Filling in Time

Below is an email (published with the writer’s permission), which reflects a not uncommon problem. A selection of interviews pre BVC, which suggests that there is a reasonable chance of an eventual offer, but the prospect of a post BVC year to fill before beginning.

Dear Simon

I’ve been reading your blog for a while and it did say we could get in touch…

I finished my law degree this year, and have just been through my first OLPAS round. I was put on one reserve list, but ultimately got no offers. I know this is not uncommon, and should really have been expected, but it still comes as a bit of a blow. I do think I have a reasonable chance of getting pupillage eventually, and will not just be wasting my time and money on the BVC, but it appears that I will probably have to have a ‘gap year’ post-BVC now. I think I would feel a bit better about it if I had some idea of what to fill that year with – I would rather get some sort of relevant/interesting work than just get any old job, but I do need to do something that pays the bills; I thought you might know of some options. I believe paralegalling is the standard option, but I have heard of people struggling to get paralegal work as they are ‘overqualified’. A friend has recommended the Law Commission, but I’m not exactly sure what that would involve.

In a sense, of course, the answer is that if you have pupillage it doesn’t matter and you should simply make as much money/have as good a time (delete as appropriate) as possible. Or your Chambers-to-be may have some recommendation or requirement. But there is also the possibility of another season in which you make the play-offs but don’t get promotion, as all Leeds United fans know.

On the basis that what you want to achieve is to shine up the CV it would be sensible to consider where you are applying. Paralegaling is fine providing it is relevant to your pupillage. Working as a commercial conveyancer isn’t going to help if you are doing personal injury work. You would not be overqualified if you already had a pupillage – sometimes this seems to be an excuse for not taking people on in case they never leave. But unless you really think that you need to prep yourself up to know the technicalities of your chosen area or that the firm for which you work will brief you, I don’t myself see that paralegaling has much to offer. It seems to me to be the default choice because it is (or was) relatively easy to get a job and that the job is vaguely legal. Most paralegals are anonymous to anyone with a brief to give away to a junior tenant.

The Law Commission is a good idea but your academics need to be good. It concerns legal research and policy, which always helps to broaden a CV. Because it is a competitive appointment it looks good. It is not currently recruiting, but keep an eye out here.

A temporary post with the government would also appeal. There are some of these around and they can be accessed here.  You could also try Justice (go here) and Liberty (nothing currently available but keep an eye on it here), the CAB etc. All of these would look good on a CV because the organisations are broadly respected (yes, even the Government) and the work is likely to be interesting and challenging, at least in the perception of an outside observer.

Working abroad would be good if you could do some human rights work – death row, or even the UN. This shows a commitment to the law and its processes and – as the vast majority of Barristers recoil from the death penalty with an almost visceral disgust – it also speaks well to the reader of the CV. Probably the best known organisation is Reprieve and they can be found here. The UN page is here.

If you are interested in crime you could always try the Legal Services Commission. Most lawyers have certain views about them but the inside track would always be helpful and, providing you don’t spend your pupillage interview defending the reason why Barristers are not officially allowed to be paid to think about a case, you will be ok.

Finally there is that good old-fashioned standby – ushering. The pay isn’t great but you get to meet loads of people, you learn a lot about the job and it’s interesting. It gives you something which is just as important as substantive knowledge – an idea of how the system impacts on those who have to use it and an ability to talk about the law as if you were on the inside. It should also get rid forever of some of the airs and graces to which certain members of this great profession occasionally become prone. See your local court centre for details.

I have not dealt with post graduate degrees because I have already posted about them here and here.

The original correspondent – who would prefer to remain anonymous – got a sneak preview, which seems only fair.

Summing Up

The last few posts have dealt with the help the Bar should give applicants, the way in which applicants should be assessed, the faults of the current system and the merits of unfunded pupillage.

Unsurprisingly, there is little consensus – although it would be fascinating to know the ages of those asserting that ever more sophisticated and expensive systems will improve matters against those saying that ultimately good interviewers can judge the right candidate.

There is, however, consensus about 2 things. Firstly, the current system isn’t working. Secondly, knowing whether one had a pupillage before starting the BVC would be a good thing.

As far as the first point is concerned that is rather taken as a given. I acknowledge that the system benefits the providers at the expense of the students, but repeat that no one forces students to take the BVC. The points made about research and evaluation of your own chances are valid and the pressure to change the BVC is dissipated if comments appear to be as much self-interested whining as genuine concern. On the blog it’ s easy – I allow anonymity and I have no power to change anything. If I were looking to seriously evaluate some of the comments below, I would insist on knowing what chance the commentator has of pupillage before I took the comment on board.

