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Law Articles & Essays

Dealing with barristers - A symbiotic relationship

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Illustration, Nigel Buchanan

For many solicitors, dealing with barristers must be frustrating. You spend time preparing a case, which is taken from you, and possibly run in ways you had not imagined. Why would you do this to yourself?

The idea of solicitors retaining barristers to argue their clients’ cases might initially at least seem perverse. However there are a number of practical reasons for doing this.

Appearing in and running a case in court is not everyone’s cup of tea. There are judges, opponents, competition, clients, the transcript – it all amounts to pressure, not least the pressure of 10.15am whether you are ready or not. Many barristers share the common experience of preparation stress. Invariably the case is not quite as ready as it should be, brains are racing through the night (a sideways glimpse at the bedside clock shows it is 4am and you are awake – have you slept at all or have you just woken up?). Or you are driving home at the end of the day and you have just thought of the perfect question to put to a witness, which is fine except that the case has just finished.

Managing close scrutiny: barristers perform their work in the most scrutinised and public way possible. They are like surgeons performing operations while their patients are awake and watching their every move. And in case the patient/client misses something, there is a competing surgeon commenting critically on every aspect of the operation, and then a doyen in the field (the judge) letting everyone know what he/she thinks of the operation, and not forgetting that the operating theatre is open for anyone to observe (and with a trailing transcript available for posterity in case anyone has missed anything).

Barristers bring that special edge of familiarity with the process. They have been there before, and quite possibly many times. 

The rules of evidence, witnesses and cross-examination: Cross-examination is one of those special dark arts (ingrained into barristers over time), of which, despite the impression conveyed on television shows of witnesses breaking down in the witness box between ad breaks, it is sagely said that the best cross-examination is the one which does least harm to your case.

  • Objectivity: Barristers are required to be dispassionate and apply an objective and independent judgment.
  • Judiciary: Did I mention judges? We could have computers deciding cases but we don’t. Barristers and judges (gradually) get used to each other.

But let’s go back to the start. Why would anyone want to be a barrister?

My personal story as a barrister started in 1988. I had five years including articles at the predecessor firm to DLA Piper, known then under the much more interesting and celebrated name of Phillips Fox. I had a terrific job. I was a senior associate in an excellent firm, earning somewhat more than my 1982 articled clerk salary of $10,000 – that was just before fax machines were introduced.

I had everything going for me, but I had been bitten by the advocates’ bug. I developed the bad habit of watching the very junior counsel we had briefed and thinking I could do whatever they were doing much better.

I soon learned that it wasn’t quite so easy, but first I had to make the jump.

I was involved at that time in briefing a leading junior named Susan Crennan. She was approaching 10 years seniority, and I asked if she wouldn’t mind if I read with her. She very kindly agreed.

I planned to join the March 1988 intake but when February 1988 came around, I got cold feet. There were two good reasons for that –the mortgage and the fact that I had a three year old child. I needed the wage.

A few months passed and I could not hold back any longer. Sue agreed that I could start my reading to coincide with the September 1988 intake, and I had those difficult conversations with my employer and bank manager that I had been trying to put off.

I was away and I loved it from the start. I loved the independence and the advocacy, and the occasional wild ride on the veritable big dipper appealed to the James Bond in me.

It was not always easy – which is to say it has never been easy. In particular, the Federal Court judges of the time were well practised in taking apart the new barristers. I was not immune. It was like picking wings off flies.

My advocate’s hide was toughened up by the experience. A thick hide and indomitable confidence in the face of disaster or potential disaster are very important attributes for the barrister. The potential for disaster, real or imagined, is never far away. Barristers are particularly gifted at forgetting disasters. In all my years of travelling up and down the lifts at Owen Dixon West Chambers I can’t recall meeting a barrister who had lost a case.

A bit of luck never goes astray.

I was desperate to get going as a new barrister, and did something I had never done before or since. I was listening to the AM program on ABC Radio. There was an interview with an Aboriginal artist named Lin Onus, who was then a part-time artist and part-time panel beater. He subsequently became a very famous artist (and not so well known panel beater). Lin was addressing the issue of the unauthorised reproduction of Aboriginal art on T-shirts. It was 1988, and Lin’s argument was that a new law was required to protect Aboriginal artists. I thought copyright would do, and I rang the AM program to let them know Lin was wrong, and that copyright would do the job.

Next I knew, Lin called me (having been given my telephone number by the producers of AM) and said that if I was so smart, I could go to Arnhem Land and get the mess sorted out. Almost my very first brief at the Bar was from the Northern Australian Aboriginal Legal Aid Service, based in Darwin, to go to Arnhem Land in order to meet with the concerned artists and represent them in proceedings which might be brought (and, in fact, were brought).

