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.