When Lord Carnwath described me as a “serious advocate” last year (after winning a major mooting competition), it seemed like the right time to start reading great books about advocacy.
I began with The Devil’s Advocate by Iain Morley QC. This excellent guide led me on to The Art of Cross-Examination, a lengthier work by Francis Wellman — American attorney with 25 years’ court practice, during which time he claimed to have “examined and cross-examined about fifteen thousand witnesses, drawn from all classes of the community.”
Alas, the pressures of postgraduate study kept me from delving into this title until quite recently. However, on reading Wellman’s introduction, I was struck by his express view (indeed, his desire) that America should be more like England in the way its legal profession is organised. I found it ironic that whilst England has for decades been striving towards a more ‘fused’ profession, akin to the American system, here was an experienced American attorney arguing, in 1905, that his country needed to be following the English example!
I will provide the relevant introductory passage (edited for convenience), followed by a discussion of courtroom advocacy, leading to consideration of the recently proposed cuts to British Legal Aid.
Hence, in 1905, Wellman argued:
“ The conduct of a case in court is a peculiar art for which many lawyers, however learned, are not fitted.
In the United States, we recognise no distinction between barrister and solicitor. We are all barristers and solicitors in turn. However, one has but to frequent the courts to be convinced that, so long as the ten thousand members at the New York County Bar avail themselves of the privilege of appearing in court, the majority of trials will be poorly conducted, with much valuable time wasted.
One experienced in the trial of causes will not require more than a quarter of the time taken by the most learned [but] inexperienced lawyer. He will not only complete his trial in shorter time, but will be likely to bring about an equitable verdict which may not be appealed — or, if appealed, will be sustained by a higher court, instead of being sent back for re-trial.
It is pleasing to note that some of our leading advocates have expressed their intention to refuse all cases where clients are not already represented by competent attorneys — recognising, at least in their own practice, the English distinction between barrister and solicitor. We are thus beginning to appreciate in this country what the English courts have so long recognised: that the only way to ensure speedy and intelligently conducted litigation is to inaugurate a custom of confining court practice to a number of trained trial lawyers. ”
In England, the way things usually work is that a client will first approach a solicitor with their legal problem, and the solicitor will then instruct a barrister at a later stage if specialist advice is needed, or if it looks as though the matter will end-up in court. Barristers are mostly self-employed, whilst solicitors belong to firms.
For my part, it would be disingenuous not to concede my bias favouring separate branches to the profession (barristers and solicitors as opposed to ‘all-round’ attorneys who handle everything). I believe that law graduates pick the barristers’ Bar Professional Training Course over the solicitors’ Legal Practice Course for a reason — namely, because they dream of spending the larger portion of their careers in court, on their feet, persuading judges and juries that their client’s point of view is correct. Indeed, who else, if not one so impassioned, would forgo the relative comfort of a solicitor’s salary in preference of a job which provides no steady income, no paid holidays, no perks and no pension?
But equally, one might ask: If barristers have it so tough, being paid strictly for the work they do and no more, why do it?
The short answer, I suggest, is that people become barristers for the love of advocacy. As even this student can attest, there is no feeling like persuading a court that your interpretation of the law is correct — or, at least, better than your opponent’s. And as a mature student who is no stranger to the repetitive environment of the office, having worked in jobs ranging from customer services to the Civil Service, I have no doubt that my legal career should involve more advocacy and less pen-pushery.
Having put my case for separation, I should now, in a spirit of fairness, address some of the potential flaws in both mine and Wellman’s views.
The 1990 Courts and Legal Services Act made significant reforms to the English Legal System. Details of these reforms can be discovered online, but for present purposes, the Act dismantled some traditional distinctions between barristers and solicitors. In particular, solicitors were given the right to undergo further training to become solicitor-advocates, thereby enabling such solicitors to speak on behalf of their clients. However, whilst this reform lifted the barrister’s monopoly on speaking in the higher courts, all solicitors had enjoyed advocacy rights in the lower courts for decades. Therefore, it would be wrong to assume that solicitors are less capable of advocacy than barristers.
Another incorrect assumption is that all barristers work in courts, whilst all solicitors work in offices. As academics Slapper & Kelly have written, solicitors can mostly be thought of as general practitioners, whilst barristers can mostly be thought of as court advocates. However, a barrister specialising in, say, tax law, will seldom (if ever) need to appear in court, whilst a solicitor at a criminal firm might rack-up hundreds of hours spent defending clients before magistrates. Therefore, it cannot be claimed that all barristers are “experienced in the trial of causes” and thus able to complete trials in shorter time than solicitors — bringing about more “equitable” verdicts in the process (as Wellman asserts).
