Ten Tips to succeed at the Bar

So you want to be a good barrister? Ten Tips then to succeed. You will find plenty of advice en route and some idiosyncratic prejudices as well. Here are mine to give you food for thought.

1. Look the part.

By that I mean a smart professional. Dress code for female barristers is very clear and needs no help from me. But it would be preferable in the magistrates court if males avoid the club ties of the Old Stranglers, the Royal Marines or indeed anything which carries subconscious baggage. May I dare to suggest that one grey silk tie is worth a dozen multicolored rayon fakes and it would be quite impressive if you remembered to brush your shoes. Similarly in the Crown Court, clean stiff bands subtly mark you out as someone who gets the message. And if that makes me a stuffy conformist, I think I can live with that.

2. Sound the part.

No, this is not a plea for a return to Received Pronunciation. Not for one moment. Be yourself with the accent or otherwise of your bailiwick, provided only that you do not descend to Estuary English to disguise your persona. I mean, be a practitioner of clear, concise English, who never has to be told ‘ speak up, I can’t hear you.’ If you have any unique intonation and are rightly proud of it, simply make sure it is absolutely intelligible. And I mean by that, every single word. The point of course is not to put anything between the clarity of your thinking and it’s acceptance by the tribunal you are addressing, be it a professional or lay one.

3. Be yourself and not a contrived construct of what you think a barrister should be. This is nothing to do with 1 and 2 above. The best analogy is with political shysters plying their wares on the box. You can always spot the phonies as they strive to adopt a persona which is not them. Television is great at exposing frauds. You are under scrutiny every second in court. Your job is to enlist your personality in its most persuasive form in support of a cause. That is the essence of successful advocacy.

4. Never attack your opponent personally. Sail into their weak case, by all means. That is par for the course, even though restraint is a particularly attractive quality in an advocate. But those who take it too far and seek to wound individual fellow practitioners make no friends and accumulate judicial enemies. They need to be told that, although that frequently never happens.

5. Always show decency when your opponent makes a mistake. Don’t laugh, smirk or slag them off behind their back. Next time it will be you.

6. Try to project yourself as a firm believer in sweet reason. This particularly applies to unexpected suggestions from the Judge which may be profoundly inconvenient to you personally. Note that I am not suggesting sick-making sycophancy, but rather the air of someone who recognizes a good idea which is not their own. Be courteous and firm with the bad ideas…

7. Sexism, sadly, may be still alive, but you cannot afford to show it. Ever. One reason why SILK was such a terrible programme. I haven’t the will to define ‘boundaries’. If you don’t know the difference between a gentle compliment and otherwise, you are in the wrong job.

8. Always congratulate an opponent who has done well.

9. The time to leave your opponent alone is when their client has been convicted.

10. Never give your client undue hope of a successful appeal. It is an act of immaturity and potential callousness. Tell them that you want to consider the position and the latest cases and keep your promise to advise them in good time.

I seem to have omitted those taken for granted, Total integrity, unremitting hard work, single-mindedness just short of obsession and treating everyone the same. And making friends with the ushers. Enough for the time being. How to read Judges might be a good follow up, if a trifle risky.

Nigel Pascoe QC

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Examination in Chief and Re examination – a guide for a young Advocate

Sad to say, this is becoming a neglected art. The ability to lead witnesses through their evidence by showing them their statement at the beginning may suggest that a lazy advocate need to little more than put words into witnesses’ mouths. Nothing is further from the truth. From the beginning, you should learn the art of asking the right question to persuade a witness to give his or her account in their own words. That means you must prepare every single witness that you call in Court.

Incidentally I include in that preparation the statements that you are going to read as agreed. When reading to a jury, spot the difficult words in advance: check the pronunciation: speak up and do not rush. Nothing is more annoying than the casual turgid reading at speed of agreed statements to a jury. It is evidence and you want them to understand its significance by reading well and clearly. Set out consciously to hold their attention from beginning to end.

Back to Examination in chief. You will be permitted to lead a few introductory questions to set the scene. With children, develop the art of easing them gently into the distressing evidence that they are going to have to give, but do not talk down to them. However, once you come to the meat of the statement, do not ever – and I mean ever – allow yourself to put the substance of the accusation into the witness’s mouth by leading it. Not only will it attract an explosion from your opponent, but you will anger the Judge. All of us realise that that sort of evidence is far less valuable than evidence that has come from the witness, however distressed that witness may be.

Now I certainly agree there will be times when that is extremely difficult to do. All of us have had a witness who is so utterly distressed by their surroundings and by what has happened to them or what they have seen – that they simply cannot begin to get the words out clearly. You must be sensitive and be seen to be sensitive. Ask for a break if you think that will help.

