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JISCBAILII_BOOK_LEGAL_PROFESSION
THE BARRISTER'S WORLD
- and the nature of law -
John Morison & Philip Leith
School of Law
Queen's University of Belfast,
Belfast Northern Ireland.
This text was originally published by The Open University Press, Buckinghamshire and by Aditya Books, New Dehli in 1992. This current version has been prepared from the original word processed files.
Copyright and Moral Rights remain with the Authors but this work can be freely copied for educational and non-commercial usage.
The Authors can be contacted at j.morison@qub.ac.uk and p.leith@qub.ac.uk
"Whatever else you say tell them it's a wonderful life".
A barrister
"You mustn't believe everything that barristers tell you: barristers are always the heroes of their own stories, they're all about how brilliantly they conducted their cases".
A barrister
For Sue, Rachael, Hanna, Christine and Annie.
Preface and Acknowledgements
- The printed word has held lawyers and legal academics in its spell for too long. Mostly, when we think about "law" or "Law", we think of it as a body of clear printed texts which open themselves up to close textual analysis and which then "tell us" what to do. Yet the printed word has blinded us to the fact that much of what happens in law is not textual at all: it is to do with advocacy and persuasion. This blindness has been particularly apparent as it relates to what solicitors and barristers actually do: the research in this area is minute. If only one percent of the time spent in textual analysis had been spent on analysing law in practice, we would have a completely different view of the nature of law.
- In this text we look to the non-textual nature of law and try to present a view of law which is more accurate, and which better describes the nature of law. Such a view is important for lawyers, academics and the public - for we move from accepting ideologically based pictures of the grandeur of law, to seeing law as a necessarily flawed human process.
- The researches which led us to taking this view of law were funded by the Queen's University of Belfast. We thank our colleagues in the School of Law for diverting these monies in our direction. We are grateful to those barristers and advocates who allowed themselves to be interviewed. We also thank all those who helped us by providing contacts and in other related ways - Douglas Taylor, Ernest Ryder, Niall O'Shea, Norman Doe, John Edgar and the Council of Legal Education, Inns of Court School of Law.
- The interviews used in this text were given on the understanding that anonymity would be guaranteed. Apart from slight editing, the quotations are as they were recorded by us.
- Our interview methodology was not as crudely empirical as some might have wished, since our target was the "style of thinking" of advocates and barristers, rather than a mapping and measuring exercise in some neo-scientific manner. However, we feel that our chosen procedure has produced perspectives which the crude empiricists have not managed to produce in the past, and has thus been highly successful. We thank Professor Alan Paterson of Strathclyde University Law School, author of The Law Lords, for early discussion on these methods and providing helpful contacts.
- In this text we, unless specifically stated, use the terms "advocate" and "barrister" interchangeably. Also, in our interviews, a male oriented flavour was apparent even when interviewing female barristers. This is reflected in our quotations, if not - hopefully - in our text.
- Finally, we must acknowledge that the idea for the project began in informal discussions with some of our colleagues who have part-time practices at the bar. Without those early insights which they provided, we might never have began our researches at all. We also thank these colleagues for their useful comments upon early drafts of this text.
- Belfast, January 1991.
PART I
THE PROBLEM OF LEGAL THEORY AND LEGAL PRACTICE
Chapter 1
The Importance of Advocacy
Introduction
- We have lived through a century where, in the teaching and discussion of academic law, the role of the advocate has been mostly downplayed. As the training of the lawyer has moved from an apprenticeship system over to a University-based system [Abel, 1988], the intending lawyer has found himself more remote from the practice of law than ever before. In opposition to this, various forces and schools of thought (legal realism, clinical legal education, and - most recently - Critical Legal Studies) have tried to bring the horse of legal education to the water of practice. Unfortunately, the typical teacher of law has drunk elsewhere.
- Law, for most who teach law, has been seen to have life only in the law books on the library shelf, and to have authority only from the gradations of the printed word: case note, legislation, law report. It has been a century where the teaching of law has been remote from the practice of law, so much so that Roscoe Pound very early on asked why law in the law books was so different from law in practice [Pound, 1910]. Since Pound's discussion of the divergence of law and practice, the situation may have got even worse. There now exists an embarrassed silence between the academic lawyer and the practitioner, only marred by the slight jarring sound of socio-legal research heard in the background.
- We can see this silence by the fact that the advocate is the one actor in the legal process who has escaped the scalpel of the investigative researcher. Few are the studies which have tried to explicate and understand the role of the barrister in the UK legal system. Yet, as we shall argue, the advocate and advocacy is central to the very notion of the nature of law and legal practice. A legal theory which ignores the art and science of advocacy is limited and blinkered by bottle-end spectacles.
- Our study began through casual conversation with colleagues who carried out part-time practices at the bar. These colleagues, as skilled at teaching substantive law rules as anyone else, seemed to take on a different mask when describing law in action. Here there was little of the dry, technical analysis and commentary upon legal texts. It was replaced by discussion of the art of persuasion - persuading judges, juries, solicitors, clients - and the art of strategy - minimising sentences, maximising awards. There was a richness of description of the world of the barrister where obstacles had to be constantly side-stepped - the awkward judge, the unhelpful solicitor, the client who wished to plead not guilty to a strong prosecution. Our immersion in this was a baptism to Pound's law in practice.
- We looked to the written materials on the barrister and the techniques of advocacy and found that it did not help us make the connection between practical and theoretical law. There was a tension which effectively pulled them apart. The writings of the barrister him or herself were generally of the sort which explained how Smith was saved from the gallows, or how - unluckily - Jones was lost to those same gallows. These were the writings of law as a game: winning some and losing others - the cut and thrust of life in the courtroom. The writings of the barrister turned academic gave no hint of the complexity of life in the courtroom. Herbert Hart, transformed from barrister to pivotal position in academic legal theory as Professor of Jurisprudence at Oxford, sets aside any knowledge he might have had about law in practice and talks about law as it ought to be: clear and safe for the middle classes [Morison, 1988, 138].
- One form of writing spoke of strategy, eloquence and the testimony which saved or lost the day, and the other talked about dry rules, even though both were supposedly about the same institutional fact.
- Even those who had written vade mecums describing the barristerial role, had - it seemed to us - missed the mark. Those like Du Cann [Du Cann, 1980] provided a picture of the barrister as an upstanding figure with strict moral codes but did not mention the tactics and less sightly behaviour which we heard of from our colleagues. On the other hand, a writer like Evans [Evans, 1983], emphasised the strategic but gave no hint as to how law related to the task of advocacy. Indeed, to Evans, the much discussed (in academic circles) law of evidence could be reduced to several simple rules and - in criminal advocacy - it seemed that this was all the law that was required. Neither of these told us anything about how law and advocacy were related.
- Those few academics who have considered the bar have mainly been interested in carrying out a social geography - mapping and measuring the social structure and familial relationships of barristers and solicitors. Foremost amongst these, of course, is Abel [Abel, 1988] with his dense tabular argument for the Weberian progression of the legal profession from individual agent to corporate intermediary. For all the (undoubted) usefulness of this kind of research, it does not tell us what barristers do, nor how advocacy relates to the ideology of law and of justice. It simply continues the emphasis upon the legal profession as a upper middle class occupation. But this is not profoundly insightful: many other professions - academics for example - are essentially middle-class but studies which concentrated only on schooling or background of law teachers would tell little about their interests or what they do as academics.
- We were thus left confused about what being a barrister was, what advocacy was and how much it related to legal education, and how law in practice related to law in books. We decided to carry out an investigation. The rest of this text is an attempt to explain what we found, and how we began to think about the relationship between written law and advocacy.
- Perhaps the main theoretical point which we arrived at - and describe in Part III of this text - is to do with rhetoric, a subject which is most commonly (and, we argue, errantly) seen as simply speechifying, or in St Augustine's words, as "so much wind and noise". Mostly, when rhetoric is described, it is considered a low form of persuasion, using subtle techniques to sell untruths, or half-truths. Even those authors who have shown an interest in the relationship of rhetoric to law have been cast under this shadow, which was described by Socrates as simply flattery:
"I sum up its substance in the name flattery. This practice, as I view it, has many branches, and one of them is cookery, which appears indeed to be an art [but is only] a habitude or knack ... rhetoric [is] another branch of it, as also personal adornment and sophistry." [Quoted in Stone 1988, 93]
- Researchers have thus felt obliged, once having made the link between rhetoric and law, to try to make the link between rhetoric and justice as a counter to the Socratic charge of sophistry. We look to this later in the text where we suggest that this is a cul-de-sac in thinking. However, briefly we can outline our view here, that we see one of the main opponents of "justice" as being the time-dependant nature of the legal process - the fact, that a timetable exists to which the advocate, judge and litigants all have to accord. Justice - in its ideal form - would allow the continual replay of each and every case until the final truth (or death of the parties) was arrived at. The legal process cannot, of course, allow this (the system even relies now on the fact that most cases are not fought through - see, for example, later in this text). Since litigants, defendants and prosecutors do not have this time, they are left to marshal their facts, evidence and persuasion as best they can.
- Our view is that law is essentially rhetorical, rather than logical as many would have it. But rhetoric - exemplified and practised by the advocate - is about the dual facets of persuasion and information. Those who look to rhetoric as speechifying do not see that legal information and legal knowledge are as intimately connected to the rhetorical arts as is persuasion. Later in the text we will try to present a more flattering view of rhetoric. For now, we might suggest that our position is rather like that of Cicero who suggested that rhetoric is the first step in the civilising process: no longer is force dominant, rather discussion, persuasion and presentation of evidence become the necessary acts. This less critical view of rhetoric is why we have come to see advocacy as of central importance in the understanding of legal theory and legal practice.
- In the remaining sections of this chapter, we shall give a brief introduction to the history of advocacy and the bar, and an outline of our research method.
