the not so secret service rules for the modern the barrister magazine
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the barristerISSN 1468-926X
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Features
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JUSTICE regrets rush-job done on Secret Court Rules
Judicial appointment is becoming more appealing
#58
p.6
‘Better Courts’
ESSENTIAL READING FOR BARRISTERS
www.barr istermagazine.com
Est. 1999
Victims better supported by pre-trial cross examination
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The not so secret service rules for the modern barrister
By Douglas McPherson, Director, Size 10 1/2 Boots
Email Confidentiality. A Technical or Cultural issue?
By Simon Freeman, Email Security Specialist, Fresh Skies
Direct Public Access.... where are chambers at?
By Jonathan Maskew, MyBarrister
Perfect your negotiation, persuasion and influencing skills
By Shalini Sequeira, co-author of ‘Key skills for professional’
1st OCTOBER - 20th DECEMBER 2013
MICHAELMAS TERM ISSUE
The criminal courts of England and Wales
do a tough job, ensuring the rights of
the public are protected and the guilty
are sentenced fairly. But our courts are
often seen as conservative institutions,
reluctant to embrace change. There is often
a perception that it is only Government-led
initiatives that can encourage (or provoke)
reform. The current administration is
already embarking on a significant range
of reforms, to legal aid, to the provision of
community supervision of offenders, and to
the processes of courts themselves. Many
of these have not proved to be particularly
popular, to put it kindly. At a time like this,
it can be hard to see how more change can
be contemplated, let alone driven through
by the courts themselves.
CAN OUR
COURTS BECOME
BETTER?
However, a new
report by the
Centre for Justice
Innovation and
nef, called ‘Better
Courts’, shows
that ‘innovators’
across the
country — drawn
from probation,
The harrowing cases of child sexual
exploitation and trafficking in Telford,
Oxfordshire and North Wales were tragic
beyond words. That these victims then
had to relive these terrible crimes through
multiple cross examination in court is also
a tragedy, albeit one that is avoidable.
There is no limit on how long a victim
or witness is on the stand, how many
barristers can question them or what
questions are asked when being cross-
examined. As a consequence there are
growing instances of victims being left
traumatised after court cases. The system
needs to change; not only to make it easier
for victims to give their evidence in a
less intimidating environment but so that
they can begin the difficult road towards
recovery. We know anecdotally that victims
feel they have been given less consideration
than the person accused of the crime. It is
time this imbalance was addressed.
We have a world class legal system
of which we are all rightly proud. p.9
Daniel BregerBarrister, consultant, 'Center
for Court Innovation’
11the barrister
Have you ever
sat down and
thought about
what a solicitor
wants from you
as a barrister?
The easy answers are of course brilliant
advocacy, robust advice and a legal
perspective that will help them achieve
the best possible outcome for their client
and I am neither foolish enough nor
qualified enough to argue.
But I’m not talking about the technical
here; I’m talking about the personal.
Traditionally ‘looking after the clients’
has been viewed as the responsibility
of the Clerk’s room. However in the
wake of the Legal Aid reforms and The
Jackson Report can this continue to be
the case? More than ever solicitors
demand quality of service and, as things
become tougher and more competitive,
the level of service they receive will be
the driver when it comes to deciding
which Chambers they prefer to use and
which barristers they instruct … and
re-instruct.
And it isn’t the clerks they want to
receive this level of service from; they
want to see increased service levels
from you – their barristers.
One of the areas we are doing more
and more work in for Chambers up and
down the country is client research.
Ostensibly this involves interviewing
solicitors on behalf of Chambers to find
out about how they find working with the
barristers and clerks. These interviews
provide the positives (all of which can
be incorporated into marketing plans
to improve the return our clients see
from their investment in business
development – whether that investment
is time or budget) but it also uncovers
the negatives, alerting our clients to the
areas they need to improve.
While the majority of the results are
highly confidential and specific to the
barristers the solicitors interviewed
have worked with, there are several
common themes that keep coming up.
The main one is that solicitors want
to know their barristers. It’s accepted
that, as is the case with the best sales
professionals, a clerk is only going to
give you good news about a barrister,
their qualifications, their year of call
and their areas of specialism. However,
they cannot give you any real insight
into their barrister’s personalities or the
way they work. They certainly can’t
make any guarantees that a barrister’s
style and approach will complement the
solicitor’s lay client.
This is especially true with family sets
where the nature of the work leaves
nerves frayed and emotions running
high. Solicitors have to know their client
will be comfortable with the barrister
The not so secret service rules for the modern barrister By Douglas McPherson, Director, Size 10 1/2 Boots
12 the barrister
they bring in. More importantly, they
need to know the barrister isn’t going
to come in all guns blazing and force
the client further into their shell – or,
conversely, know that the barrister is
going to come in all guns blazing if that’s
what their client wants!
