Do I really belong to the same profession as the press portrays when it writes about barristers? The image the public is given is that life at the Bar is glamorous, that all barristers earn over £500,000 a year, and that we all spend our time addressing juries.
In relation to fields other than crime, the public is told nothing about what we do, and the line taken is usually that whatever it is, it does not justify the supposed sums of money which we earn.This bad publicity impinges upon our non-professional lives.
I resent the fact that when, for example, I need to have my radiators fixed, the plumber will mentally add an extra nought to the estimate when he finds out what I do for a living.
More significantly however, there are signs that the adverse publicity is affecting our professional lives.I am a fairly representative (non-"fat cat") member of the civil Bar.
The work that I (and my kind) do is thoroughly unglamorous but matters a lot to those affected.
It is not usually "big money" work.
We deserve a better press and we deserve to be paid properly for what we do -- because, to be frank, in the main, it is literally a thankless job.I spend more time at my computer than in court.
Every advice or action on my part affects what a solicitor or lay client is going to do, and potentially exposes me to the risk of being sued for negligence.
In fact, 95 per cent of my cases are settled, often as a direct result of my efforts, and if not being sued is some indication of capability, then I would qualify as being reasonably competent at my work.People seek our advice often when in crisis.
Sometimes our advice is sought in anticipation of such a crisis.
Our role in this context is surely just as much a "service" as that of a builder repairing a roof or a doctor treating a patient? What we say or do can profoundly affect a person's future or quality of life.Some might think that this service is valuable -- and worth paying for.
But that does not seem to be how the public (mainly those who have never had to use our services) is being encouraged to think of us.What follows is a vignette of what life is really like at the civil Bar.
I thought that a record had to be made for posterity since, if current trends continue, prospects for the independent future of this profession are bleak.PAPERWORK: HARD WORK AND A BATTLE FOR PAYMENTAt trial, the facts of a case were at one time regarded as important.
In almost every judicial decision, the first thing that a judge does, and should do, is to set out the facts.This process of finding out the facts is usually the first thing that we do when considering a case.
It is time-consuming and often dull.
It not only involves reading the papers thoroughly -- even more than once sometimes! -- but trying to understand or interpret the facts.
Human affairs are in their nature complex, and people do not always express themselves in a way which makes plain what they mean.Next you come to the law.
Even if you are an expert in your field, the need to research still arises, after which you apply the law to the facts.
In addition, you apply your experience as a court-room advocate to the case -- you exercise a critical and dispassionate judgment about the facts to anticipate how they would come across in court if the matter were tried.All these things take time to do properly.
If you skim through, you miss important details.
If you do not think the matter through thoroughly, you can miss the real issues.Eventually you give your opinion, and, in doing so, if necessary, you do not shrink from expressing views which your client may not want to hear.
This is a key element in giving independent advice, and it can make you unpopular.When you complete your work, your clerk sends out your utterly reasonable "thin cat" fee note, but nowadays the climate against barristers is such that you find that despite getting everything right, you regularly have to deal with the following reactions:-- if the case is privately-paid, the client, who thought he had an unbeatable case but now knows otherwise, or who has read a lot about barristers earning too much, thinks with hindsight that you are only telling him what he already knows, or that you must be wrong because you are against him.
Therefore, he demands that you should be paid a smaller fee than you have charged (this is usually raised for the first time, weeks or months after you have done the work);-- if the case is legally-aided, a district judge or taxing master, without personal experience of giving counsel's advice, sometimes years later, determines that you are not allowed your fee because it is said you have taken too long or charged too much.
The quality of the advice you give, or the saving of money (by facilitating settlement) is seemingly of no consequence.
The result is that the fee is taxed down to subsistence levels.Here's a personal example -- in a case where, paradoxically, professional negligence was being alleged against an architect, a district judge taxing my fees commented that "counsel did not really need to read all the papers" (about 20 ring binders).
He then proceeded to tax the case on the entirely fictitious basis that it was necessary to read only some of the documents.
Ironically the client won this case (settled) and the person who gained by this taxation was the defendant.The reason why the client (or Legal Aid fund) has in fact been saved the far greater expense of having a full trial is that when he properly understands his position, he can see both the strengths and weaknesses of his case.
This knowledge helps concentrate the mind and facilitates settlement.
But the saving of expense is never appreciated because no one ever quantifies an expense which has never been made.So, not only are you un-thanked, and unloved, you are also poorer than you should be.
Fee reductions are both demoralising and a great disincentive to do the job properly -- what other business could withstand the uncertainty of not knowing whether your charges are to be met in full?STRESSFor many civil practitioners, court-room advocacy is a relaxing day out compared to doing paperwork.
At court, the judge is responsible for the decisions and you are immune from liability.In contrast, paper work is stressful.
When you are instructed to advise, the work (a) is invariably difficult or complicated (now that the solicitors often deal with easy cases themselves, the ones we get are so complicated that they sometimes have been shuffled to one side in the solicitor's office for the last six months) or (b) has a three day deadline when either the limitation period runs out or some property completion is due to take place.
It would not matter much if it was your only set of papers, but when you have three others to be completed before then, life is not so comfortable.Frequently you find yourself advising in finely balanced situations where a great deal of money is at stake or likely to be spent in reliance on your advice.