There is a tendency for two issues to be wrapped up together when people talk about the BVC. The first is what the BVC should teach. My own preference is for an approach which asks the profession what those coming out of University lack by way of skills and knowledge. The BVC should fill the gap – unless it appears that the Universities are not delivering on key areas. The second is how the students who have completed the BVC are selected for pupillage. One option  might be to make the BVC much, much, harder. Those graduating from it would then have an imprimateur which would stand them in good stead – and much reduced competition. Just as University results make a huge difference to prospects, so too would the BVC grade (at present it barely matters). Of course, the risk of wasting money would be sharpley increased, but I wonder how long that would last. Once word got round that you may actually fail the BVC, I have a hunch that not so many people would apply to do it.

As to the second matter, I don’t know when the system slipped. When I was called, pupillage before the BVC or to start the year the BVC finished was the norm. Now the pupillages awarded tend to be for the September or October the year after the BVC finishes, leaving a number of people with a year to fill. As many of you have pointed out, it also leaves the gamble as to whether to do the BVC to be made without any idea of your chances.

I think the Bar should do something about that. However, the difficulty is that in order to interview BVC and pre-BVC candidates without preferring the former one would have to strip out of the interviews anything covered by the BVC but not at University. That renders the question of what the BVC teaches either irrelevant or – depending on your point of view – so taken for granted that it isn’t worth asking questions about. That was, of course, one of the complaints about the old system and is one of the reasons why I am an abolitionist. A practical way of achieving this, however, would be to move the interview period back to September, for pupillages the next September. Of course, that may be unnecessary if the BVC were made more difficult. The BVC would then add real value and people may not want to apply for pupillage until they knew their chances. Moreover Chambers would, perhaps, not want to risk being left without a pupil. But it may be that a smaller cadre of potential pupils would not mind filling in a year.

As to interview techniques, the discussion in the posts below is exhaustive – or has exhausted me. I don’t know a single barrister who doesn’t do the best they can. I believe that we can learn more about how to interview effectively. I don’t believe that there is an effective replacement for a decent interview by the people actually doing the looking.

Distance Travelled: Cost Incurred

I think the distance travelled issue requires some explanation. Pupilpedia has commented on the post below:

If I understand your point about being driven the distance as opposed to walking it, then I, like James  C above, strongly disagree with the sentiment. I would appreciate you outlining further what you mean (apologies if I’ve overlooked it somewhere), because the arguments against seem overwhelming. I can only assume that I have missed something if the following example is a result of your suggestion:
my parents are successful, and send me to the best possible school, I then go to Oxford to study law (coincidentally the same place that my father studied law) and apply for pupillage. Someone else, who has been to a terrible school and got to Oxford to study law, despite his father not attending university at all and currently being on jobseekers, also applies for pupillage. I turn up to interview knowing and understanding things to a similar degree as the other candidate. I am not favoured because I haven’t travelled as far as he has. The logic being that he has worked harder, used more brain power, whatever, to get to the same position as me.

This is not quite what I am saying. This suggests that the distance travelled is the only issue. I do not think anyone is suggesting that. What is being suggested is that distance travelled should be a factor. So it should. The logic is not that the other person has worked harder or used more brain power. The logic is that he can be justifiably regarded as having more potential. Why? Because without any advantages he has got himself to the same place.

My father was a Judge. I know for a fact that lawyers’ children grow up with an instinctive knowledge of intangibles. They know how the relationship between a solicitor and a barrister works. They know how Chambers tend to operate. They know a bit of the jargon. They have met other barristers, solicitors and Judges and feel comfortable round them. They know what A levels to do, what Universities to apply to, that mini-pupillages are a requirement and so forth. These things apply to a lesser extent to those who have gone to good Universities and had middle-class upbringings. It is foolishness not to recognise it and, once it is recognised, it needs to be factored in. Otherwise, the risk is that potential is not measured – all that is measured is comfort levels. The Bar is a career in which you are only within the your comfort zone if you have stalled. It’s how you do outside it that matters.

