Mature Entrants

The question of whether a mature entrant has an equal chance of obtaining a pupillage has been a fairly frequently asked question, so I thought I would address it in a post.

Yes.

That answer applies generally to the three main classes of people who ask it - those who have done a non-law first degree and worry about falling behind those who read law; those who have taken a number of years out and those who have actually had a different job first.

By and large Chambers are not terribly bothered about your previous history (although if it involves an extended stay at HM Pleasure then that generalisation may not apply to you). They are certainly not worried about a non-law degree and some specialist Bars (such as the Patent Bar) almost require it. However, the same guidelines apply to non-law degrees as to law degrees - the result has to be good and the University has to be good. Moreover, just as some sets are starting to look at your chosen options within a law degree, so it may assist you to stress the use to which your first degree can be put. If it is Management Studies and you are applying to common-law or commercial sets, this may be simple. If it is the Aromatherapy and Therapeutic Bodywork course offered by the University of Greenwich, then you may need to be little more inventive. Perhaps this course has taught you the aromatic preparation required to ensure that witnesses tell the truth?

If you have taken a number of years out, you will have to be prepared to say why. Needing to find your inner child or taking time to chill are not necessarily going to recommend you. Becoming an Olympic Bobsleigher might. Voluntary work, Student Union sabbaticals, sailing the world all seem not to damage prospects. The only point to which attention should be drawn is that these are supposed to be maturing experiences. So more may be expected of you.

Changing job is more difficult. There are people who simply had to go out and earn a living at a time when the Bar was a risk. Now, in a much improved financial position, they are returning to what they always wanted to do. There are also people who just wanted a change and, having been successful in one career, now desire success in another. Both categories have the capacity to obtain a pupillage, but it is normally necessary to show exactly why now is the time. Wide eyed enthusiasm is not as convincing a reason as it is in the recently qualified, because people who have already succeeded in something know that the world is not always an oyster, and even if it is, what's inside is often just sand.

The other reason why a job change can often be difficult is the category of applicant broadly defined by the following statement: "I was doing really well in human resources and had just been promoted to vice-deputy assistant in charge of cleaning staff. I thought, 'that's just the push I need' and everyone always said to me that I could talk the hind-leg off a donkey so when I told my boss that the promotion gave me the confidence I needed to be a barrister, she said she thought I'd be brilliant so I decided to go for it. I am the person you need to enthuse all your clients with the desire to get out there and win that case". I exaggerate, but you get the point. You do have to demonstrate why previous success means that you will succeed at the Bar.

Finally, professional advancement, although not terribly age-dependant, is an issue. You have to be at the Bar 10 years to take silk or to sit. In practice that is closer to 20. That means that, if you come to the Bar in your 30s you won't be sitting until your late 40s and silk may be unattainable because, at 50+, you may not feel like the risk. Normally, Chambers are unconcerned by these matters - but it may bother you.

As for applications, I would suggest asking the basic questions without frills (why be a barrister; why here; why now). When you've got the answers straight in your mind you can ask what your previous experience allows you to offer which others may not offer. But it is that way round. As the Bar has just discovered, being a successful TV Producer does not mean you will be a successful barrister. The Bar allows plenty of individual scope - but it is still about serving the public.

Proof

I am sitting at my desk looking at a letter. The letter is from a young lady who appeared before me for sentence in January 2006. She had been dealing class A drugs. I imposed a suspended sentence with a Drug Treatment and Testing Order. That was on the lenient side of lenient, but what I had read suggested that it might work and she brought her Mum to court. I asked to hear from Mum, who seemed very sensible. I looked at the young lady. And, without being in the least bit confident about my own prescience, I took a deep breath...

The letter tells me that this young lady is now drug free. She has a job. She is buying a house. She has a daughter who is living with her. She thinks I saved her life, which I think is wrong - she saved her own life (there is little doubt that drugs would have killed her by now) by the actions she took. And the probation service saved her life.