In summary, a solicitor may be an impassioned advocate who spends long hours in court, whilst a barrister may be a specialist advisor whose whole career is spent in the office. Be that as it may, whether one chooses to become a solicitor or a barrister, I think there can be no doubt that Wellman is absolutely correct in stating:
“There is no shortcut, no royal road to proficiency, in the art of advocacy. It is experience, and one might almost say experience alone, that brings success.”
… and, speaking as a current national mooting champion, I would venture to add one further requirement of the aspiring advocate: a desire to excel in this art.
But, reader, this brings us back to a fundamental question: If one graduates from law with the desire to be a great advocate, why, then, choose to become a solicitor — thus avoiding that branch of the profession which virtually guarantees a life of advocacy?
One might reply that the odds of becoming a solicitor are better. And, to some extent, this is true. There are certainly more training contracts available each year for aspiring solicitors than there are apprenticeships (known as ‘pupillage’) for aspiring barristers. However, it would be quite naïve to assume that a training contract can be won just by sitting a good job interview. Competition remains fierce, with many more job applicants than there are solicitors’ jobs.
Moreover, applicants to solicitors’ firms, who are craving a life of advocacy, will first need to demonstrate competence across a broad range of task areas in order to be hired. For barristers, though, courtroom advocacy is deemed to be their most defining trait; hence, applicants to barristers’ chambers are free to channel the bulk of their energy into demonstrating a talent for public speaking. In other words, there is nothing for the aspiring advocate to ‘fake’ an interest in if seeking to become a barrister!
In light of the foregoing, it would seem to make sense for any aspiring advocate to pursue the role of a barrister, which emphasises advocacy above all else, as opposed to the role of a solicitor, which merely includes advocacy among a range of activities that must be performed for clients. Indeed, even a solicitor-advocate remains, primarily, a solicitor.
To reach a conclusion here, it is surely safe to say that whilst solicitors are competent to undertake advocacy, the greatest advocates are, on the whole, more likely to be found amidst that branch of the profession whose lawyers regard “the trial of causes” as an end in itself; not just one more aspect of a demanding job.
This brings us to the issue of recently proposed cuts to the Legal Aid budget.
Those who follow the news will doubtless have seen barristers in England and Wales coming out on strike (essentially) over plans to cut £220 million from Legal Aid. Their frustration is understandable. At the same time that MPs are expecting an 11% pay rise (bringing an MP’s salary to £74,000), the cuts to Legal Aid may well result in the average criminal barrister losing 30% from earnings of £37,000 — bearing in mind that criminal barristers are self-employed, so must deduct tax and professional overheads from this figure, leaving around £23,000 realistically (before proposed cuts).
To put things in perspective, Legal Aid currently costs the taxpayer around £2 billion per year. That may sound like an enormous sum, but in fact, this is the cost of running the NHS for one week (based on 2012/13 figures). Not bad, then, considering this money enables anyone to be represented by a quality advocate in court, all year round, if and when the need arises.
It should also be noted that barristers can now expect to spend around £36,000 in qualifying to practise. Hence, a yearly take-home figure of £23,000 might be deemed much too low in light of the sheer expense, time and effort involved. Remember, too, that it could take several years for a new criminal barrister to build a practice that brings in this figure.
So, what is the effect of cutting Legal Aid likely to be?
Quite simply, if criminal law does not pay enough to cover one’s rent and bills, with a little left over to derive some enjoyment from life, then barristers will stop practising criminal law and try to take their skills elsewhere. In fact, this is happening already. One experienced barrister told The Independent that he is currently being forced to turn down criminal briefs offered to him by solicitors: “I can’t afford it. The fees won’t pay my mortgage.”
The impact of cuts will transform criminal defence into an area of law reserved almost exclusively to solicitors, and prosecutions may suffer too. More criminal solicitors will develop into experienced advocates, granted. But on the whole, the quality of criminal advocacy will be reduced, for lawyers most eager to take this work will be unable to afford to do it.
In my opinion, barristers are still necessary. Our society really needs them. For now, though, it seems that you, me and everyone we know had better pray we never need a good barrister.