You wonder "did I get it right?" not only because you are worried about the possible financial or social consequences of making a mistake but also because you worry that your solicitors will never instruct you again if you did.COURT WORKOn the rare occasion that a case does not settle or the dispute is too intractable, you eventually get to court.
As a conscientious barrister, you nowadays prepare a written "skeleton argument" -- in some courts you are compelled to do so by the rules of practice.
That involves hours of preparation, the object of which is to save time at trial.When you get there, a number of common scenarios arise:-- you find your two day case is listed after 15 "short" matters;-- the judge has not been given the skeleton argument you faxed last night; alternatively he has received, but has not read it nor any of the papers in the case.
(I am constantly amazed at the brazenness with which some judges openly admit to not having read the papers in a case -- but then most of them were probably busy court-room advocates who were used not to doing so when they were in practice.)-- the judge turns out to be a criminal specialist (bright -- but has never heard of "adverse possession" which is what your case is all about) which means that the case takes twice as long because you have to explain first principles to him/her.-- Even worse, the judge turns out to be an assistant recorder who is not only a criminal specialist but thinks that he is Lord Woolf -- unfortunately without a tenth of the latter's brains.
He wants to "get on" with the case, but is not interested in minor things such as the facts, still less the law; he thinks it is much more important to ensure that your case, listed for two days, finishes by tomorrow (even though you may not have started until 2.00 today).
He eventually makes a thoroughly unfair "robust" decision which, 14 months later, at a great deal of expense, is overturned in the Court of Appeal (at least that court still is interested enough to read the papers!).Although the reader may think that I have exaggerated, all he needs to do is to go to any county court in the country and he has a good chance of finding similar examples.A CYNICAL ALTERNATIVEEarning money is no longer (if it ever was) a reason to practise at the Bar.
But increasingly, the pressure on fees and work gives you every incentive to sacrifice your professionalism in favour of other alternatives.
Nowadays you are probably better off if you take the following advice:Do not read the papers properly: The quicker you skim through the papers, the less you will understand but the more you will earn:-- If you do this, there is much more chance that you will advise that it is a much better case than it really is.-- That will mean that you will get more work on all the interlocutory work that will be generated.-- Furthermore, you will only have taken one hour to do the work -- not four and therefore you will meet with the approval of the taxing authorities;-- With luck it will only be on the day before trial, after the all-important delivery of your brief, that you will finally really know what the case is about, and that is the time when you start negotiating for a settlement, either at the door of the court or within an hour or two of the case starting.
(Usually a barrister can charge more for court work than paperwork and the "brief fee", payable after delivery of the brief, normally includes the preparation for trial and the first day in court.
If, therefore, you can settle a case after delivery of your brief but before you start the case in court, you are quids-in.)-- In the meantime, because you have taken less time, you can handle more cases.-- You will also get to know many judges because you are always in court -- consequently you have a much better chance of being appointed to judicial office so that you too (drawing on your experience at the Bar) can come into court and say, without a care in the world, "I haven't read any of the papers in this case";-- You only have a limited risk of being sued because most court-room advocacy is immune from liability in negligence.DEVELOP YOUR "BULL-SHITTING" SKILLSThis will happen naturally because you will learn how to disguise an issue in the case which you should have picked up earlier if you had read the papers properly as an "unexpected development", which has caused you to change your advice and which now compels your hitherto totally confident client to settle on adverse terms.The client, although not pleased, will not be over-critical -- he will be nervous about the hearing and the costs which by then have become prohibitive.
By settling the case, he thinks he will be saving further money.Paradoxically your solicitors will not mind too much about this either, because they will have earned considerably from the preparatory work.Entertain your solicitors and clients Because you have settled at court early, and you are there with your instructing solicitor, you are presented with the free time and opportunity to do a bit of personal "marketing" over a bottle of wine or two.
Having earned substantially from the case, you can also well afford to do this.
You can also live up to the reputation which the public now expects of you.
Assuming that you have not got so drunk as to do something too indiscreet, you should be assured of warm and friendly relations, as well as more briefs, for at least the immediate future.But seriously .
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.I do not wish to exaggerate the Bar's importance, but our unexciting and unglamorous profession provides a distinct service, and its independent existence is important to the public.Legal advice has, if anything, an increasing role in our society.
Parliament pours out legislation relentlessly and all of it is meant to, and does, affect people.
Individual personal rights are thought to be important in a democracy.
The persons or bodies affected need to have accurate, reasoned and clear advice in order to determine how to run their affairs properly, economically and efficiently.
Independence is a key element in giving such advice.Most members of the civil Bar meet this need in a responsib le and economical way.
"Economical" is not the same as "cheap".
What we do contributes to a reduction in litigation, thereby reducing pressure on the courts, and this helps people to overcome their difficulties or resolve their differences.Most people would surely consider that it is essential to the well-being of any society that the resolution of differences is both effective and fair.
But the political hype for cheap and speedy justice is already causing a large number of judges to stop looking at the detailed facts of cases (which take time to deal with) because they want the cases to be dealt with quickly.
Such an attitude is the antithesis of what people want when they seek redress -- namely someone to understand the case and make a fair decision on its merits.The same judicial attitude attaches little value to the out-of-court work which barristers do: it signals to us that we should not exert too much effort in relation to such work -- we will neither be paid nor appreciated for it.
When we have to face not only these kind of attitudes but also an ignorant and unrelenting bad press, what
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