I have never had a letter like that before and I was really very touched that this young lady had taken the trouble to write. The law affects peoples' lives. Sometimes it is nice to have proof that what you do makes a difference.

Blogger Aids

Ok, so the numbers have been whirring round rather faster than previously since I was reviewed by Law Careers.Net. I have had about 500 hits in 2 days, which is close to double the usual rate. I suppose I need them more than they need me - a salutary lesson for any barrister.

On the basis that there are new readers; welcome, enjoy reading the blog, feel free to comment freely, don't get offended and keep coming back.

Have a nice weekend and let your thoughts rest with Leeds United. The thought of a second season in the third division (now, in a fine example of grade inflation, known as League 1) is too much to bear.

Career Aids

My attention has been drawn to a competitor site to this one which attempts to provide career advice for aspiring barristers. Law Careers.Net provides a pretty comprehensive guide to the basics, complete with a message from the Chairman of the Bar - so it must be respectable.

I want to be honest about this: the way in which my attention was drawn to the site was by an email from them saying they were reviewing the blog and it might be nice if I sent a little puff the other way. Nothing like saying it like it is. That would have been the end of it, save that when I sent my usual response saying that I will only say what I really think, they replied 'ok', which distinguishes them from 99% of people making the same request (also why there are no ads on this site). I think that completes my Nolan disclosure.

The information provided is helpful, but uncritical. The BVC, for example, is covered but there is no hint that the course content and value is debated. I am sure that the providers would argue that this isn't their remit, and they do say that becoming a barrister is 'an expensive, high risk project'. The page entitled 'Bar Practice Areas' is helpful in terms of what to expect and what to do to make yourself an attractive candidate. It is, of course, far too London-centric with only 3 non-London barristers making an appearance (and one of them belongs to a London based set with a provincial annexe). But that is par for the course. The site is also linked to the BPP law school but doesn't seem to push it.

Their review of the legal blogging scene is interesting. I'm not sure I do permit my personal life to 'bleed' into the blog, although the image is striking. But one of the great things about a blog is that no one has to read it, so you can write what you want to write. When, ocassionally, some of the more conservatively minded of my acquaintances have expressed doubts about content and tone, I have rather taken the view that they can try their own approach and we can measure relative success. No one has yet done so, but the possibility is always there.

My own view is that demonstrating that barristers have a life outside the sub-fusc suit is probably useful as far as the public's view of the profession is concerned, and that mature, sensible people are capable of disregarding anything which jars on them if the information provided is helpful. To try and please everyone all of the time is dull, and would render the blog so anodyne that reading an Opinion on a bog-standard road traffic accident in which you were not involved would be preferrable. I hope that my pleasure in the job, my dedication to its basic principles and the reputation of the profession and the quite genuine desire to help those whose father was not (as mine was) in a position to assist is obvious to anyone who doesn't actually want to find fault for some bizarre purpose of their own. If not, then I'm not much of an advocate - in which case I shall wait for the deluge of Very High Cost Cases to come my way.

As far as Law Careers is concerned, the information seems to be reliable and the articles are decently written. You can, I think, use it with confidence. It is not, obviously, remotely as exciting and immediate as this site. That's enough plug for now.

Pathetic

Geeklawyer wrote a post about Tony Blair. I think it was a little overstated and I don't agree with it, but that's the house style and it's a free country.

Unfortunately, some moronic Blair supporters disagree with that last proposition and have organised a denial of access to his site.

Vigilantism always makes me nauseous, largely because in my experience the self-righteousness that prompts it is about 1/2 micron thick. There are few things more unpleasant than a house burglar feeling all good about pouring his chamber pot over the head of a sex offender on the basis that 'he deserves it'. The burglar will, of course, be full of remorse for the distress that his actions have caused his victims. Or not.

Anyway can I urge you all to pay Geeklawyer a visit in his squat? Even those of you who don't read him. That way, it should be possible to convey to those who purport to promote free speech by denying it that hypocrisy doesn't work. They won't feel ashamed of themselves because self-righteousness inhibits that as well. But they will be angry which is lots of fun.

