Introduction
Life as a Junior Counsel can be tough.
Joining the Bar has often been compared with jumping off a cliff: it is a death defying act which requires blind faith. It can also end horribly.
Starting at the Bar today, however, is much easier than in years gone by. Life in England in the 1800s as a pupil was far more difficult. Lord Bowen, reflecting on his starting at the Bar, recorded “the white-wash misery of the pupil’s room… so bitter is the thought of it that death itself can hardly be more bitter”1. Dickens in The Pickwick Papers warned prospective members of the Bar of “what fine places of slow torture barristers’ chambers are for the pupil: the waiting — the hope — the disappointment — the fear — the misery — the poverty”.2
Part of our task tonight is to ensure that life as Junior Counsel is not as bleak as that described by Lord Bowen and Charles Dickens. Adrian, Liam and I have selected an array of issues which we think a Junior Counsel should be aware of in order to be a “Good Junior”. We intend to avoid the type of motherhood statements that one invariably hears when attending lectures such as this: “Know your Brief”, “Be Prepared” and “Work Hard”. They are givens. It is impossible to be a good Junior without working hard and knowing the relevant facts and law. Failure to do so is likely to end in all sorts of trouble. Just ask the Junior who worked with Sir Thomas Inskip (later the Attorney-General of England in the early 1900s) who allowed his learned leader to submit to the Law Lords, during the course of argument on an appeal in which the law of gambling was an issue, that “roulette was played with cards”.3 The response from the bench was swift and devastating, no doubt like the fall from grace of the Junior.
We intended to address more specific and practical issues that are likely to be confronted by Junior Counsel as they make their way in the law. We will focus tonight particularly on the relationship between Junior and Senior Counsel. The reason for this focus is that working well with Senior Counsel is one of the most important, if not the most important, ingredient to success at the Bar as Junior Counsel. There are many ingredients to a successful life at the Bar: hard work, good relations with solicitors and good relations with the Bench. In my experience, the most important ingredient to building up a successful practice is working successfully with Silks. You will learn the most from them and are likely to get the best briefs and build up the best group of instructing solicitors by working well with them.
I propose to deal with the book ends of the process of working with a Silk. I intend to cover three general topics:
(a) When and how should you go about having a Silk retained?
(b) Dividing up work between the Silk and the Junior; and
(c) Fees and billing.
I have had the pleasure of working with each of the Silks who have joined us tonight to offer their input on what it takes to be a Good Junior. My speaking on this topic, and their presence here tonight, requires me to make a disclaimer at the start of this talk, lest I be called a hypocrite: “Do what I say, not what I do”.
When and How Should You Go About Having A Silk Retained?
The following questions should be addressed:
(a) when should you seek to have a Silk retained in a matter?
(b) how should you raise it with your instructing solicitor?
(c) who should you seek to have retained?
When should you seek to have a Silk retained?
One of the most important attributes of a good Junior Counsel is to know when they are out of their depth.
Being a successful barrister involves not only hard work, but experience and expertise. That is something that can only come with many years practising at the Bar. You cannot expect to know everything when you start off. Even after a number of years at the Bar, good Junior Counsel can still be lacking (through no fault of their own) essential skills. I think this is particularly the case with trial and appellate work. The dawning of the age of mediation has led to a situation where there are many good Junior Counsel who have been at the Bar for 4 to 5 years who, while making a reasonable living, has never run a trial.
Because of this, it is important to always consider in any substantial matters that you are briefed whether you are sufficiently experienced and competent to run the matter and whether a Silk should be retained.
Obviously, the answer to this question involves matters of judgment and common sense. The matters, however, that should be considered include (in no particular order):
(a) the size of the claim;
(b) the downside for your client if they lose (do you get the sense that they will not survive a loss);
(c) the likely legal costs that will be incurred by the client if you (with less experience) do all of the work and a Silk is not retained;
(d) the likely legal costs that will be incurred by the client if a Senior Counsel is retained;
(e) whether the claim involves any area of expertise or a judicial tribunal that you are not familiar with;
(f) the complexity of the case;
(g) the extent of examination in chief, cross-examination and likely disputes about admissibility of evidence;
(h) whether expert witnesses will need to be vigorously cross-examined;
(i) who is your opponent:
(i) do they have a reputation for being difficult and sharp or spectacularly good?
(ii) do they have Silk retained?
(j) the allocated trial Judge:
(i) do they have a reputation for being difficult?
(ii) have you previously had difficulty with appearances before the Judge?
(k) the length of, and amount of work involved in, running the trial; and
(l) other work commitments.
It is no sign of weakness that Junior Counsel seeks to have Senior Counsel retained. To the contrary, it usually reflects a proper understanding of the importance of a case to a client, the complexities of the issues involved and the fact that the amount of work involved (particularly in a trial) requires two Counsel.
How should you raise retaining a Silk with your instructing solicitor ?