Pupilpedia goes on:

Quite apart from the fact that it would be absolutely impossible to measure the relative distances travelled, it would be waging a class war. Couldn’t you look at it conversely and say that it is ME who has been disadvantaged because I have not, by unhappy chance, been given the same opportunity to demonstrate that I am equally as capable of coming from a deprived background and being successful? I may have the same potential as this other candidate, but I have not been allowed to show it, yet. And what if a close relative of mine died just before I took the exams? Or my very successful father who sent me to the best school used to abuse me? How would that be taken into account in measuring distance travelled? As far as I am concerned, that model of distance travelled should have absolutely nothing to do with assessment. It seems to be nothing more than discrimination.

I don’t regard the distance travelled as demanding a precise measurement. It is one factor to be taken into account. It no more requires a precise measurement than whether the Oxford student went to a decent college to read law, or a less popular one to read theology (although the chances of entry are very different).

Nor, in my early middle-age do I see myself as a class warrior. This is about equalising things. If you cannot show your potential in terms of academic achievement (and I must say that a first class degree would show exactly that in my book – they are hard to get regardless of background) then find another way to show it. Climb Everest. Organise a successful charitable project. A death in the family is obviously a different issue and academic tutors can and should speak to it.

The question of a different system has largely been dealt with in the comments but I want to just pause for thought regarding Managechange’s suggestion:

Psychometric profiling has been used extensively in the commercial world for recruitment, selection and development for many years; particularly for professional appointments requiring high calibre candidates.

I would also suggest ‘People Specifications’,  ‘Job Specifications’, ‘Personal Attribute Requirements’, ‘Chambers Profile’, ‘Chambers Requirements’, a published ‘Interview Structure’ etc, etc.

The BVC students are already complaining about cost. Who on earth would pay for psychometric profiling? People specifications is a nonsense from an office based world (where it might – although in my experience as counsel for quite a lot of commercial enterprises over 23 years, it does not – have some meaning). Job specification is something that the prospective pupil presumably knows. Personal attribute requirements sound like people specifications but otherwise they mean you ought to be able to work efficiently and get on with people. If you didn’t know that was necessary please don’t do the BVC. Chambers profiling is something we already do – otherwise pupillage applicants don’t know who to apply to.

Chambers requirements are a good idea and so is a published interview structure (I would also publish the assesment structure so people know which things matter most). Finally Managechange:

Most importantly I would suggest training for interviewers.  How much training does the average Bar interviewer have on how to interview? (nil) How many times will a Barrister apply for a job after qualifying? (once or twice after 15-25 years) and yet they are the ones conducting the interviews!

I am training barristers twice this year between now and pupillage interviews on how to interview and how to approach equality and diversity issues. That is organised by and for my Circuit by a man (presumably one of those out of touch barristers so famous on this blog) who has just become a Judge. Moreover, every application for panel work now takes the form of a formal application so if any barrister wishes to work for the government or a local authority or go up a CPS grade s/he will have applied in writing. Moreover, any barrister will have asked questions in a formal situation whilst looking for specific points on many occasions. Many senior members of a pupillage committee will, whilst sitting,  have assessed people for honesty, accuracy, ability to deal with issues and overall impression – a job which the public trusts them to do well even though they do not know one end of a Personal Attribute Requirement from another. I agree that these things are not interviews but I’m not sure that interview training adds a lot to the experience gained from examining a witness.

These “solutions” are expensive. Chambers do not pay any member to do this. Maybe they ought, but until that happens it is a labour of love. Proposing expensive solutions from the commercial world – however snappy the titles – is simply unrealistic. The cost would have to be passed on to those applying. Nor are they necessary. There is no evidence that the Bar consistently picks people who are no good.

Once one acknowledges that the Bar’s choices are consistently acceptable we are talking about improvement. I simply do not understand how people can simultaneously advocate expensive professional assistance, whilst rejecting a straightforward assessment of potential based on distance travelled as a factor.

Improvement would involve extending fairness and ensuring that those without hope were adequately warned (and ideally rejected) before they spent their money. It involves transparency and better feedback from interviews. It also involves applicants acknowledging the risks they are taking and accepting failure with the same grace with which they would accept success.

Keeping On Keeping On

The last post attracted a lot of comments. LawMinx makes a fair point when she writes:

Having got down, last year, the nitty gritty at one particular chambers where I was one of the last four bieng considered for three pupillages, only to be rejected at that stage, I must say I feel pretty damned, and found it a tremendous confidence knocker. While the whole process is pretty soul destroying, from BVC to Portal and back again, one ultimately rises and falls on one’s own merits. Thats Life – but when wounded by it even the most stalwart and philosophical are never going to think it fair, unfortunately………..

I accept that, and I understand that complacent comments from those already there aren’t welcome.