Life at the Bar

I woke up this morning and realised that it was the first time in 4 weeks that I was not going to spend the day racing around like a maniac. More particularly, last night was the first time since last Saturday night that I had gone to bed earlier than 3am. And I wasn't out clubbing. My case over-ran with the Jury out for a long time and I had an Opening due in the next. Since the next case (due to start Monday) was contained in 42 lever-arch files, the Opening was a long document. I got it down to 42 pages - one per file - which I thought was good going.

Of course, no sooner was it delivered than the case settled. So that's 5 weeks' work down the pan and no money. Of course all those late nights were worth it. Now I have nothing for next week and not much for the week after. My family will be allowed to talk to me about non-urgent matters - this has been banned for the last 4 weeks or so - and walking the dog will not be the opportunity to talk to the junior in the London case. I would like to think he will miss his nightly call, but suspect that he will also be glad to get back to his wife and family.

This is what it can be like. Frantic activity which turns out to be for nothing. Weeks of real pressure and anxiety. And then a complete gap. I do actually have work to do, but I'm not going to do anything until Tuesday. On Monday the dog and I are going to walk to Harewood House, have lunch (me) and come back. We will both have covered 13 odd miles and the dog will have chased things and barked at other things. We will both be knackered but feel much better. I hope my clerk isn't reading this.

Monday was going to be an allegation of a civil conspiracy by state bodies. I am sorry in some ways that it settled, although the client walks away with some money. I had got right into it by the time the Opening was finished and there is now a slight feeling of anti-climax. That's part of the job too, but I never much like it. I console myself with the belief that we would have won, and the knowledge that I can't be proved wrong about that.

As part of the settlement I took no fee for the work done in preparation during the last month or so. I blame Conditional Fee Arrangements myself. They have always been unsatisfactory and in this case my junior and I were in a position of conflict: on the basis of the proposed settlement, the client got what we believed was an acceptable amount and we got nothing. If it fought and we won, we could both have taken most of the rest of the year off. We did the right thing and we know it, but it is uncomfortable nonetheless. Whilst the Government seems content to defame the Bar, I bet no civil-servant ever cites this sort of thing.

A fairly typical month all-in-all. As you read the posts below, please ask yourself if this is what you want. As for me, I love it.

It's All the Fault of the Bar

The LSC has pronounced on the new contracts. It boils down to this: 2,300 barristers were offered contracts. 130 signed them - about 6%.

This, however, is not the fault of the LSC and nor does it reflect the terms of the contract being unacceptable. Rather it is the fault of the Bar. The Bar tendered for the contract at the agreed rates and the failure to sign now is a lack of good faith.

This argument suffers from two flaws. Firstly it is untrue. Secondly it is stupid.

It is untrue because I did not know what the rate would be. I was asked if I would allow my name to go forward to be considered for an offer. To do so would potentially assist my solicitors and my Chambers. Not to do so would be to close the door on the work forever. I agreed to allow my name to be added to the tender. At no stage was I told that I would have to do the work for any particular price, still less on any particular terms.

It is stupid because the sight of the Legal Services Commission (stressing the word 'Legal' here) suggesting that pre-contractual negotiations are in any way binding almost beggars belief. They offered me a contract. I looked at the terms and didn't like them. So I said no. They did not change the terms - instead they offered vague and non-enforceable 'assurances' that the contract didn't quite mean what it said. I said 'I don't believe you, so it's still no'. So there is no agreement. What there is, is a whinge that I should have signed before they told me what I was signing.

The lack of good faith inherent in that approach is a disgrace. No government body should attempt to mislead those with whom it works in such a manner.