A few points should be made.
First, as noted above, it should never be viewed as a matter of embarrassment or concern that Junior Counsel suggests to their instructing solicitor that Senior Counsel be retained. You should remember that the party for whom you are appearing is the client of the solicitor. It is in the solicitor’s interests to ensure that their client gets the best advice and representation so that they have the best prospects of a good outcome and thereby remain the client of the solicitor. When raising the prospect of retaining a Silk with the instructing solicitor you should make it clear that the best outcome for the client will only be achieved if Senior Counsel is involved.
Second, instructing solicitors will often be concerned about the cost of Senior Counsel being involved. It can be a significant hurdle in having a Silk retained. In that regard, you should discuss with your instructing solicitor how you and the Senior Counsel would propose to divide the work. The instructing solicitor who understands that the leg work will still be done by yourself and that the Silk will come in and out of the case as required, is more likely to be attracted to the notion of a Silk being retained. Getting a good Silk on board can be effectively cost managed and will often lead to less overall costs being incurred on the matter than if only Junior Counsel was retained. This is particularly the case when the matter involves a particular area of expertise or complexity. The experience and expertise that Senior Counsel bring to a matter can often result in dry gullies not been gone up and red herrings being averted, thereby reducing costs.
Third, it is best to raise the question of retaining a Senior Counsel as early as possible in the proceedings. Raising the prospect of getting Silk the week before the trial can often be damaging for your reputation in the eyes of the client and the solicitor. Both may well question why it is only at the last minute it is being suggested that a Silk should be retained. It may be (often wrongfully) viewed as amounting to nothing more than cold feet.
If you form the view, for example, that the matter, if it went to trial, would require Senior Counsel, you should communicate that to your instructing solicitor as soon as possible. It may be, and indeed is often likely, that the instructing solicitor will say that the client does not want to expend the cost of retaining Senior Counsel at this early stage of the proceedings. You may well be content with that arrangement. You should constantly remind your instructing solicitors, however, that any trial would require two Counsel and that if the matter proceeds to trial Senior Counsel will have to be retained. By raising the question of Senior Counsel being retained at an at an early stage, no negative inferences will be drawn.
Third , what should Junior Counsel do if they form the view that the case cannot be properly run without Senior Counsel? Can the Junior Counsel return the brief if the instructing solicitor and client refuses to retain Senior Counsel? The Barristers Rules 2011 do not appear to deal explicitly with this situation. The Converse is dealt with at Rule 99(j) which provides as a ground to return a brief the following:
“If the Barrister, being a Senior Counsel, considers on reasonable grounds that the brief also requires the services of a Junior Counsel and none has been briefed.”
It is most likely that such a situation is covered by the more general ground detailed in Rule 99(g):
“If the Barrister’s advice as to the preparation or conduct of the case, not including in its compromise, has been rejected or ignored by the instructing solicitor or the client, as the case may be.”
It is difficult to see why advice from Junior Counsel that the conduct of the case requires Senior Counsel would not fall within the broad terms of Rule 99(g).
Who should you seek to have retained?
The question then arises as to who you should seek to have retained as the Silk. Again, this involves questions of judgment and common sense.
It is critical that the Silk you seek to be retained is one with whom you can work effectively with. You will hear a lot tonight about the need for good communication between Junior and Senior Counsel. Such communication will not be likely to occur unless there is a good rapport between Junior and Senior Counsel and an environment exist between the two in which Junior Counsel feels free to raise concerns with Senior Counsel.
Senior Counsel should also be selected with the type of case in mind. A case that will turn largely on credit issues will invariably require the key witnesses on the other side to be vigorously cross-examined. Choosing a Silk who is notorious for their cross-examination is undoubtedly likely be to be a good move. Conversely, if the critical issue is a complex legal proposition, different Silks may come to mind.
If you have any doubts or concerns about who you should seek your instructing solicitors to retain as Silk, consult with other Junior and Senior Counsel in your Chambers. They will no doubt be a good source of information as to who should (and should not) be retained.
The Division of Labour
One of the key reasons that Junior and Senior Counsel are retained in a case is because there is a substantial amount of work to be undertaken. Both cost efficiency and the proper running of a case requires that the Senior and Junior Counsel understand what roles they are to play in the matter and what tasks they are to fulfil.
Adrian later will deal in detail with the issues of the division of labour during a trial. My comments here are at a more general level.
The key to the successful division of labour amongst Senior and Junior Counsel is communication and expectation setting. In this regard, the Junior Counsel should seek to be pro-active. Senior Counsel are often very busy appearing in Court. Invariably as Junior Counsel you will be spending a lot more time on your case than the Senior Counsel will. You should identify the tasks that need to be undertaken and then communicate with the Silk what you propose to do. This can be done by way of a brief phone call or by sending an email to the Silk which they can read at their convenience. That type of communication will lead to the necessary discussion as to what each of you will be doing in the lead up to the matter coming on (be it an application, appeal or trial). It will ensure that everything that needs to be undertaken is attended to.
