The Gender Brief Gap

Life comes at you in waves. I wrote this blog back at the beginning of March, ready to publish the moment that I had finished the trial I was in at the time. There are ways that seems a lifetime ago. Maybe even a different life. Events big and small meant that this blog did not get published then.

Now I have come to realise that often there isn’t going to be the perfect time to do all we intend to do, that waiting can mean missed opportunities. I know we all have a host of problems that we face but this was important enough to me to have written about when we all, perhaps, were someone else. And so it is still important to me now. Important things should not go unsaid.

There is a significant issue which is prevalent in the legal world. It is something which I have always known was there but has really become apparent to me in recent times.

A little background: Before becoming a QC a significant proportion of the work I did were sex cases. My diary also contained serious violence, fraud and drugs but I was not someone who went from one “big” multi-handed trial to another. I have written before about how the legal profession seems to value some areas of work more than others, that the diary of “paper heavy” fraud trial is seen as being better than back to back sex trials. It would appear that we have forgotten that complexity is not only measured by page count and ELH.

Now I am a QC, my work has changed. And it is that first twelve months of being in silk which has really brought something home to me – there is a gender brief gap. Men are disproportionately briefed in the “serious” cases that involve murder, guns, drugs and fraud.

I can go back to November 2018. In the run up to finding out I had been successful in my application and then in the period straddling my appointment, I was the junior in a couple of cases. From March I have, with the exception of one trial that was leftover from my junior practice, done a number of cases in Silk. From November 2018 the subject matter in each trial has been; Trial A – double murder in a gang war; Trial B – conspiracy to murder in a gang war; Trial C – a grooming gang; Trial D – murder by strangulation; Trial E – joint enterprise murder; Trial F – joint enterprise murder with a firearm. Interspersed amongst those trials have been other cases but I want to just focus on the trials. These are the cases where judges have granted certificates for the instruction of a QC due to the seriousness and complexity of the case.

Let’s now look at each case in turn:

Trial A – 7 counsel in total, 3 QCs and 4 juniors. Total number of women? 0

Trial B – 21 counsel in total. 7 QCs and 17 juniors (3 of whom took Silk during the case). 4 women. That’s 19% of counsel in the case were female.

Trial C – 7 counsel in total, 1 QC and 6 juniors. 3 women. That’s 42%.

Trial D – 4 counsel in total, 2 QCs and 2 juniors. No women.

Trial E – 10 counsel in total. 5 QCs and 5 juniors. No women.

Trial F – 17 counsel in total. 8 QCs and 9 juniors. 1 woman. That’s 6%.

In the cases trials I have conducted in the last 18 months, only 12% of other counsel have been female. Notably, if you take out the one sex case that I did, this falls to 8%.

None of the cases have featured a female QC who was instructed in that capacity (one of my fellow new Silks was in Trial B with me which we started out as juniors).

It is entirely possible that my workload is unrepresentative, it is a statistical outlier. Yet when I look at work to come I reckon there are probably something like 58 counsel involved in those cases. At the present moment in time there are two women involved, one who prosecutes a sex case and one who is the prosecution junior in a baby shaking case.

I also know that every female barrister that I have spoken to about this will recognise the picture I paint. They have the experience of being the only female in multi-handed cases. They know that their talented female counterparts are not instructed in such work in the same volume as their male colleagues.

There are factors at play such as the retention of females at the criminal bar but the attrition rate is not such as explains this. This is not a question of there not being females available to conduct these cases because there are. Plenty of them. And whilst I am most reluctant to even have to deal with this potential explanation, the women that are available are more than capable of doing the cases.

So why is it that a pool of available and talented advocates are not instructed in these cases? I am afraid I don’t know the answer. At least not a detailed answer.

In general terms it is clearly a problem that can correctly be labeled sexism. That sexism may be the attitudes of others (clients wanting a male barrister), structural (women are pigeon holed into sex cases), ingrained (courtrooms packed with men are the norm in these cases) or overt, direct sexism.

What I do know is that it is wrong. How do we put it right? I don’t know that either.

That is part of the reason for this blog. I am really interested in the suggestions of others for the solution to this issue.

One thing that occurred to me is that organisations need to be accountable for what happens. We need to be able to see what is going on. Whilst this will not make me very popular in professions which are already burdened with administration, is it not time that we required solicitors and barristers to keep and publish data on the instruction of advocates in certain cases? It is only by transparency, it is only by us all seeing the problem, will the solution emerge. It is only when we all acknowledge the gender instruction gap, will we begin to close it.

Be The Aubergine

When I was at University a mate of mine used to wear a t-shirt that bore a picture of an aubergine and the slogan “An aubergine having fun.”  It was just a picture of a plain old, inanimate aubergine. So my advice to aspirant advocates is: Be The Aubergine. 

I am not counselling against fun. I am not suggesting adopting a purple hue. It is the inanimate, inscrutable appearance of the egg plant (as an American advocate would have it) that I commend. Lady Gaga would say Poker Face. Lord VFTN says “Be The Aubergine.”

Advocates should rarely interrupt or interject. Nothing is gained by reacting to what your oppenent is saying until such time as you get to say it in a cogent manner to the Judge. One should sit there and keep one’s own counsel. Like an aubergine. 

The rhythm of submissions is fairly easy to discern. The party making the application goes first. The Respondent (the clue is in the name) then responds. The party making the first submissions gets to respond to the response (making them the Re-Respondent, but only if they say “Bo Selecta”). The point is that everyone gets to have their say. There is no need to interrupt with heckles from the floor. This is a courtroom, not the Comedy Club. 

