Law's higher calling
29 September 1998
Before he could become a fully-fledged solicitor advocate, Andrew Myers went through exams, endless hours in court and, finally, a nine-month wait. But, he says, it was worth it. Under the current rules, any solicitor who has been qualified for at least three years can apply for higher rights of audience. There are three main hurdles that a solicitor has to overcome at present:
satisfying the Law Society that one has sufficient advocacy experience;
taking a three-hour exam on civil procedure and evidence rules; and
attending a course/assessment.
You can apply for rights of audience in civil cases (as I did), in criminal cases, or in both.
According to Law Society guidelines, applicants ought to make at least 20-25 court appearances each year for the two years preceding their application. For those working in City firms this can often be difficult.
Furthermore, the Law Society expects some of those court appearances to be of significant duration - lasting hours or even days.
Much of my experience was gained representing clients in court on the cases in which I was involved as a fee earner.
But my firm was also happy for me to undertake a number of cases on a pro bono basis as a representative of the Free Representation Unit (FRU).
This involved representing dismissed employees seeking compensation from former employers at industrial tribunals. Legal aid is not normally available for industrial tribunals, hence the need for lawyers to act on a pro bono basis.
Being an FRU representative requires a significant time commitment. However, it was not only about providing access to justice to a few people who would otherwise have been stranded without legal help. It also rewarded me with invaluable experience.
The Law Society requires a list of court appearances from applicants for higher rights of audience. In terms of duration, my list varied from a one-minute appearance in a packed courtroom on a winding-up petition, to day-long hearings cross-examining witnesses in industrial tribunals for FRU.
The Law Society was prepared to consider a wide variety of court work. My experience ranged from the small claims court to the Court of Appeal.
The next hurdle that the potential solicitor advocate has to overcome is an examination. According to a recent chief examiner's report, the pass rate in the civil test reached a low of 29 per cent in September 1995, but I understand this figure has improved. The pass mark was recently lowered from 55 per cent to 50 per cent.
The idea of studying for and taking a three-hour exam is hardly appealing to solicitors who thought they had left such trials behind them years ago. I have to say, however, that I found the preparation invaluable, not only for my work as an advocate but also in my everyday work as a solicitor in the commercial litigation department of a City law firm. Practically every examination question required knowledge of recent changes in the law.
Revision for the exam is therefore a good way to ensure your legal knowledge is up to date. You end up with an excellent working knowledge of the White Book and of the law of evidence, discovery, injunctions, procedural questions and the like.
The exam took place in a large hall in Baden Powell House in London. In fact there were just two of us taking the exam (plus another who sat the exam in Manchester). A place was prepared for a further candidate who, it would appear, must have got cold feet on the day and never appeared. Around 30 or so were sitting the criminal test.
In the event, all three of us passed. However, we had to wait nine months until there were enough people who had passed the exam to take the final stage - a course and assessment. In the end, 12 of us spent two long weekends in Nottingham in May and June of this year receiving intensive, high-quality, advocacy training.
There were a number of assessments, which included a one-and-a-half-day assessed mock trial, questions on ethics and conduct, and cross-examining an expert witness.
The deficiencies of the existing system were perhaps best illustrated by the fact that one of the people on the assessment used to be a qualified barrister, who decided to requalify as a solicitor.
Even though he previously had full rights of audience in all courts as a barrister, he still had to undertake the course and assessment. This anomaly should disappear under Lord Irvine's proposed reforms.
The present procedure is lengthy, and no doubt Lord Irvine's proposals aim to address this problem. However, it is well worth it. The training does not just make you a better advocate, it makes you a better litigator as well.
The solicitor's right to roam
Under existing law all solicitors automatically have extensive rights of audience even without applying for the higher courts qualification.
In broad terms those rights in civil proceedings are as follows:
House of Lords:
High Court/Court of Appeal:
All hearings in chambers (i.e. in private - many of the hearings which take place before the actual trial of a case are heard in chambers)
Before a High Court judge where judgment is delivered in open court (i.e. in public) following a hearing in chambers at which that solicitor conducted the case for the client
In formal or unopposed proceedings before a judge in open court (i.e. where parties are in agreement, there is unlikely to be argument, and the court will not be called upon to exercise discretion)
Before the High Court bankruptcy judge
Before the Companies Court registrar
In certain family proceedings
At the discretion of the judge, in any case in an emergency.
How to Gain Higher court qualification
Stage 1: Flying Hours
Commitment: Application fee of £100 plus VAT.
Any hearing requires a significant amount of time to prepare for properly and inevitably some of this is one's own time.
Stage 2: The Exam
Commitment: Exam fee of £125 plus VAT.
Several days' preparation.
Stage 3: The Course and Assessment
Commitment: Fee of £2,850 plus VAT.
2 x two-and-a-half-day courses, plus several days' preparation.