On the other hand, I have repeatedly stressed the need for change and fairness as well.

What I have discerned from the comments on the post below is an unhappy willingness to focus on the demerits of the system rather than the merits of the individual. There is a reluctant acceptance that even in a perfect system there will be those who do not succeed but the emphasis is on the proposition that failure is the fault of the Bar. There is also an unhappy whiff of those prepared to agree with any change – providing it is not one which adversely affects their own chances.

I have difficulties with that approach. Firstly, I don’t think it makes a good barrister – this is a job which puts a heavy emphasis on personal responsibility. Secondly, it fails to acknowledge that the majority of barristers are bothered about applicants – people can perfectly properly take the view that the professional and public interest is served by maximal competition and the only ones who suffer under that system do so voluntarily. They can also take the view that wholesale change is not required, without that meaning that they are uncaring. Thirdly, it fails to appreciate tthat no system is going to be entirely fair – particularly when it must embody strenuous competition, vocational training, strict selection and the means to pay for it. Fourthly, it fails to acknowledge that some pretty outstanding people have emerged in the last few years – even from the shambles that the unreformed BVC can be said to have become at one stage.

No one makes a BVC student become a BVC student. It is striking how few of the comments suggest that, had the author only realised what being a barrister involved and how tough it was, they would not have paid their money. That suggests that the profession is conveying a realistic idea of the challenges involved in obtaining a pupillage.

I think the focus must be on getting the very best people. Because access to the profession is perceived as privileged that necessarily involves diversity issues. Otherwise we don’t get the best people – we only get the best people who have thought that the Bar may be for them. That’s why, in my firm view, we should measure distance travelled and that’s why an applicant whose parents have already succeeded off their own bat hasn’t travelled the distance. This is about how far you have walked – not how far you were driven. It involves competition because competition widens the pool and challenges the applicants. It involves fairness and transparency because that is how we retain the public’s confidence and create the pool from which we want to chose in 20 years’ time. Fairness includes not taking advantage of those who have no realistic chance. That cannot mean preventing them trying, which is to treat them like 3 year-olds, but rather to make sure that they understand they cannot expect to succeed. It also involves making the training element something of genuine worth – whilst remembering that it is training for the Bar and not for anything else.

The profession is actively engaged in this discussion and a large number of people give up a large amount of their time – largely for free – to deal with it. It is wrong to confuse results you don’t like, and outcomes unfavourable to an individual, with a lack of effort or willingness to make changes.

Moving On

As Mr Foster seems to have stopped talking to me I thought I would move on to other matters. Obviously, if he contacts me again I will let you know.

There are some issues which arise from the whole OTC (Obvious and Tangible Cheating) saga.

Firstly, as I have already said,  more needs to be done to assist students with things such as applications and CVs. That is not to say that students should be helped to write things such as letters and CVs. The Bar demands judgement as perhaps its primary quality and the selection of what you think we ought to know is quite properly viewed as a test. That is why having someone write your letter for you is wrong. But the Bar should offer more transparency. There is no reason, for example, why Chambers should not publish the qualities they are looking for, with a view to assisting applicants point out those qualities in applications. In terms of judicial appointments and silk this process goes under the dreadful title ‘competencies’. But the idea is a good one. I will deal with this in more detail in due course.

Secondly, a culture in which people really don’t see anything wrong in what OTC are doing is one which needs reform. That, I think has to start with educational establishments and it should take the form of a simple one strike and you’re out test. Cheating should be looked for, placed on the permanent record of the student and should be a required disclosure to Universities, post-graduate providers and Chambers. That does not need to equal expulsion. If there is some reason (incipient mental breakdown being a potential candidate) then the cheating might go unpunished – at least on the first occasion. But the proposition that OTC only offers help is bunk. Chambers should be asking applicants whether they have ever paid for such ‘help’. They should be kicking out anyone who cannot explain why, or who lies about the answer (at whatever stage they have reached). Chambers should also be reporting any pupil or tenant working for OTC to the BSB. The proposition that you can’t defeat cheating is both defeatist and self-defeating.

I extend this to the writing of essays – whether by way of ‘model’ answer or otherwise. The test is simple: if the teaching isn’t good enough at your institution then you should be able to recover the cost of your payment to OTC by way of legal action for breach of contract. If you wouldn’t sue then you shouldn’t use what you’ve bought. Try working harder.

