Humour · Life at the Bar

How to Deal with Creepy Compliments

COuFuMNUkAArxna.jpg-largeIt occurred to me that the much discussed outing of a solicitor who liked Charlotte Proudman’s linked in picture might provide a teachable moment.

I am perfectly prepared to accept that his message was an act of blatant sexism. I don’t see it quite like that myself – but why should I? I’m a man. I don’t get menaced by considerably older people saying inappropriate stuff, and while I’d be perfectly happy to call it creepy and move on, not everyone is forced to adopt that approach, especially if it is genuinely the straw that breaks the camel’s back. I do think he was trying it on. The ex post facto “I simply meant that it was a professional photo” is about as good as “I bought it off a man in a pub whose name I don’t remember”.

I wouldn’t express myself as Charlotte did either, but in my view, junior members of the Bar almost invariably use high falutin’ language  when simplicity is better. I did as well. In my case it was something to do with being slightly overawed that someone was actually prepared to rely on my opinion and thinking that involved sentence structure and big words added weight. Plus which, there was the hope that the complexity of the whole would prevent clients seeing the Emperor’s new clothes content. So, aggravating but not an offence.

Nor am I particularly bothered that this generated a complaint to the firm and the SRA. Both are big enough to say “Thanks. We’ve undertaken a detailed investigation in 30 seconds. He does a good job for his clients. You are entitled to be offended but that doesn’t mean he should be disciplined.” Or, if they’ve taken leave of their senses, or are as frightened of publicity as the craven UCL was in the Tim Hunt affair (or, to be honest, if I’m wrong), they could discipline him.

My concern regarding barristers is that this was published for all the world to see. I have a real problem with ‘outing’ anyone. It unleashes the torrent of vile and disgusting people who, lacking lives of their own, make up for a self-esteem shortfall by being vicious on social media. Barristers with experience in criminal or family work have almost always seen this in action. If they haven’t, they have heard it discussed in Chambers – even virtual chambers. If Charlotte wants to take that on for herself, then she’s entitled to do so. But to sic a mob onto someone who has offended you by saying something you dislike is nasty. If it’s not nasty, it’s unthinking. For a barrister, neither is good. We hold ourselves to a professional, ethical standard. This isn’t it.

Moreover, Charlotte’s answer to this is that the offence justified the punishment. That is precisely what we don’t do as a profession. We leave such assessments to Judges and juries. We don’t act as either. We certainly don’t act as both. And we definitively do not permit situations in which the prosecutor, the judge and the jury are the same person. That is the antithesis of what barristers do.

Does it matter? I think it does. The difference between a profession and a job is that the profession follows through into your personal life. I expect barristers to live a life informed by the ideals of a profession which stands up for the powerless and the downtrodden. Not because I’m preachy and not because I’m a fanatic, although both may be true. It is because I do not see how you can do this job properly unless you believe in what you are doing. I believe what we do makes society better. Therefore, behaving in that way is not simply a professional, but a personal obligation. However bad it is, you don’t breach those ideals for your own benefit, because it suits you and you have decided it is justified.

Barristers who feel entitled to play fast and lose with those ideals are people who believe the end justifies the means. If you believe that then you should be a soldier or a politician. The former is an honourable profession. That latter can be. But if you believe primarily in the rule of law – that it should be the same for everyone under all circumstances – you don’t prosecute, reach the verdict and pass sentence. Not in any situation. Certainly not when someone’s wife and kids are thus thrust into the public sphere and when livelihood are at risk.

If you get pupillage, please don’t behave like that. You will let down yourself and your profession.

Humour · Life at the Bar · The Future

Maths 101 – Special Lessons for the MoJ

Grayling’s minions suggest that the greedy bastards in silk who turned down Operation Cotton (i.e. me and anyone and everyone else able to do VHCC work) would still get paid £100,000. This has, as per usual, been adopted by lazy journalists who would like to do v little work for their money but would simultaneously like to criticise the bar for allegedly adopting precisely the same stance. Ross Clark of The Times took this line on Saturday.

The reason I call it lazy is that the maths are so simple that even I can do them. We don’t need the wizardry of Dan Bunting for this.

Step one: at §63 the Judge said that the PDS advocates (working a 37 hour week!) would take 12 weeks to prepare the case. He even helpfully calculated the hours as 450 (actually 444 but who cares?).