Legal Rhetoric in the Ancient World
- It is frequently asserted that the there was no such role of the professional advocate in ancient Athens: that each and every citizen had the right and obligation to both act as judge and to present his own case should this be necessary. No doubt many of the political trials - including that of Socrates - were marked by the fact that those accused were capable of defending themselves through a high degree of oratory. However, this could not be the case with every citizen. As Bonner tells us:
"With the object of making each citizen take his full share in public life, and of preserving equality ... in the citizen body, litigants, if citizens, were required to take their own cases in court. But this was an ideal beyond the possibility of achievement even in the Athens of Pericles. And so there were a class of men whose business it was to write speeches for those who were unequal to the task of pleading their own cases. These ... did to a certain degree constitute a professional class, but they were not lawyers in our sense of the word. A knowledge of rhetoric was quite as essential as a knowledge of law. Moreover, the necessity of fitting the speech to the character of his client tended to keep the speech-writer in the background. Indeed, every artifice was resorted to in order to keep up the delusion that the litigant had prepared his own speech." [Bonner 1979, 11]
- Athens was, of course, a highly rhetorical culture. Unlike today, where it is possible to carve a successful career in many areas without great powers of speech and oratory, it was not so in this Athenian world. The written word was not printed, and writing itself was nowhere near so common as we might have imagined. We shall come back to this point later in the text when we consider the nature of "legal information", but the general point - expressed by, for example, Havelock [Havelock, 1963] or Kennedy [Kennedy, 1963] is that Athenian society at its height was primarily an oral society. Reading matter was limited, reading was taught at a much later age than would be expected today, and most information was passed on through oral techniques. Thus Homer's Iliad is now commonly seen as having been designed for public performance rather than private reading. It is now perceived as a social encyclopaedia which was told by story tellers, and was written down by, rather than written by, Homer [Kirk, 1976; Parry, 1971].
- In this kind of oral culture it was important for the citizen to have command of techniques for putting his own case, and debating and arguing with fellow citizens. Even the rules of law were based in custom (which is oral, not written) rather than the formalised legislation of our times. The Iliad, as Parry has argued, was a social encyclopaedia which acted in part as a resource for customary and magisterial law. But, as Bonner's quotation tells us, the problem with such cultures is that even though so much of the educational process was directed towards teaching rhetoric, not everyone has the same rhetorical skill. As in a written culture, not everyone's writing is as persuasive as that of others. It became necessary to have a class of people who would help in the preparation of arguments to be put before the Athenian court. The divergence between individual oratorical skills was as problematic for Athenians as it now is for us. For, if we believe that the purpose of a court is to get to the truth of a matter, might it not be the case that a good orator can hide the truth from the court and free the guilty or convict the innocent? As Cicero was later to say (in private) to someone he had spoken for,
"Let me tell you it was I who produced the necessary darkness in court to prevent your guilt from being visible to everyone."
- As we have seen, there were even some suggestions that it was poor strategy to let it be known that one's speech had been written by particularly good orators. Antiphon was a case in point:
"Antiphon's reputation for rhetorical skill and subtlety aroused so much popular prejudice against him that his open advocacy for a cause would have been more harmful than helpful. Consequently, as Thucydides points out, he refrained from speaking in public." [Bonner, 1927, 8]
- Though it should also be said that Antiphon's oligarchic views and his later execution for being involved in undermining Athenian democracy might have had as much to do with his unpopularity as his rhetorical skills. It is Socrates who we recognise as the main opponent of the primacy of rhetoric, decrying it as sophistry, a word which is now read as a term of abuse. Stone has suggested that Socrates was both opposed to the Sophist's philosophical position as well as their (lower) position in the social order, and that:
"The antagonism between Socrates and the Sophists, as portrayed in Xenephon and Plato, has blackened their name. Until then the term sophiste denoted a skill of any kind. The word sophistes came to mean a skilled workman or artist and was soon also applied to diviners, poets and musicians. The legendary Seven Wise Men of Greece were called sophistai, as were the pre-Socratic philosophers. It became an honorable appellation again in the Roman empire for teachers of Greek rhetoric and philosophy." [Stone, 1988, 41]
- Since so much of our contemporary thinking about law and advocacy is related to this very idea about the ability of rhetoric to act for ill causes - is it sophistry or is it not - we shall return to discuss this point in later sections of the book. For example, in Part III, when we look to the evidence we have from barristers, we shall see that the relationship between "speechifying" and "facts" is another representation of this problem.
- With the decline of Athenian culture and the rise of the Roman Republic, there was no concomitant rise or fall in the value of rhetoric and legal advocacy: in Rome it remained every bit as important as in Athens. However, it now became more common for legal advocacy to be handled by a third party to the affair, even though payment was not supposed to be made for these lawyering services. As described by a spokesman in Tacitus' Dialogue on Orators, legal rhetoric was something apart:
"You cannot imagine any profession in the whole country more productive of practical benefits, or that carries with it a sweeter sense of satisfaction, or that does more to enhance a man's personal standing, or that brings more honour and renown here in Rome, or that secures a more brilliant reputation throughout the Empire and in the world at large ... Can there be any safer line to take than the practice of an art which gives you an ever-ready weapon with which to protect your friends, to succour those to whom you are a stranger, to bring deliverance to persons in jeopardy, and even to strike fear and terror into the hearts of malignant foes - while you yourself have no anxiety, entrenched as you are behind a rampart of inalienable authority and power?" [Quoted in Grant, 16, 1969]
- As we know from studies of Roman Law, there was much more formal law than had been in the Greek model. Yet, the transcripts of speeches made of legal advocacy refer little to the rules of law. Most deal with the techniques of persuasion rather than the techniques of textual interpretation. Quintilian, whose rediscovery so radically changed the medieval educational world [Ong, 1983], is perhaps the prime example of the legal rhetorician. His Institutio Oratoria provides a detailed introduction to the many technical aspects of rhetoric and advocacy: speech production (a loud voice was essential), physical movement, rhetorical figures or tropes and so on. Of the charge of sophistry ("It is eloquence that snatches criminals from the penalties of the law") he replied that oratory did have the power to act both for the good and bad, and thus was or could be problematic. However, he attempted to divorce oratory from rhetoric, the latter being the "science of speaking":
"These problems, however, may be left to those who hold that rhetoric is the power to persuade. If our definition of rhetoric as the science of speaking well implies that an orator must be a good man, there can be no doubt about it's usefulness." [Quintilian, Book II, xvi, 1921]
and the "science of speaking" was the way in which we give voice to reason:
"But reason by itself would help us but little and would be far less evident in us, had we not the power to express our thoughts in speech; for it is the lack of this power rather than thought and understanding, which they do to a certain extent possess, that is the great defect in other living things." [Book II, xvi]
- The notion of "giving voice" to reason (particularly legal/factual reason) is one which we today find expressed by barristers and advocates.
- The role of rhetoric has been of enormous philosophical and historical significance, and nowhere has the role of rhetoric been more obvious than in the court of law. For it was here that politics were acted out: the trial of Socrates; the various trials where Quintilian himself prepared the defence or prosecution etc. We can clearly see that the forensic aspect of rhetoric was of vital import to both Athenian and Roman societies. We shall later see that the problems which busied the ancients still philosophically and practically busy us.
The Inns of Court, Faculty of Advocates and the Bar Libraries
- The legal system in the British Isles consists of four main jurisdictions, each of which is structured in a slightly different way. Generally, though, barristers have rights of audience - that is, rights to appear in courts - which much exceed those limited ones granted to the other side of the legal profession, solicitors. Currently, the legal profession in the UK is going through a period of enforced change where there are attempts to break down this traditional distinction between the two sides of the profession. The Scottish legal system has taken to this, perhaps, with more acceptance than the English or Northern Ireland jurisdictions. As we shall later see, this is perhaps because the relationship between solicitor and advocate (which is what the "barrister" in Scotland is called) differs in Scotland from the other two jurisdictions. However, this relationship seems to have altered only recently. Wilson [Wilson, 1965] asserts that the taboo of advocates mixing with solicitors (which now seems to happen frequently) existed in Scotland (as it does now in England and Northern Ireland) when she carried out her fieldwork. Scotland is, it appears, at the very forefront of changes in both sides of the profession and perhaps needs a fuller study than we could give it - particularly a study looking at structural aspects, rather than the nature of advocacy as is the concern of this text.
- The structure of the legal profession, though, has never been completely set in concrete and the current changes being forced by Government, though radical in intent, are not changing a profession which has existed unchanged for a millennium. However, the profession has been relatively static in terms of occupational role since the middle of the 18th Century. By this time, English barristers were a clearly definable section of the profession, whose primary task was advocacy. Prior to this period barristers were not regarded as full advocates until they became benchers:
"The majority [of barristers] did not appear again in the records of the Inn and were not practitioners of any note at Westminster. For these, as for the non-practising barrister of today, call to the bar was a mark of intellectual attainment and of gentle (or professional) status, but not an occupational description." [Baker 1981, 30]
- In Scotland, the titular role of advocate as full participant in the court has had a longer history than that of the barrister in England. It was in the 16th century that the Faculty of Advocates was initiated in Edinburgh. However
"It was not until the seventeenth century that advocates began to act exclusively as pleaders before the supreme courts, a role all members of the Faculty adopted by the end of the eighteenth century." [Murdoch 1981, 151]
- Essentially, then, the modern structure of the barrister/advocate as pleader rather than as someone who "solicits" began in the 17th and 18th century. But from about the end of the 15th century there was a clear profession of lawyer, albeit existing in a different professional structure. This does not mean that advocacy was not important prior to this time in the legal histories of England, Scotland and Northern Ireland.
- The reader of Bede's A History of the English Church and People can follow the move from the tribal, warring society which was the situation left after the Roman occupation ended in Britain. As Christianity gradually came to prominence, the tensions between the Celtic and Roman versions of Catholicism led to the dominance of the latter (and its particular ecclesiastical legal orientation). With Viking and Norman attentions, the political/legal system of the British Isles began the move from the patchwork of tribal leaders into the medieval world, a world we know to have been highly influenced by rhetoric. Though we have no history of legal advocacy in these times, we know that speech was by far the most important form of communication - literacy was low, and, as many have asserted, the medieval mind was much more like the Ancient Greek than that in today's scientific culture. Even reading was different from today - the ability to read a manuscript in silence was such a novelty that a monk who could do it was hailed as a marvel [Hadas, 1954]. It was not to be until the invention of the printing press that the medieval mind subsided [Huizinga, 1924] and the modern visually-oriented mind took prominence.
- Walter Ong, in his writings on orality and literacy, has concentrated upon the manner in which knowledge is held and transmitted in these sorts of oral, manuscript and print cultures (for example [Ong, 1981]). He suggests that in pre-print cultures this is done by, for example, the continual use of proverbs. If we sat beside someone from an oral or medieval culture, Ong asserts, the speaker would not use the same speech techniques as we would - his talk would be full of proverbs and aphorisms. Indeed, he would not be able to converse without these. We have much evidence that this aspect of oral culture existed right up to Elizabethan times: there is, for example, the text of an MP's speech in Parliament which is almost a serial recitation of proverbs [Wilson, 1941] and we know that one of Erasmus' first tasks after the invention of printing was to collect lists of proverbs and have them printed [Erasmus, 1530].