But I take heart from the fact that the Press Release (which I gather was the way in which the matter was communicated to the Bar Council - what grace and elegance under pressure) is only the public face. Inside the LSC there will be a wailing and a gnashing of teeth. They will want to know how such misjudgments were made. The public declaration that the names of those who signed would be published (still a blank on the LSC website); the confidence that the Bar could be bullied into signing; the threatening letters sent to the Chairman of the Bar; the overweening confidence. I suspect the government might want to know precisely how they have been dropped in it. I shall endeavour to keep you informed.

Meanwhile the LSC press on without a panel. The rates remain the same but there is no longer any need to commit oneself to the panel. So I can take a case I am offered in Leeds and refuse one in Preston, which seems to me better than the previous position. What's more I can refuse a case because the LSC aren't willing to give me the hours I think I need to prepare it properly. I can say no unless I am paid travel and expenses.

I gather I am to be offered another chance to enter into the deal on less adavantageous terms. That is obviously terribly kind and I am grateful. But I don't think I shall change my mind.

As to the suggestion that the Bar has engaged in activity not in the public interest: if they have evidence that the Bar pressured people not to sign then they should put it in the public domain. If they only have anonymous gossip and wishful thinking they should shut up. Issuing a press release that contains vague hints of unfairness is the sort of moaning a child does until its parents explain that sometimes life is unfair.

Right. I feel better now...

Will the Criminal Bar Last?

This seems to be a current faq (as they say in the blog biz). So I thought I would address it.

Yes.

The government is not trying to destroy the criminal bar in my view. What the government - or actually its civil servants - are trying to do is to look as if they are trying to control cost. Barristers (see the Editorial) take up a tiny percentage of the relevant budget. But they are a very visible part and the public (it is felt) recoils from lots of money being paid to help guilty people escape justice. That, coupled with basic jealousy, seems to be the motivation.

I say this because a real attempt to control costs would ensure that listing was entirely efficient, that Judicial time was costed and then wasted if that was the cheapest option, that the Courts were provided with expensive equipment which diminished long-term costs (such as digital recorders), and, crucially, that case planning was judged after the event by lawyers rather than before by civil-servants. In the marketplace that is civil law, this is exactly what happens. That is because the market efficiently regulates cost.

In crime the issue is how big the budget is, not how much ought to be paid per case. The budget is fixed before costs are incurred. Efficiency is thus irrelevant unless there is an actual danger of running out of money (When that happened at the CPS as it did 3 years ago, they simply didn't brief barristers to prosecute in the Magistrates Court and CPS staff did those Courts whilst the work they would otherwise have done waited until April 6th). That leaves those in control with a different agenda - namely to look as if things are being done. The Bar is in the frame.

It seems that about 50 people have signed the VHCC (a large proportion of whom are Higher Court Advocates - i.e. solicitors). Let us assume that my information is out by a factor of 10, so that 500 have signed. That is less than 25% of the total. The work simply cannot be done by that number of people. Moreover, the criminal bar is efficient. Long cases in the hands of inexperienced advocates (and I make no prejudgment about competence at all) last longer. Agreements are not reached. People do not trust their opponent. Judges have to make rulings. Extra evidence is called. The scheme will fail.

One can be reasonably sure that the contracts have not been signed in droves because the LSC website has not published the list of names. Instead, the weasel words 'or after' have been added to the promise to publish the list 'on the 21st January'.

That argument applies to criminal work generally. In the long run there will have to be efficiencies. That means the Bar is needed. The necessary work cannot proceed at the necessary pace without us. At the stage at which real attention needs to be paid to what it costs to run a fair criminal justice system, rather than the masquerade currently being played out, I believe that the Bar will be cherished. At that stage it may be that civil servants may have to be quietly moved on.

I am an optimist but that is not (yet) a crime. Hang in there - we have a share in tomorrow.

Neglect (Updated)

I am aware that there has been radio-silence of late and I am sorry. In mitigation, my professional life this week has involved prosecuting one trial (where the need to write a Skeleton Argument on the law meant that I went to bed at 315 on Tuesday night) whilst simultaneously trying to sort out the Opening in the next, whilst also trying to read the contract the Legal Services Commission wishes me to sign in order that I be allowed to work for less money than my plumber on long cases which mean that I can't live at home for 6 months of the year.