Step two: the case is, presumably, a category 2 case. Silk rates under the new proposals are £79.10 per hour.

Step three: taking out my phone and using its calculator function I multiply 450 by 79.10 to produce £35,595. If Cotton is a cat 3 case that figure would be £28,665. If it is a cat 1 case the figure would be £45,675.

Step four: I can do the same calculation for the juniors, who the Men from the Ministry said would earn £60,000. Assuming the prep to be the same – which is probably giving the MoJ the best of it – the figures are: Cat 1 – £28,665. Cat 2 – £22,995. Cat 3 – £19,215.

Step 5: I add the daily refresher. Op Cotton is said to be a 5 month case. Let’s assume that is 100 working days. For silks that produces another £33,320. For juniors another £17,640.

Step 6: I add these figures together. A silk gets a likely figure of £68,915 (maximum £78,995: minimum £61,985). A junior gets a likely figure of £40,635 (maximum £46,305: minimum £36,855).

These figures share something. They share the fact that the MoJ have overestimated them by approximately 50%.

On the basis that Op Cotton is 8 months work, it also means that a silk doing this work would expect to earn £100,000 pa, assuming that they were employed 52 weeks a year without a holiday, and a junior £60,000 pa. Making it unlikely that the MoJ’s view of our average earnings is any more accurate than its spin on the figures for this case.

Of course, it is possible that the MoJ simply couldn’t do the maths. What do you think?

Humour · This Blog

Three Interesting Facts

First: yesterday’s post is clearly what the public want. I usually get between 250 – 300 visits a day, which I reckon is ok for a blog concerned with a fairly recondite topic in which only 4,000 people and their teachers could really be interested. And my mother – obviously.

Second: Today I have had 820+ visits. That is even more than the previous record when those idiots who helped people to cheat for money were threatening to sue me by sundown or whatever it was.

Third: More than 812 of those visitors know all about Stroud’s Judicial Dictionary.

Isn’t that interesting?

Humour · Life at the Bar

What Type of Law Should I Do (Part VI – an Xmas Special)

Ecclesiastical Law

I feel slightly fraudulent doing this, because my sort of ecclesiastical law is practised in the London Beth Din (a recognised Tribunal under the Arbitration Acts) and differs from the Court of Appeal in only a few ways. Firstly, beards are not mandatory in the Court of Appeal. Secondly, in my experience the Court of Appeal doesn’t consume diet Coca-Cola by the crate. Thirdly, the Court of Appeal do not expect you to join them in religious services and finally no Court of Appeal Judge has yet stood at the entrance to the RCJ for the specific purpose of wishing me a safe journey home. However, Ecclesiastical Law normally means the Consistory Courts and – if you’re really lucky – the Court of Arches (in the basement of which the famous case of Flanagan v Allen was litigated).

This all stems from the fact that when the secular authorities decided that they should be in charge of burning people alive for heresy, seeing how much of someone you could remove from their body before they actually died and generally keeping the population levels down so that the Black Death didn’t have to work too hard, the Church got all sulky. Accordingly a deal was done and Church Courts retained jurisdiction over the clergy. The ecclesiastical powers that be came to the view that if all the really interesting punishments were going to be taken away from them they weren’t going to be stuck with pathetic stuff like sticking someone’s head between two pieces of wood and inviting the community to take pot shots at them with whatever came to hand. Rather, they would let God decide.

It consequently became of some importance to be able to assert that one was a clergyman and thus claim ‘benefit of clergy’. This was done by reading – it being felt that the average non-clerical Englishman was far too busy practising archery, rioting, getting drunk and killing Frenchmen to do poncey things like learning to read. Consequently men asserting a clerical qualification would read a set verse from the Bible. If they did this successfully they got the ‘benefit of clergy’. This did not mean that they were then entitled to go into the orphanages and interfere with the children – a misconception that proved difficult to eradicate amongst some communities. It meant that the Church would discipline them rather than the State – usually by a little light whipping coupled with a description of the torments of hell and – much feared – a twice-daily sermon.

This only applied to men. Women who could read the Bible were obviously witches and were dealt with appropriately.

The Church was also in charge of saying that you could not divorce your spouse because God had apparently made it clear that you should remain with someone who made you miserable and/or to whom you were no longer committed because it showed you how serious it was to be married – or something like that. The only way to get round this was to be King, have lots of money, a huge army and a disinclination to permit anyone to tell you what to do. God would then understand your position and would back off.