There may be occasions when it is necessary to interrupt. Usually if a misunderstanding is taking the submissions in a direction which is unhelpful to everyone. And the interruption should usually be prefaced by a gentle rising to the feet and a “I hesitate to interrupt but…” Very occasionally a sotto voce prompt might be necessary to your opponent. So recently I was making submissions about a defendant being sentenced for all matters at the same time. My oppenent whispered “in the event he is convicted” to me and I corrected myself. On occasion I have whispered “don’t lead” to my oppenent as a warning before the objection or something similar to head off inadmissible evidence. Like all rules, there are exceptions. 

The interruptions that I am advising against are those that either arise from intemperance or are designed for show. The latter of these two sins is by far the greater, the former the more dangerous. 

Learning the art of controlling one’s reactions is invaluable for the advocate. The tribunal should never be able to discern that you have just received the most damaging or unexpected answer in cross-examination by the look on your face. The only way to maintain this is through a calm demeanour. Never let triumph or dismay speak. Always let control speak. 

The staged interjection for the purpose of showing off to your client is the stuff of sixth form debating. You would have to be the sharpest of wit to even remotely get away with it. But cries of “outrageous” when your oppenent is making their submissions may make great pantomime but have no place in the courtroom. Even if your opponent is being outrageous do not match them by being outrageous yourself. Demonstrate your outrage with measured words, not fiery interjections.

Maintaining the dignity of the courtroom is one of the tasks of the professional advocate. Even when provoked, even when your heart is thudding in your chest at the injustice of it all. This is not the free for all of Speakers’ Corner but the precision of the courtroom. 

At all times Be The Aubergine.   

A Game With No Rules

Twenty-three years ago I commenced pupillage. It is a good job that this is being written on an iPad so the solitary tear that has just dropped from my eye has not smudged the ink. Twenty-three years ago! Where has that time gone?

I have less hair on my head and more hair on my face (more of that later). I have moved from being pupil to pupil master to three pupils, all of whom it has been a privilege and a pleasure to supervise. And yet I can recall the fear and trepidation of pupillage like it was yesterday. 

Pupillage is the strangest experience. It is part interview, part trial by endurance and part learning experience. You want to appear like you know everything so you impress and yet you do not want to come across as a know-it-all. And, of course, the reality is that you are at the bottom of an incredibly steep learning curve. You feel like Eddie the Eagle when he first stood at the bottom of the 70 metre ski jump. You are entering some weird game where everybody else knows the rules except you and, just to make things more complicated, virtually every barrister you will encounter will have their own variations on those rules. 

My beard is the embodiment of that miasma of unwritten conventions that you may transgress. I was struggling to obtain pupillage. A barrister I spoke to suggested I shaved my beard off. The very next, clean shaven, pupillage interview secured my first six. Coincidence? Well I grew my beard back when I started pupillage and was asked in the first week “Did you have that beard when the PTC interviewed you?” by a senior Silk in chambers. Off came the beard again for my pupil master to say “Glad to see the facial hair has gone, Gavin” (whilst clearly forming a view on the goatee, my pupil master always struggled with my name). 

Was this pognophobia limited to my first chambers? I went four years into tenancy (in the chambers where I did my second six with a pupil master who remembered my name and knows more about advocacy than I ever will) sporting a freshly shaved chin every single day. Then I had to have some time off to have an operation and back came the beard (I reassure you that it was no longer a goatee). The reaction of a Silk in chambers on my first day back at work was to point to my chin and utter the words “Hopefully that is just temporary…”

Enough of my beard, the point is that there are many such views on what is wrong and what is right for the putative barrister, beyond the rules of ethics they teach you on the course. And because pupillage has that element of the year long interview you are walking through a minefield wearing over sized boots. With your feet tied together. Blindfolded. 

So what advice to give the new pupil? You cannot go wrong by having a good look around you at those members of chambers who have been through this process before. I am not suggesting that you have to suppress yourself, to pretend to be someone else but you will notice that there is a certain way the majority of barristers dress, for example. No matter how free, fearless and independent you are going to be once you are a member of chambers, those electric blue flares with an embroidered flower down one of the thighs is not appropriate wear for your first day in chambers. You are not expected to be a Stepford barrister but the fact of the matter is that courtrooms are serious, somber places where the attention should be on the eloquence of your advocacy, not the flamboyance of your pocket square. 

Smart, dark suits and neatly ironed shirts and blouses are the order of the day. Clothes may not maketh the woman, but they can certainly show you have made the transition from student to professional. 

I was advised by someone the year ahead of me to say every third thing that came into my head, that pupils were like Victorian children; to be seen and not heard. That advice was along the right lines. As the pupil you have to remember that the members of chambers you go to court with are involved in cases that may well be stressful and may have nuances to them of which you are unaware. The golden rule is do not “contribute” your view unless asked to, particularly in conference, in the presence of the opponent or solicitor. By all means have a discussion with your pupil master or the person you are with that day about your approach to the case and its issues, but do it at an appropriate time. You may well feel that you have something to contribute but remember that you are there to observe and learn. There may be a very good reason why something is not being mentioned to the opponent so do not be the one to blurt it out. 

That even includes if you are dead certain the member of chambers you are with has got something absolutely wrong. Firstly, they may not have done, for reasons that you are not aware. Secondly, they are not going to thank you if they are wrong and you expose this error to all and sundry. If you think they are getting something wrong, then find a subtle way or moment to tell them. You may be able to slip them a note or begin a conversation when you are not being overheard with “I am probably being stupid, but I have had a look in Archbold and I would have said that statute isn’t in force yet. Where am I going wrong?”

