Life at the bar: Taking on senior counsel
18 December 2013 | By Rachel Tandy
Lawyer 2B’s tame barrister explains the intricacies of practice. This issue: squaring up against more experienced opposition
Be honest. When was the last time you stalked someone online a little bit? Maybe it was the last person you dated? Or one of your old colleagues when you heard they had been promoted?
No matter what the reason, it has become worryingly acceptable to eye people up online. But what the world has failed to realise is that barristers have been at it for years.
Our web profiles, complete with photographs and mini biogs, have given us the ability to scope each other out since way before social networking was invented.
Which means that whenever we receive a pleading, skeleton argument or case summary with a name at the bottom, we just cannot help ourselves. We have to have a peek.
Once in practice, dear reader, you will be the same. And it will only be a matter of time before you type the name at the bottom of those pleadings into Google and discover with horror that you’re against someone who was called to the bar in the same year you took your GCSEs.
In those circumstances, it’s easy to be intimidated. The first time it happened to me, my opposition was none other than my ex-boyfriend’s pupil supervisor, two weeks after what was possibly the most acrimonious split since Henry VIII decided to get rid of Anne Boleyn by lopping off her head.
Keep calm and carry on
But the best advice I can give is to avoid being intimidated at all costs. Provided you have done your job properly, there is no reason to treat this case differently to any other.
If you let yourself believe you are starting on the back foot, it can be tempting to make concessions you would not otherwise make, for fear of losing face.
For example, your opponent might make a sweeping statement about the proper procedure for a committal application, or the rate of interest the court tends to award in contractual damages claims. If, off the top of your head, you are not sure whether they are right, you can always avoid looking like an idiot in front of them by simply nodding along blankly.
But if you don’t want to look like an idiot in front of your client – who, after all, is footing the bill – then it is far better to stop and think hard about what you are agreeing with. If you are simply not sure and you want to clarify the point, there is no shame in asking for a little time so you can double check.
It is also helpful to do a skeleton argument. You do not have to hand it up or even look at it, but knowing it is there will put your mind at ease. It will help you to get your bearings and force you to think through all your arguments in advance.
A more senior barrister is likely to have developed a much broader and more varied range of ways to express themselves, meaning any arguments they make may not be phrased in the most predictable or obvious manner. Having a skeleton to refer to can help you place those phrases in context to identify what is really being said.
Having said all of that, do not forget to take the time to enjoy and learn from the experience. It can be a real privilege to find yourself arguing against a more experienced practitioner, so make the most of it. After the hearing, take the time to weigh up what did and did not work. Think about the tricks your opponent used that you could borrow or adapt to improve your own advocacy.
However, the real trick is not to do anything differently at all. Because it isn’t any different. Except, of course, it is. Although the job is not necessarily about winning, barristers are all competitive souls at heart. And at the start of your career, coming out on top when you have been pitted against someone more experienced will be an enormous confidence boost. So while you do not want to be intimidated or allow yourself to feel the pressure, do take the time to value a successful outcome.
And in case you’re wondering about my first time? I won. And it was the sweetest victory I’ve had to date.