I was flying – metaphorically and literally.

Which brings me back to the issue of solicitors and the independent Bar. Why do solicitors need barristers?

Good barristers provide a leavening insight, sometimes more leaven than insight.

Barristers are the conduit between solicitors and the judge. At best, they assess outcomes and direct the course of what is put up and what is left behind. Barristers love winning cases, and should have a good sense of a case that will struggle, whereupon settlement beckons.

In analysing the scrutiny to be adopted, it is appropriate to consider what you would do if you were on the other side.

Barristers are very given to that approach. They are chameleons, a mere phone call away from the other side’s brief, which might involve being opposed to people they know and love – and by love, I mean solicitors who brief them. A good place to start is to assume the opponent’s brief (and then an opponent who won’t miss an available point), and with that measure in mind, then place yourself in the hypothetical chair of the decision maker.

Above all else, good barristers have a skill which transcends just talking – they are good at listening and observing. A case can turn on an unexpected response from a witness or a judge. It is very important to not let anything get in the way of carefully following exactly what is happening. To that end, listening to a judge is of vital importance.

As is trust. Making concessions where appropriate can be very important in winning trust (and focusing attention on strong points in your case). This includes disclosing cases which are against the case being made – itself an ethical obligation on counsel. Winning the trust of the bench is essential to a satisfying and humbug free career at the Bar. It can take years of steady work to earn the genuine trust of the bench. That trust can be easily lost. There is nothing to stimulate the schadenfreude quite like the body language between a judge and the barrister who has just lost the trust of the bench – and which is marked by comments such as “Have you got anything else you want to say?” before the proverbial trap door is opened.

The lot of the trial judge is very tough and not to be underestimated. They sit for long hours in essentially responsive roles, well aware of how much better the case would have been run had they stayed at the Bar, constantly thinking of the judgments they are required to write (in a state of backlog, sometimes dire backlog) which are intended to survive the often very tough peer scrutiny that can occur on appeal. Never underestimate the exacting scrutiny by appeal courts of trial judgments, which can be a form of torture in absentia.

Your job as advocate is to make the life of the judge at least bearable by identifying what the case is really about and communicating the message as best you can, in a way which is accurate and engaging.

This can often mean discarding a lot of things which won’t make any difference. Discarding comes very naturally to barristers, from paper through to bad ideas, as well as one-time fantastic ideas that were going to be put but which seem at the critical moment as if cast in lead and ready to sink to the bottom of the ocean – barristers like to call that moment of abandonment “exercising judgment”.

For politeness, let’s liken discarding to refinement. This skill of refinement is particularly evident on appeals, where a whole case can run in a couple of hours, or on special leave, in 20 minutes for each side (with green and red lights to remind you when to start and stop and no jaywalking is permitted). The relatively short time for oral submissions, whether in trials or appeals, and the often long delay in publishing reasons for judgment, does focus attention on written advocacy, where instructors play a vital role as co-authors. Judges do place great weight on the quality of written submissions, not only for exposition of argument, but also for the accuracy and detail of facts outlined (and, of course, references to cases and discussion of the law). While we work in teams, judges are left to themselves to decide cases, and do not have the luxury of checking with the parties for further assistance during the judgment writing process. Written submissions are important. They need to be as accessible as the oral argument.

By the way, if you think that the time for oral submissions is tight, argument in the United States Supreme Court on full appeals is usually confined to about 30 minutes for each side, and that includes the 25 minutes or so of interruptions by up to nine appeal judges.

After 25 years on the ever-quickening treadmill, in the best tradition of identifying the salient point, I am always reminded of one home truth – no matter how clever they think they might be, barristers are only as good as the instructions and briefs they are given. It is instructors and junior counsel who make leaders look good on the day. While you are in the middle of an argument, there is invariably a fact to be found or case to be identified. A separate pair or pairs of seated eyes and ears can pick a point that the standing pair of eyes and ears might miss. A well-constructed brief may have itself directed the winning approach.

And when the case is won and the high fives are going around, and the winning barristers are doing a victory lap around the court room (and signing autographs and posing for photographs), just remember (even if they don’t) it was probably really because of the care and thoughtfulness with which the brief was prepared or because of an astute instruction in the thick of battle.

It is true symbiosis when the relationship between barrister and solicitor is working well (ranging all the way down to train wreck at the other extreme). I suggest giving symbiosis a try at the outset.