Diligence and hard work will always be noted. And that includes the appearance of diligence and hard work. If your pupil master tells you they expect you in chambers at 9am there is no harm in being at your desk at 830. And the same can be said at home time. Do not be the pupil who is never seen in chambers after 430pm. This is not just a question of being chained to your desk to show you can cope with the sort of hours that City Lawyers wear as a badge of pride. These are the times, outside of court hours, when you are likely to encounter members of chambers. This is, therefore, your chance to get to know them and them to get to know you. Add to that is the fact that a career at the Bar is going to involve plenty of preparation outside of “normal” office hours. Now is a good time to get used to it. 

Pupillage is, more than anything else, your apprenticeship. There is so much to learn, so much to absorb. Take every opportunity to gain experience. And do not be afraid to ask if you do not know how something is done. Or why someone did something in a particular way. 

Try to avoid, if you can, simply asking for the answer. It is so easy to approach members of chambers to ask “how do I….” or “what is the law on….” Show people you are thinking about things and not just expecting to be spoon fed. Try saying “I think the answer is…..what is your view?” Or “I have looked it up, can I just run through what I have found? Is there anything else?” People should be generous with their time as long as they do not think this is a substitute to you doing your own work and thinking. 

Always meet deadlines set to you for work. If there is a specific problem, if you are struggling to find the answer or found yourself hospitalised when you dropped Archbold on your toe, then ask for an extension. That is what you will do when you are on your feet. Do not hand in work late, and then come up with your excuses. 

Check your written work. Then check it again. Then go away and read something else. Then come back to your piece of work and check it again. Then print it out. And check again. 

There will come the point in time when something goes wrong. Do not think that because someone gives you a piece of work back with red ink all over and corrections galore then this is the end of the world. Your work is not going to be perfect. It is going to need correcting. You are going to make plenty of errors. The important thing is to learn from them, to not make the same mistake time and time again. 

Things can go more spectacularly wrong, of course. There are a rare number of pupillages so that do encounter real problems. Make sure you work with Chambers so, should a problem be identified during a review of your pupillage, you know what is expected of you and what you need to be doing. Set a plan and work out the problem. The Bar Council run a dedicated and confidential advice service for pupils. If you encounter difficulties then use this service. 

One final word of advice. Enjoy your pupillage and enjoy getting to know people that you will hopefully spend the rest of your career working with. Do remember that you want to be remembered as the pupil who excelled at everything they did, not the pupil who photocopied their nether regions in the clerks’ room after the Christmas drinks party….

I hope someone out there will find this advice useful. Pupillage is full of highs and lows. At the start you will be desperate to get out there and begin your career. As your first six draws near to a close you will wish you could go back to the start as you will feel like you know nothing. Trust me, you know enough and you have the ability that has got you this far. More senior members of the profession will always be prepared to help. 

Twenty-three years have passed in the blink of an eye. I may moan about the job, about the MoJ, about fees and about just about everything else. But it is still great to see the enthusiasm of those new to the job. Good luck!

Silence is Golden

I am trained in the Hampel Method. This is not a type of breathing designed to allay my fear of flying, heights and unfeasibly cheery Scotsmen. It is not a method of yoghurt weaving favoured by certain sections of Chorlton society (that is a joke for only the Mancunians amongst you…) The Hampel Method is a method of training advocacy. I must confess I scoffed at the idea of advocacy being taught but the Hampel Method is actually pretty darn good at laying down the basics and improving certain areas of an individual’s advocacy.

The first thing they tell you when you are schooled in the Hampel Method is that you should leave the war stories behind. Nobody wants to know how great you once were in a case, nothing is learnt by you telling the student of advocacy of how you once demolished a witness and the tale of the set piece flourish of producing the answer the witness has just given on a piece of paper from your pocket with a “how could I have known that unless my client is telling the truth” line to the jury is the stuff of Magician School, not Advocacy School. 

So let me break the rule immediately. Let me tell you one of my favourite war stories. And I do so because it perfectly encapsulates the little bit of advice that I want to get across in this blog. It is a totally true story. I am not one of the advocates involved but I was in court and witnessed it first hand. 

There was once a PCMH, that is the hearing at which the defendant enters his plea and the advoactes tell the Judge a little bit about the case (such as which witnesses are going to be called, how long the trial will last, what matters of law can be anticipated). In fact, this was so long ago it may have been a PDH. The modern amongst you will now know it as a PTPH. But let us get over that initial detail and get on with the story. 

The case that was before the court involved a man who objected to his neighbours. He particularly objected to the children, a boy and a girl. He took the greatest offence at the boy and the girl repeatedly kicking their ball into his garden. This much, I discovered, was agreed between the Prosecution and the Defence as I listened to the PCMH meandering onwards. The issue in the case was simply this – the defendant said he had intended to shoot the ball with his air rifle and that it was an accident that he had in fact shot a child….or two. They were only flesh wounds, you will be glad to know. But the Prosecution said that he had intended that which had happened, a pellet in a buttock of each transgressing child. 

The trial was fixed for the following September and the necessary orders were made. A PCMH that had proved a brief distraction from the usual diet of burglaries and tenner bags of heroin was about to conclude. With everything done and dusted the defence barrister (who shall remain nameless and is no longer an advocate in this jurisdiction) got to his feet and addressed the Judge;

“Your Honour, with them being neighbours and all that, it is within my client’s certain knowledge that the complainant family, his neighbours, as it were, are due to emigrate to Australia in June, and that being the case, may I invite my learned friend to consider at an early opportunity the viability of the prosecution that is going to be without a single witness to events come September and that the prosecution take an early view of this matter so as not to prolong the suffering and anxiety of my lay client….”