- The point of this diversion into mediaevalism is to emphasise that, in the pre- and medieval world where there was little of today's noise, the sound of the human voice and the continual oral recitation of knowledge was paramount. Law, when written, could not have been the same creature it is in our current legal culture, for it was used and understood with a completely different mental outlook. This was a more oral mental outlook than we now have.
- The rise of the lawyer, and particularly the barrister/advocate as a professional class of pleader, can thus be seen to be linked to the decline of this orally inclined mentality. Exactly what sort of a linking this is is difficult to judge. We might say that as British society become more modern in outlook because it had broken the barrier of manuscript culture, law too became more modern and complex and required a professional class to interpret it. Or, alternatively, it might be maintained that the rise in printing which was so decisive in initiating the Reformation gave the impetus to making law more secular and less oriented to ecclesiastical power. (The bible, and therefore interpretation of religious and legal-religious truth, was kept in the hands of the priest until the Reformation when it became easily available to non-clergy through printing.) Or, again, it could be said that printing turned law into a commodity which could be processed and handled by this newly required and important occupational class.
- These are the sorts of problems concerning the history of law and lawyers which have received scant attention. Most historians seem implicitly to argue for the continuity of legal experience from Athens (or perhaps Rome) to today. Yet the differences between medieval and post-medieval law seem to us to be connected to the problem of rhetoric and law which we mentioned above - that is, how much is law rhetorical and how much is law positivist (that is, rule and fact oriented). We shall return to this matter later. For now, though, it is important to set a marker in place to highlight the fact that the barrister/advocate did not simply come into existence by magical forces of spontaneous creation: something changed in the world which made the barrister an essential element of the legal process. The same, of course, has to be said for the solicitor and his historical predecessors.
- Max Weber, whose work has moved many studies into the legal profession, was of the opinion that lawyers themselves were a major cause of the rise of the legal-rational society. But this - in our view - seems to give too large a degree of power to change society to one small group of actors. Larger forces must have been at work than that of the legal profession.
- The rise of this new class of professional advocate was structured by their educational and business environment. It has only been recently (in the 20th century) that universities have become major agents for legal education. Until this period, most legal training was by an apprenticeship system - one learned the law in the company of lawyers rather than academic lawyers. This legal education was carried out, in England, in the Inns of Court and, in Scotland, by the Faculty of Advocates.
- Today, these institutions have changed from being guild associations concerned with education as much as self-support, to being largely professional societies which are a mix between businesses and co-operatives. This strange mix is due to the fact that, in the UK, the barrister and advocate are almost always self-employed. As we shall see, any coming together of barristers into a working group sharing resources is still constrained by the fact that they are self-employed.
- The Inns of Court are set in central London. They are essentially medieval guilds of lawyers which function in the present day as an organisational focus for the profession. Around the Inns of Court there are a whole series of sets of chambers - groups of barristers who share offices, clerks and (sometimes) secretarial support. The physical conditions are generally agreed to be intolerable - senior barristers earning six figure sums who have to share office space. Yet little has been done to improve the situation. Chambers are usually served by a barrister's clerk, an administrator who acts between the barrister and solicitor to take briefs (i.e. cases) and agree financial terms. Clerks usually earn a percentage of the income generated by their chamber. Given the large income which some clerks do earn, there has been a recent tendency to turn the position into a salaried post. Flood's Barristers' Clerks [Flood, 1983] paints the picture of the social status, and the importance of the clerk to the barrister.
- In the English provinces, sets of chambers are to be found in all the cities. Here, frequently, the pattern of large income being supported by inadequate physical environment is to be found as the norm. It is the exceptional chambers which has moved into modern office accommodation.
- Chambers are composed of a well rounded body of barristers - there might be several Queen's Council (that is, barristers who have "taken silk" and moved up the legal hierarchy) together with more senior barristers all the way down to raw recruits straight from pupillage. We look, in Chapter Two, in more detail at the career path of the barrister. Some chambers will offer a mixed practice of both criminal and civil work (the latter covering divorce, business and other non-criminal litigation) and some will be more specialised. As barristers leave a chambers (to become judges, or to set up their own chambers perhaps) and others join, the character of that chambers may change - moving from civil to criminal work, say.
- Chambers are co-operative ventures. The costs of running these are met from the income of barristers as individuals: their earnings are their own, rather than that of the chambers.
- In Scotland there is no chambers system, although there are clerks (some four in number). Advocates frequently work from their homes where they meet clients, or from the Faculty of Advocates in Edinburgh. This is situated in the old Scottish Parliament buildings, and consultations with clients there take place in Parliament Hall. The latter often evidences the unusual habit of pacing up and down (with a firm turn at each end) a historic hall filled with oil paintings of past and distinguished lawyers while discussing a case with a solicitor or client. Although there are no chambers, there are clerks, who are centrally located in the Faculty of Advocates and who look after the diaries and suchlike of the advocates. The Faculty of Advocates is a combination of a business centre (based on the clerks) and a law library. Since most litigation in Scotland takes place in Edinburgh (where the upper courts are) most advocates are resident in Edinburgh. Those who know the difference between Glasgow and Edinburgh will understand that there exists - we were told - some resentment from Glasgow solicitors who resent having to brief Edinburgh advocates. Our interviews in Edinburgh were small in number. However, it seems, from Wilson's study, [Wilson, 1965] that the clerks in the Faculty of Advocates mirror closely those of the English clerks. The Scottish system thus seems to be closer to English than to Northern Ireland or the Republic of Ireland with their clerk-free system.
- In Northern Ireland, barristers use the Bar Library, and have neither chambers nor clerks. Barristers in Northern Ireland thus have to make contacts with solicitors by themselves, and are more individually organised even than in Scotland. In the Republic of Ireland the set-up is similar with barristers working out of a law library situated within the Four Courts building in the centre of Dublin.
- In all four situations, it is important to realise that barristers and advocates operate professionally in courts - particularly if they do criminal work. This means that they are not completely office bound, unless they are civil barristers who are primarily concerned with handling paper. There are therefore many opportunities to meet with and discuss the various happenings in the courts and suchlike. They are, particularly outside of London, small worlds where most practitioners would know many of their barristerial colleagues - having met them both socially and in court.
- The picture painted is one of the individual practitioner in a relatively static structure - chambers, Faculty of Advocates, or Bar Library. In this situation, the individual barrister or advocate must needs be a competitive animal. There is only a certain amount of work available at any point in time, and there are frequently periods where there are a surfeit of barristers.
- The competitive element ensures that earnings at the Bar are not enormous for all. Certainly, those at the top of the profession can make very large salaries - in many cases, higher than the managing directors of the companies who use their services. But, at the bottom of the hierarchy - where newly called barristers spend much time in magistrates courts etc. - work is often difficult to get, and payment is (as all barristers complain) delayed by solicitors. Many drop out from practice simply because of the financial problems.
- Finally, a word should be said about the "Weberisation" of the legal profession - which means basically the progression suggested by Max Weber that lawyers will become more employed than self-employed. Some evidence of this has been reported, where barristers are being employed as salaried employees rather than operating in the structure described above. An overview is given of this in Mackie's Lawyers in Business [Mackie 1989]. However, the numbers are presently seem not to be large.
The Research
- As with the beginning of most research, we were unsure about exactly what we would find. Our initial plan had been to concentrate upon the Bar Library in Belfast, since it was convenient and we already had relatively good contacts to this. We also felt that "The Troubles" - that euphemism for paramilitary activity - might highlight aspects of the bar which were hidden in the other jurisdictions. Thus, we began by interviewing a relatively random sample of barristers, at all stages of their careers.
- Early comments - from academic lawyers - suggested that we should constrain ourselves more according to the various types of court: i.e., we should have samples of barristers who usually appeared in each of the magistrates court, county court etc. This approach accords with the more traditional view of legal education - teaching about the legal process as relatively structured units of adjudication. We did not take this approach since we felt that our interest was advocacy rather than the courts. Our findings, anyway, agreed with our hunch - there was a commonality in technique and philosophy amongst all the barristers we originally spoke to. But this is not surprising - for barristers will frequently appear in different courts, even in one day. They transcend the individual courts, rather than are limited by them.
- As we discovered this commonality, we began to wonder whether this transferred over to the other jurisdictions, which we had only intended to look at briefly. We therefore carried out more interviews than originally planned in England and Wales, and some in Scotland. (The Republic of Ireland, too, provided informants.) There too, despite some clear differences between the Scots advocate and the barrister, was this commonality of technique and philosophy. After our initial interviews in Scotland, we made reference to Nan Wilson's excellent, but unpublished, PhD thesis [Wilson, 1965]. However, it should be noted that in the past 25 years, much has changed in Scottish legal circles which requires updating in Wilson's work. In many respects, though, we find her analysis complementary to our own.
- There are - as the literature of the social sciences attest - many problems with fact gathering from interviewing. It is frequently difficult for people to give truthful and frank answers to interviewers for multiple reasons. For example, they might wish to express (and, perhaps, believe in) the professional ideology; they might be suspicious of our intentions; they might simply, through misunderstanding, answer different questions to the ones we meant. We have no doubt that all these problems did exist, but still feel that - given the limitations of interview time and the ever-turning tape recorder - our interviewees tried their best to answer our questions. However, it was apparent that often the more experienced the barrister, the slower it was to achieve any sort of interview rapport. The less experienced the barrister, the more quickly could we get useful information. This, of course, is not difficult to understand: barristers generally are used to choosing their words with care, and not giving hostages to fortune. We did, anyhow, have sources who were prepared to provide us with less ideologically sound pictures of life at the bar: this was particularly the case when the behaviour being described was not approved of.
- We are aware that we have not provided the final and full picture of the barrister's world. However, we are confident that our perspective is reasonably close to life. There are any number of ways in which our study could have been enlarged: by interviewing more solicitors about barristers, judges about barristers etc. However, any research project has to constrain itself somehow, and we hope that our future research, as well as that of others, will take these multivariates into account.
- In the chapters in Part II of this text, we look to the different aspects of the barrister's world. We look to the ever present need to find work, where this comes from, the decisions which have to be made about career paths, the relationship with the client, solicitor and the judge and so on. These can all be seen as obstacles which the advocate has to surmount and evade in his profession career. But we also look to the the element of persuasion which advocates repeatedly emphasised to us: the control over the unfolding drama in the court, and the loss of control when things go wrong.
