Life at the Bar · Qualities Required · Tenancy

New Tenants’ Survival Guide: Part 2 Concluded

324485957_51af679f14On 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.

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3 thoughts on “New Tenants’ Survival Guide: Part 2 Concluded

  1. At the junior end, good preparation is particularly difficult. I believe that the vast majority of new counsel will (if anything) try to over prepare.

    However, the problem is that junior counsel is often instructed to save cost. With that comes the late brief because the solicitor was trying to settle the case and avoid Counsels fees. In addition, a solicitor doing the case on the cheap often sends instructions (if you even get them) such as ‘Counsel will see the nature of the case from the pleadings’. If the bundle is poorly prepared, sufficient copies not created, it all falls on Counsel to get to grips with the case, copy bundles, witness statements and work out what is missing in a very short time period.

    I understand that the junior barrister needs a backbone and is on a learning curve, but the context in which they work is worthy of note.

  2. If I may, I would like to expand on one point in this article.

    Every barrister does his or her best to analyse the issues in a case and present their client’s position to its greatest advantage. But none of us has perfect judgment.

    Even the very best judges do not have perfect judgment, hence we have a Court of Appeal. And we have a Supreme Court with the power to say that the Court of Appeal got it hopelessly wrong.

    The High Court and Court of Appeal are not manned by idiots, the judges are very clever and, usually, careful. But they still get things wrong. The occasional duffer is appointed to the Circuit Bench but very rarely, most Circuit Judges are far better than the press they receive.

    If these people can assess a case incorrectly, it goes without saying that a beginner at the Bar can and will do the same.

    You must not worry about that unduly. It will happen to you as it has happened to every other practising lawyer through history. Don’t think it can be laughed-off, it is a very uncomfortable experience but it is not the end of the world.

    Your job is to do your best, to use your best judgment about how to present your client’s case. Fool yourself into thinking your judgment is perfect and you will not be prepared to deal with attacks on your case’s weak spots. Fool yourself into thinking your judgment is perfect and you risk a nervous breakdown when your judgment is found to be fallible.

    You need a thick skin at the Bar and, as part of that, you need to be able to recognise when you assessed a case incorrectly and acknowledge your limitations. The next time you present a similar case you will do so differently and better because of your earlier uncomfortable experience.

  3. Re: Fronting it out

    I recall sitting in the Court of Appeal.

    Judge: “Mr X, I have had the advantage of reading the paperwork, and I must say, I find your second point to be very weak…”

    Mr X: “M’Lord – that is why it is my second point and not my first…”

    I nearly choked to death trying to stifle the laughter welling up inside me !

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