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.

Life at the Bar · Tenancy · The Future

New Tenants’ Survival Guide Part 1


Survival_07webCongratulations. You have made it, you are through the door, your feet are under the table, your head is in the clouds, your eyes are gazing on a distant future and your ears are burning.

Now what?

There are two traditional matters to concentrate on, and one brand new one. This post will deal with the first traditional matter.

That matter is the external ladder which you must climb. You have to build yourself a practice. Traditionally this came from doing other peoples’ returns and devilling. Now it also comes from being part of a team. If your Chambers is highly specialised there may be only one team. Otherwise, you should try and join every team going. You won’t know what you like (you may have an idea) until you have tried it. You are trying to maximise your exposure to work. Do everything once and the clerks will always be able to rely on your previous experience. The best time to do something for the first time is very soon after call. There are some exceptions to this rule: for example, soon after call isn’t the best time to argue that proprietory estoppel point in the Supreme Court (never let it be said this Blog is not up to date). But as a rule of thumb, it works.

You should also be the junior tenant who likes to say ‘yes’. Your clerks will not thank you for ‘well, it’s not really my field’, or ‘I don’t feel comfortable’ or (God forbid) ‘I’m sorry but I’m too busy’. Of course you’re uncomfortable. Your comfort envelope is hardly big enough to put a stamp on. But it will not grow unless you are prepared to stretch it. You have more time than you would believe (hard though it may be to accept, new tenants are barely working compared to the hours they will have to put in if they take off) so use it: swot up on new topics, go and see things being done in Court and read law reports. Then say yes to whatever you are offered unless it is really laughable. You should be able to judge what you should and should not take pretty quickly and your pupil supervisor, who should have a good idea of your capabilities, will help you.

You also need to impress your solicitor. The solicitor is more important to you than the lay client, who may well only ever need to consult you once. Even more important, if you are doing crime or pi, is the solicitor’s clerk (or paralegal as they now tend to be known). This is the source of your work. Be nice; be polite; be interested; know the name; ask about the children, the tomatoes, the morris dancing, the philately – whatever it is. Do not, as I have heard being said of junior counsel, be not worth briefing ‘because X’s head is so far up X’s bottom that X would not hear anything I said’.

Do what you are asked to do. Ring up after cases and tell the solicitor what has happened. Provide Advices and Opinions in double quick time. Give you opinion when asked – do not hedge it with a University type answer.

Constantly review your own performance. Do not sign the paperwork off until it really is as good as you can make it. The drink will wait. Dinner will wait. The love fest with the new significant other will wait (although, as rather too many barristers have discovered, the significant other may not). Do not put the brief away until you really do know not just what your submission is, but how you are going to put it and in what order.

But this is to shade into the next topic, which is how to climb the internal ladder. The final (new) topic is how to work as part of a team in Chambers. So, as they say in all the best cliffhangers:

To be continued…

Routes to the Bar · Tenancy

Unfunded Pupillage


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RM commented on this topic below, and I asked him to outline his thoughts on it so that I could post them up. Here they are. I do not, myself, think that unfunded pupillage is the way forward, but I am persuadable. Given that one of the country’s most senior Judges recently told me that he did think they were the way forward, there is a debate to be had.

Be nice to RM. He is doing this as a favour. If anyone would like to write the speech for the other side, please email me…

I decided to do the BVC knowing that there was a very good chance that I would never gain a pupillage. I went to a “poor” university and did not obtain the best degree result. The first pupillage rejection letter still hurt though. You may ask why I still did the BVC knowing that it was next to impossible to obtain a pupillage. Very simply, I assessed risks, costs, future options and the potential rewards. I went into this whole process with my eyes wide open as to what the current pupillage selection process is at the Bar. Therefore this post is not meant to be Bar bashing – merely my view on what could be done to improve the Bar and its selection process.

Competition

I believe that the best way to improve selection process and as a result to improve the Bar is to increase competition at entry level. Competition generally drives up quality, improves customer focus, increases diversity reduces cost and increases innovation. I am sure that some people will say that the Bar is competitive. Whilst I agree there generally is healthy competition within the profession, I believe that there is a lack of competition at entry, due to the barriers to entry. There are only a certain number of pupillages available and pupillage is the only way to get tenancy.

