So, there you are, in situ (or – as we must now say – with your feet under the table). The question is how you get to put your feet on the table.
I dealt with advocacy in the last post. There is another aspect to a Barrister’s life in which ability must be demonstrated.
This is paperwork. Whatever your supervisor’s practice there will be a certain amount of this – and often quite a lot. Pleadings, and to a lesser extent Opinions/Advices, have a certain formal structure which must be obeyed. It will be assumed that you have learned these. Good written work displays the following characteristics:
- It is as short as it decently can be. That means that the essential facts are picked out and pointed up.
- The language is simple. I repeat what I said about advocacy. Flowery language, complicated sentence structure and plentiful adverbs do not add up to lawyerly brilliance. Your language is supposed to elucidate. The aim is for someone to read your document and instantly understand it – not to sit there and gasp that a Dickens-like genius has been discovered. If you are as good as Dickens you have an alternate career path and the world needs you. If you are not then don’t try.
- You spell and use grammar appropriately. This is easy – press F7. Failing to do so is not merely sloppy – it suggests that precision is not important to you. That is the very opposite of the impression you want to convey.
- You punctuate appropriately. I am aware that the exclamation mark has made something of a comeback recently, but it has no place in legal writing, save in the most exceptional of circumstances – so exceptional that I cannot currently think of them.
- It is paragraphed properly. This is especially important in a pleading where the response is referenced by paragraph. One issue per paragraph, in a logical order.
- You do what you are asked, and paid for. You have now finished studying. The answer to the question in your exam went something like this: “this difficult and [if you dared and could say so without blushing] interesting point has been the focus of numerous appellate decisions. Let me now cite 17 so that you can tell how much I know. Unsurprisingly, some of the most erudite and brilliant legal minds have differed on the matter. That is because it lies at the apex of the collision between the European jurisdiction, as demonstrated in the following 28 examples, and the common law approach which extends from the old English Reports case of Swotte v Braynedeade in 1578 to the following 33 cases all decided within the last 5 years. Tellingly, modern commentators have tended to side with one approach or the other based on their view of the importance of English Legal History as usefully – and amusingly – outlined in the article in the MLR by [insert name of Chief Examiner here]. It might be thought that Parliament would have addressed the issue, but possibly chastened by the need to agree a complicated statutory structure after the scathing comments of their Lordships in Re Thickpolitico (No 986), the governing party has thus far showed little enthusiasm for doing so. I would tentatively and respectfully suggest that the approach of Lord Hoffman in the following 45 cases might be the best way to view this matter (Tip: Lord Hoffman is always a good place to start), but there is also much to be said for the contrary view taken by Lord Templeman in this case, Lord Griffiths in that case and even – by analogy – Lord Wilberforce in the other case. Indeed, I understand that further cases decided within the last year – particularly the 56 I now cite – are awaiting permission to appeal, which will offer still further scope for resolving this question. However, the subsidiary points created by the need to deal with the critically important central issue are continually proving troublesome as shown by this selection of 176 trombones at the big parade further cases. “
- That is not how you do it in pupillage. You are being paid to give your advice – so give it. “This is a difficult issue with conflicting decisions. Having examined the facts in detail it is my opinion that our case is closest to X v Y and will, accordingly be resolved in the same manner. The following factual issues need to be checked to buttress my view. I estimate the chances of success as in the region of x%. Should the facts be otherwise, we risk moving into the range of the decision in A v B and success could not be guaranteed. My Instructing Solicitor may think this matter demands a conference”.
Paperwork must also be returned on time. The very first thing a solicitor ever told me about how paperwork was judged was that the primary factor was whether she had to chase it up. The client has been promised an Advice. When it doesn’t arrive the client wants to know why. They ring their solicitor and disturb their day. They ask whether this is what they are paying for. They mutter darkly about their friend Joe who went to see Tout & Co and never had this trouble and what’s wrong with a contingency fee anyway if you’re so sure I’ll win. You must obviously cover the bases but you must be fast. Get used to it and practice it. You need to go from one Advice every five days to five Advices in one day.
Paperwork must be commercial. Almost every case is settled. Think about what that means. It means that the Judge is not deciding the law. The client is deciding the risk. How can he assess it without you putting it into figures? How can he come to trust and rely on you, if you do not show him that you understand his problem? The issue is simple: how much money could he get? How much money will he have to spend to get it? How much money could he lose? Where, within those three figures is the maximal point at which to say “I’ll take/offer £x”? You ought to come up with a figure and be able to explain it. The client may not agree but he will be happy you tried. So, too will the solicitor.
Know the difference between an Advice and an Opinion. An Opinion is about the law. An Advice is about the facts. A Note is something you direct to the solicitor, not the client, and for which it is customary not to charge. Particularly when writing an Advice it is important to examine the facts, to bottom the case and to imagine what the position might be were further evidence to be obtained. Make a note of the experts that you have seen and that you rate – you will soon be asked to recommend someone.
Finally, paperwork must be gratefully received. That means you say thank you to the solicitor. It means you read it as soon as it comes in so that you don’t – when you absolutely have to do it today – have to make the phone call which reveals that the key document is missing and that all you words about struggling through the difficult point are lies because no one could have done even 10 minutes work without noticing the error. It means that you are non-pompous about a challenge to your conclusion and that when you say “Should my instructing solicitor require anything further she must not hesitate to contact me” you mean it sufficiently to take the call and concentrate on it, rather than filing your nails and then discovering you have agreed to a quite hopeless summary judgement application.