Saturday, 31 March 2007

What value do barristers add?

It’s been an exciting week, and slightly to my own surprise I’m still feeling pretty perky. This is, perhaps, partly because I’m away next week. This blog will therefore become even quieter than it has otherwise been of late. I’ve been a bit busy, basically, and I’m no insomniac, unlike Charon QC – quite the opposite in fact – nor am I quite as, er, geeky as Geeklawyer.

I’ve been mulling over the above question in my mind for the last few weeks. It has recurred in a number of contexts. My previous position would have been ‘not much’ but I’m either (a) starting to change my mind after careful consideration or (b) I’m brainwashing myself because I need to justify my existence.

I recently had to listen to a QC who, as he liked to point out as often as possible, at the tender age of 41 is quite young to have taken silk. He was clearly convinced that his peers, who have been so astute as to elevate him to his current state of grace must themselves be really rather special. He was also offensively dismissive of solicitor advocates, failed pupils and Bar Vocational Course tutors (the last two being closely linked in his mind). He obviously thinks that barristers generally, but perhaps one barrister even more so than the others, are God’s gift to humanity.

The issue of litigants in person, recently also commented on by Nearly Legal, raises the same issue of added value but in a different way.

Counsel-only conferences have also prompted some reflection on this issue. The additional link in the chain between client and advocate often proves pragmatically beneficial. There is real pressure in child care proceedings for all parties to be reasonable, as being seen to be unreasonable is highly damaging to one’s case. The solicitor will often be under considerable pressure from the client to put certain points or arguments, and is of course being paid to act according to the client’s instructions. The solicitor will try to moderate the client. The barrister will then try to moderate the solicitor. With much rolling of eyes and so forth, the outline of a reasonable agreement will be reached, and then pressure applied to the parties to accept it. I can’t see this working so well with solicitors only, who have their client’s interests more immediately in mind.

Some might be horrified by this, and I well realise that it could be said to be elitist and condescending, but the best interests of the child probably are served by everyone being reasonable rather than slogging it out in a more adversarial environment. This might apply more in family proceedings than other areas of law, but I imagine there is some utility in the additional link in the chain right across the board.

The other area of potential added value I’ve noticed is in buying in specialist advice. Today I watched my new Master against two very competent solicitors in high court proceedings. The solicitors were clearly on the ball and knew what they were doing, but they simply didn’t have the same experience or knowledge of the particularly narrow, esoteric area of law in question. Had they instructed specialist counsel, we’d have been in trouble. As it was, we got what we wanted.

Our odd legal system and divided profession enables solicitors from all over the country to buy in specialist experience in particular areas of law, and therefore to offer a full service to Joe Public, without Joe having to travel a long way to find a specialist himself. There is therefore added value in instructing counsel in unusual areas of law. I’m not so sure that the same arguments apply in less esoteric areas of law, where solicitors would build up experience and knowledge themselves.


Mr Pineapples said...

It comes down to the commercial imperative:

Solicitors are not best placed to do advocacy on a regular basis. They are running businesses: client care, marketing, staff development, invoicing, controlling WIP etc etc. well as running cases.

They cannot dedicate chunks of time out of the office to appear in Court...with all that hanging about. That's what they pay barristers to do - the specialists. It is cheaper to pay barristers to do the advocacy.

I have been up against Solicitor Advocates and there is a perceptible difference in style and skill.

Pupilblogger said...

But they manage in other jurisdictions - there's nothing to stop some solicitors specialising in advocacy and some in other aspects of the legal business. We could call the former trial attorneys, for example.

In my more idle moments I do wonder how feasible it would be for a group of barristers to set up a specialist advocacy firm with direct access to the public, if that were possible.