Solicitors Roundtable on the UK Bar
Who’s Who Legal has bought together four prominent London-based solicitors to discuss what they look for when choosing counsel and recent developments at the UK Bar. David Perkins of JAMS International, Christopher Foster of Herbert Smith Freehills, William Christopher of Pinsent Masons and John Olsen of Edwards Wildman Palmer talk about the key qualities they look for in a barrister, how they decide who to instruct, the importance of the reputation of chambers and the individual and the impact of direct public access and solicitor-advocates on the legal market.
Herbert Smith Freehills LLP
Edwards Wildman Palmer
WWL: What are the key qualities you would look for when choosing a barrister?
David Perkins : When choosing a barrister there are several key qualities I look for, the first being excellent advocacy skills, both orally and on paper. Secondly, you want someone who is a team player with a real appreciation of the commercial issues faced by the client and the legal team. Finally, someone who has the ability to take an issue further than when it is first presented to them as a matter on which advice is sought is crucial.
Christopher Foster :The commercial Bar is replete with quality advocates of high technical legal ability. The main differentiating factors for me when selecting a barrister firstly, judgement on his or her feet: the ability of the barrister to react to and handle the judge, witnesses or arguments put by the other side. Secondly, preparation and commitment: can I be confident the barrister will do the necessary work, including where such work was unexpected? And thirdly, credibility before the judge.
William Christopher: First, genuine expertise in the work they are being asked to do. This is also part of the benefit of being a specialist solicitor, that they know the market at the Bar for the sort of work they are expert in. In this way it is possible to pick the right barrister for the particular nuances of a case. Second, being commercial, approachable and a good communicator in particular with the client. They must be aware of the dynamic of the relationship between the solicitor and their client. There is no room for a barrister in the team who is in any way critical of the work the solicitor has done in front of the client. This is why we tend to instruct a barrister at the outset so they are embedded as a member of the team. Third, availability and being realistic about capacity. It is no use being absolutely fantastic in a particular area if the barrister cannot devote sufficient time to the case.
John Olsen : The key things I look for are knowledge of the subject matter, ability to command the attention of a judge, flexibility of approach, commercial approach and dynamism in presentation.
WWL: When selecting a barrister do you feel there is enough information available to make an informed decision? How could barristers better publicise themselves?
David Perkins : No, I do not feel that there is enough information available to make an informed decision. Ideally, you would know the barrister already and have worked with or against them; at the moment this is really the main way I decide which counsel to choose. In my area of specialism, intellectual property, many of the barristers do already perform training and other presentations. However, they rarely undertake small lunches or a dinner, which is something that solicitors do a lot with their clients, and this often forms a strong bond that a presentation does not.
Christopher Foster: There is now plenty of information available from websites and directories. Firms like mine also have broad experience of barristers over a wide variety of practice areas.
The best publicity for a barrister is, and will always be, performing well. My first experience of a number of barristers I now use regularly was when facing them on the other side. Beyond that, the most sophisticated barristers use a combination of articles, talks and social events – as well as employing decent clerks and/or marketing managers.
William Christopher : I am not sure that this is the right question. It is very rare that we will instruct a barrister that we have not either used or experienced, possibly acting for the opposition on another case. At the very least we will work on recommendations from colleagues. It is a consequence of solicitors becoming more specialised, especially in big firms, that we will tend to pass work to the most appropriate person with that specialism, and they will, as indicated above, have an in-depth knowledge of the barristers in their area and a clear idea as to which barrister might be appropriate for the case. If we were to use a barrister we had never used before, as well as the recommendations of colleagues, we would rely very much on the clerks at a set that we trust.
John Olsen : Yes – because it is only through experience and working with counsel that one gets to become acquainted with traits; performance is prologue to repeat business.
WWL: What importance does the reputation of the chambers play in relation to the individual?
David Perkins : In the field of intellectual property and also generally, the chambers reputation is very important. Outside of the big three - 8 New Square, 3 New Square and 11 South Square - we would be nervous about retaining a barrister that we did not know very well already. The same point can also be made for some of the larger commercial sets we use such as Brick Court, Fountain Court, Blackstone, One Essex Court and others.
Christopher Foster : There is no doubt that the reputation of chambers is important, particularly at the more junior end of the profession, for acquiring work for which that set is known. On the other hand, the reputation of chambers can limit opportunities. For example, while some first-rate barristers for general commercial litigation are at the insurance sets, my general commercial litigation colleagues will always start by considering barristers at the well-known commercial sets.
William Christopher : We certainly have sets that we prefer to use, and if we were to use a new barrister it is very likely that it will be from one of these sets rather than a complete unknown. For this reason the reputation of chambers is very important. Having said that, it would not necessarily prevent us from using a barrister we thought was good. Frustrations at the way a set is clerked cannot be dismissed, though, and can be a determining factor.
John Olsen : The reputation of chambers is a guarantor of quality ie, a chambers with an excellent reputation is less likely to house a barrister who is not excellent.
WWL: What is the most significant development at the UK Bar over the past decade? What impact has this development had?
David Perkins : The biggest change over the past decade has been direct access. However, in relation to high-stakes work the impact on solicitors has been minimal.