Which goes down in history as the greatest own goal in advocacy I have ever witnessed. Prosecution counsel immediately got to his feet, thanked his learned friend for that piece of information and invited the court to bring the case forward to before the anticipated departure to Australia. Which the Judge duly did. 

This truly snatched a defeat from the jaws of a certain victory. This hearing took place so long ago that, not only is the defence barrister now overseas, the Judge has passed away and the prosecution barrister is no longer practising, but this was the days before video links and easy admissibility of hearsay evidence in criminal trials. You can tell how long ago it was by the fact that both sides were represented by barristers in independent practice.

The absence of videolinks to foreign climes and trials in the absence of witnesses means that, had the defence barrister kept his powder dry there was a prospect that his client would be acquitted in the September. As it was, he was tried in the May. Sadly I do not know the outcome. 

This war story illustrates one of my advocacy bugbears and the reason why I am right to condemn it. Just because you are an advocate it does not mean you have to go about advocating all the time. There are many instances when the greatest advocacy you undertake is what you do not say. Many of my finest hours in court have been the times when I have got what I wanted by saying very little. 

The enemy of good advocacy is the advocate who likes the sound of their own voice. There are times when it is just tiresome, the advocate who has nothing to add to the hearing but wants the client or the solicitor to see them doing their bit. Tiresome can, however, also be troublesome. Pointless advocacy can often turn the mind of the listener, the Judge or the Jury, against the advocate who drones on. If you say twenty pointless things, it is difficult to spot the one pearl of wisdom that you hit upon. This is where Ronan Keating and I have something in common, you say it best when you say nothing at all.

It is also a case of “loose talk costs lives”. The advocate who feels the need to add their two penneth when the victory has already been secured does nothing but risk undoing that victory. Whether it be the question too far in cross-examination or further submissions to a Judge who is with you, all you are doing is risking that which you have gained. You can have no idea, until it happens to you, how frustrating it is for your co-accused counsel to let the other side back in because they feel the need to have their say. 

If you have nothing to add, then keep your bum firmly on the seat. 

And the story of the over sharing advocate that I have just told you shows the value of patience. The value of not saying something until you have thought it through. The value of keeping your powder dry. A brilliant point can be the worst point, dependent upon when the point is made. Trying to keep your advocacy concise and economical is not only good advice for advocacy that is easy to listen to, it is also a good discipline to ensure that your advocacy is the result of proper judgement, not just a desire to be heard. 

All advocates should, in reality, like the sound of our own voice. But only when you are hitting the right notes. And never, never, just for the sake of it. 

Assisting the Court

When I was in my pupillage I witnessed an exchange between my pupil master and a Judge. My pupil master was prosecuting a sentence. The Judge asked him to identify the features of the offence that aggravated the sentence. My pupil master declined and instead indicated that he was in a position to identify those features which were capable of aggravating the sentence, whether they in fact aggravated the position was a matter for the Court. The Judge was bad tempered, he responded that “if Counsel was not prepared to help me by identifying which features did aggravate the sentence then you may as well sit down”. My pupil master resumed his seat. 

I learnt many valuable lessons in pupillage, not the least of which were some of the best places for lunch near to each of the courts on circuit. The exchange above was one such valuable lesson. Sentence is a matter for the Court, not for the prosecution. The prosecution are not there to make sure that the Court passes the longest sentence they can achieve, they are there to make sure the Court passes the appropriate sentence based upon all the information properly available. 

Listening to some prosecuting advocates recently I am beginning to wonder if something has changed. I very much appreciate that the prevalence of sentencing guidelines has slightly altered the dynamic. No longer is the prosecution advocate only to speak about sentence when spoken to about sentence. The advocate should bring the guidelines and guideline cases to the attention of the court, identifying the features of the offence that are capable of amounting to aggravating and mitigating features (albeit I still place emphasis on the capable of amounting to).

What I note is that so many prosecution advocates seem to consider it their job to get the sentence as high as possible. They strain every sinew to identify features that get the offence into the higher categories with submissions such as “two punches are a prolonged attack” and a single room of a domestic house given over to a cannabis farm amounts to an operation on an industrial scale. 

It is almost as if they are conducting a barter in a market place. Start high and hope you get lucky or aim high and then settle when you get a bit knocked off. This is not the role of the advocate when sentencing. Persuading the court to pass a manifestly excessive sentence is not a plus, you have partly failed in your role if you allow the Judge to fall into error in this way. 

We operate within an adversarial system yet with the caveat that the prosecution are not partial. If, as a prosecution advocate, you set out to try to persuade the Judge to impose the heaviest sentence you can get you are one step away from being the “win at all costs” prosecutor. And that brings us one step closer to the suppression of evidence and Manitowoc County. 

Assistance to the Court on the application of the guidelines should be exactly that, not an opportunity to ratchet up the years. The approach of the prosecution advocate should be reasonable and proportionate, being neither desirous of a swingeing sentence nor unduly lenient. 

You may be representing the prosecution but you are first and foremost an agent of justice. That may sound pompous. That may sound an unrealistic ideal. When it comes to sentence, it should be at the forefront of the mind of the prosecution advocate. 

Getting Wiggy With It

I am very fond of my wig. Not just because I am bald. Not just because it has been with me for twenty-two years. I am very fond of my wig because, whilst it has never saved my life, it has got me out of a tight spot or two.

