Different strokes

The legal profession must base its recruitment strategy solely on the ability of the candidates, not on their backgrounds, says Gary Slapper

Stereotyping is, in many contexts, quite unhelpful. If you see a man who looks like he is in his 80s or 90s, carrying a walking stick and standing anxiously at the kerb facing the traffic of a busy road, it would be a sad world if you felt inhibited from offering him help to cross lest he swore at you for stereotyping him.

But stereotyping must be used with caution. Those who commit property crime, for example, can sometimes be teenage males who wear hooded tops and hang out in shopping malls. In fact, property criminals come in many forms and from many cultures: from wealthy, educated, middle-aged businessmen to a secretary at a merchant bank. Conversely, lawyers can come from all backgrounds. People make good lawyers for diverse reasons. It takes all sorts.

Firms and chambers looking for good lawyers should keep open minds about what characteristics suit someone to doing the job well. In common, good lawyers will share many attributes. They will be bright, clever, knowledgeable, well qualified, assiduous and well-organised people. They will be highly competent in the art of comprehending complicated discourses and documents, clear and rigorous in analysis and proficient in argument. They will be professionally dedicated and scrupulous and alert to current developments and issues. But such characteristics come in all sorts of bodies.

Widening the net
Law is an exceptionally important part of society, so those who make up the profession matters a great deal. We now have over 100,000 lawyers in the UK. Solicitors as well as barristers are becoming judges. Many solicitors now sit in a part-time judicial capacity. The importance of this role was recognised by the Court of Appeal in 1999 when it referred in a judgment to the “increasingly valuable contribution made by solicitors to the discharge of judicial functions”.

As this phenomenon grows, it is especially important for the social backgrounds from which solicitors come to be as wide as possible. Such a policy does not entail allowing someone to gain a training contract or to join a firm, because one aspect of them, such as being black, or devoutly religious, or older or younger than was expected or disabled, acts to boost their other merits. All that the policy means is that a candidate’s suitability for a post is measured in a scientifically impartial manner.

Firms, companies, chambers and organisations that have this approach tend to be successful in their work, as those whom they recruit are truly selected on the criterion of best candidate rather than the traditionally most suitable candidate.

According to one view it does not matter who our lawyers and judges are, provided that they are the best people to be lawyers and judges. It could be argued that, if the criteria for being good at law and professionally dedicated were best met by middle-class white men whose educational experience was very uniform, then so be it. It is more important, runs the argument, to get the best lawyers whosoever they be than to try to create a legal profession with a profile of social types that matches the composition of the wider society.

This view was put in a particularly acerbic way by Roderick Pitt Meagher, who was a New South Wales Court of Appeal judge. He notoriously countered the ‘need for diversity’ argument by asking: “If 30 per cent of the community are cretins, then in all fairness should not 30 per cent of the judiciary be cretins?” This, of course, is a rather daft argument, because there is nothing about being female or black or Asian that stops a person from becoming a good judge, whereas a cretin, by definition, cannot read and understand law books, so society could not possibly have cretins as judges.

When considering the importance of the legal profession and judiciary, it is helpful to remember the human threads from which the fabric of law is woven. The more varied and rich the social mix of lawyers and judges, the less likely it is that a narrow and socially unwarranted opinion will end up as part of the law.

The role of solicitors in making law was historically, and remains today, significant but commonly understated. The way solicitors analyse cases determines which cases go to the courts and on what bases. Solicitors also have a significant role now as court advocates.

Boosting quality
The wider the range of properly qualified people in any legal enterprise, the better that enterprise’s potential ambit and quality of service are. The best way to ensure fair recruitment of staff is to make the post-recruitment system scrupulously open and systematic.

The job description and the person specification are the core of the recruitment and selection process. They provide the basis for: the post advertisement, its further particulars, the short listing criteria and the interview questioning of candidates.

Some quite simple aspects of the recruitment process are not universally well practised. One example is the desirability of clarity from the outset about the requirements of the role demanded by a new post.

The ‘job description’ should be composed very thoughtfully and should not contain vague clauses. When the job description has been formulated the person specification can be written. The interview panel should be very clear about the kind of person they are looking for.

A good way to ensure that this is achieved is by using a grid for criteria. A columnar list of the abilities, experience and qualifications being sought can be ticked by each item as to whether it is (a) essential or (b) desirable to do the job. This should be agreed by all relevant parties. If a criterion is essential it means that no one would be able to perform the job without that qualification, skill or experience. It is useful to ask yourself for each criterion whether this is the case.

The person specification should be drawn up by referring to the job description and general knowledge of what attributes and qualities are required in the successful candidate. The inclusion of unnecessary or marginal requirements can lead to discrimination.

A person specification is essential for all categories of staff. The person specification can also help prospective applicants to decide whether they have the qualities and experience required for the job and to provide the basis for giving structured feedback to non-shortlisted applicants.

In the past some of the most influential participants in law were not from standard backgrounds. Lord Denning read mathematics at university, Lord Ormrod was a medical doctor as well as a lawyer, Lord Chief Justice Widgery did not go to university, and Sir Rupert Cross, a solicitor and Vinerian Professor of English Law at Oxford, was blind. The lesson from the past is that influential and able legal minds come in a great variety of packets.