Building and Maintaining a Successful Career At The Bar
Lecture to BPTC Students by Dominic Nolan QC[1]
Old Hall Lincoln’s Inn
Monday 12 February 2018
I am grateful to the Inn for giving me the opportunity to speak to you upon the topic of building and maintaining a successful career at the Bar.
I should begin by stating some important qualifications to what I am about to say.
Firstly I will give you the benefit, such as it is, of my own view. Much of what I will say would be said by any and every member of the Bar about how one could and should work in forging a career at the Bar. However there are some aspects which reflect my personal approach to the task and upon which views may differ.
Secondly as some of you may have heard me say before, although I have certain amount of experience and have enjoyed certain amount of professional success (I have been at the Bar now for more than 30 years and in Silk for more than 11 years) I still consider myself a "work in progress" and please do not leave this talk thinking that you have heard the voice of perfection or anything like it. Indeed that maybe my first point to make you: after 30 years at the Bar you should still consider yourself a work in progress.
The third rider is that I will naturally focus much of what I say upon what applies to practice at the Bar of England and Wales. That after all is what is familiar to me and what I can speak about. However there is much that I will say that has general application wherever one intends to practice, both as to what standards are important and as to general tenets of good practice. For instance the importance of good dealings with professional colleagues applies whether one is speaking about clerks or managing partners and so on.
The fourth and perhaps most important rider is that it is wrong to assume that this talk is aimed at one single objective result. I pose the question myself: "What do we mean by a ‘successful’ career at the Bar?". The answer that question can be a matter of personal choice or can be dictated by circumstances or (as in most cases) a combination of the two. The important thing to acknowledge immediately is that "a successful career at the Bar" can mean very different things to different people.
Having said all of that and with particular reference to that last point, I can identify immediately two prerequisites of a successful career at the Bar which are necessary by whatever definition one wants to apply to "success".They are maintenance of the highest ethical standards (and by that means your professional reputation) and maintenance of the highest standards of advocacy – whether written or oral and for all advocacy whether in court or in conference or in negotiations.
How might one define a successful career at the Bar?
There are two things commonly perceived by the uninitiated and by the general public as being the sole markers of success about which I would give you immediate warning: high material rewards (ie "making a lot of money") and winning all one’s cases.
It is easy to see how these measures come to be seen by the public as the only benchmarks of success in our profession. This fits with the public perception – I would call is a misconception – of what we are about and what motivates us. I must not be hypocritical. I have earned and earn a good living from my professional work which enables me to enjoy a comfortable lifestyle (though may I say it takes quite a bit of hard work). It would be naive and unrealistic to pretend that the earning of money is not an important aspect of life at the Bar. However it should never be the prime motivation. I have to say in this very hall I have dined (not this year let me emphasise) with a student who in answer to my question of what he hoped to achieve in legal practice unashamedly answered "a Ferrari". I'm sure there are members of the Bar who own a Ferrari but I can't help thinking that that person was starting off on the wrong foot and had not properly understood what we are about.
As for winning cases only the truly blinkered would believe there is any prospect of winning every case and I'm sure no one in this Hall is under any such delusion. Again I don't want to be hypocritical. My whole professional life has been driven by the will to succeed in my arguments and in the destruction of my opponent's case. However I do want to make the point that the desire to win must be tempered, most importantly by one's duty to the court which must always come first.
So how does one judge success at the Bar?
Probably the most used basis is one completely incapable of measurement or quantification: it is reputation. Barristers live by their reputation. Serious loss of reputation is effectively professional death. There are two distinct “consumers” of reputation if I can put it that way - the client (both professional client and lay client) and the court. Each are to be treated carefully, a good word is “cultivated”, but you will not be surprised to hear me say that the primary consumer in this analogy is the court, for reasons that I need not spell out. It is sometimes forgotten by the practising barrister, preoccupied with the ups and downs of the case and the fear that not all will go according to plan, how dependent upon advocates judges and tribunals are (from here for ease I will just refer to judges but the same applies in all tribunals). The judge needs reassurance that his or her decision is correct and soundly based. The advocate with a reputation amongst the judges for fairness and for compliance with proper rules and procedures gives the court the encouragement it needs to be reassured. To put all this in a few words: “high standards of professional ethics are everything to the barrister"
I need hardly add that an advocate whose practice is conducted in such a manner as to command the respect of the court is likely to enjoy a good reputation amongst professional and lay clients. But that is not to say that the latter can be taken for granted. It is important to pay attention to how one deals with clients and that sometimes calls for different skills to those displayed in court.