Access to the Bar is set at the wrong level, and only a select few are able to apply for tenancy. I am quite amused when I hear some fellow students say all they want is a pupillage. I want to be a barrister. It does seem flawed to me that pupillage has become a filter to the Bar. Further I have heard from a number of people that one needs a degree of luck to obtain a pupillage (even SM appears to indicate this in his post). This seems to me a sad acknowledgement of the state of the Bar with regard to recruitment. The Bar should want the best people to become barristers, not the luckiest. I am sure at least 50% (if not more) who obtain pupillage are the best. There is still however a percentage of people who given the chance could be just as good and if not better.

I look at my circumstances – I have not gone to the right university purely due to fate. I dreamt of going to universities such as Oxford but due to family circumstances I was unable to go to university full time. I did not receive the greatest degree results – I cannot blame anyone for this unfortunately. These two facts severely hamper my future at the Bar, regardless of how good I would be as a barrister. I want the opportunity to prove myself. I doubt that I will be the kind of barrister who graces the corridors of the RCJ on a regular basis, but I know I will do a good job within my own limitations. I have some friends on the BVC who have the potential to be very good barristers. There is a very strong chance that none of these talented people will gain a pupillage. It seems a sorry state where people with so much ability, determination and commitment to the Bar may not have the opportunity to prove their abilities during a pupillage. The Bar is losing good people…

I believe that the filter to entry to the Bar should be shifted up to the Tenancy stage. To do this the number of pupillages on offer needs to be doubled (if not more). This will enable a more level playing field and will assist in ensuring that the best people make it through to be barristers. There is also a real possibility that the number of tenancies will increase. During the first few years of tenancy, the barristers who are good will survive: those unable to build their practice will fail. I think Chambers would welcome a far broader choice of candidates for tenancy. I recognise that some chambers already have 4 pupils for every one or two tenancies available. This needs to be spread throughout the Bar.

There is also a positive outcome for the Bar and the pupils who failed to obtain tenancy. Having qualified as a barrister and received invaluable experience will open doors for a pupil who fails to get tenancy, such as job opportunities at the employed bar, overseas, in-house law, business, teaching, and solicitors. Qualified barristers going into these professions would help strengthen the Bar as an organisation, as the skills gained will be used, improved and retained in most cases, and potentially in the future such skills may be imported back into the Bar.

Funding

The question of how to fund any system of pupillage is a difficult issue. We all seem to broadly agree that there needs to more pupillages on offer. Funding hampers this.

An obvious starting position is unfunded pupillage (or should this be unfunded first six?). I know that SM is against this proposition. I come from a not so well off family myself. I know what it is like to not have much money. However I would much rather have the opportunity to have an unfunded pupillage than have no pupillage at all. I would not be able to afford an unfunded pupillage, but I am fairly sure I would find a way to make it work. Perhaps a way forward would be for the Bar to negotiate with HSBC to extend the current Bar loan scheme to cover pupillage in addition to the BVC. Perhaps more support from the Inns for people who run into financial difficulty. I know that people will argue that this will put students into even more debt. To counter this I would repeat what I said above about those who fail to get tenancy – they will be further qualified and should be able to slot into fairly high paying jobs. This to me seems the easiest way to increase the number of pupillages on offer.

As to other ways how pupillage could be funded, I am intrigued why the minimum pupillage award is set to £10,000. A way to increase the number of pupillages would be to reduce the minimum pupillage award. My rationale is that a pupillage is in effect vocational training and could be treated like a student loan. I know from my own experience it would cost about £600 a month to survive. The first six months of pupillage could be funded at this level. Thereafter for the second six nothing but expenses such as travelling should be paid by chambers. Any income should come from work done on the second six (or perhaps given an advance by chambers to counter any initial cash flow problems). Furthermore, the Inns/Bar could provide support to pupils on low incomes instead or in addition to providing scholarships for pupils. This would hopefully allow chambers to increase the number of pupils that they have. One of my concerns is that there are chambers who offer huge pupillage awards (£30,000 +). This may not help with levelling the playing fields. Perhaps there should be a maximum award?

