Monday, 18 March 2013

A rose by any other name does NOT smell as sweet...


A widely recognised virtue of the internet is the demystification of specialist knowledge.  Doctors must sigh when their patients turn up clutching sheaths of Wikipedia printouts but the truth is that access to knowledge is power to the people.  When your slippery mechanic rips you off you can look at his invoice and look up the cost of that work on the internet, you can even watch somebody carrying that work out for you to check that he really has replaced your Big End (whatever that is).

Before the advent of the internet some inquisitive old lags would take the trouble in the prison library of looking up law in the (hugely expensive) books that barristers used to have carry around like bricks.  Archbold Criminal Pleading & Practice remains the barristers’ book of choice in the Crown Courts; mercifully it is now available electronically, although it is still hugely expensive (£455).  You always knew that when your client referred to ‘Archibald’ that some DIY legal research had taken place, sometimes it was well focussed, more often not.

Today however there is a plethora of free legal resources available on the internet and any client who cares to can check the legal basis for their barrister’s advice.  And a good thing too.  However the internet has its limitations.  Caselaw and databases won’t tell anyone whether their advocate is any good on their feet or not.
If you’re sitting in the dock wrongly accused of murder the internet is not going to tell you whether your advocate can do the business.  Most defendants don’t find out whether their brief will cut the mustard until their trial.  Even then they have little opportunity to assess that advocate’s quality relative to his peers and competitors.  Only when a defendant has been around the block a few times can they weigh up one advocate against another.

Even the Crown Prosecution Service has no real mechanism to weigh up the virtues of one advocate against another.  An enormous grading exercise took place a few years ago but it involved filling in forms.  If you want to know how good your doctor is do you want to see how well he has filled in a form?  The purpose of advocates is advocacy and this is an oral skill and art.  If you never see an advocate in court you will never know that advocate’s worth.

Short of spending your life sitting at the back of court there has to be another way of knowing whether your advocate is Carman QC reincarnated or some washed up no hoper.  You have to trust in your advocate’s experience and his training.  Experience is hard to measure but training is at least susceptible to scrutiny.
The way barristers have traditionally been trained is comparable to an old fashioned apprenticeship.  A newcomer to a barristers’ chambers is a pupil.  They are assigned a pupil supervisor.  They spend 6 months at that supervisor’s elbow watching, learning and writing.  Pupils spend a great deal of time engaged in legal research and in drafting submissions, speeches and summaries.

Only after 6 months is that barrister entrusted to appear in court.  The chambers’ clerks will carefully ensure that no case is taken by the fledgling pupil barrister that is beyond their competence.  The Code of Conduct that governs barristers obviously requires barristers not to take cases that are beyond them but the clerks are a very important filter that ensures in practice that never happens.

The quality of a barrister’s chambers is determined and exemplified by the quality of its barristers not by its profits.  Barristers’ chambers are not profit making businesses and the vast majority of barristers are self-employed.  Good solicitors know who the good barristers are and in reality their selection of a barrister determines a defendant’s selection of barrister.  If a barrister is no good or becomes no good then the solicitor is free not to use them.

Advocates employed by a firm get paid a salary.  They have a boss.  They are expected to help their boss and firm make a profit.  If they are not in court they are not making a profit.  Time spent in training is money wasted.  If they are involved in an unprofitable case they and their employer will want to bring it to an end as soon as possible.   When the time comes to select an advocate if one outside the firm is selected profit goes out of the firm.  If an advocate employed by the firm is not very good the defendant will never know or will only find out too late in the day to do anything about it.

If quality is your concern then there are compelling arguments in favour of not making advocates employees.  Ultimately every self-employed barrister is answerable to him or herself for his or her conduct.  If your barrister screws up you sue him not his chambers.  Self-employment is an excellent guarantor of quality and of probity because there is no corporate wall to hide behind if a barrister’s conduct comes under scrutiny.  When a self-employed barrister makes a decision in a case that is because he believes that is the best decision to make on the client’s behalf, not his boss’s behalf or his firm’s behalf.

There is, however, no place for sanctimony.  Barristers do not have an exclusive claim on integrity or quality and are as prone as anybody to wrongdoing or sharp practice.  That being acknowledged employed advocates are subject to pressures that the self-employed are not in the conduct of their cases.  If you’re on trial you would do well to know what those pressures are.

What is the unsuspecting punter to do? First you may want to ask your advocate for details of all like cases that they have previously been involved in.  You may want to find out how regularly their previous clients have pleaded guilty.  You may want to ask if they are on a salary.  If you are a recipient of legal aid you may want to find out how much the case is worth if you plead guilty and how much it is worth if you contest the trial.

Of course if you are never accused of a crime you will never have a chance to ask those questions.  Do not think however that the answers are of no concern to you.  Those questions lie at the heart of the proper functioning of our criminal justice system and we all have a stake in that not just criminals.
Just because the man standing in front of you in court is wearing a wig does not mean that he knows what he is doing and not all advocates are equal.

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