Long nights and stress go hand-in-hand with a lawyer's lot. In many firms, a track record of regular midnight finishes will be a sine qua non of partnership. Later, from such a serene vantage point of success, all the nights of not making it home for supper, consequential relationship dysfunction and outright exhaustion will make sense. The Holy Grail of partnership will have been achieved. And so even if the hours cooped up in an office surrounded by mountains of paper were resented, at least they will have their reward.
But there is a sector of the legal profession – where the jobs are never advertised and where word of mouth is the only clue to a vacancy – where the lawyers actually choose to work at night. They do not resent it; they do not moan about it; in fact, they enjoy it. Some even commit to it as a way of life, with the blessing of their partners. What can this strange breed be? It is known as the 'night lawyer' and can be found each night at every national newspaper in England.
Night lawyers come in many shapes and sizes. There are around 40-50 working on the rotas of the nationals in London. Some are junior barristers, usually from one of the two pre-eminent libel chambers, 5 Raymond Buildings and 1 Brick Court, for whom newspaper work is good hands-on experience; others are long-serving counsel from the criminal bar; some are in-house commercial lawyers; and many have opted to be solely night lawyers, forsaking their evenings for the quid pro quo of free time during the day.
Once on duty, their primary concerns are with defamation, reporting restrictions and contempt of court – specialist areas of law that they must know inside out. A shift usually starts at 5pm and should finish by around 9.30pm; after that, a night lawyer is on call for any late-breaking news or queries for as long as necessary.
The newest recruit to night lawyer duty at The Times is Barney Monahan, a former solicitor with niche defamation practice David Price & Co. Monahan explains why he gave up private practice and opted for the late shift. “I needed time to consolidate what I'd learnt to date and to discover what my true talents and passions were,” he says. “Night lawyering is a perfect way of doing this and gaining valuable experience in the media business.” He adds, though, that as much as getting paid for libel reading the papers is enjoyable, there is a downside. “By its nature, the work is irregular,” he says, “and therefore I don't have guaranteed income at the end of the month.”
There, indeed, is the rub. By comparison with the rest of their brethren, night lawyers are not well-paid. There are no bonuses, no performance-related pay schemes and no slice of equity once you have served your time. The work is paid on a freelance basis, and as such there will be some months that are more lucrative than others. One old hand on the circuit perennially abandons any thought of holidaying in August, knowing that he will probably be able to work every night for the month, since everyone else is away.
The level of stress that a given job entails is often cited as justifying a large salary. Those working in the City can expect significant remuneration, both for the risks they take and the stress to which they are subject. A curious aspect to the night lawyer's work is that it is, on the night, potentially as stressful as any other job in the legal profession. A night lawyer has to juggle any number of problematic stories, assessing risk and making quick decisions, in the knowledge that a mistake could have catastrophic implications for the newspaper. And yet, once the night is over, the stress is gone. A night lawyer does not take work home.
On a difficult night, the work is guaranteed to raise the blood pressure. Simon Heilbron, a night lawyer with The Times, The Sun, the Daily Mirror and The Independent, recalls being called at home by a judge at 1am, having earlier received a call from a lawyer acting for the subject of an impending story. He was on the receiving end of an application for an injunction. “You never know when they're bluffing,” says Heilbron of the call from the lawyer. “But in this case, the judge – who sounded as weary as me – wouldn't grant an injunction. I think when I told him the first edition was already on sale and the second was being distributed, he agreed that there was little point.”
Heilbron has been a night lawyer for more than 10 years, having qualified with Theodore Goddard. He is regarded by his peers as one of the best pre-publication lawyers in the game, and in his time has dealt with more than the standard fare of libel, contempt and reporting restrictions. He has had to deal with a photographer arrested for obstruction and a reporter who had bought controlled drugs to expose the dealer, but failed to get them to a laboratory for analysis before being arrested for possession.
So there is more to the job than meets the eye. Each night lawyer will have their own horror story of last-minute changes to copy and heated arguments with journalists, as something that is perhaps known to be true is about to be published, but without admissible evidence. In such circumstances a night lawyer has a difficult job – to convince a journalist that it might be wiser to wait a few days and acquire the evidence, rather than publishing, being damned and paying huge libel damages. In truth, though, a night lawyer is there to facilitate the process of publication, not to hinder it. For that reason, those lawyers whose style is pompous rather than pragmatic rarely last more than a few shifts on national newspapers.
At The Times, the night lawyer shares an office with Tim Austin, the paper's chief revise editor. Austin has been with The Times for 36 years and, to many, his sense of the history of the paper and refusal to allow its editorial standards to slip is what keeps it together.
Austin and the duty night lawyer could make an intimidating pair, Austin with his encyclopaedic copy-editing skill and a lawyer with everything that lawyers are innately supposed to have. But just as Austin is the epitome of courtesy, so too should a good night lawyer remember that a journalist resents nothing more than an arrogant, patronising “no” to a story. As Austin says: “Diplomacy comes with the territory.”
Caroline Kean, a defamation expert with Wiggin & Co, whose clients include many newspapers and publishers, agrees. “The skills required to be a good night lawyer aren't necessarily the same as those for private practice,” she says. “A night lawyer – indeed, any lawyer working for publishers – has to think quickly under pressure, and yet be down to earth and get on with journalists. A lot of lawyers can think as quickly as anyone, but fall down at the 'getting on with' hurdle.”
Whatever its stresses, there is no doubt that being a night lawyer has its perks. It involves creativity in redrafting problematic text to be a fair risk for publication. Some-times a night lawyer can look at a newspaper the next day and know that they wrote the headline, or made a vital change to the opening paragraph of a front-page splash. Perhaps creativity unites many who choose to be night lawyers, for there are more than a few who, during the day, are busy at work on screenplays and novels. A conventional legal job will rarely allow the time for such literary ambition.
The job has its rewards, but also entails a high level of responsibility. As Louise Hayman, legal manager at The Independent, says: “The job's demanding, but on the other hand I don't expect night lawyers to act in a vacuum. They're part of a team and I expect them to consult not only with journalists, but also with the in-house legal team as and when there are problems.”
Hayman sees this as a central part of their role, and by the same token makes her team (most of whom have been with the newspaper for many years) aware that they have her full support.
Nevertheless, the stakes remain high. A mistake can cost thousands of pounds, not to mention the embarrassment of a grovelling apology. And yet the same faces appear time and again at 5pm in newsrooms around London, and every newspaper's legal manager has a tray of letters from lawyers of one kind or another applying to join a rota.
Why do they do it? As someone who has been trekking back and forth to various newspapers for the past six years, I should know. But although I can cite the perks, bemoan the downsides and wax lyrically about a commitment to freedom of expression, creativity, pragmatism as opposed to pomposity and all the rest of it, perhaps it comes down to one thing: being on a newsroom floor is good fun.
Mind you, it is not always easy to feel that way. I know of one night lawyer who has nearly been punched by not one but two irate journalists. There is a journalist on one newspaper whose mission is to humiliate and destroy each night lawyer he deals with. I know all too well that feeling of doubt as you wake up in the middle of the night, wondering whether a story should have been published.
And then there are the moments when editors – for some reason almost invariably on tabloids – bellow across the newsroom floor and shout: “Lawyer, have you made your ****ing mind up yet?”
The newsroom noise fades for a second or two and the sub-editors and reporters look at you, with a mixture of sympathy and incipient schadenfreude. You stare at the copy, on screen or proof, and the words effortlessly dissemble and appear no more than a collection of haphazard scribbles. No, you haven't made up your mind. But you will. And quickly.
This feature first appeared in the December 2002 issue of Lawyer 2B