Thirdly, the sponsorship scheme offered by the Inns would – if operated properly – make a real difference to those who feel that access to the profession is lacking. I am not criticising the Inns here, but the sponsorship programme needs to be extended widely (especially in the provinces, where many BVC students now study) and properly used by students. Your sponsor is the person who could review your CV, offer advice on specialism, given a realistic assessment of your chances of getting where you want to go and provide basic advice as to Chambers to aim for. Most of them are willing to do all that – but you have to ask. So, if you haven’t got a sponsor yet, nag your Inn for one and then make – and keep – contact.

Fourthly, students have to take responsibility for themselves. I found some of the comments on the posts dealing with this issue deeply dispiriting. Yes, the BVC costs a lot of money – and in my (now publicly stated) view, too much. Yes, I agree that the teaching there is not all it could be. Yes, some people (quite a lot of people) are chasing a job that they simply will not get because they are not equipped to do it. But that state of affairs – although depressing – is not a giant conspiracy. It is a result of supply exceeding demand. It is all too easy to blame the Bar for this, but I’m afraid that my reaction is – grow up. You are adults for crying out loud. No one is making you do the BVC. Wicked Barristers are not going round your Universities with lies about the easy pickings to be had at the Bar. Most are saying entirely the opposite. If you do not inform yourself of the reality and you cannot take an honest view of your own abilities then, I am afraid, the problem is yours. The information is out there – go and research it.

Two subsidiary points from that: firstly, there will still be some people who are unlucky. The only thing I can offer – cold comfort indeed – is that sometimes life is like that. One of my fellow students at the BVC used to say “life’s a bitch and then you die”. There will be some people who have what it takes, work hard, set realistic goals and still fail. Whether that puts you off is, again, down to you. There is no guarantee of success. Secondly, what OTC and the like offer is a way out of that prospective failure by making you look like what you are not. That’s why integrity dictates that you don’t take what they offer.

Fifthly, the Bar urgently needs to find a way of measuring progress and potential, rather than just the standard reached and potential. The proposition that people are academically complete at age 21 is ridiculous. It unfairly discriminates against people who went to poor schools, or who mature later, or who don’t work until they find something they are truly enthusiastic about. There is a real need for research about how to measure the comparative distance from Eton to Oxford and from City of Leeds School to John Moores University (examples only). That requires the Universities to be up front about what they expect from their students from year to year. I would make this a priority because it is the only way I can see to truly open access to the profession. We ‘know’ that Oxford is a better University than (say) Cantebury. Why should we not ‘know’ the (intellectual) distance any particular applicant has travelled to reach the University at which they study?

Finally, if we are not going to replace the BVC with a different model – which is my preferred option – then the aptitude test proposed in the Wood report should be put in place as soon as possible.

A Plan For Legal Education

I have been thinking about this for some time (whether I have got it right is another matter).

The BVC doesn’t work. It costs far too much and it takes on too many people who have no chance of succeeding, thus depriving them of a lot of money they will never recoup. It teaches far too mechanistically and at a level which produces very little of value to the student. All pupil supervisors are familiar with the process of starting again or, even worse, ensuring that pupils unlearn some of the ’skills’ they have been taught.

Dump it.

Abolish funded pupillage as a necessity and replace it by selection on merit, supplemented by scholarships. Make two different categories of scholarships; one based on need and one on academic ability. Allow people to compete for both. Put the money in the pot labelled ‘need’. The other shcolarships will attract the prestige.

The worry about unfinded pupillage is that it puts middle-class applicants with parental or other support in the box seat. This is a bad thing. Prevent it by making Chambers publish their scoring systems for pupillage, subject them to random pupillage interview inspections, insist that discussions as to selection are fully minuted and subject the pupils to competitive examination (see below) leading to a judgment about what added value Chambers is putting in. If Chambers are not adding sufficient value, or are not embracing diversity, discipline and publish the names of defaulters. Supervisors are supposed to teach. If they do not, then they should not be protected.

Pupillage should start in October and April. Pupils should attend the BVC for a month prior to starting. There they should be taught the basics of drafting, opinion writing, ethics and nothing else. They should be taught by practitioners or others who are subject to random inspection with the results being published. Barristers are subject to exactly the same regime (read the law reports). Why should those teaching barristers be any different?