When I was quite junior I spent many months as the second prosecution advocate in a large conspiracy. The two trials lasted over many, many months. There were Silks involved, there was a fearsome judge and there were some proper villains. When I say “proper villains” I mean not just people on the wrong side of the law, I mean proper stop-at-nothing types. The sort of villains Guy Ritchie gets all misty eyed about. 

The main man had a brother. The brother also fell into the category of “proper villain”. The brother saw me every single day of each of the trials. A few weeks after the guilty verdicts I found myself in the middle of Manchester, standing right next to said brother. I froze. 

“I know you, don’t I?” he said. 

My reply, amongst the stammers, was a cross between “I don’t think so” and “I hope not.”

“Yeah I do. Someat to do with our kid? Did I meet you at one of his parties?” he continued.

I assured him that he did not know me and then, in the style of a News of the World reporter in a brothel, made my excuses and left. He, of course, did know me. My face was incredibly familiar to him. But without the wig it was difficult for him to place me. My daily disguise had done its job. 

It is not the only time. I had a man grip my arm in a restaurant corridor and talk about how he knew my face, knew that I was, like him, connected and that I was someone who should know to show him respect. What he did not realise was that I had prosecuted him a few months earlier. 

There are times and circumstances when wigs and gowns should be removed. Appropriate accommodation made for the young and the vulnerable (having said that, when I introduce myself to young witnesses I often find the wig and gown is a great ice breaker) but otherwise I am very much in favour of them. 

The Crown Court is a very different beast to the Magistrates’ Court. Not better than, but different. We tend to spend longer with the participants of a Crown Court trial. The stakes tend to be higher. You can spend a whole day or more cross examining a witness. 

“We get on without them in the Mags” is not an answer to whether robes should be retained in the Crown Court. 

And barristers in private practice are different to solicitors in private practice. We prosecute. (And yes, I know that solicitors prosecute some work for some agencies but I am talking about the routine prosecution of serious crime.) I value highly the anonymity my wig gives me. I really, really do. 

That anonymity stretches to the jury. Good Crown Court advocacy in an even contest between skilled advocates  is directed at the case being about the evidence, not being about the advocate. The wig and gown is a uniform. It creates uniformity. And it means that the jury do not draw a personal affiliation to one side or the other due to some clue from their appearance (which is why an advocate should not have medals, badges or ribbons on their gown or even a poppy on their lapel).

These are some of the reasons why I support retaining robes. There are others. There are, naturally, arguments against. These should be debated. Part of that debate, however, should NOT include the idea that the Bar want to retain robes as it is a throwback to public school boys wanting to dress up. 

I have seen exactly that said, more than once. Now, I do not take offence at this terrible and lazy stereotype. I am not angry that, as a comprehensive school educated person, the idea that all barristers are, or consider themselves to be, toffs is ridiculous. 

I can assure you all that my university days were not spent dressing fancy, eating swan and initiating myself with a pig. The only drinking club at my uni was the Squash Club. And it was a club where you played Squash (the university being Aberystwyth, which prohibited pubs opening on a Sunday so the only place to get a drink was the private members Squash Club which had two courts and went out of business shortly after a referendum allowed Sunday boozing). 

Categorising the importance that some at the Bar place on robes as being a product of their public school backgrounds is, well, a bit like suggesting solicitors are only good for conveyancing and drafting wills. 

As the debate seems to come around once more about robes those participating should, perhaps, consider whether there are greater challenges facing the CJS than they way we dress and, perhaps, should consider that a lazy stereotype does not take the debate very much further. 

I like my wig. It is my uniform and invisibility cloak in one, itchy, horsehair contraption. Long may State educated school boys and girls aspire to wear them doing State funded work. 

Watch and Learn

A vital part of learning about good advocacy is the observation of others. It is one of the strengths of a good pupillage (and no, I am not getting into a barrister v solicitor debate here, it is just an observation on the benefit of observing). A good training for an advocate allows them to observe a wide range of different advocates with little else for them to think about other than learning from what they experience. It also allows the neophyte the opportunity to discuss the whys and wherefores of what they see with the participants. 

It is one of the great shames of current times that the opportunities for the young advocate to observe great advocacy as a participant themselves is greatly reduced by the lack of junior briefs knocking about. Within in a year of being called I had the opportunity to be the junior in a drugs importation. The cast of Silks in the case read like Northern advocacy aristocracy – Birkett, Walsh, Burke, Morris, Nolan and the late and very great Mick Maguire. 

It really was my very great privilege to sit down and talk advocacy with Mick Maguire QC, recipient of the Military Cross, Silk for almost thirty years by that stage and supreme advocate. To speak with him was an education in itself. The real lesson that I learned at the time, however, came from Anthony Morris QC (now HHJ Morris QC at the Central Criminal Court) who executed the perfect cross-examination of the officer in the case, limiting the officer to only “yes” or “no” answers and, frankly, winning the case there and then without the need to call his client. It was brilliant. And whilst I have never achieved the same dazzling perfection I learned much about what can be achieved by planning, preparation and being in control of the examination. 

Twenty-one years on from that case and I am still learning about advocacy from watching others. Good and bad. I have spent quite a lot of this year hanging around robing rooms where I am a stranger. This means I spend more time observing than I do participating. When I am in the comfort of the robing room at Minshull Street I am too busy reading the newspaper (paid for by the Northern Circuit, other Circuits please take note) or chatting to my mates (and before anyone else says it, yes, they are usually friends of Mrs VFTN who have to tolerate my sullen ways because of her) to really take note of how others conduct themselves in the robing room. 