Nowadays the Church takes the view that what God really, really wants is that no one should be offended or made to feel in the slightest uncomfortable. Divorce is no longer a problem because God currently wishes everyone to have whatever they want. Ecclesiastical Law is now about decommissioning Churches, deconsecrating graveyards and exhuming the odd body. However, it is also about how you get rid of your Vicar when he or she has offended his or her congregation. This offense can be caused in traditional ways – usually involving extra-marital activity – or in new ways – such as by ministering to a conservative parish and asserting that Richard Dawkins’ essential idea is spot on although he could express himself less confrontationally.

Advantages: it provides a way of reconciling one’s profession and one’s beliefs. The atmosphere is gentle and gentlemanly. The Courts are relatively informal and the work tends to be more or less straightforward (can a telephone mast be erected in the Church car park?) or particularly interesting (can the fiftieth eye-witness to the Dean’s dalliance with the Organist’s wife kindly step into the witness box and tell us everything she saw and then everything she conjectured?). There is work around: almost anything can be ‘unbecoming a clerk in Holy Orders’ and because God does not want anyone to be offended, by anything, ever, the standard of offence is whatever Sir Bufton Tufton wishes it to be. Think your Curate looks better in green and that pink vestments are taking it a bit far? Your Bishop is waiting for your complaint.

Disadvantages: you are expected to be a member of the Church (Chancellors of Dioceses must be communicants), which may be a problem if you spend most Friday 13ths offering Wiccan sacrifices and dancing naked round an old oak tree. It can be dull and, eventually, the small-minded manoeuvrings which bedevil small communities will start firstly to bore and then to depress you. Voicing the view that God may have other things to worry about will make you more unpopular than Dawkins. Your plumber will expect salacious stories of what happened when the Canon met the Organist’s wife (hurr, hurr, what ‘appened to his shot then?) and will treat you to his views about how the Church is too  soft/harsh/trying to be trendy/out of date. Professionally, few will hear of you and when you apply for advancement they will wonder why you became becalmed in this rather recondite area of law.

Humour · No Pupillage · Qualities Required

Disasters Wot I Have Wrote

I know that this may not be timely for OLPAS but I thought you might like to think about what not to write on an application form or covering letter. This was prompted by a random sampling of this year’s offerings (I have nothing to do with pupillage at my Chambers so merely browsed through some forms), but includes some of the things I remember over the years. It is up to you how you take it: if you want to cheer yourself up by realising quite how idiotic some of your putative colleagues would be, that’s fine. However, please remember that most people – like you – take a good deal of time over these things. These are best viewed as examples of how the pressure can get to you so that your judgement goes down the Swanee.

No names and no dates. Quotes are added for dramatic effect, rather than representing word-for-word accuracy. However, all these things have genuinely been said. If you recognise yourself then please note that someone else might have been just as daft. If, however, you think that any of these extracts are sensible, please rethink your career plans.

I want to come to Chambers because my aim in life is to lead the fight against the crime that is abortion.

I have wanted to practice on the Northern Circuit since I first conceived of coming to the Bar [in an application to a set in Leeds]

Academic Achievements: 4 grade A* and 5 grade As at GCSE, 3 grade As at A-Level and a Very Competent on the BVC [and I don’t think you are bright enough to ask for my degree result].

I think I would be an excellent barrister because my mother has always said I am very argumentative.

After having difficulties in my 3rd year, I scaled back my expectations and am thus applying to your Chambers.

Quis custodiet ipsos custodes? [Trans: who will guard the guardians? Pretentious? Moi?]

Take out that covering letter and check it again.

Humour · Life at the Bar

How to Behave in Court

We haven’t had anything that passes as humour for a while. This is nothing to do with the merits of your case, but it is to do with getting a good result and being thought of as a coming young thing.

The Magistrates Court. Distinguish between lay Magistrates and District Judges (Crime). Treat the former as your parents treated their great Aunts and Uncles. Speak loudly and clearly. Use lots of ‘Sirs’ and (especially) ‘Ma’ams’. Try and keep it gender appropriate, although this is secondary. Men in blazers and women in pearls should attract a double helping. Frequent references to ‘the community’ are helpful. It is not necessary to define the term, so using it should pose few problems. Remember that lay Magistrates devoutly believe that they are an essential component of democratising justice, so never indicate that they are slow, footling, stupid or inexpert. And remember that most of them do actually know what they are doing, certainly when compared to a baby barrister.