Life at the Bar · Qualities Required · Tenancy

Tenancy and How to Get It Part 4: Getting On


teamwork_teamwork_aChambers have, in recent times, invested quite a lot of effort in pupillage selection. I think it can be fairly said that most Chambers are now committed to diversity in terms of sex, colour, race and creed (the Bar, strangely enough, was never particularly fussed about sexual orientation and it isn’t much of an issue today either). However, once your pupillage begins it is a 6 or 12 month interview and you are mainly judged on 3 things. Firstly, your ability; secondly, whether you can pay your way; and thirdly, whether you can get on with people.

That third element includes 4 quite distinct groups. Your pupil supervisor(s); your clerks; other members of Chambers; and your instructing solicitors. Some things are common to all 4 groups and I shall deal with those things below. The additional things which are particular to particular groups will form the subject of the next post. What is said here is equally applicable to mini-pupillages, save that you will barely impact on solicitors or clerks during a mini unless you spectacularly screw up.

By the way, please note the absence of clients from that list. It is nice if clients like you because it may help you to get on with your solicitors. But it is a sort of optional extra. Quite often clients don’t particularly like you. That is because you tend to give them bad news – “you aren’t going to recover all your money”: “you may well loose”: “about 7 years”: “putting up for adoption means you can’t see your children”. It is also because you tend to be very busy doing the work required to minimise the prospect of saying those things and thus unable to listen to why the social workers are conspiring with the ex-wife and ex-boss. It may also be because too many barristers just aren’t very good at getting on with people – maybe a topic for later.

Of all the people listed above I would say that your supervisor and your solicitors are the easy marks. Other members of Chambers and clerks are more difficult. It is fairly easy to see why this is the case. Both of the former types of people have clearly defined requirements. If you meet those requirements, you are a long way to a successful working relationship. The latter types may well have ill-defined requirements, which vary from time to time. Moreover the former people want you to succeed. Your supervisor has quite a lot invested in you. She is in charge of your professional development for which everyone else is paying. If you fail people will ask questions about her (of course that means that the relationship between a failing pupil and their supervisor can be dreadful). Your solicitor wants you to win.

So, what is required? Firstly, application. Barristers are used to working hard. Some pretend not to, but anyone who is succeeding at the Bar is working hard. An intolerance of laziness soon becomes inbuilt. Taking the view that you only have to skim something because your supervisor will be doing the job himself is, in almost all cases, the quickest way out of the window (the door is reserved for more deserving cases).

Secondly, reliability. You need to be there on time – or preferrably early. You need to have what you are supposed to have be it books, pens, paper or a pleasant expression. Your work needs to be reliable. The words “I’m certain” – whilst at first regarded with suspicion – are, having been tested and found to be reliable, words which your supervisor will value. It means that they can rely on you and save time and effort.

Thirdly, improvement. At the beginning expectations of you are low. You will be expected to know some law – after all you have had less time to forget it than everyone else in Chambers. You will be expected to have some sense. But courtcraft, judgement, skill and calmness under pressure are things your supervisor expect to develop with you. However, you are expected to learn fast. One of the best things that can ever be said about a pupil is “you only have to tell him something once”.

Fourthly, commitment. Barristers have to make their own living. That is not as trite as it sounds. There is no sick pay. There is no guaranteed salary, paid regardless of how good you actually are (at least until you plow your bank into the ground) and attracting a pension whether you leave honourably or have to be pushed. That means that work often comes before a social life. For too many barristers work also comes before (or is equivalent to) a private life, which is a different issue. Whilst you ought to try not to be like that it is important to realise that commitment is necessary. You may actually have to say ‘no’ to yourself. You may miss the party, the dinner, the film, because you have to work. In pupillage this can be aggravating because you are doing it for someone else. But there it is.

Fifthly, integrity. This cannot be stressed enough. If you cannot recognise the difference between absolutely honest and compromised honesty then do something else. Read stories of schools in the 1930s. You know the bit where Blenkinsop Minor glances over at Swothead’s paper in the Bio exam? That’s not ok. You know where Eleanor is left alone in Bunty’s room and reads the open diary which reveals that Bunty has a bit of a crush on Miss Thrillinglystrict? That’s not ok either – even if Eleanor doesn’t tell anyone (although she usually does, so that she can be sent to Coventry in chapter 8 and rehabilitated in chapter 10). I am serious about this. The maxim is, “when in doubt, do the right thing”. If you don’t know what the right thing is then you may have a problem. If anyone suggests to you that doing the wrong thing is ok/justifiable/right then they are wrong.