There should then be 6 months pupillage during which the supervisor and Chambers should provide experience in drafting, mock-trials/pleas/applications. Ethics should be reinforced, with practical difficulties being built in to the training. There should be a programme of further education (as all Barristers now undertake such a programme) which concentrates on substantive subjects identified by the pupil and the supervisor, with a view to getting the pupil up to speed on Chamber’s work. At the end of that period the pupillage should continue only if the supervisor and the head or deputy head of chambers are prepared to jointly sign a certificate of competence. To prevent this being the charade it can currently be, the signing of the certificate should be an acceptance of personal responsibility for the pupil for the next 18 months in terms of any further training identified by the BSB or a Judge. There should be an appeal system to prevent abuse. This can run via the Complaints Committee of the BSB.

Pupils should then take a further month to develop court craft, conference skills, diversity training and drafting techniques at the BVC. These subjects would be taught by practitioners and would fit around their practices. Judges would accomodate days out of Court. Every Chambers who wished to take a pupil would have to ensure that a fair proportion of its membership went on this rota. The rota would be quality controlled. Chambers who could not provide people of sufficient quality would not be allowed to take pupils. Nor (and this is the sting in the tail) would they be permitted to take further tenants of below, say, 5 years call. This would deprive them of a sufficiently important income stream to ensure they took training seriously. Judges would be expected to assist and their participation would count as a sitting day.

Then back for six months more pupillage as presently, with added training and an agreed plan to develop the pupil’s skills. Then a competitive exam leading to two scores – an overall one as at present, and a score reflecting progress made in the second six months, on which Chambers would be judged.  Then tenancy. Of course, a tenancy could not be guaranteed, but Chambers would get a reduced or eliminated payback if pupils were not kept on. That might get rid of the current unfair system where many pupils are taken on to compete with each other.

How would this be paid for?

Each pupil would pay £10,000. They would thus save money, compared to the current arrangements. The money would be paid over 2 years at the Bar by deduction from their earnings. Their Chambers would inject that sum up front in order to pay for the teaching required. If the Chambers taught the pupil properly then the money paid by the pupil would go back to Chambers. If they did not, then the money would go into a general fund, from which proper training would be paid for. Chambers would be deducted money or fined for breaching diversity policies, not applying fair selection procedures, failing to train properly etc.

Pupils who needed support before they earned for themselves would be entitled to an interest free loan from Chambers, set at a rate which provided basic accomodation, food and travel. That loan would be repayable within 5 years and would be capped at a maximum (which might encourage some sets to apply diversity rather more enthusiastically than at the moment and encourage applicants to focus on things other than the size of the pupillage award), but could be taken as and when the pupil wished. Chambers could afford this because they would not spend any money on pupils, save the cost of lending, providing they gave proper supervision. They could thus afford to pay a small sum per annum (say half the current minimum award) to a central pot which would be sued to ensure that the system was affordable. The BVC as it currently is would end. Pupils would be taught in London, Manchester, Leeds (it’s my plan, alright?), Cardiff/Bristol and Birmingham. That would mean that very small premises were required and it is possible that an arrangement could be made to utilise court buildings – many courts don’t sit every day.

The profession would be able to teach properly. Chambers which were good at teaching would attract the most able applicants. Those bad at teaching would be discovered, and pupils and junior tenants protected from them. Pupils would save money. So would the profession. People without hope would not pay out.

Thoughts welcome.

Tenancy and How to Get it Part 2 – Advocacy

This is a partial answer to how you communicate your abilities during your pupillage. It also, I hope, goes some way to address the fears of the BVC students that their advocacy is ‘a trainwreck’ (a direct quote – and whoever originated that description is showing real talent in my book).

The job is popularly supposed to be all about advocacy. Every barrister dreads the mini-pupil who says something along the lines of “my Mum and Dad thought I’d be a brilliant barrister because I was so good at arguing/could talk the hind leg off a donkey”. In fact, the job is more about judgment. What you are trying to do is present a case in a way which will appeal to the tribunal. The appeal has to be on two fronts simultaneously – the case must be grounded in facts which the tribunal accept, and those facts must demonstrate a legal entitlement to what you seek.

Neither of those things happen because the advocate has developed a fine line in high falutin phrases which sound awfully good in front of the bedroom mirror/admiring partner/adoring parent. Nor do they happen because the advocate is motivated by indignation/anger/intense desire for justice. They happen because a good deal of thought has gone into the following:

• What the law is as regards the particular point
• What facts are necessary to bring the case within the law as it is
• What the tribunal is going to feel about the submission that the law is x
• How such feelings, if they are negative, might be overcome by presentation of the facts in a particular way
• How to elicit the facts so as to demonstrate that they support the legal conclusion you propound
• How to deal with facts that do not support that conclusion or go the other way

Your preparation should leave you with a roadmap to the result you want. Within that roadmap there will be areas which are conditional on particular facts being found. There should not be an area which is conditional on the law being a particular construct unless you are doing something quite out of the ordinary (most decisions are a restatement of the law to a particular situation – very few alter the law).