- Our interest in advocacy was never simply the outcome of a desire to classify and describe. More important to us was the already mentioned "embarrassed silence" between the academic lawyer and the practitioner. To the academic lawyer, law exists in the textbooks of a law library; to the practitioner, law seems to be something different and more strategic. Rather than try to bring these two views together, the silence is brought in to cover up the differences: barristers consider that academics don't know what "it's really like", and academics frequently think that barristers rarely bother with "the law".
- Our questions to barristers frequently mirrored the concern of academics, and dealt with subjects such as rules, rule-manipulation and suchlike. And we met the recurrent reply that most advocacy is not about rules, but about "facts". Since we had been involved in an earlier project to argue against a rule-based approach to law [Leith, 1988], we were none too keen to accept a fact-based one in its place. It seemed to us that there were simply the two sides of the practitioner/advocate dichotomy.
- As we continued to interview and consider our results, it became apparent to us that there was a truth between these two opposing perspectives. It was that "law" is a confusing mix of rhetoric and information. The former was not simply speechifying about fact situations, and the latter was not simply, for example, about rules got from legislation or case report. In Part III we will look in more detail at this problem and compare our interpretation of our findings with that discussed in the text Reconstructing Reality in the Court-Room by Bennet and Feldman, [Bennet, 1981] a text which is being seen as important in the context of understanding legal language and the relationship of rhetoric to law. Simply put, the authors argue that advocacy in a criminal trial is primarily a task of story telling. We will argue that it is too simplistic a thesis which these authors argue - and that, for example, they ignore the relationship between the court-room and the written texts of law. Our thesis will be that advocacy is much more than story telling techniques.
Conclusion
- Although our central concern in this text is the role of the barrister, it should not be forgotten that our broader aim is to try to shed light on the nature of law. It would have been easy to have been side-tracked into analysing the differences between the three jurisdictions of the British legal system, but this measuring and mapping exercise would have told us little about "law" and more about the social structure of society. Our tendency, therefore, has been to gloss over some of the differences which we found between the different jurisdictions. No doubt such the differences are interesting, and do highlight aspects of the cultural nature of legal systems, but in a text which attempts to provide an overview and an introduction to advocacy and the study of advocacy, such evidence would have hidden the trees in the forest. We have therefore tried to give the necessary flavour without the pedantry.
- Some of the literature which we use in Part III is of North American origin, and it is useful to consider the discrepancy between the sorts of research which are frequently carried out in that jurisdiction than those carried on in the United Kingdom. It seems to us that it is much more accepted in the USA that matters of judge, lawyer etc. can seriously affect the result of any trial. This has led to the healthy situation of research into many areas of legal life which would not be possible in Britain. For example, one early study of the ethnomethodologist school of sociology involved taping a jury deliberation room to ascertain the sorts of aspects discussed and the strategies used to reach a conclusion [Turner 1974, 15]. Such research would not seem possible in the current UK climate.
- The problem seems to be that - for whatever reason - there is a commitment to keeping up the British ideological picture of justice, and a fear of the actuality becoming reported. We do not, of course, support this view. It seems to us that law and the legal process are so central to the operation of society that it is healthier to accept the warts than to hide them with a make-up which cannot but crack with time. Too high a commitment to the heightened, ideological view can cause serious miscarriages of justice, since the system is seen as more important than the bit players. Jerome Frank's very last book (written with his daughter) Not Guilty [Frank 1957] emphasises our point that the time-table of law and the rhetorical nature of advocacy should not allow us to believe that judgements, once made, should be inviolate.
- In Part II we look to the evidence and materials which we gained from our interviews with barristers, and begin to suggest the complexity of what we describe as legal information.
PART II
THE PRACTICE OF LAW
Introduction to
The Barrister's World
- One popular image of the barrister - both as the figure in literature and the ideal to which many law students gravitate - is of someone very learned in the texts of law: someone in wig and gown who spends time immersed in ancient books searching for arcane points of law emerging only to triumph in the courtroom by outwitting the opposition. The printed word, it seems to this view, is the very life source of the barrister whether in the form of legislation, reported court decision, or in the briefs (tied in pink ribbon) which follow the barrister from library or chambers to court and back.
- The emphasis upon the text-based nature of advocacy (which mirrors the text-based view of law) suggests that the barrister is a specialist in textual interpretation. Solicitors, therefore, consult barristers on difficult points of law.
- Taken to extremes, this view of advocates suggests that they may be men (usually) of affairs. But this is generally in a somewhat donnish sense and the trappings of chambers and clerks, libraries and robing rooms serve only to reinforce the impression that the barrister is the conduit between the wisdom of the law in books and its application in the world.
- Our view is that such am image gives a skewed picture of the barristers' world and thus of the legal universe. We will, in this Part, argue that most barristers are involved in very much more than a simple hunt for a precedent or point of procedure that will save the case. Their world is a complex, often hostile, one where scholarship and oratory are not necessarily among the necessary or essential survival skills.
- While our own interest is the barrister, it is useful to note that some limited amount of work has been done in investigating the solicitor's world. As will be seen, the barrister's world links closely with that of the solicitor; therefore, it is important to understand the pressures upon the solicitor, and in what light this latter profession is best seen. The research which has been done tends to point to the fact that solicitors are small businessmen, rather than interpreters of law. For example, Campbell [Campbell, 1976] found that a sample of solicitors spent only about an hour a week on legal research, the rest of their time being taken with client management, negotiation, routine procedure etc. Even the time spent on legal research was more akin to revising old knowledge, than to learning new legal knowledge. The solicitor works in a hostile environment, where telephones ring, clients appear and many clients files are in action or awaiting action. It is not an atmosphere to encourage legal research.
- This might suggest that, if solicitors do not do legal research, that it is done by barristers. That, however, is not our finding. Most barristers, too, work in a relatively hostile environment.
- There are many sources of this hostility which we will look at in more detail in the following chapters. But as an example, we can suggest that one element is the fact that the career of the barrister is so dependant upon the active assistance of many other people. Given the lack of independence, the barrister must be ever careful to succeed in interpersonal relationships: failure at this could lose work, and could mitigate against future advancement.
- In the early stages the barrister must find a senior barrister who is prepared to act as pupil master, and, in those jurisdictions which operate a chambers system, a tenancy must still generally be won. At every stage a barristers are dependent on solicitors in private practice, business or government not only to give them work of the right kind and on the correct scale but to pay them promptly. The advocate is always dependent on those others involved in the preparation and presentation of his case. The solicitor must process the raw information properly and provide sufficient information. The witnesses must perform as expected. The opposing counsel (and, if they exist, one's senior or junior partner) must play not only according to the rules but in line with the common expectations and understandings which can make life so much easier and predictable. There is, or may be, a jury of twelve ordinary citizens, perhaps of fixed opinion or perhaps simply resentful of having to attend, who must be persuaded. Above all there is the judge who becomes, in the words of one advocate we spoke to, the "centre of the barristers' universe".
- After the case, whether successfully or unsuccessfully run, there might still be a solicitor and client to be satisfied. There is also the audience beyond the particular case in hand. This comprises other solicitors who must be satisfied enough in order to secure future work. It also contains one's peers. Elevation in the profession, to better work, senior counsel status or the bench depend on the good opinion of ones colleagues and particularly on the judiciary. It is against this background that the strategy of each case must be planned using all the knowledge, insight and experience that one has, in addition to whatever information can be scrambled together in the time available.
- It is this element of time that dictates much in the life of a barrister. There is not only the problem of finding time for preparation (including, if necessary, legal interpretation) but all sorts of difficulties caused by the difficulty of predicting how long other cases are to run. Will Smith's be a ten minute affair, an hour, a morning? Can Jones' case be fitted in on the same day, too? These are important matters for the barrister for prediction of this sort can enable the advocate to be in certain locations at certain times to cover enough cases to be busy and successful. It is perhaps revealing to note that among all the barristers we spoke to, most were late for the arranged time. Many simply could not attend, having being held up elsewhere (sometimes in different cities).
- Therefore, given the unfriendly environment in which we find the barrister immersed, we can suggest a different picture from that traditionally presented of the barrister. Rather than seeing the barrister as a reflective, scholarly individual dividing his or her time between a book-lined study and the rarefied, debating chamber atmosphere of the court, we will argue for a different image of both our subject and his milieu. We see the barrister more accurately portrayed as a fully social individual who must satisfy all sorts of competing demands while at the same time carving out a living from a not particularly welcoming environment.
- At the same time we suggest that the court, and indeed the whole legal process, can be understood only if we move away from the academically (and popularly) construed perception of law being about abstract rules and towards a fuller understanding of what goes on in the real world of the barrister.
Chapter 2
The Barrister's Role and Career
Introduction
- An idealised potted history of the successful barrister would begin with a degree (now, most frequently in law). From this degree course, the potential barrister would undertake some post-graduate professional study. This study would encompass the various procedural elements of being a barrister (which forms to use in the various situations etc.) which are not found in the undergraduate legal courses. Presentation in court, and advocacy would also be taught and discussed in this professional course. Generally, the professional course would not be too intellectually demanding, but would be more burdensome than examinations for entry to the profession have been in the past. Few who successfully gain a place on such a course would fail.
- On leaving the professional training he or she enters pupillage, and the potential barrister must find a pupil master and/or
chambers (the latter in England) to whom or which he is attached for a period of some months. In Scotland (and in the Republic of Ireland), pupillage is referred to as "devilling". During the early part of pupillage, the young barrister is not allowed to work on his or her own and thus has no earning power. Finding chambers or a pupil master is difficult, and some potential barristers fail at this point.
- After the specified time as a pupil, the young barrister is allowed to take cases in his or her own right and thus has some earning power. The cases which are offered are in the lowest courts where his or her advocacy is tested. If successful in gaining work, he or she can gradually move up the hierarchy, taking on more difficult and more renumerating cases. A young barrister might then begin to specialise in either criminal or civil case, either earlier or later: this depends as much upon contacts, chambers etc. as anything else.
- A reasonably senior and successful barrister might then consider "taking silk", that is, becoming a Senior or Queen's Counsel (QC). Or, as a barrister with a number of years practice, his or her name might be suggested as a potential judicial appointment. Such an appointment is particularly welcome to a barrister moving closer to retirement, for a pension comes with a judicial post. A lower income as a judge might well be countered by a higher income in retirement.