District Judges (Crime). Keep it very, very short. These are strong contenders for the most overworked Judge award. Once you have appeared before them a few times you should be able to keep it to ‘submission number 3 Sir’ (this is the one where he is remorseful and addressing his drug problem with the help of his devoted grandmother who he has only clubbed once and even then he left some money in her purse). Although it is possible to indicate that you will continue mitigating until you get your desired result this may not work and – even if it does – there will be a pay back later. Otherwise, dress smartly and be punctual.

The Crown Court. Know your Judge. Nowhere else are the vagaries of human nature so important. In an ideal world you would put your case succinctly and clearly and courteously point out to the Judge why you were right, with the Judge accepting your position even if not agreeing with it. Alas, mankind was expelled from Eden – using a procedure plainly in breach of the ECHR given that no plea was taken; that, even with a cut-throat mitigation, no representation was permitted; and that the use of exile as a punishment clearly meets the criterion of cruel and unusual. Accordingly, you may find that your carefully crafted submission serves only to provide time for the Judge to check his watch, practice picking up and putting down his pen and indulge in a little restful sighing out loud.

Although there is a belief that the Circuit Bench has fewer ‘characters’ than it once did (it certainly has fewer outright eccentrics – the Judge who whistled throughout submissions, stopping only to bark ‘name that tune’, comes to mind), peccadilloes come in all shapes and sizes.The sulky, the silently brooding, the frankly prosecution minded, the pernickety, the self-important, the bored and the delightful are all represented. Let’s face it, even if there are twice as  many delightful as of any other type, your average Court Centre of 8 Courts is going to give you a 6 – 2 chance of trouble ahead.

So, always be courteous. If you must indicate to the jury that your point has been unfairly rejected make it relatively subtle – I have heard someone say, when the jury returned to Court after the ruling, ‘Mr X, I was asking you about a threat to kill you if you gave evidence. Well, now for something completely different’ – but I don’t recommend it. Learn the ways of saying ‘as your honour pleases’ which are as close to outright insubordination as it is possible to get (whether you use them or not is up to you). Preface criticism with the words, ‘Your Honour, with notable fairness, said x’ – after all, if it isn’t fair you are unlikely to receive correction. Remember that every case has a winner and a loser. So treat triumph and disaster just the same – preferably not by screaming, punching the air and pumping your arm.

Finally, when they meet you later some Judges cannot resist asking you how you think they did. A neutral answer which defers further questioning is essential if you do not wish to end up telling them precisely how many mistakes they made and how little discernment was demonstrated. Try, ‘Judge, your summing up was a masterly attempt to ensure that justice was done, as you saw it’. Normally, by the time the implications of the remark are fully comprehended you can be far enough away to forestall further conversation.

The County Court. There are two types of County Court Judge/Registrar. The Specialist Judges/Registrars are essentially High Court Judges/Masters on a lower salary, for which the trade off is a lack of endless committee meetings and an ability to list your own work. We will deal with them later.

The general County Court Judge/Registrar is a jack of all trades. They are probably the master of some, but you may not know whether you are addressing the Grand Wizard 8th Degree with the Purple Plume of Perspicacity, or the Apprentice with the Brownish Bodkin of Boredom. It is your job to tell them the law. What you need is a method to ensure you are neither lecturing the one who knows more than you, nor leaving unturned a stone that the one who knows less than you would not recognise if you went up to him with it on a plate and said ‘this is a stone’. Given that in order to do this you also have to know the law, you can see why people say this job isn’t easy.

Approaches vary. You can probably rule out asserting that Donahue v Stevenson established that drowning snails in ginger beer was causing unnecessary suffering to an animal and then, when (if) challenged saying, ‘just testing’. Equally, starting with the assertion that the doctrine of lost modern grant fills in the lacuna caused by the gap in the evidence of use of the land between 1189 and 20 years ago might be a bit much – even if it is preceded by the words ‘As Your Honour will doubtless recall’. By and large the way forward is to be able to talk like an expert if required, but to start from the cautious basis that you are talking to a moderately bright teenager who is actually listening rather than BBMing their mates about the wicked time they had last night.