It follows that, before advocacy – in the sense of the glorious full-on assault on a witness beloved of soap operas, BVC students and the tabloid press – is relevant, a lot of work has already happened. If you don’t do that work then your advocacy will be aimless, sloppy and have all the effect of a vicious attack with a wet tissue. A great many (too many) barristers believe that ‘work’ means knowing the case backwards. They memorise the witness statements, their client’s proof of evidence, and their own cross-examination (often written out on 24 pieces of paper).

If such preparation works for you then by all means use it. My own view is that it tends to prevent speedy reactions to the unexpected. But do not believe that this is the work required. The best proponents of this method do not make that mistake. The work goes into a quite different exercise – that of asking ‘but what if she says x’. Here, ‘x’ is the unexpected or unanticipated answer and it is unanticipated or unexpected because you have not anticipated or expected it. Because advocacy is primarily about thought and, in particular, thought about the following:

• The effect of your case upon the witness and the tribunal. You have to stand back and ask yourself how what you are saying plays. For example, you may be able to cross-examine a victim of child-abuse into an admission that their abuser loved them. This is not a success. It simply demonstrates that the abuser (your client) manipulated and exploited a victim who was incapable of formulating appropriate emotional responses because of the abuse. The Judge will think your client wanted you to take this path and it will make matters worse. The way to deal with this is to state in simple terms the proposition that you are aiming for, and then ask if it helps. If you think that the above example makes things better then you have no judgement. In such a case you want the child to say that the victim did not abuse them. If you can’t get to that point then the roadmap takes you to a guilty verdict.
• How you best elicit a particular fact. In a simple road traffic accident it is quite often the case that one party apologises to another. A large number of clients – and an even larger number of claims handlers – believe that this is the killer punch. It is not. A fool rushes in and, unable to contain their pleasure at having the defining moment in front of them, says, “You apologised after the crash, didn’t you?” A: “yes”. Fool: “That is because (or – if they are both foolish and incompetent – “I put it to you that is because”) you knew it was your fault, didn’t you?” A: “no, it was because the lady said ‘now I’m going to be late picking my grandchild up’.” It would be better to ask the open question of whether anything was said and, when the witness says they apologised, ask why. There are only three answers to that question. They are the one above or some variant of it, the admission of fault (which is then all the stronger by being elicited by open question),  and the “I don’t rightly know”. The first and the last can then be confronted with gentle questions which suggest that this is an excuse arrived at after the event. If the witness remains adamant as to their explanation then the matter can be the subject of the following questions, “you apologised for some reason unconnected to your driving? Did my client apologise? Did you not ask her for an apology? Is it only after the event that you offer us this explanation? Can you explain why?”.  That may be the best you can do, and be sadly short of a Perry Mason moment, but it allows you to suggest that the apology does mean what you say and that the attempts to make it sound as if it is not are late and unconvincing because they do not accord with the party’s behaviour throughout. In other words, you have a factual platform for your legal case and you have offered the tribunal a reason to accept your factual version over the other side’s.
• The impression you convey. Are you properly dressed? Have you stood up straight and not fidgeted? All of this is important: it is about how you communicate someone else’s case. Your appearance is about facilitating that process: it isn’t the main event. You need to be smart, clean and conventional. Try and eliminate the personal tics.
• The way in which you deal with your case. You must ask one question at a time and only one. This is easily tested: either get a friend to take a note or record yourself making a submission or examining a witness. The note should flow without difficulty. If you are making more than one point, or asking more than one question, at a time or if the order is all over the place then you aren’t doing the job properly. How do you make sure there is an order to things? Also simple. Write down your case in the order in which the tribunal will need to deal with things to get the result you want. Ensure that this order is rational (it doesn’t have to be the only rational order but it must be as rational as any other approach). Then ask your questions and make your points in conformity to that same order. Normally, chronological order is simplest and best. In a very complex case it may be better to deal with things issue by issue. Other approaches are rarely, if ever, justified save that an issue raised by the tribunal should usually be dealt with straight away. Silks in the Court of Appeal can sometimes get away with ‘I’ll come to that logically when I have developed this point if your Lordship doesn’t mind’. But only sometimes – and you can’t ever get away with it so don’t try.
• How you will get on best with the tribunal. If you know your Judge then this requires an honest appraisal of how you get on with them in Court – and why. There was a Judge (now retired) who very plainly thought I was too clever by half. Of course, you are sitting back and gasping in astonishment, but it is true. I thought the Judge was an over-promoted incompetent who had replaced hard work with prejudice and thought with knee-jerk reactions. Unsurprisingly, I didn’t have a good record before that particular tribunal: until I grew up and realised that, even if I was right, I was wrong. The job demanded that I adapted myself to the Judge. That, in turn, demanded that I worked on the basis that the Judge was right about me – unbelievable though that was.  I moderated my behaviour and the results improved. The unsettling conclusion that the judge might have been at least partially correct in his assessment was also valuable.
• What the reaction might be to a particular question or point. You need to have considered the other side of the coin in order to have an answer to it. I know people who essentially have a notebook with ‘if x then go to y; if a then go to d’ written out. I tend to keep that in my head. But any competent advocate has done the exercise.