- At all these stages, of course, there are possibilities of failure or alternative career moves. The progression might not be successfully managed through limited ability, or (especially in the early stages) through lack of income. Many barristers have left the bar to pursue a career in politics (and some MPs still have active practices). Some become legal academics, and practice less frequently or not at all. However, the more successful the advocate, the more difficult it will be - as in any profession - to alter career path.
- While this potted outline is perhaps familiar it tells us nothing about the relationship of law and practice. What is less familiar are the rites of passage that begin after the call to the bar and the commencement of the period of pupillage where begins the process that separates the barrister from other lawyers and further again from the rest of world.
- The sort of practice oriented education which begins after a first law degree is very different from anything that has gone before. Indeed, one writer of a textbook written for students at the Inns of Court School of Law goes so far as to suggest that as students prepare for professional practice it might be necessary to:
"'unlearn' some elements of the academic stage".
[Blake 1989, 2]
- If the emergent barrister is not then simply putting into effect the law in books what is he or she then learning to do? The course manuals for professional examinations are full of information about whether to sit or stand in a special appointment with the bankruptcy master and the correct form of address in the vocative case for a Recorder in Manchester ("My Lord/My Lady" but "Your Honour" anywhere else) [The Council of Legal Education 1989, 306-309]. However, clearly, mastery of such professional shibboleths does not by itself transform the former law student into an advocate. What does the job description of barrister involve?
- For us the centrally defining characteristic of a barrister's work is advocacy. Advocacy or persuasion is what the barrister does in looking for work, preparing for work and executing work. In asserting this we realise that we may be going against a trend in the training of the profession which increasingly is emphasising the broad front of practical skills. This trend can be seen in the focus put on training of barristers in the Green Paper on The Work and Organisation of the Legal Profession (1989) and in the new bar vocational course which began in 1989. The redesign of the course for bar students, with its identification of the skills a barrister actually uses and therefore needs to acquire, isolated seven areas:
legal research
fact management
interviewing
opinion writing
drafting
negotiation
advocacy.
- For those doing the job and those teaching others to do it advocacy seems to be only a part of the picture. Why then, in the face of such authority, do we place advocacy in such a central position? Briefly, it is because we argue for a new and more general understanding of what advocacy is all about - both what is involved and who is persuaded. As this book progresses it will become apparent that we see advocacy not just as one aspect of the barrister's job but as the central and defining characteristic of the barrister's role.
- It is not just judges and juries who are persuaded but solicitors, lay clients, colleagues, witnesses and the general public. They are persuaded not just of the rightness of one or other side of an argument but to a view of many issues that coincides with that of the barrister. Persuasion takes place orally but also in writing. We were reminded many times by barristers of the importance of paperwork in their lives. Even on paper their role is to persuade, to find out what is wanted via instructions and then advocate that thing using whatever arguments can be found. Legal aid boards are persuaded of the merits or otherwise of a case, solicitors and lay clients are persuaded into taking up or dropping various courses of action (and afterwards of the rightness of such decisions) and other barristers are persuaded to concede points or to settle. Only after success or failure here does the barrister get an opportunity to persuade a judge or jury in the traditional sense.
- Even in court, persuasion is not just a yes or no, take it or leave it affair: witnesses are persuaded that certain conclusions might be more consistent with their observations, nuances are urged, alternatives scenarios at many levels are suggested and unsatisfactory interpretations and outcomes are mitigated. Many of the practitioners we spoke to referred to the difficulty of anticipating exactly which case will go to court and which will settle. As a consequence most barristers treat all cases in a similar fashion as if they were going to have to argue them all the way. A result of this is that the barrister is screening everything with a view to its usefulness or otherwise to the point of view that he or she will be putting forward. Bad points are as important as good ones in order to know what has to be done.
- This court/persuasion focus is, of course, an obvious consequence of the adversarial system: partiality, although falling short of what in America is euphemistically termed "extreme client identification", is what is required and clearly the system is built around this. This wide view of advocacy is not without its adherents in the profession itself. David Latham QC, Chairman of the Bar's Working Party on Pupillage and Vice-Chairman of the Professional Standards Committee of the Bar Council, has written:
"There are specialist areas at the Bar in which court advocacy plays only a small part in the overall work of the barrister. But for the vast majority of the Bar, even the paperwork is a form of advocacy, in the sense that it is either advice directly concerned with the client's chance of success in proceedings, or the the drafting of pleadings and other documents which are, in effect, written advocacy, and can have a significant effect on the ultimate outcome of any proceedings. At the end of the day, however, the barrister is judged on his ability in court." [Latham 1990, 12.]
- In our view advocacy starts well before the courtroom door and it involves very much more than simply deploying formal legal arguments in a purely rational process. Advocacy takes place in the context of the complex social world of the legal profession and the courts and its successful practice involves mastery of this environment just as much, if not more, than it requires ability with purely legal skills. In this chapter we will begin our analysis of what barristers actually do by looking at their career progression and what it is exactly that makes a barrister successful.
Getting Started
- The initial problem of finding work of any sort usually disappears for the successful barrister: if it does not, the unsuccessful barrister disappears. However, the problem of keeping the correct level of work, and work of the correct kind and at the right level of renumeration, remains as a concern for the barrister's entire professional life. In our interviews, we heard that even at the very senior level it was not unheard of for a solicitor to suddenly and inexplicably stop briefing an advocate who had for years taken many of the cases from a particular firm.
- In many ways the barrister seems independent. He is a self-employed, free-lance consultant and, other than the educational qualifications, there are only two formal hurdles to be overcome - first, finding a chambers or pupil master and, second, deciding whether to become a Senior Counsel. The first applies to everyone, but while the second applies in all jurisdictions, the decision whether to become a QC does not fall to everyone.
- Despite the limited number of formal distinctions present in the profession, we found, however, that in reality there were almost infinite gradations of success and failure within the profession and everyone was very alive to them.
- The early struggle in the profession is well known and well documented. That genre of writing which deals with the life and times of the famous barrister seems to have a compulsory chapter about how the famous advocate nearly relinquished the unequal struggle to survive and prosper at the bar. Marshall Hall is reported not to have earned any money for a year and Lord Atkin was about to join a bank when his first client came. It seems to have been ever thus. One very senior counsel told us
"it was just as hard when I started ... even in the fifties and sixties ... before legal aid ... there were far too many of us competing ... not just for a chambers etc. etc. ... but for that very rare thing - the client with enough money to pay privately for legal action."
- Even today, one source of advice for prospective barristers contains the suggestion that life as a commercial solicitor in London can be more rewarding and less precarious [Semple, 1990, 38].
- This has always been a source of concern for those who have wished a more socially representative group of barristers (for example [Zander, 1968]) since it is obviously easier to survive while earning little or no money if you come from a wealthy background. Stories of hardship were confirmed in our research. One pupil barrister complained that:
"at least solicitors don't have to find all their own expenses. I'm not from a well-to-do family and I'm not sure if I can afford to stay at the bar much longer. It's a very expensive business: it's not just a matter of bank loans but it delays you doing other things - for example buying a house. "
- It seems that things do not get all that much better all that quickly. Apparently, married men in the their late twenties and early thirties are a source of concern for barristers' clerks anxious to maximise the efficiency of their chambers. It is felt that their accumulated commitments of wife, mortgage and other necessities and luxuries of life perhaps diverts energies away from the law, the chambers and the work necessary to build up a successful practice while simultaneously engendering a need for funds. [Flood 1983, 51].
- Seemingly the conclusion urged by those who contribute to the mapping and counting genre of literature on the bar is true even if a little obvious. There is a financial hurdle. Although the Bar Council's efforts to secure for its junior members a minimum award or guaranteed income during pupillage will perhaps change the situation in the future, the bar remains a hard road on which to get started.
- There is however a more formidable challenge even than relative poverty awaiting the new barrister. Pupillage is where the profession begins - the real job of being a barrister rather than a student. Although practice in one's own right does not begin until towards the end of pupillage, the pupil is immersed in the real world of the barrister with courtroom and chambers politics and with real clients expecting the real thing. There is a period of partial or complete bemusement perhaps even worse than that experienced in the first few weeks and months of a law course. It was described to us as being akin to being party to an animated conversations in French if your knowledge stops at O-level: you can recognise bits and pieces but not quickly enough to form into a coherent whole and certainly not to enable you to contribute. Evans, described it as:
- There is of course the Council of Legal Education's short course on preparing for pupillage. However, this was described to us, perhaps a little unkindly, as amounting to little more than advice to bring a clean handkerchief and be polite. Certainly much of what needs to be taken on board is not learned before hand. One young English barrister put it this way:
"The bar school is renowned for not having a particularly good course, particularly if you have been there recently as I have you will remember it more clearly - it has to be said that ... it just wasn't turning out members of the bar as it should have been - it was just an academic course. What was happening was they weren't teaching you properly in skills of advocacy and paperwork. In fact you have to have a crash course in it in your first six month's non practising just sitting watching your master churning out paperwork.
- The first months of being "on your feet" are perhaps challenging enough but there is the additional obstacle - at least in England and Wales - of being simultaneously measured up for a tenancy in a set of chambers. Not only is the pupil learning an entirely new set of skills but he or she is constantly being assessed to see if his or her personality or competence fits. This aspect of the barrister's rite of passage has provoked particular criticism from the radical bar as represented by the Bar on Trial group [Hazell 1978, 95-8]. One recently qualified barrister told us how, among her contemporaries in England, the provinces were more popular career choice than London for those who sought at least a modicum of job security. Outside London, chambers tend to take on only two or three pupils rather than five or more. This means that competition for any vacancies in the set (of Chambers) is less intense. There
"the hurdle is to get in in the first place. If you perform well and don't antagonise anyone you should get taken on - although I didn't in my last set."
- Of course this does not apply in bar library systems of Northern Ireland, the Republic of Ireland and Scotland where a seat is allocated to all practising barristers at their time of call. This seat, which is usually notional rather than actual, gives the barrister access to the law library and consultation rooms and the receptionist and telephone facilities. For an annual fee of a few hundred pounds (as opposed to maybe twice or three times as much in some London chambers) the new barrister can begin to practice. Maurice Healey in his enchanting account of the Old Munster Circuit is misty eyed about this system in the context of the Dublin bar in the earlier part of the century. He says of the library system that it:
"not only enabled us all to practise cheaply, but gave every neophyte three hundred tutors to knock the corners off him ... it was a corporate body." [Healey 1939, 272]
- We will look later at the relationship between barristers and will see that a library system does radically affect the way that work is allocated as opposed to a chambers system.
