Life at the Bar · The Future

New Tenants’ Survival Guide: Part 2

windturb03The 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.

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5 thoughts on “New Tenants’ Survival Guide: Part 2

  1. Sorry for plonking this on an unrelated post.

    Hi. I have a question I hope you or one of your commenters might be able to answer. I’m planning on going down the GDL route, and am looking into clinical negligence work. However, with my legal knowledge only just beginning to bud I am finding it hard to imagine what the difference is between clinical negligence and professional negligence in terms of the legal areas involved. Is it not the case that both practice areas focus on the same questions in the law of tort and contract? Why is the difference between negligence pertaining to health professionals and the negligence pertaining to solicitors, say, considered of a different order to that between the negligence of solicitors and the negligence of surveyors? Is it the nature and extent of the profession’s regulations? Obviously I’m thinking about how to target applications, as well as the more abstract question, and so I’m keen to understand if I should focus on one or the other, or if one could quite reasonably with an intent to focus on both areas. If anyone could help me with this it would be highly appreciated.

    By the way, thanks very much for the blog, it is extremely useful.

  2. I find myself casting my mind back about 23 or 24 years. I was chatting to a number of quite senior barristers among whom was a man who made a comfortable living practising almost exclusively in the Magistrates’ Courts. He would deal with appeals in the Crown Court in his own cases but his bread-and-butter work was before magistrates all over the country.

    He was about 20 years’ call and very competent. On being asked why he chose to work on relatively small cases he explained that it was what he enjoyed most.

    On the civil side there are plenty who like to work before District Judges and Masters rather than conducting larger trials before Circuit or High Court Judges. Often they are perfectly capable of dealing with larger cases but they just feel more comfortable with short matters and enjoy their practice all the more for it.

    The internal ladder is important only for those who wish to climb it.

    What is important for all is that they follow the two specific points made in this piece – don’t cheat and don’t take obviously bad points. Whether or not you wish to climb the greasy pole(s) to silk or the bench, if you do not follow those rules it will harm your practice.

    Your instructing solicitors need to know they can trust you to present the lay client’s case in a manner that will appeal to the tribunal. Sharp practice and flogging horses that died long before the starter raised his flag can only reduce that trust.

    First and foremost, practice at the Bar is about presenting cases in the most appealing way. The possibility for personal advancement is a consequence of doing the job the right way. Indeed, it is almost impossible to secure advancement unless you do the job the right way. But no one should be discouraged from coming to the Bar because they think they might not want to take silk or become a judge, plenty of us have had highly satisfying practices (and scraped a modest living) without once giving serious thought to silk or judicial preferment.

  3. In answer to Mr Patocka, the primary difference between clinical negligence and other areas of professional negligence is the gory photographs.

    The applicable law is essentially the same although, particularly when defining the necessary standard of care, it is perhaps more closely defined for medical professionals than for others.

  4. Your point about people who do not wish to climb the internal ladder is perfectly true (and actually appears in the second half of the post. On reflection I should have moved it up).

    There are plenty of really competent lawyers who find the human situations and personalities far more interesting than the law and regard ‘big’ cases as no more interesting and far more stressful. You are quite right to point out (gently – thank you) that such choices are entirely reasonable.

    Such people tend to make good Judges – possibly because they are not so engaged in the winning and losing. Very few Judges are poor because they are incompetent – normally it is because they cannot leave the important decision to the jury. However, whereas in previous systems people with judicial potential were ‘tapped’, nowadays it is all applications and competitive testing. That means that your laid-back soul, interested in people is unlikely to apply.

    I don’t regret the passage of the old systems of patronage. I do regret that we are more focussed on fair systems than on systems which get the best people for the job. That is one of the downsides of the search for transparency and it is the fault of individuals rather than of the concept.

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