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

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…

Crystal Balls

As the recession comes to an (apparent, so we are told) end, we find ourselves in interesting times. Perhaps the most pressing question for readers of this blog is how the need to repay the mortgage we took out over our own future will impact upon legal services.

This will be different for publicly and privately funded work. Publicly funded work will, I fear, have to bear its share – and more – of the overall downturn in public expenditure. Expenditure on legal services is not popular with voters, who tend to assume that everyone is guilty and that they are paying for cunning lawyers to enable these people to get away with it – at least until they are these people. The same may not apply to family work, but both crime and family have the further difficulty of the civil service’s attitude to barristers generally, which is politely described as incomprehension regarding the scope of our job and its responsibility (I have heard it called much worse), and the consequent desire to link our earnings to, say, the level of a civil servant. The fact that most of us work a 70+ hour week tends not to be factored in here.

It seems to me inevitable that the current decline in the investigation and prosecution of fraud will accelerate. I am not talking here about the SFO’s cases, although it would not surprise me to see a rethink there either. I am talking about the local type frauds which are enormously expensive to investigate and prosecute and where there is already a tendency to ask the alleged victims to provide the evidence themselves. As regulation is beefed up I foresee the investigation and prosecution of regulatory breach as being increasingly passed to the regulator (funded, of course, by the institutions and professions which it regulates), with the primary penalty being the equivalent of being struck off. It may then be that the confiscation regime is extended so that a regulatory finding can form the basis of a confiscation.

Similarly, the government will periodically renew its efforts to abolish trial by jury (expensive) and to limit the offences which can be tried in the Crown Court (expensive). Expect the idea of a fixed penalty for minor offences to be re-introduced (cheap). The guiding principle, although the use of that word is ironic, is the cost of the exercise, not the reliability or justice of the result. The one thing which would surely bring down the cost of criminal justice will probably not be discussed: that is the legalisation of drugs. I am not taking a view here, but drugs are behind a substantial amount of crime, well over half of all drugs users regularly offend and we then pay to prosecute them and incarcerate them. Providing drugs on prescription may be cheaper.

By the same token I would expect support to the challenge of government decisions to be reduced. These are already unpopular in Whitehall, with the proposition that the government may act unfairly being treated with surprise edging into disdain. The fact that challenges cost money will be a ready made excuse to restrict the money available. The challenges themselves are unlikely to be abolished – we do not yet see quite such an overweening sense of infallibility – but the ease of making them will increasingly depend on our willingness to work for free. The exception is challenges to immigration decisions: the government has already tried to abolish these and I expect them to try again.

In privately funded work, there will be a shift from an hourly rate to a fixed price, as clients try to keep expenditure to known limits. How we negotiate the rate for a task which is often unknowable at its outset will be an interesting challenge for barristers and their clerks. As alternative business models take hold there may be scope for contracting out various parts of the work. You may find yourselves able to work for Chambers as a legal researcher to a far greater extent than currently.

Expect professions and institutions paying for their own regulation to try and control the legal fees of those thus engaged, or to seek to ensure that costs recovered by a successful individual be limited. In my view one of the challenges for the Bar is to seek to become involved at the stage of prevention rather than cure. This is currently largely left to solicitors. There is no reason why it should be.

Finally expect professional regulation to begin to examine competence. We have vigorously resisted it but in my view the pressure will become unsustainable. Firstly because we will have to pay for our own regulation, so that my mistakes (not that there are any, obviously) will cost other people money. Secondly because the Bar will need publicly to demonstrate competence across the board in order to survive. Thirdly, because it provides a way to ensure that those ensconced in place do not take undue advantage of their position to prevent new talent obtaining its deserved slice of the pie.

Madame Myerson foresees a reduction in the numbers in independent practice of around 25% – 33% in the next 10 years. Let’s hope she is just wrong, rather than being Cassandra. For those of you about to start the BVC, it’s as well to know what you are going into.

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.

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.

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.