- One of the basic, ice-breaking questions in our interviews with barristers was about what sort of work they did and how they ended up in that area of practice. Most of our interviewees, in common with most of the bar, are generalists with interests defined broadly in terms of civil or criminal, commercial or family etc. but always within the limits of maintaining a general common law practice. There are of course specialists but these are in a minority and are based mainly in London. The opportunity to specialise in one or two areas comes to very few barristers and only then after a good many years knocking on the door. The reasons for a barrister's career taking whatever general path it had were most commonly expressed as being a result of chance: the type of chambers entered, the sort of practice conducted by a pupil master and of course, at least in the early days, the role of the clerk. Personal aptitude or interest were cited much less often than might be supposed. These fairly unconsidered responses to our very general question in fact belie a very much more complex social interaction surrounding the getting and keeping of work. On this issue, as with most others in the barristers' world, there is a social dimension explained only in part in terms of the professional organisation of the bar and its relationship with the solicitor's profession, that needs to be taken into account before we make any assumptions about what the barrister is actually doing as he argues in court.
- When the young barrister begins earning money, hopefully during the final months of pupillage, he or she will normally be dependent on being given a chance to do some work that is too lowly and unrewarding to attract anyone more established. This is reasonably well accepted. As one barrister who has just survived the early struggle commented:
"when you start out you have to do anything that comes along. That's just the way it is and often you're glad to get it - whatever it is."
Briefs - the name refers to both the cases and documents - normally come directly from solicitors. However, briefs may be passed on from colleagues in a bar library or from other members of a chambers because they are overcommitted or because the fee simply is not worthwhile. In the bar library in Belfast it is common for young barristers to wait around all day knowing that sometimes, often in the late afternoon, there will be a colleague seeking to pass on a brief. Often enough this will be a case that the barrister making the offer is anxious to pass on. A cry of "Anyone going to Ballymena tomorrow?" more often than not signals the start of a process whereby an unprofitable or poorly prepared case begins its descent to the lower echelons of the local profession. We heard tales of briefs being proferred as "a windfall" which pass from hand to hand as their true nature is discovered until at last a difficult, unprofitable or poorly prepared case finds its final recipient with a new barrister too lowly to pass it any further. In Northern Ireland this practice of passing briefs downwards has been institutionalised for the benefit of solicitors. There is a large book which is kept at the reception desk in the bar library into which a young barrister can enter his or her availability to conduct cases in various courts across the province. A solicitor who is stuck for counsel can then consult the book and find a champion for whatever case is on offer.
- However, passing of briefs in the library system is not invariably a case of the desperate taking the despicable. Many pupil masters make introductions and channel excess work in the direction of their proteges. One advocate told us:
"a lot depends on who your master is. You tend to follow into his line of work because you would tend to meet the same solicitors that he works for and the masters, after you have done your six months pupillage, would genuinely feel obliged to ask their solicitors 'would you give a little bit of work to so and so - the pupil - just to get them started off?'."
- The gratitude that was expressed to pupil masters by a fairly large number of now well established practitioners makes one wonder what happened to those who were not so lucky in their master.
- It is at this early point in a career at the bar that contacts can perhaps be most useful. Connections through family, politics or church are in Northern Ireland regularly exploited to produce work.
- This is probably reproduced everywhere. We could not ascertain how widespread this was although most barristers we talked to were accepting of this as a reality of life and comforted themselves with the belief that now the professional nature of the bar is such that contacts alone cannot overcome the grossest absence of talent.
- Those without contacts must shift for themselves. Without even a clerk to offer protection there are hazards. One barrister who had just successfully negotiated the shoals and shallows of the early years told us:
"there are the known solicitors who use people for the first year because they won't pay them and they just keep using that first year every year .... Obviously because you're not 'in' enough, you don't know the name of the solicitors or you forget the name of the solicitors [and] you accept the work ... You soon learn and you just don't accept it or the only time you would accept it was if you had money upfront which is totally unethical and totally illegal (sic) and we're not allowed to do that but that's the only way you would do it."
- Poor cases, bad or non-existent instructions and difficulties with payment do not go away completely during a career at the bar but their effects are perhaps hardest at the start. We shall look later at the problems in the solicitor/barrister relationship in more detail, but since the relationship is essentially one of providing and taking work, it cannot be glossed over here. This relationship is the most important in the career of the barrister, for without solicitors who are prepared to pass work on, there can be no career at all.
- In a chambers system most colleagues while remaining unlikely to take the bread out of their own mouths are perhaps less indifferent to the fate of their junior colleagues. And there is of course the intercession of the clerk.
The Clerk
- In a chambers system the newly qualified barrister is to a considerable extent dependent on the good offices of the barristers' clerk. The occupation of barristers' clerk in some ways seems a relic of the past, something more in keeping with the time of Dickens's
Bleak House where Jarndyce v Jarndyce wound its tortuous way through the Chancery Courts rather than the wordprocessors and litigation support systems of modern chambers. Nevertheless, and despite a recent tendency towards practice managers rather than old fashioned clerks, there is a clerk in most chambers. In the best and most extensive study of the clerk that is currently available, Flood maintains that this role involves the clerk as counsellor, negotiator and fixer with the most important function being that of fixer. He maintains that:
"essentially the clerk is the middleman, or mediator, between the diverse interests of the legal system, namely those of barristers, solicitors, judges, list offices, and occasionally the client upon whom the system depends." [Flood 1983, 3]
- Another commentator sees the clerk as:
"a complicated cross between a theatrical agent, a business manager, an accountant and a trainer." [Megarry 1962, 55]
- All those who write about the clerk, point to the low educational background, minimum training and archaic recruitment procedure from boy to junior and then senior that pertains in the occupation. Most then point to the (now declining) payment system whereby the renumeration is by way of percentage commission which may be as much as ten percent of the barrister's fees. Several commentators, most notably Zander [1968], see this as a sinister aspect in as much as the clerk has a personal interest in extracting the largest possible fee. There is little doubt that the clerk does exert some influence over the barrister particularly in the early stages of a career.
- After listing the nature of his practice one young practitioner in South Wales seemed surprised to realise the clerk's role in shaping his professional life although he was simultaneously accepting it:
"I hadn't really thought about it. Its just the way you end up. The clerk decides exactly what they want us to do and of course from the feedback from solicitors they decide what we're best at and that's how it happens."
- While more senior barristers do not have the same fatalistic attitude regarding their destiny being exclusively in the hands of the barrister's clerk, this is probably an accurate enough view of the relationship between the clerk and the young barrister. The traditional clerk, castigated by Zander as all powerful, seems to be declining. However, certainly in the early days of practice the clerk is of considerable importance even if he or she is not invariably a malign influence. Our findings echoed those of Flood at least in respect of the influence of the traditional type of clerk over young barristers.
- One senior clerk of more than forty years experience in London and more recently in the provinces who we spoke to took a very strongly paternalistic view of his young barristers and viewed his role as setting them on their way.
"For the first two years you do what you're given: you need the money, you need the expertise and you need to be seen around."
- Barristers with less than the magic figure of two years of experience are given
"the rubbish - that's a term we use here - and told to bloody well get on with it."
- Accepting that the clerk has influence does not necessarily mean that the relationship between clerk and barrister is one based simply on the patronage of the clerk as Abel-Smith and Stevens see it [1968, 110-11] or further that the relationship is a "disturbing one" as Zander would have it. [1968, 83]. There is a rather more complex relationship involved here and it is one that is only mediated by the clerk. As the clerk mentioned above explained it to us:
"young members of chambers coming in, starting right at the bottom, getting them started, getting them work from the barristers above them. The barristers above them are all probably very busy. The time comes when they have more than one case in one day and despite the efforts of a senior clerk and his staff to try and arrange cases so that a barrister does not have a clash we know that because of court availability, judge availability, witness availability, it is not always possible. There comes a time when a barrister cannot do all his work and that is when the clerk then starts to "feed" the young barrister coming in, to get him started".
- The young barrister is to an extent dependent on the success of his chambers: in an upwardly mobile set with fairly large numbers of active barristers there will be more work free-falling downwards as those higher up the ladder develop their careers. A clash in the timetable for a barrister on any given rung in the ladder, as a case is held over or re-scheduled, brings into effect an often elaborate "cover" system. This is where the clerk arranges and rearranges the diaries of barristers in chambers to ensure that a case can be taken up by someone of roughly similar experience. Of course, because the more successful barrister is by definition a busy barrister, it is not always possible to cover with a barrister of equal seniority. There is inevitably a slight downward pull in these covering exercises. The clerk often finds himself persuading the solicitor to take the next best alternative. This will have an effect further below as the more lucrative brief from above displaces poorer cases on the desk of the barrister immediately next in line. The net result of this process is that a quantity of (fairly low level) work becomes available for the most junior members of chambers. A similar process goes on in the bar library systems. Here there is often an informal cover system operating between groups of barristers at different levels who operate in a loosely associated team. A breakdown in this, or the intervention of such factors as a pupil master bringing on a former pupil or a relative or contact influencing a career, means that work becomes available at the very junior end of the profession.
- A similar effect will be caused by a barrister's career developing. In the normal trajectory of a successful career there is a fall-out of cases which will have an effect on what becomes available at the bottom rung of the ladder. As we will discuss shortly, this career development is to some extent a result of an active clerk who is prepared to scale up fees as an individual, or indeed a chambers, develops. As one clerk insisted to us
"if I didn't bother to increase the level of fees how would the young members of chambers ever get started?"
(In the library system career enhancement is the responsibility of the individual barrister but the effect of the upward rise in a healthy career is similar. It produces an availability of work that has now been outgrown and which can be passed to a whole network of satellites, contacts and hangers-on.)
- Of course, despite the impression that the clerks seem to like to give of the young barrister as a legal fledgling dependent on the clerk to feed it morsels of work, there are more mundane reasons for work going to the novice. Small, relatively unlucrative cases involving road traffic offences, petty sessions work, landlord and tenant disputes or pleas are generally sent to chambers only the day before hearing or sometimes on the day itself. The clerk may then, it is true, have a certain discretion in a time of famine to distribute this work where he or (occasionally) she, thinks fit. To this limited extent anyway it is correct as Zander maintains that
"the clerk sits at the fountain and can control the direction of the spray." [Zander 1968, 86]
- However, in a busy practice often the main concern is often to ensure adequate "cover" for a firm of solicitors who provide a high volume of work.