This, of course, is what you are striving towards and, lest anyone think the contrary, I am, when awake, hugely enjoying myself.

I shall not be signing the contract proposed by the LSC. There are 3 main reasons for this. The first is that I will be expected to work for about £58 per hour whilst a case is in Court whilst being responsible for my own expenses. Given that a long case demands a hotel room with internet access (access is a term of the contract) and a decent sized desk and that I have to eat, it seems to me that 3 of my hours are likely to be spent on that. Of course, I pay tax on the remaining 3 hours pay, thus providing me with a take home wage of approximately £500 per week not including Chamber's expenses. The comparison with my plumber is, on that basis, more than slightly unfair - to him. Of course, Silks are paid more than juniors...

The second reason is that the LSC demand access to my diary, to ensure that I am telling them the truth when I say I cannot take the case because I have other professional commitments. This, presumably, is their way of building a mutually respectful relationship. I give them information and they assume that I am telling lies. And, if you are wondering whether it can really be true that this is so, check out clause 13.3. Also note that my claim for money based on an hourly rate must be true, accurate and reasonable. So, if my truthful claim that a case needed lots of prep is not reasonable, hey presto - I've worked for free! Oh yes, and - contrary to the Practice Direction - it is not normally reasonable for me to know what the junior is doing and vice versa, so if one of us falls ill the whole case will be aborted.

The third reason is that on 21st January, the LSC intends to publish the list of people who have signed. This is purportedly to let the public know. In reality it is to exert pressure. I can easily imagine the howl of protest that would arise, were the Bar to publish that list. We must even be careful not to 'pressure' other members of the profession into leaving their signature unscrawled on this particularly grubby bit of paper. Leading the charge to accuse Barristers of blackmail would be the LSC and its paymasters. But when the boot is on the other foot it's all ok. If hypocrisy had a smell, civil servants all over the country would be frantically phoning Rentokill.

With the no pressure bit in mind, kindly note that my view is not in any sense advice. I devoutly wish you to make your own mind up about whether you wish to enter into a contractual relationship with privacy-busting, untrustworthy, underpaying hypocrites who will promptly tell the world that you are their kind of person. I hope that is clear.

Update:
There has been an exchange of correspondence between the LSC and the Bar Council (to which Anon refers in the comments - thank you). The LSC suggests that the Bar - or some of it, it is a bit fuzzy but hey - is in breach of the Competition Act (civil wrong) and the Enterprise Act (criminal offence). The Bar Council refutes those suggestions. The letters are here.

Rarely have I seen the Bar more angered. The most common expression in the Robing Room and the one which I used myself was 'disgusting'. To be accused of criminality, without investigation of any type, with every supposition made against you and for the accusation to be utterly without foundation is so inimical to why I do this job that I find myself almost (but not quite) bereft of words.

Still, the upside is that the LSC have achieved a position where shooting themselves in the foot would represent an improvement.

From the hysterical tone of the letter and the willingness to make unfounded allegations, together with the deafening silence regarding the promised list of those who have signed, I deduce that the LSC have fallen victim to their own hubris. Let's hear it for schadenfreunde - that most pleasurable of emotions.

Obviously, the correspondence has demonstrated to me that the LSC are people with whom I can reliably and safely contract and who will treat me with courtesy, dignity and respect. Therefore there is no impediment to my now signing. So, just as soon as Alice has shown me the way through the looking glass, that's what I'll do.

What Type of Law Should I Do (Part V) ?

A New Year special...