My recent eavesdropping has brought back something that the late Mick Maguire QC said to me all those years ago. We are opponents in the courtroom, that is where you argue your case. Now no one could suggest that Mick was anything other than a fearless advocate. He did not shy away from the fight. Yet he knew when to have the fight and he knew when talk in the robing room was bluster and pointless. Save your advocacy for the courtroom.

There is no point carrying the adversarial nature of what we do into the robing room. Of course, occasionally, you have stand your ground, but I have seen so much talk in robing rooms where the two opponents have been so absorbed in being agin each other that they they seem more concerned about being at loggerheads than being reasonable, sensible or, even, coherent. 

If robing room discussion is no more than playing out the arguments in court, what is it going to achieve? If all you are doing is arguing with your opponent then leave it there. Talk about the weather. Talk about Celebrity X-Factor’s Little Voice Bake Off. Talk about anything, but do not become so lost in your case that you cannot see your way ahead.  

There are times when you can hope to persuade your opponent of the merit of something to your advantage. Calm reason is more likely to achieve that than anything else. Scorching advocacy, at that stage, is likely to achieve nothing other than the entrenching of positions and talking at cross-purpose. 

That is what I have learned recently. I have relearned something I was told a long time ago. And I have done it through watching and learning. 

Word Up

As a young barrister I scoffed at people who churned out skeleton arguments. I was an advocate. Advocacy was an oral skill. If I could not persuade the Judge with the power of my rhetoric I had no business in the Courtroom. As a more middle aged barrister I railed against Judges ordering skeleton arguments. These were simple points, they were Judges. They should understand the law and be able to apply it after hearing submissions. Did the Judiciary not realise we did not get paid for this written work? If I was not spouting my mouth off in court, the meter was not running. 

Turns out I was wrong. Or maybe lazy. Or a combination of the two. So the aspiring or new advocate should not make the same mistake as me. Never underestimate the need for, and the power of, good written advocacy. 

What constitutes good written advocacy? Concise is a winner. Do not have a long, rambling document that seeks to set out the entire history of the case and tell the factual story. On the vast majority of occasions it is simply not necessary. If you have not got to the point and the reader is at paragraph 57 on page 12 the client may be impressed by the weight of the document but the Judge is not going to be impressed with its clarity. The two things to remember are to get to the point and to stick to the point. If something is not necessary for the point you are arguing, it should not find its way into your advocacy and particularly not into your written advocacy. 

Give thought to what your document is intended to do. Is it a “skeleton argument” or are they intended to be “written submissions”? There is a difference but before I carry on to reveal what it is let me get off point a little (without breaking the rules, this is a blog, not written advocacy) to tell one of my favourite little advocacy anecdotes. 

A colleague of mine was in the Court of Appeal, being led by a Silk. The Silk rose to his feet and began “Does the Court have a copy of my ‘Speaker’s Note’?” One of their Lordships lent forward and replied, “Yes Mr X, and we were rather wondering what was the difference between a ‘skeleton argument’ and a ‘Speaker’s Note’?” The Silk paused before answering “Well a skeleton argument would have been two weeks late whereas the Court had made no order for the service of a Speaker’s Note……”

Back to the point. Skeleton v Submissions. There is a difference. Skeleton arguments should be a document to which you intend to speak further. It should identify the issues and the relevant law. The clue is in the word “skeleton”. It should be the bones, not the corpse. Short and concise is the absolute aim here. It enables the Judge and each party to understand where the arguments are going and then allows them to develop in Court. 

Written submissions or applications in writing should be the complete work. It should be able to stand alone as your advocacy and require nothing more than for you to develop your submissions at the invitation of the Judge if further elucidation is required or to respond to some submission or development that you have not dealt with in the document itself.

On the whole, I prefer complete written submissions. I will often end them with a paragraph that makes it clear I have no further oral submissions that I seek to make. The full written submissions allow you to have everything before the Judge in advance of the day. It is a document to which the Judge can return and can really analyse. 

Of course there is little point in doing a document unless you pay care and attention to it. Firstly the content has to be everything you look for in your oral advocacy. It has to be legally sound with authority for the proposition that you are advancing (with anything contrary to your cause properly identified). This does not extend to the citing of the 57 authorities that deal with anything and everything which is remotely connected to the case in point. Rely upon clear authority. You are not often breaking new ground which requires an historical trawl through all the jurisprudence including the interesting dicta from the dissenting judgment in 1889. Yes it shows you are clever (and possibly a tad dull) but it is not going to help in your average case. 

Secondly, as with your oral advocacy, your written advocacy should be attractive. On one level that means the content should be presented in an attractive and digestible format. And I am now talking about how the document looks and reads. I am about to make a rod for my own back here but get the spelling right (these are blogs, not written submissions, so do not go trawling through my spelling here and elsewhere). Remember your audience. Courtrooms are formal places. Don’t use abbreviations, do not neglect to use language properly (and yes, that was an ironic use of don’t).  And I am serious. There is no place for isn’t, don’t and shouldn’t in your written advocacy. Be realistic about it. You do not have to say parambulator when you refer to a pram. You are not in Victorian England but you are dealing with an animal (the Judge) for whom formality is their natural habitat. 

Try to ensure that the document is easy on the eye. Nicely spaced, properly formatted, paragraphs numbered and the use of headings, if appropriate. Generally speaking shorter sentences and shorter paragraphs work best. Although not too short, this ain’t Twitter. Although it may be amusing to use hashtags……#PrejudcialNotProbative. Emojis are probably frowned upon though.