Sixthly, an appreciation of personal space. I don’t simply mean physically, although continually taking a step backwards and treading on your pupil is annoying. I mean knowing when to do what. Ecclesiastes puts it best (3:7): ‘a time to rend and a time to mend: a time to be silent and a time to speak’. You simply have to know when your contribution is welcome and when it isn’t. When you should be hovering and when you shouldn’t be there. Some people do this naturally but it’s necessary anyway. The first rule is not to make things worse; so, if your supervisor is under pressure, think first, appear second, speak third.

Finally, at least insofar as this personal list is concerned, don’t get too up yourself. As far as solicitors are concerned this means accepting that they may actually have a contribution to make and it might be better than yours. Talking down to people should not be essential to your image of yourself as a barrister. Being asked to make an occasional cup of coffee or photocopy an occasional case isn’t the end of the world (if that’s all you are doing you should complain). Pretending that chatting to your solicitor’s clerk is a bit beneath you will not endear you to any decent set. Ditto sniggering at the clerks’ appearance, looks, weight or dress sense. All of which I have seen and heard junior barristers do. If you have flu – get on with it. If your personal issues are making life hard – get on with it. The Bar is a hugely sympathetic environment for those who cannot work because of illness. But for those who are merely suffering day-to-day afflictions, no one cares and it comes over as precious.

Humour · Life at the Bar · Tenancy

Getting on With Clients


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I’m sorry that I haven’t posted for a while. I hope to do so soon. Meanwhile, please familiarise yourself with the diagram below. It is uncannily accurate. Because your clerks will collect your fees, the issue of when to bill is a matter for them. However, if you want to build a practice by networking with your solicitor and/or your lay client then this information will assist you.

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Life at the Bar · Qualities Required · Tenancy · The BVC

Tenancy and How to Get it Part 2 – Advocacy


rron267l2This is a partial answer to how you communicate your abilities during your pupillage. It also, I hope, goes some way to address the fears of the BVC students that their advocacy is ‘a trainwreck’ (a direct quote – and whoever originated that description is showing real talent in my book).

The job is popularly supposed to be all about advocacy. Every barrister dreads the mini-pupil who says something along the lines of “my Mum and Dad thought I’d be a brilliant barrister because I was so good at arguing/could talk the hind leg off a donkey”. In fact, the job is more about judgment. What you are trying to do is present a case in a way which will appeal to the tribunal. The appeal has to be on two fronts simultaneously – the case must be grounded in facts which the tribunal accept, and those facts must demonstrate a legal entitlement to what you seek.

Neither of those things happen because the advocate has developed a fine line in high falutin phrases which sound awfully good in front of the bedroom mirror/admiring partner/adoring parent. Nor do they happen because the advocate is motivated by indignation/anger/intense desire for justice. They happen because a good deal of thought has gone into the following:

  • What the law is as regards the particular point
  • What facts are necessary to bring the case within the law as it is
  • What the tribunal is going to feel about the submission that the law is x
  • How such feelings, if they are negative, might be overcome by presentation of the facts in a particular way
  • How to elicit the facts so as to demonstrate that they support the legal conclusion you propound
  • How to deal with facts that do not support that conclusion or go the other way

Your preparation should leave you with a roadmap to the result you want. Within that roadmap there will be areas which are conditional on particular facts being found. There should not be an area which is conditional on the law being a particular construct unless you are doing something quite out of the ordinary (most decisions are a restatement of the law to a particular situation – very few alter the law).

It follows that, before advocacy – in the sense of the glorious full-on assault on a witness beloved of soap operas, BVC students and the tabloid press – is relevant, a lot of work has already happened. If you don’t do that work then your advocacy will be aimless, sloppy and have all the effect of a vicious attack with a wet tissue. A great many (too many) barristers believe that ‘work’ means knowing the case backwards. They memorise the witness statements, their client’s proof of evidence, and their own cross-examination (often written out on 24 pieces of paper).

