The award of King’s Counsel is made to those advocates who have rights of audience in the higher courts of England and Wales. Applicants must demonstrate excellence in advocacy through a robust and rigorous application process.
As panel members, we are often asked whether we could change the competency criteria to remove the need for both written and oral advocacy. Others ask if we could operate a quota system for different nations and regions, or across various protected characteristics. The answer is simple: we can’t.
The framework itself was established through agreement between the Law Society, Bar Council and the then lord chancellor. Any changes to the competency framework are outside the remit of the selection panel. The role of the panel is to apply the competency framework as it is currently constituted.
Evidence comes from assessors listed by the applicant and, if received, the interview. There are no secret soundings, no extraneous information other than the demonstration of competencies. No permissions are needed to apply or reapply. The application process is the same whether you are an influential member of parliament or a mother returning from a career break. In that respect, the process itself is as fair and even-handed as it can be, given that no process is perfect.
However, the King’s Counsel Appointments’ (KCA) team, with the active support of the selection panel, continue to work to improve the guidance available to both applicants and assessors. This work is aimed at supporting applicants from diverse backgrounds and practice areas by clearly explaining what the process requires, highlighting good-practice scenarios, offering guidance on what ‘good’ looks like, and ensuring that both applicants and assessors have the information they need to decide if they meet the criteria.
Oral advocacy
An ongoing concern has been that the application process places too much emphasis on oral advocacy, potentially disadvantaging solicitors and barristers whose main strengths lie outside of this competency.
Demonstrating excellence in both written and oral advocacy is a crucial part of the competency framework. However, the panel is keenly aware that differences in practice and specialisms can mean that some applicants may be unable to provide the same quantity of evidence in respect of oral advocacy in particular. We do take this into consideration when making a judgement on competency B overall.
We also try to share best practice when we see it. For example, we are aware that many applicants have used a range of ways to bolster their evidence for oral advocacy. One successful strategy has been to undertake pro bono work, providing opportunities for those with a desk-based practice or whose work does not take place in the higher courts.
Settlement-focused practice areas
We appreciate that successful settlement practices may naturally result in fewer appearances before senior courts. KCA’s guidance recognises that applicants who frequently settle substantial or complex cases may only rarely appear before courts in matters of ‘substance, complexity or particular difficulty or sensitivity’.
Again, our remit is clear. The panel needs evidence of excellence in advocacy in the higher courts. However, within our remit, the panel considers and accommodates this reality within the assessment process. In many cases, we do this by being flexible about the 12 cases in three years guidance.
‘12 cases in three years’ requirement
It is a misconception that applicants must always provide 12 cases over the previous three years in order to be successful. For lawyers in certain practice areas, the panel recognise that it can be difficult to provide 12 cases over three years.
We are also mindful of applicants who may, for more personal reasons – such as recovery from prolonged illness, disability, career breaks, caring or parental leave – be unable to offer 12 cases over three years.
We continue to assure applicants in our outreach that having fewer than 12 cases is not a bar to application or appointment. Ultimately, the panel is looking for evidence of excellence. This can be demonstrated in fewer cases over a longer period. Applicants should make clear in their application why they are unable to provide 12 cases. It is always worth considering whether there are any cases from slightly outside of the three-year window that could be included.
The guidance suggests 12 cases over three years because this is generally the optimum number of cases and timeframe for applicants to gather their best evidence. Having fewer cases could make it harder to demonstrate the breadth of evidence required by the competency framework. Going back longer than three years could make it harder for assessors to remember the case accurately.
Perceived need for coaching
Some applicants feel they need a coach to help them get appointed. While guidance from a range of sources can be helpful, there should be no need to pay for a coach to help with an application. Coaching neither guarantees success nor is it required. In fact, coached applicants often try to shoehorn prepared responses into their answers, undermining the information and the authenticity the panel are looking for.
The best way to prepare for both application and interview is to spend time thinking about the examples you have from your cases – listed and unlisted. Applicants we have surveyed also tell us that they found mentors and networks extremely helpful with their applications.
There is a wealth of further guidance and dates for our upcoming outreach events, including a specific event for solicitor-advocates, on our website at tinyurl.com/53kr6n32.
See also the first article in this series, Help is at hand when applying for silk
Monisha Shah is chair and Nicolina Andall a legal member of the KC Selection Panel
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