The language used should be attractive too. Do not forget that you are still seeking to persuade. Whilst oral advocacy and written advocacy will have different structures and language, written advocacy should still engage the reader. It should inform and then encourage an application of the information to the benefit of your client.

Written submissions can be a very powerful tool. In things like sentence appeals in the Court of Appeal they are your only tool. Not I am not suggesting that their Lordships have decided 90% of such cases before they hear from Counsel…..it is just that they are masters at delivering fully reasoned judgments ex tempore. But on the off chance that they may just make up their minds in advance, your grounds and documents in support may be your only chance to win. So get it right. 

Before the right Judge, written submissions during the course of a trial can be an incredibly effective tool. If you can, obtain the Judge’s email and send such documents to them electronically. This is convenient and convenient is good. It also allows you to send them to the Judge well in advance of the start of the court day. No handing documents in at the last minute. When you are part heard in a trial this can allow you to set the agenda. Send your argument for the day to the Judge, copy it to your opponent and have the Judge thinking about your arguments from the moment they land in their chambers. And obviously having your argument in full and electronically allows the Judge, who is under tremendous pressure of time, to formulate their own written judgment. And when I say “formulate”, I mean cut and paste from your masterpiece. Every humanbeing likes the person who makes their life a little easier….

There are other forms of written advocacy. The carefully crafted case summary is a thing of beauty. I am not going to dare to give any hints or tips about case summaries. I would no more give advice about case summaries than I would tell LS Lowry the best way to draw a matchstick man. The only thing I will say is that the maxim of making a Judge’s job easy has never been more true than when it comes to the case summary. Like all good advocacy, a case summary is about telling a story and making complicated things seem simple. A good case summary inches the prosecution closer to a conviction. A great case summary shoves the defendant closer to a plea. 

Always think about whether written advocacy is going to help. You may have no choice. The court may have ordered a skeleton or the application may require written advocacy by law or regulation. But do not fire something off to just comply. Write something that stands alone as an example of your excellency in advocacy. Sometimes you may have a choice. Do not be shy of utilising the opportunity that writing out your submissions gives you. It may be that something like a chronology will be the perfect adjunct to what you want say in court.

It may have come to me late in the day but learn my lesson. Advocacy is advocacy. It is not just talking.

My Imaginary Friend

Part of my pupillage was conducted by catchphrase. My pupilmaster would throw out the question and I gave the refrain. So, with regard to money received he would say “What do we know about each cheque we get?” and I would reply “You only get half”. “What is the first thing you do when you finish in court?” he would ask, “Ring the clerks” I would chime back (this was before mobile phones were widely used, much to my aged embarrassment). On the importance of developing a prosecution practice he would say “Who has half the criminal work in Manchester?” and I would dutiful reply “the CPS”. Then “What is Thursday?” would produce the response “AutoSport day”. (That was less relevant to pupillage, and it may have been Monday and Thursday was AutoTrader day…..not that this matters now….)

I had a cracking pupillage. Months of observing and discussing the anatomy of a criminal case with my pupilmaster and the other members of chambers. Witnessing differing styles, differing approaches and receiving a wealth of advice along the way. Fantastic training in advocacy. 

One of the headline catchphrases was “What is the secret to good advocacy?” to which the response was, and still is, “Judgement”. I refer to this in my other blog on advocacy The Good, The Bad and The Competent.

There is, however, a further ingredient that I worked out for myself. It took me a long time to work it out. All advocates who aspire to excellence need to have imagination. I will explain why in a moment. Before we move to the why let me just say there is no need to panic. Everyone is possessed of an imagination (sadly the same cannot be said for good judgement). As a child you played, as an adult you read. Exercises one and all for the imagination. 

It is not a question of having the imagination of Roald Dahl or J.K. Rowling. If your imagination is similar to their imagination I would advise you to stop reading about advocacy and start writing Harry Potter and The Chocolate Factory or James and the Giant Goblet of Fire. And give me a credit and maybe a share of the film rights. 

Why is imagination important? Let us begin with empathy. Empathy involves, in part, the imagining of life and situations different to your own and then appropriate understanding of that situation. If you have never walked a mile in another man’s shoes then the next best thing is imagining what it would be like. You cannot get the necessary rapport with some clients unless you can go some way to understanding the context of their life. And in some instances you can only obtain meaningful instructions with that rapport established. The same, of course, can be said of witnesses. An insight into their life may only be possible through the use of your imagination. 

It is probably in this regard, in relation to witnesses, where imagination becomes key. So often you will see advocates cross-examining simply on the basis of their instructions. Some times endlessly. Repetitively. Often a cross-examination that leads to no more information being before the jury than a flat and repeated denial by the witness. But oh, what a little imagination could achieve. 

Only through the use of your imagination may you begin to develop lines of inquiry that unearth important information that will assist your case. It is by thinking about what could have happened or what another piece of evidence could mean that may lead to a line of vital questioning. I say may because you certainly do not embark upon your every imagining. Let your thoughts run wild with imagination, let your questions be tamed by your good judgement. 

Much of a prosecution case is made of pieces of evidence. There are, inevitably, gaps. It is your imagination that can peer into these gaps and sometimes see the way they fit together that is different to the prosecution’s case theory. This can inform the way you look into that evidence, explore it before the jury and shape the route to the verdict. Look at the evidence and ask yourself “what could this mean?” Do not be hidebound by the theories of the other side or your client. Be inquisitive and let your imagination provide the answers. 

Now the word of caution. Never fall into the trap of imagining there is only one way of behaving or reacting. When considering the evidence of a witness do not imagine that they will react in the same way you would act. You have to imagine the way someone in their situation may react and this will cater for a number of different scenarios. All of which you then need to examine. 