Media Law
Is this law at all, or simply a chance to rub shoulders with the famous (acceptable) and rich (desirable)? Given that the Courts cannot make their mind up about whether there is a right not to have your photograph taken at any time when you spend 80% of your waking hours showing your knickers to the paparazzi (or 'annoying little prats' as they are known in royal circles) why should this be anyone's speciality?
Still, there it is. Whole firms are devoted to this issue which, given that it involves the meejah, means that their lawyers are often on the TV or the radio explaining to the rest of us why it's ok to take Naomi's photo when she's assessing the length of her tongue against a Russian billionaire's ear, but not when she's coming out of the clinic with that little package saying 'antabuse'. There's even a book on privacy, although obviously I'm not allowed to tell you what it says.
What's more, people are often offended by the fact that there is to be a TV or Radio programme revealing that they keep Nazi uniforms in their bedrooms, or collect money for charities which assist foolish young men to ensure their life is even nastier, shorter and infinitely more brutish than Thomas Hobbes ever envisaged. Oddly, people wishing to be really, really unpleasant to others by depriving them of basic freedoms are terribly keen on exercising those freedoms for themselves, so there's work out there.
Advantages. Daaahhhhling. This is where it's at sweetiepie. Whichever way you look, you're defending freedom so there's a real feelgood factor here. Not the grimy little freedoms like staying out of the nick and being innocent until proven guilty either. Those freedoms are, like, so yesterday. No, this is real freedom - either of the press or of the individual. Coo-el. And best of all, both sides are awash with dosh, so your plumber will bring 2 assistants, an associate and three trainees, thus making his visits indistiguishable from the way you deal with cases at work. Your colleagues will be envious and you will be doing cutting edge work. After all, nothing is more cutting edge than deciding if this is really law or not.
Disadvantages. You have to know who Kate, Amy, Katy, Pete, Blake, Naomi and Peter really are. You have to pretend to care. Worse still, you may end up actually caring. Worse yet, you may have to act for the Royal family (no, not daaahhling Catherine's creation - the real ones) and get to see the photos of the heir to the throne dressed up as what he talked about on the Squidgygate tapes. Yeuw. You will have to look smooth and well-dressed which, for most lawyers, is a challenge which severely cuts into the total number of billable hours in a day. Unless you act for the Royals you will either be past it at 33, or the sort of person with an adolescence so retarded that Peter Pan thinks you are a bit of a baby.

The Size of the Bar

TB and MP (I am trying hard not to notice that these initials almost always spell trouble one way or another) have been engaging in some discussion on the post below. It has, frankly (as LawMinx has said), degenerated into handbags at dawn but I reckon that is inevitable when people are both cross and anonymous - the combination does have a tendency to free you up to speak in a way that you otherwise might not.

However, the points raised are important and I want to deal with one of them which touches directly on the purpose of this blog; namely the size of the Bar.

On this matter my sympathies are entirely with TB, which will come as a shock to us both. I am afraid that I believe the Bar will contract - largely, although not exclusively in London, and by perhaps 30%. The reasons are many but two stand out for me.

First, it pays solicitors to do their own advocacy. The Bar persuaded Carter that criminal legal aid should pay a better advocates' fee than a litigators' fee. That was a completely principled stance and it was rightly accepted. However, the solicitors' reaction (fairly predictably) has been to move to litigation.

Secondly, and contentiously, that much of the advocacy the Bar is required to do is not terribly difficult. This has been a well-kept secret for years, although possibly not as well kept as some at the Bar imagined it to be. In reality, solicitors were not terribly interested in doing advocacy until it paid to do so. Consequently, they did not dispute the Bar's contention that all advocacy is specialist, which led some barristers to believe their own publicity.

The truth, however, is that a lot of advocacy is routine. That includes standard pleas of guilty, possession actions, road traffic litigation etc. Please note (what I am saying is quite contentious enough without adding misunderstanding to the mix) that I am not saying solicitors can do this better than the Bar. I am, however, saying that a lot of solicitors do this sort of work as well as a lot of barristers - or just a little bit less well but not enough for it to matter.