If such preparation works for you then by all means use it. My own view is that it tends to prevent speedy reactions to the unexpected. But do not believe that this is the work required. The best proponents of this method do not make that mistake. The work goes into a quite different exercise – that of asking ‘but what if she says x’. Here, ‘x’ is the unexpected or unanticipated answer and it is unanticipated or unexpected because you have not anticipated or expected it. Because advocacy is primarily about thought and, in particular, thought about the following:

  • The effect of your case upon the witness and the tribunal. You have to stand back and ask yourself how what you are saying plays. For example, you may be able to cross-examine a victim of child-abuse into an admission that their abuser loved them. This is not a success. It simply demonstrates that the abuser (your client) manipulated and exploited a victim who was incapable of formulating appropriate emotional responses because of the abuse. The Judge will think your client wanted you to take this path and it will make matters worse. The way to deal with this is to state in simple terms the proposition that you are aiming for, and then ask if it helps. If you think that the above example makes things better then you have no judgement. In such a case you want the child to say that the victim did not abuse them. If you can’t get to that point then the roadmap takes you to a guilty verdict.
  • How you best elicit a particular fact. In a simple road traffic accident it is quite often the case that one party apologises to another. A large number of clients – and an even larger number of claims handlers – believe that this is the killer punch. It is not. A fool rushes in and, unable to contain their pleasure at having the defining moment in front of them, says, “You apologised after the crash, didn’t you?” A: “yes”. Fool: “That is because (or – if they are both foolish and incompetent – “I put it to you that is because”) you knew it was your fault, didn’t you?” A: “no, it was because the lady said ‘now I’m going to be late picking my grandchild up’.” It would be better to ask the open question of whether anything was said and, when the witness says they apologised, ask why. There are only three answers to that question. They are the one above or some variant of it, the admission of fault (which is then all the stronger by being elicited by open question),  and the “I don’t rightly know”. The first and the last can then be confronted with gentle questions which suggest that this is an excuse arrived at after the event. If the witness remains adamant as to their explanation then the matter can be the subject of the following questions, “you apologised for some reason unconnected to your driving? Did my client apologise? Did you not ask her for an apology? Is it only after the event that you offer us this explanation? Can you explain why?”.  That may be the best you can do, and be sadly short of a Perry Mason moment, but it allows you to suggest that the apology does mean what you say and that the attempts to make it sound as if it is not are late and unconvincing because they do not accord with the party’s behaviour throughout. In other words, you have a factual platform for your legal case and you have offered the tribunal a reason to accept your factual version over the other side’s.
  • The impression you convey. Are you properly dressed? Have you stood up straight and not fidgeted? All of this is important: it is about how you communicate someone else’s case. Your appearance is about facilitating that process: it isn’t the main event. You need to be smart, clean and conventional. Try and eliminate the personal tics.
  • The way in which you deal with your case. You must ask one question at a time and only one. This is easily tested: either get a friend to take a note or record yourself making a submission or examining a witness. The note should flow without difficulty. If you are making more than one point, or asking more than one question, at a time or if the order is all over the place then you aren’t doing the job properly. How do you make sure there is an order to things? Also simple. Write down your case in the order in which the tribunal will need to deal with things to get the result you want. Ensure that this order is rational (it doesn’t have to be the only rational order but it must be as rational as any other approach). Then ask your questions and make your points in conformity to that same order. Normally, chronological order is simplest and best. In a very complex case it may be better to deal with things issue by issue. Other approaches are rarely, if ever, justified save that an issue raised by the tribunal should usually be dealt with straight away. Silks in the Court of Appeal can sometimes get away with ‘I’ll come to that logically when I have developed this point if your Lordship doesn’t mind’. But only sometimes – and you can’t ever get away with it so don’t try.
  • How you will get on best with the tribunal. If you know your Judge then this requires an honest appraisal of how you get on with them in Court – and why. There was a Judge (now retired) who very plainly thought I was too clever by half. Of course, you are sitting back and gasping in astonishment, but it is true. I thought the Judge was an over-promoted incompetent who had replaced hard work with prejudice and thought with knee-jerk reactions. Unsurprisingly, I didn’t have a good record before that particular tribunal: until I grew up and realised that, even if I was right, I was wrong. The job demanded that I adapted myself to the Judge. That, in turn, demanded that I worked on the basis that the Judge was right about me – unbelievable though that was.  I moderated my behaviour and the results improved. The unsettling conclusion that the judge might have been at least partially correct in his assessment was also valuable.
  • What the reaction might be to a particular question or point. You need to have considered the other side of the coin in order to have an answer to it. I know people who essentially have a notebook with ‘if x then go to y; if a then go to d’ written out. I tend to keep that in my head. But any competent advocate has done the exercise.