You then need to deal with the facts whilst remembering that there is no jury. Don’t worry too much about that. Most of them will remind you of it (usually accompanied by a heavy sigh) if they think you are addressing them as if they were capable of being swayed by a) sympathy; b) your oratorical skills; c) the witty way in which you are skimming over the obvious gap in your case. Keep it pithy. Remember that they have to give reasons for their decisions so give them some.

Next – the High Court in its various divisions and the Appellate Courts.

Humour · Oxbridge · Routes to the Bar

Integrity – The Man Speaks

Mr Myerson,

The following comments refer to the blog ‘Integrity and a Suitable Place for It’ posted on your website on March 31st, 2009.

The blog is both highly deceptive and defamatory and we demand its immediate removal, the deletion of associated comments and that you print a retraction making very clear the deceptive nature of the comments printed there hitherto.

More or less every person in England, except apparently Vader 101 and yourself, is aware that the street numbers given to premises in the UK refer usually to entire buildings and where they have them to their several floors – and not merely to the ground floor. Thus even the most casual observer of 91 Charlotte Street, by merely tilting up his eyes by a few degrees would notice in fact that The Oxbridge Research Group (parent to OTC) is based on the four floors of 91 Charlotte Street that lie above Italia Uno – as well as having additional premises at 97 Charlotte Street. The usual way that people observe our occupation is by looking at the large silver plaque (clearly visible in your photo) which has the name of the company on it – or by looking at the two metre tall blue flag hanging from the side of the building, also above Italia Uno.

It appears that your journalistic ‘integrity’ – to use your fondest word – does not extend so far as to check such basic facts as would be undertaken by a prep school student writing for his school magazine. Sadly, this sloppiness and superficiality is all too clear in your writings on our enterprise: had these been even a little more substantial and objective, we would have happily replied to your comments – it is clear though that no such ‘fair hearing’ was impossible: an observation compounded by this most recent blog.

No doubt, as a man of integrity, you will keep the pledge you made in your initial blog ( ”. . . Meanwhile, if Mr Foster would like to get in touch I promise to publish – unedited (within the bounds of legality and taste) – anything he sends me.”) and print the contents of this email.  Let us see if you have such courage or whether you manufacture a pretext for its omission.

We will also be posting details of this deception to Charon QC and on other such legal blogs so that interested readers might see another side to the journalistic integrity so are so fond of espousing but, hypocritically, so loathe to apply to your own activity.

The aforementioned actions to remove this content should be completed no later than 12.00 Noon this Monday.

Yours Sincerely,

John Foster

Head of Sales

The Oxbridge Research Group

I don’t think that Mr Foster really wants me to delete the whole blog, but have taken his comment to refer to the post.

His letter – fully set out above as promised – essentially repeats the comments in the post. It seems to me therefore that, as he wants the letter published, there is no point in deleting the original post, and the answer to that request is ‘no’. Moreover, I don’t think I actually implied that OTC didn’t operate from this address.

The rest of his comment about integrity you may judge for yourselves. My own view – forgive me for repeating it – is that if you write things for other people, do not cooperate with anti-plagiarism software, do not police whether people pass off your work as their own and ask members of the Bar to charge applicants for things they should do for free then you are helping people cheat.

Mr Foster could, of course, have addressed any or all of these issues. As I say, I have published what he has said in full. I also don’t assume (thanks Andy) he meant to say that no such fair hearing was impossible. That’s the trouble with double negatives. I think he meant to say no fair hearing was possible and just didn’t check his work (only a 3rd then). But what he has actually written is correct. Although his excuse is that he wouldn’t get a fair hearing I am afraid I don’t believe him. In my opinion he has not answered because he has nothing he can say.

I certainly agree I invited people to giggle. There is nothing defamatory in that. If there is humour in the situation then we should all enjoy it. If Mr Foster doesn’t find it funny – he doesn’t have to laugh.

I ought to add that I have posted his letter within 20 minutes of finding it in my in-box, having been in con all day.

PS. In the penultimate paragraph it’s “loath”, not “loathe”. “Loath” means reluctant. “Loathe” describes my feelings towards OTC. However, don’t worry – Mr Foster is only ‘Head of Sales’: he won’t be writing your essay for you.