There is only so much advocacy to be done. If solicitors are going to do more of it then the Bar will do less. Less work ultimately means less barristers. I am afraid that I do not regard this as the end of civilisation as we know it, although the human cost is going to be unpleasant and likely to be exacerbated by the way in which the Government goes about things. In 1986 the population of this country was much the size it is now, but there were about 40% fewer barristers. Those were good times, but I certainly do not remember anyone campaigning for more barristers because the public were suffering.

The issue is how the Bar manages this decline. I remember the century brief scheme. This was a short-lived proposal that junior members of the Bar did a hearing and a conference (and perhaps an Advice as well - my memory is vague on this) for £100. On my Circuit the idea got short shrift, being seen as a way in which the entrenched middle ranking juniors protected their own practices against able youngsters, by ensuring that those youngsters did minor work for very little pay.

But as the deadly combination of falling rates and less work bites, it is important that the Bar continues to allow young talent to develop. I shall watch the figures with interest and concern - there are fewer pupillages on offer this year than last and it seems to me that the Bar is likely to 'self-regulate' in this area.

With due deference to MP I do not regard this as running down the Bar - from my place atop the greasy pole or otherwise. Staring reality in the face is what we are supposed to be good at. Nor do I resile from the views expressed in the Editorial above. However, the sad fact is that we are being positioned between a rock and a hard-place. If we cannot make room for talented pupils then the Bar will either die from the bottom up, or will become a second profession for those first qualifying as solicitors. If we are to make room for talented pupils then slightly less talented middle-ranking juniors may have to find other ways of making a living. That process will be bloody and bitter.

So, what can be done? Well, firstly we can concentrate on being as good as we can possibly be. When I sit as a Recorder I inevitably do work at what might be called the lower-end of the spectrum. Even on a plea to a bog-standard burglary, people who do a good job stand out and people who can't be bothered do too. Secondly, we could sell ourselves to clients better. Being approachable, collaborating with solicitors and making it clear that we are a specialist resource aimed at litigation and judgement sends out a message. The aim should be to persuade clients that solicitors can do the job but they are unlikely to do it as well. There are two components to achieving that aim. One is that it should be true. The second is that we sell it. I can do the first and I would like someone to tell me how to do the second, other than by way of personal example.

In that context we have a corporate responsibility to do the best we can and to sell the Bar as efficient and reliable. Part of that is not taking the absurd point that solicitor advocates should not be allowed to wear a wig. I do not see the defenders of 'tradition' in black and stripes - why is the wig so much more important? It isn't. Not only have we already 'lost' this argument - the tone of much of our response has not risen above a schoolboy whine. If I were a client, would I want a barrister who insisted that only in his wig was he distinguishable from my solicitor? No, I wouldn't.

When TB says that he would rather have a good solicitor than a good barrister, it seems to me that he is absolutely putting his finger on the problem. Once our role is considered to be secondary then we only have two choices. One is to strenuously try and put our role back in pole position. To do that the advice has to be solid and commercial (including crime - what is the risk/benefit analysis of a plea) and the judgement has to be good. We need to structure the BVC and pupillage to those two issues, which means that pupillage should be delivered by the person(s) best suited to do so. The other is to play second fiddle with good grace. Those aims can be mutually pursued.

I know that MP says he was speaking with his tongue in his cheek and I am happy to accept that. But a cull might be the best way forward. When those little seal pups are knocked on the head it is not necessarily because they are being attacked by sadists, notwithstanding PETA's hysterical outcry to the contrary. It may actually be, as the WWF says, that it is being cruel to be kind. There is a debate there, but we don't have it when the reaction of one or both sides is to acuse the other of deliberate wickedness.

So I would like to see the Bar Council keeping detailed records of people leaving the profession and why. As they are doing. And, at some stage soon, it may be that we have to have a horrible debate about how to allow people in the middle and at the top to exit the profession on the basis that they are not good enough.

There is an alternative, which is to allow barristers to form partnerships. At which stage the laissez-faire attitude about other people with whom one shares Chambers will disappear. It is one thing to worry about the odd return. It is quite another to have your own income directly linked to the performance X puts on in front of your solicitors and to be responsible for X's mistakes. The gap between sharing a Chambers with X and being a legal partner (or even an employer/employee) of X may well be immense. I think on balance the first method would be kinder.