When you have done that, you are ready to speak. If you are trying to be an advocate without having done this then, unless you are amazingly lucky, you will have a trainwreck.

How you put it all across is the easy bit. You speak slowly enough to be clear without being maddening. You speak loudly enough to be heard without being in breach of the Health and Safety legislation. You use language appropriately – the number of aspirants who think that pompous language is a good thing is staggering. I have concluded, over the years, that the use of language is a defensive thing aimed at demonstrating intellect and capability or ‘weight’, both of which things the aspirant thinks (often with good reason) that they lack. Don’t do it – it sounds false and adds nothing. Speak sensibly and only use long words if it really sounds like you. If you want to improve your vocabulary and use of English then read good literature, don’t learn a word a day and use it because it’s got six syllables. Sound reasonable, not outraged – less is more. If the other side really are arguing something outrageous the tribunal can normally spot it without you drawing yourself up to your full height and sounding like a third-rate actor auditioning for a fifth-rate production of a revenge tragedy.

Show a mastery of the facts. That is done by appropriately placed allusion to the evidence and the facts and knowing where those are to be found. The aim is that the tribunal should have absolute confidence in your ability to direct them to the relevant document or passage. It does not need a long exegesis on the four previous drafts – that’s showing off.

Pare it down. Less is more. Lord Salmon (of Sandwich – let no one tell you that Judges lack a sense of humour) once said that no case, however difficult, involved more than two key issues. Most have one. So how long do you think you need to talk for? If the Judge isn’t sure, but thinks you might be right, she can always ask you a question.

Never accept a departure from that standard. Barristers who say “it’s just a bail application/DJ’s appointment” are unfit for purpose. So are those who would rather go out the night before than get to grips with their work. So are those who say it’s all too hard for them because they aren’t really familiar with the law in the area. There are no excuses – there is only professional competence or professional incompetence. If your ego requires you to make excuses for yourself then do something else.

People write books on advocacy and this is necessarily short. But I hope I have covered the basics. At the beginning it is difficult. You don’t do well and you feel desperate and certain that you can’t do it at all. But we are talking about a skill. It is as foolish to think that you can master it in months as it is to believe that you can play Mozart’s Piano Concerto No 16 (well worth a listen) when you’ve had lessons for a year. It is even more foolish to suggest that you are the finished article when you begin tenancy – for if you are then it is only because you lack the capacity to learn.

The great thing for you is that the type of preparation I have talked about can be demonstrated to people who do not see you on your feet. Talking through likely issues in submissions or cross-examination can be relevant at any stage of the case, and can impress professional and lay clients at an early stage. It shows your supervisor or assessor that you are thinking like a barrister. And they might even help you do it.

One last thing: be courteous. Sneering comments about the rick that other people have made of the case serve only to cheapen you and to make more experienced heads wonder why you are so anxious to big yourself up or (if you have made common cause with the object of your comments) what you did to ensure the case was lost. Advocacy is lonely and judges are not always persuadable. Judgment is exercised on the hoof and many is the time that a rewind button would be of help. The test of the advocate is how many times they make the same mistake – not how unpleasantly they can critique other people. Advocacy is about sustained achievement, not about yesterday’s result. We all get nose-enders and, hopefully, we can laugh at them later. But those stories always come best from those to whom they happened – letting the robing room or common room know about someone else’s misfortune is the act of someone who lacks confidence in their own ability, or simply likes to promote laughter at the expense of others.

Qualities Required · Tenancy

Tenancy and How to Get It: Part 1


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I concede that I embark on this post with a degree of trepidation. I pretend to no great expertise on how one converts a pupillage into a tenancy. It has happened to me twice: at the end of my pupillage in London, when I suspect the motive was the future payment of clerks’ fees and in my current Chambers, where I was essentially told ‘no one refuses to share a building with you, so you’ll do’.

