If you can give yourself that opportunity it is sensible. You may not take it when, in 30 years time, the decision looms, but it’s nice to have the choice.

New Tenants’ Survival Guide: Part 2

The internal ladder: possibly the only ladder you have to climb of whose existence you are ignorant.

You might have thought that this job was easy. You get a pupillage, a tenancy, your clerks get you work, you do the work well, professional success is yours. Well, up to a point Lord Copper.

The internal ladder is the route to professional success. It is certainly true that, save in a minority of cases, you can’t climb it unless you are good at your job, but being good at your job is not enough. If you want to be a Recorder, a Judge, a Tribunal Chairperson or even Queen’s Counsel, you must also scale the internal ladder. By which I mean that you must attract the attention, respect and ultimately (you hope) admiration of those whose support you will need to succeed professionally. These people never used to be solicitors and are not often solicitors now. You need solicitors to support you externally – to give you work. This isn’t about getting the work so much as how you are perceived to do it.

Fortunately the process is becoming more democratic. The bottom rung of the internal ladder used to be where you went to school. There were days where the word of the Presiding Judge could break a promising career even if the barrister were transparently brilliant and the Presiding Judge transparently both stupid and odious. Equally – as Gilbert and Sullivan realised – it could often be a good career move if you “fell in love with a rich attorney’s elderly ugly daughter”.

In those days you had to have good table manners, the right conversation, the right hobbies, the right wife and the right appeal. It’s a miracle anyone bright ever made it. When I was called in 1986 it was still popularly believed – although I have no idea whether it was true – that the High Court Bench was capped at 6 Jews. There was no discussion at all about women or Asian or Black people. Since then the Bar has been dragged into the 21st Century and a real commitment to equality. That we occasionally get it wrong is obvious but the process is one in which I rarely find people unwilling to cooperate. The reason, I think, is simple. The Bar is under attack as a profession. Almost everyone realises that in order to survive and thrive we have to attract the best people. Almost everyone realises that your school and University are not an actual guarantee.

But still there is an internal ladder. People talk. It’s a small profession and what barristers like to talk about is other barristers. Eventually some of those barristers become Judges. They still like to talk about other Barristers. That is because a Judge never (unless a member of the Court of Appeal) sees another Judge judging. Given that what is most interesting are personal idiosyncrasies, disasters, rows and nose-enders and given that Judges see barristers every day, it follows that Judges talk about barristers – a lot. For every professional appointment for which a barrister applies there is a list of consultees. These used to be automatic but we are, thankfully, moving away from that. However, for the current silk selection, the applicants must be assessed by 4 Judges. The current Recorder exercise talks of 3 referees, one of whom should be your Head of Chambers.

Because many Judges are asked for their views, and because Judges talk, it is inevitable that your general reputation will matter. The same goes for what other barristers think of you. Without support from within the profession you will find it hard to get anywhere. How do you get that support?

Firstly, make your integrity absolute. No one will forgive you for sharp practice and it will not matter how good you are. Of all the things about which people gossip, this is the number one hot topic. I am not talking about obvious dishonesty. I am talking about telling your opponent that you will not take a point and then taking it without warning. About suddenly whipping out the photos in cross-examination and throwing a copy over the table to your opponent without ever having mentioned their existence beforehand. About producing the authority without disclosing it. About altering your case to fit what the Judge has previously said and discretely discarding the evidence which you had said you were going to call until then.

If you are lucky, someone will ask you why you did those things, you will have a sort of explanation – usually based on inexperience – and judgment will be reserved. If you are unlucky or if you do it more than once the probability is that word will go round. If you are very junior someone might mention it to your pupil supervisor or Head of Chambers. They might try and show you why you should not do it. They might write you off. If you regularly behave in such ways – and there is no way to hide it – you may be successful and make a lot of money, but professionally you will go nowhere.

Secondly, you do not take bad points. In every case there will be something you can say. In most cases there will be quite a lot. Your job is to review every point and select the good ones. Then your job is only to make the good points. This is more difficult than it sounds: you may not trust your judgement – maybe the point you reject is the best of all. The spectacle of incompetent barristers taking every available point is familiar – some clients (especially in crime) equate it with battling. Do remember that most criminal clients are not candidates for Mastermind. Equally, you may feel that you are going into the Courtroom naked with just your one point. Well, maybe you are but that is likely to be down to your case. The case will not improve by padding out your one good point with 3 poor ones.

Because this post is so long I am going to cut it here. I will post the remainder on Thursday or thereabouts.

New Tenants’ Survival Guide Part 1

Congratulations. You have made it, you are through the door, your feet are under the table, your head is in the clouds, your eyes are gazing on a distant future and your ears are burning.

Now what?

There are two traditional matters to concentrate on, and one brand new one. This post will deal with the first traditional matter.