That kind of pro-active communication should extend to matters such as which witnesses each Counsel will take. It is Junior Counsel’s constant fear to hear the words uttered from the Silk “you’ll be right to take this witness” when you have assumed that the Silk would be dealing with the witness. That situation can be avoided by Junior Counsel identifying the witnesses who they can realistically deal with and proffering to the Silk that they will look after those witnesses and that the Silk will look after the remaining witnesses.
Disappointing a Silk is never a good career move for Junior Counsel. An important way to ensure that disappointment is avoided is by Junior Counsel setting realistic timeframes with Senior Counsel. Junior Counsel (especially as they get on a few years) can be very busy. If you have other work commitments which are likely to interfere with the preparation of the matter, you should communicate those to Senior Counsel so that they understand your other work commitments and the two of you can work out a realistic time frame. If you are late getting something to a Silk, do not remain silent. A short email which explains that you are delayed and when you expect to get the document to the Silk will be viewed far more favourably than deafening silence.
The division of labour should be the only division that exists between Senior and Junior Counsel. It is critical that both Senior and Junior Counsel work as a team. The Senior Counsel should have trust in you, and vice versa. Both of you should feel confident in the knowledge that each of you are looking out for each other.
That notion of working as a team is, in my view, fundamentally undermined by what has become an unhealthy, but common, practice of Junior Counsel sending draft documents (be they advices or pleadings) before they are sent to or settled by Senior Counsel.
I am at a loss as to why such a practice has developed. It is difficult to think other than that the Junior Counsel seeks to show their instructing solicitors how “smart” they are by sending the draft to the solicitor so that they can see that the document settled by Senior Counsel has been the subject of minimal changes.
I have always taken the view that you should never send any draft documents to instructing solicitors without the express consent of Senior Counsel. If both Junior and Senior Counsel have been briefed to produce a document, then it is a team effort. The document should not be provided to the instructing solicitor unless and until it reflects the views of both Counsel. If your instructing solicitor asks for the draft to be provided you should explain to them that it is not appropriate that you do so and that if they wish to take the matter further then they should contact Senior Counsel.
There are obvious problems in providing drafts to instructing solicitors. Two need only be mentioned.
First , it has the obvious potential to cause division between Junior and Senior Counsel. Clients and instructing solicitors will sometimes (and wrongly) assume that, because no major changes were made to a draft, the Senior Counsel has not turned his or her mind to the document to the extent expected or to the extent that Senior Counsel’s fees reflect. Such unnecessary conflict can be avoided by simply working as a team and ensuring that any document that is provided to the instructing solicitors is a reflection of the work undertaken by both Counsel.
Second , it avoids the potential difficulty of the Junior Counsel getting the advice or document horribly wrong. There is a reason why Senior Counsel has been retained. They are more experienced and have greater expertise in the law. It is not uncommon for Junior Counsel to have completely “missed the point”. The itemised bill from Junior Counsel, which shows that they spent many hours on a draft which the instructing solicitor knows was a complete waste of time, may not get paid.
Fees and Billing
I raise this topic with a view to generate discussion amongst the profession as to what Junior and Senior Counsel should do in terms of conferring or consulting in relation to what they will charge.
In my experience, there is no hard and fast rule in relation to whether you should communicate with Senior Counsel about what you intend to charge. Again, it is a matter of judgment and common sense. If, for example, the instructing solicitor readily briefs the Silk then it may well be wise to ask the Silk whether the fees you intend to charge are appropriate. One should always be thinking about getting the next brief from the instructing solicitor with that Silk.
Equally, I do not think that there is any hard and fast rule about where Junior Counsels’ fees should sit in terms of quantum as compared to Senior Counsel’s fees. With time based charging, working with a busy Silk on a matter will often lead to a situation where Junior Counsel’s fees exceed (and sometimes significantly exceed) that charged by the Silk. That is often the case in complex commercial matters. The Junior Counsel is doing most of the legwork and is likely to spend far more time on the case than Senior Council.
I do recommend that you consult with Senior Counsel in relation to cost estimates. Do not volunteer to your instructing solicitor how much the Silk intends to charge. Ask the instructing solicitor to ascertain from the Silk what he or she expects to be charge.
Consultation in relation to cancellation fees in relation to lengthy trials is also advisable. It is helpful to know the basis on which the Silk intends to charge in the event the matter does not proceed. This will inform your decision as to how to structure any cancellation fees you intend to charge.
Damien O’Brien
Footnotes
- Cited in C.H.S. Fifoot, Judge & Juris in the Rein of Victoria (1959), page 22.
- Charles Dickens, The Pickwick Papers (1836-7), Ch.21.
- R.E. Megarry, Miscellany-at-Law (1995), pp.49.50.