So that is my number one measure for success at the Bar: to enjoy a reputation as a first-rate barrister.
Before I leave the point let me just add a note of caution. I did use the word "cultivated" because a good reputation is built over a long period of time and has to be maintained. But that should not imply that one should become self-obsessed. Your Chambers will want to publish details of your latest triumph but don't let it go to your head, particularly when you are in the early years of practice What I am advising is not the creation of a persona but simply good honest practice done in the right way. If that is your guiding light then your reputation will look after itself. It is a fact of professional life that we all come in for criticism from time to time. If that criticism is justified it must be seen as a cue to learn and to improve. If it is felt to be unjustified it must be borne with a thick skin, and with the thought that others may see the criticism as fair.
Work Satisfaction
Satisfaction with one's work in practice is I think another important measure of success. There is a good argument to say that one can be a barrister of the highest reputation but the career is not a success because the barrister is so miserable. One can look at this point in the broad sense and in the narrow sense. On a broad basis there are people (very few perhaps) earning a living at the Bar who don't really enjoy it. There are more who are trying to get into or make a start in the profession whose heart is not in it. Very often the pressure to become part of the Bar is coming from outside and not from within. I don't want to cast an unhappy note but such person needs to think carefully before going further. The demands of practice at the Bar are such that it can be a miserable life if one's heart is not in it. I would go so far to say it is a very hard job to do well unless one enjoys it.
In the narrow sense one has to be able to enjoy the work and that will not happen if work is all consuming. Again I am in danger of being hypocritical because there have been phases of my life when my work has felt to be all-consuming. That is not a good thing for your family. Work satisfaction is an important objective and an important measure of success and in each and every case that will depend upon how the work is perceived by the barrister and what part it plays in the barrister's life.
That brings me to the next point. My first rider in embarking on this talk was that I could speak from my own experience and that others would differ on some aspects. If one is measuring success at the Bar including as a measure the concept of "Work satisfaction" then for each and every individual barrister that requires an assessment of what will give "Work satisfaction". That means a decision as to work life balance. This is not the occasion to go into that aspect or the broader and overlapping question of "wellbeing" in any detail. But it is important in embarking upon a career at the Bar to have an idea about how you would want to fashion that career.
There is of course the "standard" model of career progression at the Bar, the second six pupil takes any and every case available,gets a tenancy and then works like stink for 20 years and gets Silk and then works harder in Silk and then takes judicial office and works even harder. Believe me that model is still available and well used and there are those who say that the Bar is so competitive that it really is the only model that works.
However views are changing and it is being appreciated that a good worklife balance and a successful career at the Bar are not mutually exclusive. One point that is not lost on the profession is that there is a poor retention rate for female members of the Bar, and much talent is being lost to the Bar. It is in this climate that Chambers now more amenable to arrangements that allow for a busy practice and discharge of family and caring responsibilities.
So much is good news,but be under no illusion that whatever model you adopt in practice at the Bar it will require a great deal of self-sacrifice. You have to be prepared to shelve plans to meet a deadline imposed upon you. That is an inescapable feature of life at he Bar. It is partly for this reason that I started this aspect of the talk in emphasising how important it is that one must enjoy the work. Every barrister will moan at the least opportunity about the impossibility of the demands on their time but almost universally they would not do anything else.
So a measure of success is to discharge all these responsibilities and to enjoy it for what it is - a first-rate career in a truly meritocratic environment.
What is Needed for aSuccessful Practice?
Before I say another word I will say again – integrity. It is everything. However even though it is a given it is not enough by itself.