Christopher Foster : Leaving to one side the huge cut in public funding which has had a large and negative impact on the criminal Bar, I would identify three developments of significance. Firstly, the commercial Bar has become more modern, flexible, competitive and forward-looking. It generally appreciates it needs to give good service and work collaboratively. Secondly, there has been an increase in super-litigation, which has tied up a number of barristers and changed the fees landscape for a segment of the commercial Bar. Thirdly, at the junior end, post-Woolf and the advent of interim costs orders, long gone are large numbers of contested interlocutory applications. This has led to less advocacy experience for the junior element of the Bar and greater difficulty in getting noticed.
William Christopher : The Bar is becoming much more commercial, and whilst they still lag behind solicitors' firms in this respect, it is apparent that chambers are being run much more like businesses. The way this manifests itself is in things like being more willing to attend conferences outside of chambers, either at the client's offices, or the solicitors'. Clerks are becoming more aware of the ultimate client's needs and will ensure commercial fee arrangements can be agreed. We have also noticed that barristers are more likely to work best as part of the team, as the expert advocate, brought in at an early stage to consider strategy and areas which need to be covered in the case preparation, so that cases are run with a very clear eye on a potential trial, and how this is likely to proceed.
John Olsen: Direct access as this has had the dual effect of lessening the influence of solicitors over the Bar and opened up the Bar to becoming more commercial.
WWL: Is direct public access an opportunity for growth or a threat to the relationship between solicitors and barristers?
Christopher Foster : It is both. Unless the best interests of my client require it, why should I be keen to send work to someone happy to compete with us? On the other hand, barristers are not set up to conduct dispute resolution themselves. So there is an opportunity there on referrals.
William Christopher : Without doubt an opportunity for growth. We have long recognised the fact that direct access allows barristers for the first time in their history to have the ability to refer work on a regular basis to solicitors rather than the work only flowing in the other direction. Previously any referrals would only have been as a result of a personal relationship where the potential party had not already got lawyers, which was in fairly limited circumstances. Direct access works extremely well for advisory work. It does not work so well for a large, document heavy, piece of litigation with a substantial trial at the end of it. In such a case, although initially instructed through direct access, the barrister almost has to enlist the help of a solicitor, as neither individual barristers nor chambers, for a variety of reasons, are set up to offer the same support that a solicitors' firm can.
John Olsen : Direct access is, in my opinion , a bit of threat to solicitors as it reduces the influence of solicitors and increases the ability of the Bar to become more commercial. From the broad perspective though direct access is a consequence of the law as a whole becoming more attuned to clients’ needs and therefore is no bad thing.
WWL: Has the role of the solicitor-advocate had an impact on the UK Bar? And would you consider using a solicitor-advocate over a barrister in relation to certain disputes and why?
David Perkins : There has been some impact from the role of the solicitor-advocate on the UK Bar, but again for high stakes, significant matters it is rare that a solicitor-advocate would handle anything other than the more routine applications or small trials.
Christopher Foster : Not by me at least. I am a solicitor-advocate via the old experience route. Since obtaining my certificate some 15 years ago, I have had just one matter for which it was in the client’s interests for me to handle the trial.
At the time of writing, we have five QCs at my firm. Two are solicitor-advocates. We have an advocacy unit, which is led by two of those QCs and includes a solicitor-advocate partner, Adam Johnson. All solicitors in our litigation department are trained for the advocacy qualification and our arbitrators routinely handle their own advocacy to and at trial. We are the only firm with such an overall offering so the impact on the Bar is naturally limited.
More broadly, I believe there has been some impact on the Bar from a general expectation at firms like mine that in order to add value, solicitors should, as a starting point, look to draft pleadings and conduct interlocutory applications themselves. There will however always remain business models, particularly in the insurance field, which involve firms relying heavily on the use of counsel for all aspect of contentious matters.
William Christopher : I do not think it has had a significant impact, if at all. There are a number of very good reasons that the current relationship between solicitors and the Bar is so enduring, and still so successful. The advantage of being a solicitor advocate and doing the advocacy in a case is the in-depth knowledge you have. However, you lose the more objective view that a barrister has of the case. Even in a large firm it is very difficult to generate enough advocacy experience to be able to truly say that they are an expert advocate, which is the role of a barrister in the team. The insight that being in Court very regularly gives you to be able to advise on what a particular judge might do cannot be replicated by infrequent appearances. Finally the business model of an individual, self-employed barrister makes their time very cost-effective. An hourly rate even for a very senior junior is substantially less than a partner and will equate to around a five or six years’ qualified solicitor, which is very much more junior in terms of experience. Add to this the fact that an experienced barrister will be more efficient due to their experience and it is easy to see the value for money offered by the Bar as opposed to a solicitor-advocate.
John Olsen : Personally I have not seen the solicitor advocate having had much impact at all. I would imagine that in firms which are litigation heavyweights the solicitor advocate would have had some impact. The truth is that if one is at the very top of one’s profession, whatever the label applied clients will flock in that direction. I would not normally be attracted to working with a solicitor advocate as if I am looking for an expert on trial presentation I should like to have the “real thing”.