Never bully a witness and certainly not your own. And take them as close as you can to the key issue which they alone must tell: for example, lack of consent in a rape case. Then they must say what happened with as much detail as they can bring themselves to give: you must not lead it.

I want to tell you about a great advocate in the West Country who had a brilliant technique in chief. He knew the proof inside out. He barely looked at the witness statement. He engaged the witness with his eyes and he eased out their account. It was a triumph of personality over technique. I do not pretend that you should start in that way, but if you can achieve a rapport with your witnesses, you are a long way to becoming a good advocate.

Bear in mind however that, although the jury expects you to be sympathetic and polite to your witnesses, it will become uncomfortable if you are seen to help them too much. Plainly that can only benefit the cross examiner, who follows you. I try to become almost invisible once the witness is beginning to tell their story.

So examination in chief is an exercise in suppressing your enthusiasm and intervening as little as possible. If you do it well, you will win your cases, time and again.

RE-EXAMINATION

And here I want to betray a prejudice. Nothing annoys me more than advocates who lead in re-examination. It is a form of unlicensed cheating. The cross-examiner has made ground and the only way you seek to controvert it is by putting words into the witness’s mouth. DONT DO IT. It is second-class advocacy and the fact that you see it happening all the time is no reason for you to do it.

But there is one qualification. Plainly you can lead in some circumstances to clarify an answer that a witness has already given in cross-examination. Of course you can’t introduce new material without leave of the court.

The rule is often said to be – don’t re-examine unless it is absolutely necessary. But I have seen very skilful re-examinations which are absolutely devastating. So that it is a skill well worth acquiring.

I can’t leave the subject without warning you about that nightmare moment when your client has appeared to admit the offence in cross-examination and you have to frame questions which are not leading ones in Re-examination, to try to rescue the position.

Everybody will be watching to see that you don’t cheat by gross leading. The only advice is that it may be your client did not intend to go as far in cross-examination as he did, so that taking him back over the territory may, to some extent, allow him to go back to his original position. But if the admission in cross-examination had been unequivocal, it is far better to ask the Judge for a few minutes and then tender your client strong advice…

Nigel Pascoe QC

Cotton on Appeal – the way ahead asap

This is a very strong judgement. I would not want to comment at all on the Court’s analysis of the original ruling. It was always common ground that a decision to stay is an exceptional course. Equally it must be in the public interest to pursue alleged offenders of this financial magnitude if a fair trial, necessarily encompassing proper and effective representation, can take place within a reasonable time.

What interests me are the final comments, which do bear close analysis and more importantly ACTION.

There is an absolutely superb paragraph about the value of expertise in this area. The bar should be quoting it at every opportunity.

The judgement without playing politics also plainly commends settlement as soon as possible. This is the language of realism before this dispute accelerates to absurd proportions.

In a phrase then, heads round the table as soon as possible to try to achieve a reasonable settlement. That, immodestly forgiven, was exactly my point in my previous blog on Operation Cotton. It is not in the interests of the Independent bar to allow further expansion of the PDS to cover the present emergency including the trials in the pipeline. What we should be doing is sitting round the table with the Lord Chancellor to negotiate far less Draconian cuts, sweetened by the absolute guarantee of payment upfront on a very regular basis.

Pushing it another way, to seek to hold out indefinitely is a battle that we will not be allowed to win. On the phone please as soon as possible.

And Lord Chancellor, forgive me, but please have the courage to be constructive. A big politician is one who is prepared to have second thoughts.

Nigel Pascoe QC

PS. Time for a skilled negotiator if the CBA and Circuits feel unable to pick up that phone. Ultimately the public will not tolerate the inability to try alleged fraud. And by the public I do not just mean the Daily Mail.

PPS. As for negotiating terms, in accepting say a 10% cut, how about sweetening the pill by a healthy upfront cheque on receipt of instructions?
Say £25k for silks, £18k for juniors. Then a guaranteed weekly cheque. That might clear the logjam. All it takes is a good negotiator aware of how the bar works and goodwill by the MOJ/LC. NP

Jeffery and Common Training – why not?

The Jeffrey review is very well written in language which indicates a real understanding of life at the bar. It merits close analysis and reasoned debate because in many respects it is very supportive of our existence and appears to want a more stable future for the bar.

I want to concentrate in this blog on part of his proposals for joint legal education.

His prelude is an acceptance of the concern of many Judges, including former solicitors, on falling standards in court. This is the elephant in the room. It is not universal: specifically I know of one really outstanding senior solicitor advocate as good as any advocate and on the other side, barristers who fail to impress in a way which frankly embarrases. But few would disagree with the premise of falling standards.