When you have done that, you are ready to speak. If you are trying to be an advocate without having done this then, unless you are amazingly lucky, you will have a trainwreck.

How you put it all across is the easy bit. You speak slowly enough to be clear without being maddening. You speak loudly enough to be heard without being in breach of the Health and Safety legislation. You use language appropriately – the number of aspirants who think that pompous language is a good thing is staggering. I have concluded, over the years, that the use of language is a defensive thing aimed at demonstrating intellect and capability or ‘weight’, both of which things the aspirant thinks (often with good reason) that they lack. Don’t do it – it sounds false and adds nothing. Speak sensibly and only use long words if it really sounds like you. If you want to improve your vocabulary and use of English then read good literature, don’t learn a word a day and use it because it’s got six syllables. Sound reasonable, not outraged – less is more. If the other side really are arguing something outrageous the tribunal can normally spot it without you drawing yourself up to your full height and sounding like a third-rate actor auditioning for a fifth-rate production of a revenge tragedy.

Show a mastery of the facts. That is done by appropriately placed allusion to the evidence and the facts and knowing where those are to be found. The aim is that the tribunal should have absolute confidence in your ability to direct them to the relevant document or passage. It does not need a long exegesis on the four previous drafts – that’s showing off.

Pare it down. Less is more. Lord Salmon (of Sandwich – let no one tell you that Judges lack a sense of humour) once said that no case, however difficult, involved more than two key issues. Most have one. So how long do you think you need to talk for? If the Judge isn’t sure, but thinks you might be right, she can always ask you a question.

Never accept a departure from that standard. Barristers who say “it’s just a bail application/DJ’s appointment” are unfit for purpose. So are those who would rather go out the night before than get to grips with their work. So are those who say it’s all too hard for them because they aren’t really familiar with the law in the area. There are no excuses – there is only professional competence or professional incompetence. If your ego requires you to make excuses for yourself then do something else.

People write books on advocacy and this is necessarily short. But I hope I have covered the basics. At the beginning it is difficult. You don’t do well and you feel desperate and certain that you can’t do it at all. But we are talking about a skill. It is as foolish to think that you can master it in months as it is to believe that you can play Mozart’s Piano Concerto No 16 (well worth a listen) when you’ve had lessons for a year. It is even more foolish to suggest that you are the finished article when you begin tenancy – for if you are then it is only because you lack the capacity to learn.

The great thing for you is that the type of preparation I have talked about can be demonstrated to people who do not see you on your feet. Talking through likely issues in submissions or cross-examination can be relevant at any stage of the case, and can impress professional and lay clients at an early stage. It shows your supervisor or assessor that you are thinking like a barrister. And they might even help you do it.

One last thing: be courteous. Sneering comments about the rick that other people have made of the case serve only to cheapen you and to make more experienced heads wonder why you are so anxious to big yourself up or (if you have made common cause with the object of your comments) what you did to ensure the case was lost. Advocacy is lonely and judges are not always persuadable. Judgment is exercised on the hoof and many is the time that a rewind button would be of help. The test of the advocate is how many times they make the same mistake – not how unpleasantly they can critique other people. Advocacy is about sustained achievement, not about yesterday’s result. We all get nose-enders and, hopefully, we can laugh at them later. But those stories always come best from those to whom they happened – letting the robing room or common room know about someone else’s misfortune is the act of someone who lacks confidence in their own ability, or simply likes to promote laughter at the expense of others.