Blankety Blank

It’s been a couple of weeks since my last post, the time in between being filled with two main matters of substance; firstly getting certified by the Bar Council for Direct Public Access and secondly a seemingly disproportionately large number of briefs arriving for me where I am being instructed extremely late in the day (and sometimes after the dis-instruction of previous Counsel).

In reality, the late delivery of briefs is a quintessential part of life at the Bar and is something that many barristers thrive upon.  In fact I know a great many who find it hard to deliver their highest quality work without the mounting stress of an imminent deadline or hearing.

But the problem for me with being instructed right at the end of the process (I think my record is being briefed at 6.30pm the evening before a five-day hearing against three opponents – and the papers got to me at about 8.30pm…) is that at the moment a lot of my advice to those sending me such late instructions is “Well, i’ve considered everything carefully and i’m afraid you’re completely [blank]ed“.

You probably don’t need a panel of six celebrities and Terry Wogan/Les Dawson/Lily Savage (delete as appropriate for your generation) to help you win the Blankety Blank chequebook and pen on that one.  My clients certainly didn’t.

And so to last Friday, when I became certified for Direct Public Access (i.e. instruction directly by lay clients, without the intermediary of a solicitor, town planner or other similar instructing professional).  Part of the big draw for direct instruction of barristers by lay clients is their ability to get ‘straight to the top of the tree’ advice-wise (the Bar Council’s terminology and views, not mine).

Which, combined with having pulled so much out of so many fires for a few *nameless* clients over the past few weeks got me wondering as to quite why Counsel are instructed on certain cases and why we are instructed when we are.

I appreciate that the instruction of Counsel is a multi-faceted thing incorporating many considerations, not least of which is cost.  And I also appreciate that hindsight is a wonderful thing, but it seems a false economy to my mind that you wouldn’t spend money early on in a process that might mean avoiding having to pay significantly more in expenses or costs later on down the line.  Often there has been the input of another lawyer previously and I can understand the reticence to instruct two lawyers (or as Jim Bowen might tell you, stay out of the black and into the red, you get nowt in this game for two in a bed).

The problem with such late instruction is that very often there’s little I can do for a client.  When i’m asked about my job I often liken it to a game of chess.  I have pieces that I can move in limited ways or that can do certain things (legislation, case law and pieces of evidence) and it’s up to me to decide strategy and tactics with those limited pieces.

But the extra rub is that i’m always coming into the game part-way through; I never have a full complement of pieces on the board and someone else has been playing my pieces before me.  In truth that’s where I find some of the greatest professional satisfaction – taking over a game and winning, sometimes greatly against the odds.  But like a part-played game of chess, sometimes i’m asked to take over when there’s nothing that can be done except watch your king be put into checkmate.

On occasion I am instructed with the sole purpose of breaking bad news to the lay client or client department about their case.  That’s fine by me and is again an integral part of the job of being a lawyer – no client would realistically want a ‘yes man’ as their brief, they want someone who can be frank with them about their position and forthright as to their options and the possible consequences/outcomes of those options (at least I hope they do, otherwise i’ve drastically misread my role).  As Roy Walker would have implored, it’s simply my job to “say what I see”.

But why hold off instructing someone to come in and break bad news?  Really, the last few days before the final hearing of any matter is not the time to be briefing someone to come in and say “you’ve got no chance, mate”. Sometimes there just isn’t a counter-argument to run, there is no ‘magic’ alternative interpretation that will spring to the client’s rescue.

I understand that it can be quite hard to tell some clients that their case is not what they thought it was (or worse, what another professional has told them it is).  But that particular pill has to be swallowed sooner or later.  My question is why do so many wait until so much later, when costs are so much more of a pressing concern?

Don’t get me wrong, I am astonishingly good (he said modestly) at saving clients from themselves; two particular cases still stick in my mind where the lay client insisted on pressing ahead against all advice.  Taking those cases on to trial, not only did we avoid wasted costs orders but won the substantive hearings.  But those cases are far and away the exception, not the rule.  There’s only so much you can do with a king, a rook and a pawn.  Why let things deteriorate to that situation?  Most often, it just means you’re completely [blank]ed.

Coming soon – some thoughts on Captain Pickles and the dragging anchor in the planning system…


About Scott Stemp
Planning, regulatory and environment barrister

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