That matter is the external ladder which you must climb. You have to build yourself a practice. Traditionally this came from doing other peoples’ returns and devilling. Now it also comes from being part of a team. If your Chambers is highly specialised there may be only one team. Otherwise, you should try and join every team going. You won’t know what you like (you may have an idea) until you have tried it. You are trying to maximise your exposure to work. Do everything once and the clerks will always be able to rely on your previous experience. The best time to do something for the first time is very soon after call. There are some exceptions to this rule: for example, soon after call isn’t the best time to argue that proprietory estoppel point in the Supreme Court (never let it be said this Blog is not up to date). But as a rule of thumb, it works.

You should also be the junior tenant who likes to say ‘yes’. Your clerks will not thank you for ‘well, it’s not really my field’, or ‘I don’t feel comfortable’ or (God forbid) ‘I’m sorry but I’m too busy’. Of course you’re uncomfortable. Your comfort envelope is hardly big enough to put a stamp on. But it will not grow unless you are prepared to stretch it. You have more time than you would believe (hard though it may be to accept, new tenants are barely working compared to the hours they will have to put in if they take off) so use it: swot up on new topics, go and see things being done in Court and read law reports. Then say yes to whatever you are offered unless it is really laughable. You should be able to judge what you should and should not take pretty quickly and your pupil supervisor, who should have a good idea of your capabilities, will help you.

You also need to impress your solicitor. The solicitor is more important to you than the lay client, who may well only ever need to consult you once. Even more important, if you are doing crime or pi, is the solicitor’s clerk (or paralegal as they now tend to be known). This is the source of your work. Be nice; be polite; be interested; know the name; ask about the children, the tomatoes, the morris dancing, the philately – whatever it is. Do not, as I have heard being said of junior counsel, be not worth briefing ‘because X’s head is so far up X’s bottom that X would not hear anything I said’.

Do what you are asked to do. Ring up after cases and tell the solicitor what has happened. Provide Advices and Opinions in double quick time. Give you opinion when asked – do not hedge it with a University type answer.

Constantly review your own performance. Do not sign the paperwork off until it really is as good as you can make it. The drink will wait. Dinner will wait. The love fest with the new significant other will wait (although, as rather too many barristers have discovered, the significant other may not). Do not put the brief away until you really do know not just what your submission is, but how you are going to put it and in what order.

But this is to shade into the next topic, which is how to climb the internal ladder. The final (new) topic is how to work as part of a team in Chambers. So, as they say in all the best cliffhangers:

To be continued…

An Invitation

I got a pingback from Charon’s blog and went to look. I discovered that my ears should have been burning, although, oddly they weren’t. Bang goes that theory then.

What was said was this (all quotes include exact spelling and punctuation):

I discussed my views last night with other members of Chambers. One person called SM’s blog an as arrogance and always putting the Bar down; another person said (without any prodding from me) SM by posting an attack on Chambers is being defamtory, bringing the Bar into disrepute and shows an extreme lack of judgement. I posted some time ago SM always puts the Bar down this is just another example of it.

Maybe you will get off the student bandwagon of it is everbodies  fault but mine that I can’t get a pupillage and reconsider your stance.

“The debate needs to happen and it will”. Where? On a blog with anonymous posts from anonymous disatisfies students who cant find a pupillage and want to blame everyone but themselves. And where do you think your so called “debate” will end up and what do you think will be the end result of your “debate”? This isn’t a debate – it is a bunch of grumbling students who as I said blame everybody but temselves for their failure. Of interest is that when in your “debate” one student resorts to swearing to which you seek to mimic.

I want to make a number of points clear:

1. The above was not posted on my blog and no one has emailed me with it either. That is inimical to real debate and, to my mind, suggests other motives.
2. An objective look at the Blog – perhaps starting with the post ‘Why I Want to be a Barrister’ (which is the most viewed post on the Blog) will, I think, demonstrate clearly that I love the Bar and being a barrister, and believe that we perform a vital function in a free society. Nor, by the way, do I remotely agree that this is like any other job when sometimes you like it and sometimes you don’t. I regard it as a vocation and I have never – in 23 years -  woken up and thought I didn’t like what I do.
3. It is not putting anything down to give a view which encompasses the good and the bad. If you really love something there is no need to pretend that things are other than they really are.
4. Everyone is entitled to their own view of the value of the Blog and what I post. This is a profession where you have to back your own judgement on a daily basis. There is nothing official about the Blog: I don’t ask what I can say and I don’t seek guidance. If anyone really feels it brings the Bar into disrepute, the usual channels are available to them.
5. I would welcome competition. I get nothing from this – I refuse advertising and commercial link-ups. The Bar has been good to me: a huge number of people at the Bar have helped me throughout my career, and continue to help me when they did not, and do not, have to. This is what I do to honour that behaviour. That there is no competition is just how things are – but criticism about what I write might fairly be looked at in that context.
6. I detect no bandwagon of students complaining. On the contrary: the number of pupillages has gone down; the number of applicants have gone up; the cost has gone up. That formula should logically lead to resentment and frustration. What is noticeable is the extent to which it has not. The complaints voiced here (and elsewhere) are about particular behaviour. They can be – and they deserve to be – treated on their merits, rather than being made the subject of a non-particularised attack aimed at diminishing all of them.
7. That a confident profession wishing to inspire public trust would be prepared to debate its use to society in public is something I take as a given. We are nothing if we are not trusted by our end users and potential end users. This debate merely extends that principle to our own behaviour to aspirants. It is neither a new departure nor a particularly remarkable thing.
8. Where I do depart from regular debate is in permitting anonymity. That, of course, is open to abuse, which is why the post identifying particular Chambers makes it clear that these are subjective views and offers a right of reply (which no one has yet asked for). I take the view that people are more likely to express themselves freely when granted the right to be anonymous. Looking at what has been said by the various contributors it appears that I am correct in that assumption… I rely on the reader to sort the wheat from the chaff.
9. It is important that aspirants do express themselves freely, because the nature of the system under which they formally labour is that they cannot really do so. I believe that the Bar thereby misses important feedback, which would assist it to be more responsive and even fairer than it currently is. The risk of damaged egos is less important. The risk of unfairness and duplicity is offset by the right to reply.
10. Because it is difficult to assess the value of anonymous comment it is entirely conceivable that the Chambers named by particular commentators might simply ignore what has been said. Equally, they might chose to think about whether anything said could be justified. It is up to them.

The invitation referred to in the title is to those who wish me to think about what they say. Unlike student applicants they are in a position where they need not be concerned about what anyone thinks of them: they have already made it. And they have the best interests of the Bar at heart.

I invite them, therefore, to the conclusion that they should email me with their comments about the way in which the profession should treat applicants, the best way to deal with the sort of perceived (or, perish the thought, actual) problems that have been expressed below, and the value to the profession of not discussing these difficulties but simply leaving them to fester. Those emails should, of course, be in the real names of the people who have these concerns. I will publish – uncut – what I receive. Then everyone can judge for themselves.

All barristers are familiar with the issue of whether they will put their name to a particular submission. If they won’t it can be safely assumed that the submission is a poor one.

Wall of Shame: Buttress of Acclaim

Sometimes what you tell me is distressing. The treatment of applicants by Chambers is one of those times. There are simply too many stories out there of people who are notified of failure very late or not at all. The rudeness is unacceptable and the disorganisation thus implied is incomprehensible. There are also too many refusals to provide feedback when it is asked for. You deserve better.

List the defaulters below. I will publish a list. And do feel free to say what you think.

And – in deference to Barboy’s excellent idea – please feel free to accentuate the positive and list those Chambers who have told you what they were going to do and actually done it.

Caution – Handle With Care

Can I just put in a plea for you to help each other, as you go about the painful, frightening and competitive process that is pupillage selection ?

The rules for all Chambers – whether in OLPAS or not – are clear. No offers can be made before 930am on 30th July and every offer must stay open for 14 days. Chambers not complying with those rules are cheating. In doing so they prevent the level playing field to which you are entitled. Particularly, early offers can often pressurise applicants into accepting the place. There is no way of knowing whether every interviewee has even had their interview and the successful candidate will often cancel interviews elsewhere, which is not only unfair to the other Chambers (I suspect most of you aren’t overly concerned about that – and neither would I be if I were you) but also means that an interview slot has been wasted.

Offers that stay open for less than 14 days (known as exploding offers) obviously distort the competition, place applicants under undue pressure because they may not yet have heard from everyone before they must decide and simply encourage more Chambers to behave in that unacceptable way.

If this happens to you, or you know of it: or if you know of something else which is obviously in breach of any equality and diversity standard that applies then please ring the BSB. If you can’t face that, then please tell me. You can report it to me anonymously if you like but I would prefer not. I will honour anonymity requests even if I know who you are and I will not ‘out’ you to anyone without your express permission. However, eliminating these practices (and the Bar does know they go on) is the easiest way to ensure that the system operates as fairly as it possibly can, for everyone. The profession owes you that and you owe it to yourselves. So, please let me know and I will talk to you about it and – if you agree (but only then) – steer you to the right people to whom to make a report. The report itself can also be confidential – you will not be putting your career on the line.

Ultimately the BSB can prevent a pupillage offered in breach of the rules from being registered. That is a blunt weapon however, because it adversely affects the person who is least responsible (although you would, plainly, be complicit if you know the rules). My preferred solution is to compel Chambers in breach to offer double the number of pupillages the next year, all remunerated at the highest pupillage award offered in the last 3 years by those Chambers. That would, as the Mikado says, make the punishment fit the crime.

Let me know. Don’t keep cheating a secret.