However, I believe it is equally as true
in a commercial context. Too many
big personalities in a room will hamper
progress and if a business owner or
senior executive is presented with
information contrary to their belief/
opinions/preferences and it is delivered
in a way that jars with their own style, it
could prove detrimental not only to the
case but also to future instructions from
that solicitor.
So how does one make sure your
instructing solicitors are aware of you,
your style and the way you work? I’m
not being glib but it’s very easy – you
talk to them.
Whenever the opportunity presents
itself – whether that is at court, in a
settlement meeting, when you’re giving
a seminar or at the summer garden
party – make sure you have a chat and
make sure the chat is about them, not
about work.
During my time at Lloyd’s of London I
worked under the best boss I’ve ever
had. He taught me one rule when
it comes to chatting work-wise. His
rule was family, football and holidays;
as long as you found out about (and
remembered) at least one of those when
you meet someone, you will always have
something to talk about. He was right
and this is still a rule I use and pass on
to my clients.
Once contact has been established it’s
all about continuity, staying in touch
and gradually building up a personal
connection. This does not involve
camping on the doorstep of each of the
law firms that instruct you, nor does it
involve the vacuous ‘courtesy call’.
What it does mean is the odd email,
beer or lunch sporadically throughout
the year. It also means popping into a
solicitor’s office and chatting through
a relevant update in the law in person
rather than relying on an email alert or
newsletter catching their attention (and
then relying on the fact they’d have the
time to read it if it did).
Perhaps you could also offer to redeliver
one of Chambers’ seminars at one of
your instructing firm’s offices to an
entire team or department? Taking
the time out to repeat the talk would
give you the perfect opportunity to
boost your personal profile to a wider
audience and even if your invitation
is refused, the fact you were willing to
offer will generate some beneficial PR
for you.
While we’re on the subject of seminars,
the solicitors’ view on the traditional
seminar model is universal. It needs a
bit of a refresh.
The response to pages of PowerPoint
is that you could skip the seminar and
just send the slides. The response to
laboured, technically detailed legal
updates is they’re useful from a CPD
point of view but aren’t in any way
enjoyable. What solicitors want is
practical advice on how to apply changes
in the law to their clients and improve
their own service offering.
As a first step, my advice is always to lose
the word ‘seminar’ and adopt the word
‘workshop’. By definition a workshop is
seen as more interactive, more practical
and of more value. Once you agree
that’s the model you’re promoting, it’s
much easier to adapt your content and
delivery to match those objectives.
Coming back to the idea of more
consistent personal contact, this brings
us neatly on to the next item on a
solicitor’s wish list – accessibility.
From time to time the solicitors you work
with will want to ring you up and ask for
a piece of advice or for your opinion on
a situation one of their clients has found
themselves in. If they can get hold of
you easily (or, alternatively, know you
will respond at the first opportunity if
you’re otherwise engaged) and know
you will be willing to find the time to
provide the information they need, you
will be held in the highest esteem. Not
only will your perspective provide their
client with immediate benefit but you
will also give them an insight they will
be able to re-use and re-apply to future
matters which in turn will make the
solicitor look better in front of their
clients.
From a more practical (i.e. financial) point
of view the fact you were contactable
and willing to provide an initial opinion
will stack the odds of you receiving the
instruction should the case progress
firmly in your favour. And if this case
doesn’t progress, you’ll be in pole position
for that solicitor’s future work.
Looking further afield, one good turn
definitely does generate another and
the fact you were willing to have a chat
– off the record and off the clock – will
persuade the solicitor to recommend
you to their colleagues which again will
have an additional positive knock-on
effect for your practice.
I’ll finish by looking at probably the
most contentious area of a barrister’s
practice, especially in this increasingly
cost-conscious world – your fees.
On the surface fee levels are important
but if you dig a little deeper it is obvious
value still trumps price. Solicitors, or so
they have told us, are willing to pay for
the advice they need.
This obviously comes with the caveat that
solicitors know what barristers charge
so rather than being encouragement to
inflate your fees, the fact fees need to
be realistic is implicit. I also recognise
some Chambers are subject to ‘bulk
buying’ in some practice areas which
forces them to provide more competitive
pricing.
However, generally, when talking about
fees one could be dismissive and say a
solicitors’ propensity to accept your fees
is because the cost is passed back to
the lay-client; I think that is an insulting
over-simplification. The truth is that
the relationship between solicitor and
client is such that the client will almost
always go along with their solicitor’s
recommendations when it comes to
counsel. These recommendations will
be based on two factors – do they think
you have the expertise to get the best
outcome for their clients and can they
work with you while you set about
achieving that outcome?
If the answer to both questions is yes,
then you are in the best possible position
to win the brief and charge the fees you
want to charge. How do you ensure
that the answer to both questions is
yes? Well that comes down to the
solicitor knowing about you, knowing
you possess the relevant knowledge and
experience and know you will remain
accessible throughout the matter and I
think that’s where we came in.
Douglas McPherson, Director
Size 10 1/2 Boots
t: 077865 40191
www.tenandahalf.co.uk
13the barrister