If I remember well enough what concerned me when I was at your stage it is identifying the tools of the trade, and the basic dos and don'ts. I shall do my best to assist you. I do not apologise for repeating that what follows is my own guidance and others may give more or less importance to some of the points I touch upon. I should say that I am conscious that the profession has in many ways changed a great deal from how it was in 1985 when I was called by this Inn. An example is what I was saying a few moments ago about the recognition of the importance of flexibility in practice. However I can confidently say that the fundamental points I am about to make have always applied and will always apply.
The first point I want to make in this part of the lecture is to remind you of the maxim "horses for courses”. For those of you who don't know it's an old phrase reflecting the fact that often for reasons unknown certain racehorses would run better on particular racecourses. The meaning in our context is that some people do better in some environments than they do in others. It is never more apposite than in talking about practice at the Bar. There are cases for which barrister A is perfect and barrister B not so good because of their relative strengths and weaknesses in the particular type of case. However in a different case precisely the opposite will apply. The point you must take from this is that successful practice at the Bar requires you to recognise both your strengths and your (relative) weaknesses and most importantly to play to your strengths. It is true that there are some true giants at the Bar who can literally turn their hand to anything. One of the Benchers of this Inn is annually noted in the legal guides as being the most highly regarded in the most numbers of areas of specialty. People like that are truly exceptional. Do not expect to be the perfect barrister for every case. Do not expect to be first choice in every case,but do play to your strengths.
What then should you be? I will set out my list:
Before I embark on my list I should emphasise that "talent is a given". By that I mean talent both in legal analysis (including identifying what the correct question is) and in advocacy (whether written or oral). Without the requisite innate talent in bothof those fundamental aspects of practice success at the Bar will be elusive.
Be reliable
Do what is asked of you on time or better.
The solicitor or other instructing body is relying upon you having recommended you to the lay client - don't embarrass your instructing solicitor and make his or her judgment look poor. Furthermore your task is to make your instructing solicitor’s life easier not harder. A truly reliable barrister who is sufficiently competent can often outperform the genius who can't get his or her work out on time. In the process be prepared to go the extra mile - volunteer to do it. If asked to do a pleading perhaps add a brief note setting out your early thoughts (suitably qualified if you do not have all the information you are likely to need for definitive advice).
Be accessible
Be ready to take the solicitor’s phone call knowing that in reality you are being used as a" free" sounding board. This is an opportunity to sell yourself as someone knowledgeable about the relevant area and happy to work in cooperation with the solicitor. One or two (and only one or two) solicitors might abuse this butyou will quickly spot that and your clerk will be able to step in to discourage him or her. In the main these phone calls should be seen as opportunities to win work. Be particularly ready to help others learning in the profession. My own experience was of talking regularly about difficult points to trainee solicitors (they were articled clerks in those days!) and I found that these were very fruitful professional relationships (some lasting a professional lifetime). If you can give a "steer" without your caller having to explain a fee note to their boss you will reap the reward in the longer term.
Be presentable
Obviously part of that is your physical appearance. My own take on questions regarding appearance and dress is very straightforward: "be professional". You know what it looks like and I know what it looks like. The client knows what it looks like and the judge knows what looks like. Always look the part. The point is that your appearance should be quiet and not distracting. You may think it's a small point but clients notice if you are scruffy.
You should also be presentable in how you act. You will not be surprised to hear me say the same thing: "be professional". You should judge how your view needs to be expressed. Some sophisticated clients want the bullet points only. The lay client may need careful presentation and explanation. At all times remember that you are probably the best placed person to ensure that the client fully understands what has gone on and why a particular course was or was not or will or won't be taken. It is possible to have a very satisfied but losing client who feels that they were very well represented. Always remember that apart from the odd serial litigant no client wants to engage with litigation whether criminal or civil more than absolutely necessary.
Be polite to everyone and treat everyone with equal courtesy - from the usher and the person bringing in the tea at your conference to the senior partner at the magic circle firm. Light humour may work in the right context with some clients (though exercise caution here) and some clients like the idea of a "human" barrister but try carefully to judge the situation, and err on the side of being more reserved. Remember it's about the lay client and his or her case not you and your success. Finally I should add that no one equates rudeness with brilliance anymore.