- The permutations of the laws of supply and demand relating to this low grade work are thus rather odd. At a certain stage in a career a barrister will no longer want it as it inhibits taking on more rewarding work. However, at the same time as one level of barrister wants to dispose of such work from his or her caseload it is very much in demand by the novice who desperately needs a start to his or her professional career. There are of course other competitors for this work. We heard suggestions that increasingly solicitors are doing work that previously was the preserve of the very junior bar. As one barrister who had just survived the first three years of practice pointed out
"it was very hard when I came out to get started ... people coming out now are finding it so much harder, partly because the bar is over subscribed, but more importantly, because there are so many young solicitors and solicitors' firms have to find something for them to do ... nine times out of ten what they're getting them to do is the petty sessions work."
- A famine in work hits first and hardest at the junior bar. This is where any friction surrounding the interface between the two sides of the profession appears first. That is not to say that the current reforms in the legal profession were making much impact among the ordinary soldiers at the bar. We could not find anyone well-established who was particularly worried about new rights of audience displacing barristers. It was thought that solicitors would find it uneconomic to come to court unless they did enough courtwork so that they become for all practical purposes advocates. However, the petty sessions, where solicitors have always had rights of audience, provide an excellent place to deploy the current surplus in that branch of the profession. Nowadays it is commonplace for a large firm to have one or more solicitors covering the busier petty sessions courts in a particular area.
- There is much discussion by clerks and in barristers' memoirs of giving young barristers a chance. Of course in reality, and sometimes in contrast to the memoirs, this is not a single, one-off chance that leads inexorably to glittering prizes. It is rather a period of trial where mistakes can and are made but where impressions are also formed by others in the system. The clerk knows this:
"Once he has done a case in his own right and he's gone to court for that particular firm there is nothing more a barrister's clerk can do for that barrister and that firm ... he has got him the brief and it's up to that barrister to do the case well. I'm not talking about winning or losing: I mean winning or losing, rightly or wrongly in this country, doesn't seem to make much impression. If you win the case the client is only going to say 'Well, of course I won, I never expected to lose'. But if you lose, and you lose it well, pull out all the stops, put every point you've got to the court ... then the client knows there is nothing more that barrister could have done. Someone else sees that barrister in court and that is how his practice starts. You get more and more cases and more and more work."
- Of course the solicitor involved in the particular case that is covered by the new barrister does not usually see these early forays. Especially on the sort of minor matter on which a new barrister is likely to be engaged, it is rare that a solicitor could be spared from more rewarding work in the office to hang around at the courts. It will tend to be other solicitors in court awaiting their (more important) cases, the clerk of the court and the judge who are the audience for new hopefuls. We were assured in several provincial centres that the legal world was very small indeed and it is easy to get noticed. This may be a mixed blessing, of course, as some of the cases that end up with the very junior bar are of such an order that it is often difficult not to create a bad impression. As one young advocate put it:
"usually you end up with such dreadful cases ... you have no instructions ... the solicitor just arrives with the name and you go to court and you just cannot do your job well enough ... This does not look good to the other solicitors around."
- It is more difficult to be noticed in a good light in some of the busier London courts but even here there is generally room for new faces as solicitors struggle to get someone who is available at the right time and at the correct rate.
- The clerk's role in shaping a career recedes as the barrister gets on. Hazell maintains that even QCs need the favour of the clerks [Hazell 1978, 106]. Although our evidence did it not bear this out we could not contradict it. Indeed, as far we could make out the more senior the advocate the less notice he seems to take of the clerk and the more deferential the clerk becomes towards the barrister. However, even after the magic barrier of the first two years is passed, and the barrister seems no longer to be almost entirely in the power of the clerk, there is a process of shaping one's practice that is carried on by, as well as through, the clerk. The "rubbish" mentioned early is shed as more lucrative work starts coming in. One barrister who was doing fairly well after about three years talked in terms of being
"at a stage when I can begin to pick what I do. I'm thinking of ditching domestic violence if I can, and criminal work."
- The clerks too think in terms of stages and for them it is very clearly the market that dictates this. If a barrister is doing well he or she must be shielded from the very petty court appearances which consume time that could be better and more profitably employed in something else. One clerk told us
"it's not only court appearances that solicitors take notice of, it's how quickly you do your papers as well ... if you're in court doing magistrates court work you can't do the work you should be as your practice develops."
- Each clerk and each barrister will work out the details of the individual's career timetable in terms of the work available, the demands of the chambers and the level of success of the individual barrister. The use of the term "work out" perhaps dignifies what is an informal, reactive process but there is however at least an ad hoc process whereby upward movement is detected and responded to. So, for example, after two years a barrister may be taken off magistrates court work. After another two years a barrister may stop doing Legal Aid scale one County Court work to concentrate on the more lucrative scale two and three work. If other work, is coming in it is counter-productive to continue to send a barrister into court to do work that is less rewarding. As a practice develops the paperwork - opinions, drafting etc. - increases in proportion to the time spent on one's feet and time must be made for this. In any event there may well be in a large chambers new, young barristers coming in and they too must be "fed".
- Whether as processed by a clerk or in the library system, work seems to find the level of barrister to which it is most appropriate. (It is of course interesting to consider what it is about a case - the level of fee, possibility of custodial sentence, high award of damages or whatever - that makes it important or otherwise and so determines its level. That issue will be considered later.) For now we just want to reinforce the point that within the hierarchy that exists in any bar, cases which have little money supporting them will filter downwards to those without experience or contacts who have little else to do and are therefore obliged to take on such work. This process whereby poorer work percolates downwards is matched by a process whereby better work rises to a more appropriate level. We were given one particularly good example relating to criminal practice. Work in the magistrates court is poorly paid and is generally the preserve of the beginner. The legal aid system does not provide for both solicitor and barrister in this type of work, and the barrister must be paid from the solicitor's fees. However, if there is an appeal from the magistrates court, which takes the form of a new trial by a county court judge sitting as a crown court judge, legal aid is made available for counsel. Almost invariably it is a more experienced barrister who is briefed for an appeal from the magistrates court. This may be satisfactory for most parties involved: the client sees that he or she is apparently getting a better barrister, the solicitor is happy that he or she can be seen as providing a better service and the more experienced barrister is happy to get another brief. The junior barrister, however, is less than happy. He or she may have done some hard work on the case in the petty sessions, perhaps pulling out all the stops and putting in a level of effort that exceeds that of the more busy senior barrister. Nevertheless that brief will be lost to them. As one aggrieved junior practitioner complained to us:
"we do all the shit but once the cream is available it's given to somebody else and, ironically, the barrister who ends up getting it often doesn't need it ... he's got maybe two or three other appeals on that day."
- The career progression is of course the same in a bar library system; only here the clerk is not available in the brokerage role between barrister and solicitor. The barrister must do all his or her career planning without the feedback that may be obtained from solicitors' offices via the clerk. In any event, in both the library systems and the chambers one, the career guidance towards a particular field of work seems to moderate considerably as market forces and the barrister's own abilities and contacts take over. That is not to say of course that the clerk's role in constructing what Flood terms a "career timetable" [p 57] disappears. As we shall see there is still the very important matter of fixing fees and keeping the flow of work at a steady rate.
Developing a Career
- Every local bar has at least one individual practitioner whose career has not developed as it should but who nevertheless manages to hang on precariously to a bare living doing low-grade work that should have been left behind long before. These embryo Rumpoles never attained the necessary exit velocity to leave the petty sessions. By dint of the sheer volume of cases that they do they somehow managed to cling on and cut their cloth to meet their needs. The existence of such barristers as exceptions confirms the rule that there is normally a natural progression through various stages. Indeed, although this progression takes different forms depending on the area of practice and the local conditions affecting the availability of work, it is fairly obvious that there is a steady upward movement. Indeed, it is often manifested geographically or at least architecturally. In common with many organisations chambers distribute office accommodation in strict accordance with ideas of seniority. In one set we visited, based in an old Victorian town house in a provincial city, there was a clear progression through the building awaiting anyone with a successful career. Conferences etc. took place in specially appointed rooms but space for study rooms was clearly at a premium. At the lowest rung there were "the boys in the basement", as the other barristers termed them (even though they included several women). They inhabited a large room below street level containing four or five desks and doubling as a library for the chambers as a whole. Progression from here led generally to rooms in the attic shared with only one or two others. From there, the next move was to a pleasant first floor study inhabited by three or four senior juniors with the final prize of a study to oneself available only to the very senior members of chambers. We did not stay long enough to discover whether, as in many universities, the presence of carpet and its size and quality had any significance.
(Another provincial set of chambers which had recently moved into very prestigious office accommodation had kept the same hierarchical form of allocation, albeit on a grander scale than other chambers and with much more room for the junior members. It was interesting that the move into these new chambers had required one barrister to take some months away from his practice to effect the move. His time had been paid for from his colleagues earnings, but he felt that he had lost out financially due to having to regain contacts and work lost during his absence. This suggests that the chambers system is not an ideal mechanism for coping with change: its goals are too immediate, and its members usually too committed to a short-term outlook to manage adequately non-urgent demands.)
- We found barristers on the whole to be very conscious of the idea of progression through a career structure and anxious to display that they were at least where they should be on the ladder. There is perhaps a feeling that work gravitates towards the successful and that it is important to give signs that one is doing well. This is so perhaps especially in the bar library system, where without the brokerage services of a clerk, it is necessary to advertise oneself and one's success as widely as possible. At the more junior end of the profession barristers greeting one another generally declare themselves to "very busy" or "snowed under with work". While we invariably found members of the bar to be generous it was noticeable that on our forays into pubs where barristers drink after work we found it almost impossible to buy a round of drinks. The competition among barristers to treat an ever-increasingly circle was intense. At the more senior levels, the displays of success take a more subtle form. Indeed, those who are most successful - perhaps even being one of the "six figure men" (those who earn - often far - in excess of £100,000 per annum) - paradoxically adopt a more nonchalant and relaxed demeanour.
