The Future

Yes or No is an Individual Choice

aggressive-argumentationIt’s good that the CBA has published an article by Simon Csoka QC about why we should take action. These are important decisions: both sides need to be heard.

I have read the piece with care. I believe it is inaccurate and weakly argued. If you click on the link below, you will see the piece and my comments. Please feel free to make up you own mind. And, whichever way you go, please vote.

Why Simon Csoka QC is voting yes.commentary

There is no question but that the cuts will hurt solicitors and that they are unfair. I do not believe that the solicitors will go bust – if that were true, no one would have bid for a contract that cannot make them a living. It’s a shame the case was overstated, and it doesn’t help (when does it ever?). But the essential point is right.

The question is what we should do. What do we gain from action? Will your Solicitors survive and be grateful? Will that mean they send you more work? Are firms who do not brief you going to start briefing you?

What do we lose from action? Will the MoJ withdraw from what is currently the most active and positive engagement with us in a generation? Will it impose the cuts we successfully avoided last time? Will it impose OCOF? What affect would that have on your practice?

What does the future hold? The Big Firms Group will compete with the Bar (Tuckers are absolutely up front about that). Will they take your work? Will they brief you? How are we best placed to compete against them? Do the answers to those questions affect you if your small firm clients survive? How are they likely to affect you in, say, 5 years time.

I am not giving answers because – as I hope the above list makes perfectly clear – it is an individual decision. You may wish to take the interests of others in your Chambers – or even outside – into account, but the decision is yours. Chambers where those individual decisions have occurred in lockstep, have far more tightly focussed criminal teams than any of the 3 sets of which I have been a member.

But either way, publishing a group decision isn’t, in my book, about helping anyone decide. It’s about proclaiming publicly that the ‘right’ decision (whatever that is) has been taken. As to which, in my view, the better counsel is ‘do right and fear no one’.


8 thoughts on “Yes or No is an Individual Choice

  1. Where do I find your questions annotated on Monday Messages of recent times? Such as “what mechanisms are being proposed to ensure a level playing field?” or “what time frame can we expect for the implementation of such mechanisms?” and “at what point and by what yardstick do we judge that negotiations have failed?” It would be terribly unfortunate if you were only questioning one side of the debate without actually declaring that you support the other side of the debate. I am not suggesting that you do support one side or the other but would expect you to approach each set of arguments with the same probing, unless you are in fact just doing so to persuade one way.

    As far as solicitors going out of business is concerned it is not fanciful. Not when both the Otterburn and KPMG reports make it clear that such an outcome is a distinct possibility after the two cuts. And that is before the further cuts due in Jan 2016.

    1. I haven’t annotated recent MMs. I thought CS was putting the “yes” case. If you don’t think he’s done it terribly well (and I agree), then have a go yourself. The CBA are happily publishing both sides.

      If that’s the sum total of your answer to these annotations, that’s ok by me. But I think they demand an answer.

      I have never said that solicitors going bust is fanciful. I don’t think it will happen to many – and nor do the ones who bid. I’m more interested in what the Bar get from those they save. Which, at the moment, seems to me to be precisely the sort of promises you won’t accept from the MoJ.

      I haven’t yet voted. Without doubt my heart is with action. Yet every time I read another stupid justification for it, coupled with an attempt to avoid the truly difficult issues, my head says “crap arguments usually represent crap cases”.

      1. Then why do you not apply the same critical analysis to the case for voting no? If it is that you believe the case for voting no is completely made out then, in my view, you should say so. At the moment your constant questioning of the case for voting yes whilst not proposing the case for voting no seems, at the very best, less than straight forward.

  2. Jaime, did you read what I actually said? I haven’t yet voted. If I believed the no case was made out I would have said so. People are screaming about voting yes. You mustn’t be offended by an investigation of the other case.

    PS. As your real point is that I’m dishonestly pretending to be undecided it’s a touch ironic to do so by saying “at the very best, less than straightforward”.

    1. I am sorry Simon, I was trying to be polite.

      So yes, I believe your approach to this to be disingenuous. I read the words “I haven’t voted yet” but wonder what this really means.

      The current vote is, in contrast to the vote on the deal, not a question of voting your approval or otherwise of one course of action. This is about the choice between two paths. Both of those paths have their difficulties both of them their advantages. You constantly and consistently highlight what you view to be the weaknesses of the arguments in favour of action at this time. You do not make any argument in favour of such action. You neither criticise nor openly champion the positive case for the current CBA direction of travel.

      Leaving aside the manner of approaching the piece by SC as a school teacher marking the work of a child because I know you do not believe it to be any concern of yours as to the way in which other people view your way of expressing yourself, your approach of appearing to be doing no more than testing the intellectual rigour of one side of the debate whilst declaring yourself undecided seems inconsistent. It seems a form of advocacy which would instantly cause me to be wary.

      “I am of course, my Lord, only here to assist the court, but only one side has any weakness.”

      I could end this with an emoji. But who ends a submission with that?

      1. You are right that both paths (no difference between a path and a course of action in my view) have advantages and disadvantages. However, that admission isn’t often made.

        Plenty of people are belting on about the advantages of striking. None of them have covered the disadvantages. I want to redress the balance. That is important because, as you implicitly acknowledge, many people are undecided – even though the strike committee is dominating the echo chambers of social media.

        I marked up Csoka’s piece for my own benefit. Juniors with whom I work will groaningly testify to my habit of putting comments on pleadings, opinions and skeletons. But you don’t address the substance of an argument by complaining about its form.

        I believe the yes case has a stark strength, best illustrated by Mukul Chawla’s memo. I also believe that – like some particularly unattractive rolling stone – it has garnered an enormous amount of arguments that are complete rubbish. That, in turn, makes me concerned that the central case is a bad one. I have a choice to make. I will probably be alright anyway, so I am anxious to make it the right choice for good, capable junior members of the Bar. If a case for something – anything – attracts bad arguments, that invites the closest scrutiny of it. You complain about that. I don’t know why. You complain that the other case isn’t scrutinised as closely (as tellingly?). Well, get to it.

        But, instead, most of what I hear – not from you in fairness – is that such scrutiny is a betrayal or a plot. Not only is that insulting, but it actually makes one wonder whether there IS an answer.

        On you last point – only the type of person who would use a preposition to end a sentence with. 🙂

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