Nevertheless, I have received a large number of requests for some help, so I have tried to think round the subject a bit. I still recommend Henry Cecil’s book ‘Brief to Counsel’, which has the merit of explaining clearly what the job demands. It is out of date, but still immensely useful.What follows is my own view.

First, be in the right place. The search for a tenancy begins at pupillage. How many pupils is your set taking, and for how many places? Does your set generally take a new tenant every year? Are they recruiting publicly for junior tenants (this sounds like bad news but is probably good news)? In truth, if you have taken a pupillage in a set in which pupils are going to be ‘released’, then your chances are diminished. Are you going to be able to make a living? What sort of work is available to junior tenants? How much will it cost you to do that work in terms of Chamber’s fees, travel and accommodation (It is not unknown for publicly funded work to cost barristers money)? A number of sets talk about their ability to ‘place’ pupils elsewhere if the decision is not to take that pupil. Find out where, how, when and how successful such placements have previously been. All of this is something you need to find out about at interview. The provincial bar tend to offer pupillages, ‘with a view’. Check the website – do they mean it?

Because pupillage is so difficult to get it is easy to take the view that everything must be put aside in order to take that first step. There is something in that view and it is certainly understandable. But still, I urge you to think further ahead.  If you want to do the job, then presumably you want to find a place which starts you off by recognising your talent and rewarding it with a tenancy and a living.

On the assumption that what stands between you and a tenancy is a year in which you will be continually assessed, it seems to me that the following areas are important:

  • Your ability and how it is demonstrated.
  • Your relationship with your supervisor.
  • Your relationship with other members of Chambers.
  • Your relationship with the clerks.
  • Your relationship with solicitors.

Within those relationships there is bound to be conflict. Your supervisor might want you to work on that massive set of commercial papers (particularly if you are any good and what you do is likely to be helpful). Your clerk may want you in Boggend County Court (coram: HH Judge Viciousbully QC) in order to keep Useless & Co happy. Useless & Co are the only firm who will regularly instruct Oldcodger who, for the first time in 10 years is double booked. Meanwhile, Thrusting & Co (aka, your mate Nigel’s Dad) would like to give you a whirl in Toobloodyfarformetogomyself Mags. It’s only a first up but the punter’s a regular client. He started off doing phone boxes and moved on to public order. This is his first assault and, if he likes you, there’s a reasonable chance that by the time he murders someone you’ll be senior enough to get the junior brief.

You will notice that, within this scenario, there is not a word about you. That is because you are unimportant. Of course, everyone wants to give you the opportunity to develop professionally – that’s what a pupillage is all about. However, you will best develop professionally if guided by them. Your supervisor believes that a failure to address the large commercial set of papers will leave a devastating gap in your education and cause problems later on. Your clerk believes that you need to understand that barristers must assist one another and that Useless and Co might come to instruct you regularly (after all, Oldcodger can’t go on for ever and he is 75). Nigel’s Dad is offering you a golden opportunity and shutting Nigel up (does he fancy you or something?). And everyone has a point.

If you have any sense you are torn. Firstly, you don’t want to offend anyone. This is sensible. They have a say in your future. Secondly, if you have to offend someone then you need it to be the least important person, and you have no idea who that is. Thirdly, even if everyone was telling you it is your choice, you have no idea how to make it. In any event, your clerk will almost certainly not be telling you that it is your choice. Your supervisor will be arguing with the clerk on your behalf (and also, of course, for their own benefit) and you will be wondering whether anyone is going to give you the chance to take the one which pays best.

This is wrong. You should be asking to do the one that you think is best for what you are going to do in the next 10 years. Unless your circumstances are unusual you do not need the money. You have an award which allows you to live – not in comfort or luxury, but to live. Take a long view. Your dedication to professional development and advancement is the only way to impress anyone. At least that way you have an objective standard at which to aim. Otherwise you look venal and short-termist.

This means in turn that you need to develop a view about what is best for you. I will try and deal with that in a future post, as I will try and deal with the other matters I have identified as important. I do not promise that they will be the next one or two posts, but I will try and cover the subject, lengthy though it is.