Sir Bill contrasts the 22 hours minimum of advocacy training after which it is to which it is possible to be a solicitor advocate with the 120 hours minimum at the bar. In polite and tactful language, he finds this hard to justify. He is quite right. He goes on to suggest a common training which would increase the hours for solicitors without reaching the level required for the bar. He seeks a common training approach or ‘expectation.’

At which point a nettle must be grasped. The very last thing the bar must do is to lower its standards. At the same time, the idea of common advocacy training has much to commend it if you take the non partisan view that the public would be best served by higher standards across the board. So the price of common training must be better trained solicitor advocates competing more effectively across the whole range of criminal work.

Is the bar ready for this? Will it lead inevitably in time to fusion?

Well perhaps the time has come for an idea that I have been pressing for some months.

A new College of Advocacy which promotes the concept of lifelong advocacy training and combines the excellent training of the Inns and the circuits in a structured form, with regional centres to pursue it. It would mirror the compulsory JSB training format. You would have to attend regularly to practise. It might well have an internal competitive element.

Now it must be in the public interest to have higher standards of advocacy around. We owe it to the victims and the punters. So a College of Advocacy logically should be open to all seeking to address the higher courts. The consequence would be greater pressure for fusion, but it does not follow inevitably. The College could promote specific courses for higher specialist advocacy, which would not be the choice of all. In short, there would be a continuing need for a specialist referral profession, but the door would be open to excellence on both sides of the profession.

In short, there is a brave new world out there if we are big enough to accept change. Change and survive or wither on the vine.

Nigel Pascoe QC

After Cotton, what next?

The powerful and carefully reasoned ruling of His Honour Judge Leonard QC in Operation Cotton is the talking point of the week for many criminal lawyers. A few points need to be set out, principally the acceptance by all sides that very serious fraud cases cannot go ahead with unrepresented defendants. Second, at the time of the ruling, the Judge considered that there would not have been sufficient advocates from any source in a position to conduct the defence cases by a specific time for trial.

That is not to say that in another similar case at an unknown date in the future a Silk or Silks and appropriately experienced Juniors from the Public Defence Service would not be available. That frankly is a continuing risk or possibility, depending on your point of view.

It goes without saying that it was an utterly independent ruling. But how will it be perceived in rival quarters?

Cut to the Farage Bar in some quiet Surrey hostelry. Two members of the Criminal bar are lifting a pint glass to the Court with a quiet degree of satisfaction. Let us eavesdrop for a few moments…

Serves them right. Thinking they could trample all over us with cuts of 30%. Bloody ridiculous.

Quite agree. But doesn’t it show the Bar at its best? Absolute unity. We said we would not work at those rates and over seventy sets held firm. And the idea that the Public Defence lot might cover doesn’t strike me as very likely. Haven’t got the experience and haven’t got the numbers.

Well, not at the moment.

Quite. But hasn’t he said there are no plans to expand them?

True. But how long will that last?

At which point, silence overcomes the snuggery until the need for another pint.

At a discreet club in St James, two mandarins were taking a rather different perspective.

Humphrey, time the bar was sorted out once and for all.

Abolished or fusion?

Don’t care. But this time they are far too uppity. Completely upsets the apple cart if they won’t do the work. Take these VHCCs, for example. Causing mayhem I gather in the Ministry. No money to bulk up the PDS.
Ridiculous.

Who do they think they are?

Quite. What year is this?

’61. Your shout, I think…

Both complete caricatures, of course. But a detached observer may scent danger in both positions. Plainly it is not in the public interest for those charged with serious and complex offences to remain unrepresented or represented at a lower level than the case demands. Equally such cases need to be heard. A stay is exceptional, but who can say that a similar position will not occur again in the near future? Public and political reaction will be mixed as usual. The real point is that the stakes are high for both sides if the present impasse continues.

And if no move, then what? Sweet fa and an enlarged public defence service? Not I think in the best interests of the independent bar. So what then?

Well more talking, for a start. And then a sensible resolution. Would the heavens fall if the cut was 10 %, sweetened by refreshers paid on the nail every week or fortnight?

Same also for preparation, sensibly and realistically overseen. I once had a Case Controller who was both realistic and professional and we never fell out. And a guaranteed regular payment is a very tasty carrot.

Just a thought.

Nigel Pascoe QC

PS. I would be interested to hear of any other practical ideas to deal with the VHCC issue apart from mine. No one wants a cut. Of course we can maintain our present stance and say to them – you caused the problem, you sort it.

That is a very understandable response, with which I have sympathy. Or we may expect an adverse response and be prepared to anticipate and respond. In the present economic climate, I prefer a plan B. This has the potential to be an even bigger and more serious issue and confrontation. It is not treachery to think about solutions. NP