- Nan Wilson's study of Scottish Advocates echoes our findings. She notes how
"... prestige is assessed within the legal community not according to earnings directly but in terms of how 'busy' a particular advocate may be. Thus, for example, advocates' wives loyally complain to each other of how busy their husbands are; and not a few young advocates exhaust themselves each day in the Parliament House in their efforts to appear employed." [Wilson 1965, 178]
- And her story of the advocates travelling up the Mound in Edinburgh captures the spirit of seniority:
"on an omnibus in which a number of advocates are travelling from New Town to Parliament House, the senior will pay the fares of the juniors on every occasion." [Wilson 1965, 17A]
- The stages in the career timetable are less distinct as that career develops: different tracks are taken as relative specialisms are taken up and various ambitions are played out. However, whether the barrister has a clerk or whether he or she operates alone, there are still one or two milestones that can be fairly readily observed. For example, in the civil field as a junior counsel becomes more active and successful the proportion of county court work declines. Perhaps after a few years a decision will be taken not to do any more legal aid matrimonial work and so on. At a certain stage it simply becomes uneconomic for the successful practitioner to spend time waiting around the county court when difficult and lucrative papers are waiting to be done and his or her practice will reflect this.
- Many, if not most, of the career stages for a rising barrister will be encountered by happenstance and negotiated without any immediate awareness of their significance and certainly without recourse to anything like a developed game plan. One fairly typical story we were told illustrates not only how sometimes there are opportunities available for those who are able to take them but also how the method whereby work arrives may well often impinge on how such work is conducted:
"Take for example a case I did the other day ... I do very little industrial tribunal work because I hate it and somebody rang me on Sunday afternoon and said 'Would I do this case?' ... I said 'Look Monday's my only day off and I need to catch up'. He said it was an industrial tribunal and I told him ... 'Look I have no legislation, no books home with me' ... he said 'I think its really straightforward but its X's case'. As soon as I heard X's name I knew ... I know what he's like ... Its always a simple case and usually the wheels fall off ... I rang the original person who had the case and they said 'Look, it will take you five minutes'. You know straightaway it will take at least half an hour ... he said 'it really is straightforward, net point, won't take long etc etc. ...' I take it and find out its a very serious, very important case; that there is a QC acting for the respondent; that I am the only one there; with photocopies of some legislation that I managed to get on the way down ... I didn't get finished to a quarter to three ... luckily it turned out well ... there was a lot of arguing and I'm going to get a good fee out of it ... But you just can't trust anybody: that's just the way it goes."
- At most it will be realised that, as in the very early days, a good performance in one area may lead to higher things. For example at the junior end, if a barrister does well with a defence for careless driving in the Magistrates' Court there is the possibility that an insurance company will capitalise on the expertise already gained on the case and retain the same barrister for a subsequent civil action. On a lesser scale, relatively small-time criminals will have a network of information about who's a good "brief". Alternatively there may be wider factors relating to the policy of a private or public concern which have a knock-on effect on the legal profession. We were given an excellent example of this relating to how one particular barrister in Northern Ireland managed to get on to the panel, or shortlist, of barristers who are regularly briefed by a government department:
"I have done a lot of tripping cases for the Department of the Environment ... that has been the mainstay of my practice for the last two years or so ... When I started doing them I was doing them ... exclusively for plaintiffs, and at that stage the vast majority of them settled ... unless there was some major problem with the plaintiff's evidence they are very difficult to disprove ... the whole thing became out of hand, I mean the DOE [Department of the Environment] was swamped with claims ... the Public Accounts Committee was just cracking up at the amount of money that was being diverted to meet these claims so at that particular time ... [the Crown Solicitors' Office] recruited, a lot more staff ... because they had more solicitors they also needed more barristers so a few people who were at the right level seniority got their chance, myself included."
- Even more than in most occupations luck is an important determinant in the career of a barrister.
- One of the main divergences in careers that can be seen relates to whether a practice is mainly criminal or mainly civil. It is of course possible to do a little of both and many barristers maintain a fairly mixed practice. What they do may vary from year to year and in relation to such factors as involvement in lengthy cases. Personal interest has relatively little to do with determining which type of practice a barrister ends up with. One young barrister, now building up a fairly vigorous personal injury practice told us:
"I'm thirty now: when I studied tort I was eighteen and I wasn't interested in it. I did it for one year, passed the exam and went on to do other things I was more interested in ... then around the age of twenty-five I discovered there was such a thing as a tripping claim and suddenly I found myself doing tort again ... Really that is an accident."
- It is only a few practitioners who can really pick and choose their cases. One successful senior junior operating in the provinces pointed out that even for someone at that stage:
"the balance is dictated by the flow of work that comes in ... it's really impossible to dictate the workload that you have unless you are so very busy and so much in control of your work that you can decide just not to do any criminal work or any civil work ... basically I do whatever anyone asks me to."
- This will include work that someone finds personally distasteful. Work is seen as just that for the most part. For most barristers that we talked to, a reference to an idea of "their professional role" was sufficient to enable them to overcome most personal feelings. As one counsel put it:
"barristers are supposed to be hired guns and I suppose that is what we are."
- A senior barrister put it this way:
"I obviously don't enjoying doing, as I did ten days ago, a paedophile buggery case. I'd prefer to prosecute people charged with serious criminal offences as you do not have the pressure of defendant's long sentence of imprisonment looming over you ... with prosecution the pressures are different ... probably less... you probably lose less sleep."
- Another advocate commented that
"if you do criminal work you come across all sorts of nasty people and if you started drawing lines it would be hard to any kind of criminal work."
- There seems to be few difficulties in obtaining personnel to handle terrorist cases in Northern Ireland. Although we picked up a few murmurings in another direction, it was generally held to be a great strength of the bar in Belfast that it was able to operate the Diplock court system on both sides without personal animosity. Indeed some rather odd patterns have emerged whereby, for example, one of the leading solicitors' practices for loyalist paramilitaries is a catholic firm and one of the premier defence counsel for republican paramilitaries was formerly active in Unionist politics.
- Perhaps, however, this is not a particularly good indicator of barristers' attitudes on this matter: the level of terrorist work in Northern Ireland, not to mention its importance as a source of income, means that such matters can be handled in a much more routine way. Before we started our interviews we had heard some stories that in England terrorists, primarily Irish terrorists, found it hard to get good defence counsel. One leading criminal lawyer who we put this to said:
"I have never been involved in an Irish terrorist case ... I have acted for a member of the so-called 'Free Wales Army' ... who had done a ten year sentence for causing explosions, burglary and theft of gelignite ... I then prosecuted him for importuning ... (he happened to be unfortunate enough to proposition an off-duty police officer) ... and I then defended him ... for harbouring an active terrorist ... it was a guilty plea but it didn't make any difference to me whether ... it had been a trial. I wouldn't have associated myself with that for which he was campaigning. I would have done my job as a lawyer ... in the end I mitigated on the basis of the instructions that I had, making those points I thought proper to make ... It was no problem - any of it."
- Leaving aside the idea of distasteful work, this perceived willingness/need to do what ever comes along, even when at a fairly advanced stage in one's career, may well of course have practical effects on a day-to-day basis. It may, for example, cause problems about timing different lists in different courts which may even be in different parts of a city. This may lead to difficulties with clients, solicitors and judges. It is no wonder that we observed as a constant motif in the work of the barrister the urgent feeling that he or she should be somewhere else in just a few minutes - this may come as such from actually being busy, as wanting to appear so.
- However, for some practitioners there is, in the broadest sense, a fork in the career path that must be negotiated. The direction taken depends, to a large extent, less on the conscious decision of the barrister than on factors such as ability, aptitude and contacts. Some barristers we talked to made a distinction between a practice that involves law and one that is in the criminal courts. As one commercial practitioner put it
"criminal barristers carry their law in a volume, two volumes now, [Archbold, Criminal Pleading, Practice and Evidence] and we leave our library in chambers ..."
- That is probably slightly unfair but undoubtedly matters of fact and issues of evidence and procedure predominate over matters of law in criminal trials. From the other side of the fence the criminal practitioners are often dismissive of "the cattle trading" that goes on as civil cases are settled. Undoubtedly different techniques are important in each type of work. If the strengths of a barrister lie elsewhere than in a particular sort of work it is unlikely that he or she will be asked to do very much of that sort of work. Market demand levels out many advocates' aspirations.
- Of course merit, or lack of it, is not the sole determining feature of the sort of work that a particular advocate does. It may not even be the most important factor. As we have said already, contacts may be important. Clearly once a barrister moves beyond the immediate fiefdom of the clerk the number and level of contacts that he or she maintains with solicitors firms is vital. This is considered more fully in the next chapter.
- There are also other contacts that are significant. The pattern whereby a chambers that specialises in a particular branch of law tends to divert its members to that field, is reproduced in the other organisations also. While it is not true to say that under the bar library system barristers hunt in packs, there do grow up informal groupings. While it is perfectly possible to operate alone it is, as mentioned earlier, clearly easier to have a coterie of colleagues at various stages of experience to whom work can be passed as the need arises. In those bar libraries that we were able to observe for any length of time it was perfectly easy to identify small groups working together in informal partnerships. For example, Belfast's criminal court in the Crumlin Road has a fairly small group of practitioners who work there regularly. One practitioner described it in this way:
"There is a core of criminal barristers who would number no more than about a dozen at the outside - probable half a dozen would be more accurate. You could name the half dozen at the junior bar who would be up there every day ... and then two or three who would be up there every day at the senior bar ... Then there is an outer circle of people ... who would be up there fairly frequently but by no means necessarily every day or every week."
- Another barrister, from outside the charmed circle, complained
"in the early or mid seventies there was a glut of work, there was more work than were lawyers and a lot of people got into it ... and made a very good living out of it, who perhaps in a more competitive climate mightn't have done so. Take the present situation, you have an ever-contracting amount of criminal work, those people who have, in a sense, made their reputation on it are obviously going to guard their patch more jealously ... it's not all institutionalised, it would be wrong to say that, but ... it's very hard to break into the 'Crumlin Road Mafia' - at least enough to make a living at it."
- This situation is not unique to Belfast or the criminal side. An advocate with a large civil practice elsewhere told us:
"you're in constant competition ... there's a finite amount of work around and everybody's competing within a certain range for the same type of work ... If you become known as a civil practitioner on the defence side, and once you have overcome the initial resistance of getting into that band, you are inclined to look round and say 'We have a happy little cartel here and we don't want it upset by somebody sort of coming into it ... and therefore we won't be overly enthusiastic about any newcomers'."
- Clearly there are such patterns in existence everywhere. Often they do not amount to much more than a tendency whereby, for example, particular junior and senior council work together. Such informal groupings are not always to be seen as sinister gangs operating to squeeze out others and bring on favourites. F