Is the commercial bar at crisis point ?

The rise of solicitor-advocates, the increasing use of mediation – do they pose a real threat to commercial barristers? Susan Ward and Mark Hapgood QC discuss the future. Susan Ward is chairman of the Bar Association for Commerce, Finance and Industry.

One of the earliest writers on economics, Adam Smith, wrote: "Consumption is the sole end and purpose of all production". Unfortunately, this philosophy has not found its way through the lofty portals of the leading commercial sets. It is this failure to embrace business principles which has left the Bar in the predicament it is in today.

We live in a society that encourages competition. With the implementation of the Access to Justice Bill ridding us of some of the worst restrictive practices of the legal profession, competition will inevitably increase in this market, too. If the Bar wishes not only to survive, but thrive, in the 21st century, then it must open its arms to fundamental marketing principles.

It has been said that work at the commercial bar has been diminishing. Opportunities for advocacy are, undoubtedly, decreasing. In recent years, less than 1 per cent of cases started in the County Court, and only 3 per cent of those filed in the Queen's Bench Division have actually been getting to trial; additionally, 86 per cent of County Court and 71 per cent of High Court hearings last less than five hours (Lord Woolf's Interim Report).

The recent changes to the civil justice system encourage more pre-trial settlement, and there will be increasing pressure to allow certain cases without oral evidence to be dealt with in writing. In the European Court of Justice there is now an emphasis on written submissions, and time for oral advocacy is becoming limited. Opinion writing also has a limited application for business. An erudite opinion can identify the problem and provide a technical solution, but if it is not delivered in context of the business, it is deprived of much of its value.

So what is the solution? The commercial bar needs to diversify. Few businesses can prosper in a competitive market with only one product – the same applies to the Bar. Litigation, with its combative courtroom style, is becoming less popular in industry. It is costly and, even post-Woolf, slow. Barristers must direct their oral skills towards mediation and arbitration as well.

Commercial barristers must be more commercially aware. They should take advantage of the opportunity of providing short-term, project-based consultancy services to industry, working much more closely with the customer, and spending short periods working on

their premises.

Barristers need to get out from behind the traditional screen of the formal brief and protective clerk. Advertising rules have relaxed considerably and careful attention needs to be given to the opportunities for positive PR contacts. Importantly, business clients want to deal with the organ grinder: get him on the end of the phone, in and out of hours; discuss costs and fees directly with him; get fixed and firm prices; and know that deadlines will be met. In-house lawyers don't want to find themselves in the position of having to face the board with a message from a barrister's clerk that the advice is not available because the QC has gone on holiday.

The Bar is changing – but is it changing fast enough? It is moving slowly into direct access, but not in litigation. Although more barristers venture out of chambers to attend meetings at clients' premises, they still look uneasy working in shirt sleeves as part of a team. There is a future for the commercial bar in good quality High Court advocacy, but it is a small market and the signs for growth are not good.

For the commercial bar to have a future, it must identify the services that business will want, and get its marketing communications right. Most importantly, it needs to ensure that the service is delivered in the most customer-friendly manner, adding value to the consumer's business.

This marketing approach may sound like a lot of gobbledegook to many in the Temple – but isn't that really the heart of the problem?

There is a rumour circulating that work at the commercial bar is drying up. Those who peddle this would have you believe that many barristers languish at home waiting for a telephone call to say that at last some instructions have arrived.

This picture of under-worked barristers does not accord with real life. Of course, some barristers are more in demand than others. This has always been a feature of the Bar, and it is a healthy thing. It demonstrates that the profession allows individual barristers to develop their individual reputations.

So what are the prospects for the future? The commercial bar will continue to flourish. This is not wild speculation. It is a view based on certain facts of professional life which are not going to change. In the first place, the commercial bar provides a service of the highest quality, both in advisory work and in advocacy. A profession which offers this quality of service will not wither away.

Next, barristers enjoy an inherent advantage in costing their services. The overheads of a typical commercial set will not exceed 20 per cent of gross income. The corresponding figure for solicitors is necessarily much higher because solicitors employ many more non-fee earners, and they incur considerable costs on marketing and client support. With the welcome advent of summary assessment of costs, the differences in charging rates has become very apparent. An assistant solicitor in a London firm with five years post qualification experience may be charged out at over u200 per hour, while a barrister of similar experience will charge significantly less.

Third, the great majority of solicitors in litigation have neither the time nor the inclination to draft pleadings or to act as advocates. They are fully engaged on the many other demands of conducting a client's case in litigation. It is especially unlikely that solicitors, in general, will want to become advocates or that the major firms will develop teams of advocates who will, ultimately, destroy the Bar. Good advocacy demands a combination of different skills. Barristers are uniquely positioned to foster such skills because advocacy is the focus of their entire professional life.

Leaving aside the handful of solicitors who are making a personal crusade for the "one-stop" legal service, solicitor-advocates of the future may disappoint the firms who have trained them by becoming barristers after they have established their reputation. This will give them the opportunity of a wider client base, the freedom of being self-employed, and the benefits of working in the unique environment outside of a set of chambers.

There are some who say that the Bar will lose significant work through greater resort to mediation. I am doubtful whether mediation will make much difference to the Bar. It will accelerate settlement in the large number of cases which settle at present, but there will always be cases which will have to be determined by a court or by an arbitrator. Furthermore, barristers are themselves being retained as mediators.

The one thing that is clear is that the commercial bar's work is not drying up. There is no crisis. On the contrary, the major problem in commercial litigation today is that the volume of litigation is making it impossible for the Commercial Court to provide the service which it would like.

The commercial bar is not, however, complacent about the future. It has made a great leap forward in recent years in learning the skills of teamwork and in recognising the importance of client care. Today's commercial bar provides a service which is thoroughly professional, flexible and responsive to client need. We shall maintain this quality of service and we shall respond to the challenges of the future with the same determination as in the past.

Mark Hapgood QC is a tenant at Brick Court Chambers and a member of COMBAR.