By Emily Campbell
20 September 2010
Despite a view of the Inns of Court as somewhat quaint, the modern barrister provides an unparalleled service to solicitors and their clients.
Ask someone what a barrister does and the chances are the answer will dwell on court appearances in a wig and gown. However, while the charming and historic surroundings of the Inns of Court, as immortalised in several 19th century novels, remain a reality of life for many barristers, this image belies the focus of a modern civil barrister’s practice, where commercial nous, wide-ranging research, often via electronic means, and written advocacy are every bit as important as time spent in court.
A barrister’s time in chambers is of great value to clients. What few lay people appreciate is that, even when engaged in courtroom work, nine-tenths of a barrister’s time spent on any case is likely to have been spent in chambers advising, preparing documents such as pleadings and skeleton arguments, and conducting legal research.
Furthermore, barristers provide expert consultancy services to the wider legal profession. Therefore in specialist areas of the bar, such as Chancery, they spend a considerable amount of time engaged in giving advice on matters where there is no dispute.
The skills of the barrister as showcased in court are often of considerable use to them while working in chambers. Presentational skills are clearly important when preparing pleadings, skeleton arguments and written submissions. However, they are equally important when a barrister is giving advice. Where, as is frequently the case, a barrister is trying to encapsulate a piece of advice in relation to a difficult technical question that turns on a subtle piece of analysis, if clarity cannot be achieved in the presentation there is every chance it will not be understood.
When a barrister is working out of court, though, a number of other skills are also required. An appearance before a judge rewards those able to think quickly on their feet. In chambers a barrister is required to do a lot of thinking to master a set of papers. Often advice requires hours of careful thought in order that a confident view can be expressed and all possible consequences of that view be set out. The need for this is sometimes overlooked by solicitors.
An extra, say, four hours’ work on a case devoted to mulling a problem over may increase a fee quote substantially, and give rise to the possibility of a disagreement between a barrister’s clerk and a solicitor with regard to the appropriate fee.
There is a common misconception that ’learned counsel’ know the answer to a question instantly once the instructions have been read. This is as flattering as it is unrealistic.
A barrister, when receiving a new set of instructions, will bring an independent mind to bear on the question of what advice the client needs at that stage. Sometimes a barrister’s instructions will not identify the relevant question, or there may be additional questions that need to be addressed. It is of value to solicitors and clients that their counsel should be prepared to think outside the box.
It must be emphasised, however, that a barrister who dwells too long on interesting academic legal points and loses sight of clients’ practical needs is unlikely to find favour with solicitors.
Senior civil barristers will have garnered a substantial amount of experience of commercial life. This gives them sensitivity to the needs of business clients. If a barrister is asked for a view, they will be happy to give it, but in many circumstances the barrister will have to go on to explain that there is room for a contrary argument. Many views are expressed to be ’on balance’.
All litigation carries at least some risk and commercial clients expect a thorough analysis of ’downside risk’. Advice on the consequences of this risk coming to fruition, and on any steps that can be taken to mitigate the consequences, is often as important as the barrister’s view of the issue. The barrister will feel under pressure to provide as much certainty for the client as possible. While a barrister will not absorb the client’s risk, they will be aware of the need to give clear and confident advice where appropriate.
The bar provides a valuable service to clients, complementing that provided by solicitors. By keeping up with the changing needs and expectations of clients, it is to be hoped that the bar has a secure future.
The rare juxtaposition of Dickensian surroundings and modern professional practice is symbolic of an ideal partnership of the old and the new.
Legal professionals have much to learn from the past, but it is only by looking forward that they can justify their privileged status - a status that will shortly be put to the test by the introduction of alternative business structures.
Emily Campbell is a member of the Chancery Bar Association and a barrister at Wilberforce Chambers