'Tis the season to be jolly - I know, I know. But for those who believe that is based on the fact that Christ existed and died for the sins of others. It isn't based on a myth that there really is a little fat bloke in a red suit who brings you freebies because it's the end of December.

PS: This is a large topic and I am happy to publish guest-posts in response. Please email me if you would like to do that and we can discuss word-count and timings.

A Land Flowing with Wigs - and Honey

Honey speaks:
"I find it quite disturbing that this topic gets twice as many replies as "Neuberger" and "Root and Branch" put together. Priorities!"

Quite.

I have a theory about this. Wigs are a topic which guarantees debate because the issues are clear, no one is more of an expert (or less) than anyone else, it's easy to have a view and it is something about which a barrister may, just may, exercise an influence upon. As opposed to, say, Neuberger; where people think that it is a done deal, it's too much effort to sweat it up and you really have to think before you speak because there is a back story which you are not being paid to get up. What Honey does not say (although she would doubtless agree) is that the views on wigs are clearly, succinctly and persuasively expressed.

There are lessons here. Firstly that the profession and its prospective entrants do not feel that their contributions will make much of a difference on topics of real importance. I truly do not believe that is so. Why should it be? This is a profession when the best argument has a real chance of success. But, if people carry on in this way, it will become a self-fulfilling prophecy.

Secondly, that too many people feel that the title barrister entitles them to some sort of free pass. I mention no one by name - if the wig fits, wear it. But wake up and smell the coffee. It ain't so. Just because your profession has fancy dress is not a good reason for you to be marked out. Let's be honest about this: compared to solicitor's finals the BVC is a stroll in the park. The time has long gone when being a barrister guaranteed respect. Now is the time to earn it.

We won't earn anything by being seen to diss the competition. Nor by labouring outdated modes of address and distinctions of dress in an apparent effort to demonstrate unfounded claims to superiority. If we want to be seen as a specialist profession then we had better make sure that we are the best advocates/drafters/advisers around. The mark of a good advocate is someone who does not condescend to his/her opponent.

Thirdly, what do we want to be best at? In my view the tendency to sell ourselves as specialists in substantive topics is a mistake. We all do it because we think that solicitors want it. But solicitors may simply want comprehensive advice, backed by solid judgement, delivered quickly and based on an analysis of relevant authority. Followed by successful advocacy.

I have been against many members of the specialist bars, from commercial to clinical negligence. Virtually all of them have known more law than me when the case started. But finding the pertinent cases, reading and comprehending them is not terribly difficult. You may have a learning curve and it may be steep but barristers are used to working hard. And at the end of the day it's about what I can get your witness to say. At that stage a wide understanding of the law and how it works and interrelates is of more value, in my view, than a deep understanding of a narrow segment. And a cross-examination based on treating the witness as one would a complainant or defendant in a criminal case can deliver benefits which the other side did not anticipate.

Moreover, with a very few exceptions I am not sure that those members of the Bar knew more about the particular area than their equivalents in solicitors' firms. The firms are better resourced, even more specialised and have the benefit of practical dealings with the lay client which gives them an inside track the Bar lacks. So why are the clients paying twice for the same type of expertise?

In other words, comments on wigs are what we do best. And we would all be just as good on Neuberger if we felt involved.

These musing are prompted not only by the comments on wigs, but by my recent need to set out my practice areas for work purposes. I was amazed by how many different areas in which I had experience (legal disclaimer: not the same as expertise). And no one has sued me for not knowing enough. I believe that generalism might be the way forward - with the specialisms being independence, advice, drafting and advocacy.

Maybe this is crazy, nostalgic dreaming. If so put it down to the strain of defending in a case when I believe my client to be innocent - only the 3rd time I can remember it happening to me. But I don't think my mind is wandering.