You will have heard the warning “never ask a question to which you do not know the answer.” Well, it is rubbish. This narrows the field of cross-examination to the impossibly small. The correct formulation is “never ask a question about which you have not thought through the potential answers”. This is in part a question of judgement, you are weighing up risk versus reward. However the potential answers can only be reached through a thought process that requires ….. you guessed it ….. imagination. 

We do not make up the accounts of our clients and witnesses. When it comes to juries we are not the author but we are the storyteller. It is not about creating a fiction, it is about making the facts live. Take the evidence, add a little bit of imagination, season with a little bit of judgment and combine with your own abilities as an advocate. 

The Good, the Bad and the Competent

Good advocates and bad advocates both make mistakes. It is only the good advocate that realises they have lapsed into error and resolves not to do it again. 

But what makes a good advocate? 

A good advocate is not a “competent” advocate. A competent advocate will be able to string a sentence together (there are some that cannot and they are easily identifiable as a poor advocate) and will probably cover most of the basics required in questioning and making submissions. The competent advocate, however, is a long way from a good advocate. I fear that many mistake competent for good. We certainly know that the previous Lord Chancellor was content for a legion of competent advocates. He was wrong. 

Simply because someone is an “effective” advocate does not mean they are a good advocate. Of course good advocacy is effective advocacy. However just because someone wins more than they lose, does not make them a good advocate. This may seem like an odd thing to say. It is not. The adversarial system relies upon certain rules, some written and some unwritten, to maintain the integrity of the system. It would be very easy to up your success rate by stepping over the ethical lines. The prosecutor who withholds unused material or the defence advocate that gives the defendant the defence can be very effective but fall a long way from being a good advocate. 

I also wonder whether the tribunal, most commonly the professional judiciary and juries, compensate for poor advocates. Judges do it through a sense of justice and their own experience/ability. Who has not seen a Judge take over a poorly conducted cross-examination by your opponent as you fix His Honour with a stare that says “but I was winning….”  And how many times has the Judge rescued the case at half time with an answer to your submission that your opponent has yet to understand?

I suspect juries some times do it out of a sense of innate fairness. They will grasp that the defendant has been poorly represented. Often by the clashes they have witnessed between bar and bench. Often it will be that the paucity of the representative is obvious to all. They realise that they, the jury, are not getting the assistance they need to reach a just outcome. So they reach the only outcome that can be fair in those circumstances, they acquit. And off goes the poor defence advocate, believing themselves to be the bees knees. 

Having described some of the things that do not necessarily signify a good advocate perhaps I should outline what I believe is a good advocate, to do otherwise would be…. well……poor advocacy. 

Judgement is absolutely key to all things advocacy. The same question, concerning the same facts but when dealing with a different witness, may be the wrong question to ask. It is a matter of judgement. That is one of the essential differences between a competent advocate and one that is good. 

The issue of judgement pervades many of the differences between competent and good. Other skills then weave into fabric of the quality advocate. So a competent advocate may ask all the relevant questions and make all the appropriate points. The excellent advocate not only asks the relevant questions but they do so in the way most beneficial to their case. There are times when it will require a light touch and other times when it will require a toe to toe, no holds barred, “you want the truth, you can’t handle the truth” moment. There are times when the question needs to be asked in a number of ways or in incremental stages in order to tease out the information you require. Some times a good advocate needs to know when to slam on the brakes as they have all they need. 

When it comes to speeches and submissions the good advocate and the competent advocate will broadly make the same points. The better of the two (and we all should be aiming for the better end of the scale) will make them in the most attractive way possible. When you are addressing a jury that does not mean flowery language and quotes from the literary masters. It is not just about delivering a wonderful piece of oratory in rich tones with clear diction. It is about communicating and persuading. 

The communication of ideas in a way that can be understood by 12 strangers is absolutely key to good jury advocacy. The use of language is paramount. It is not just about saying the words. It is about delivering the right words in an attractive way. 

Persuasion is often overlooked when it comes to submission advocacy to a Judge. It is certainly overlooked by the merely competent advocate. A plea in mitigation is not just a list of things that mitigate the sentence (often interspersed with a whole host of irrelevancies when the competent descend to the less than competent). A plea in mitigation should set out with an aim with each submission adding to that aim. It is fact allied to reason. All presented in an attractive way, albeit in a different way that you would address a jury. 

Good advocacy is not all about winning. A good advocate always remembers the role they are playing within the adversarial system. The Toolkits that assist with the questioning of vulnerable witnesses are the foundations of good advocacy. It is not about a win at all costs. It is about approaching the witness and the courtroom with the appropriate sense of dignity and courtesy. This is why I believe that having both prosecuted and defended cases is a valuable stepping stone on the journey to being a good advocate. The appreciation of what you are doing and the context in which you are doing it is as vital to the provision of good advocacy as is the ability to move the jury to tears with the power of your words (which is something I have never managed to do, although I must confess to at two least jurors having nodded off whilst I address them).

The most common mistake that I see is a lack of thought. A lack of planning. The advocate that stands before the court with a PSR in their hand having given no thought how to translate their knowledge of the personal circumstances of their client and the contents of the report into the sentence of the Judge. The advocate that just writes out a series of questions for a witness without having given any thought to what they hope to say in their speech, and how they hope to say it.

These are just a few of my thoughts about advocacy. There is a debate raging about the provision of advocacy services. I may, if brave enough, dip my toe into that debate in due course. Before we discuss how we get to the provision of quality advocacy across the board we need to consider what that represents.