Year 3, week 42: Are lawyers too boring?

I see there’s an article at Law Central at The Times today which asks the questions: Are barristers today too boring? Have advocates become too sensible? It quotes Marcel Berlins at The Guardian as saying that: “Barristers these days address a jury as if they were accountants explaining a balance sheet. Oratory has disappeared from the English courtroom.” What, and this is news? When you’ve got people working two to three thousand hours a year churning out the cash for their expensive homes and schools then what do you expect? It’s a sad fact of life these days that lawyers like so many people are running scared. Not only of their mounting collection of bills but also of the threat of litigation or just simply a complaint. Gone are the days when barristers could perform in court with impunity. In the knowledge that however badly they performed at the very least they were immune from suit. But it’s not just that. Lawyers’ jobs are different these days. If years ago much depended on great advocacy, these days it’s all in the detail. Careers can be forged simply by finding loopholes in enormous contracts and arguing over every little nuanced clause. Not even the tiniest pebble is left unturned. Now don’t get me wrong. For all of their faults, there remain the colourful souls like UpTights, OldSmoothie, TheBusker and OldRuin. But it is TheCreep who has really come into his own in the modern world. The man boy who a hundred years ago would have been bullied out of court is now King. Ruling the roost with his sub-clauses and huge skeleton arguments. A man for whom the words of Dostoevsky as quoted in Boris Starling's excellent novel Vodka are frighteningly apt: “Show [him] a map of the stars, which he knows nothing about, and he will give you back the map next day with corrections on it.” But, hey, maybe TheCreep has finally jumped the shark. Had his day. It's a nice thought, but somehow I doubt it.

July 13, 2009 · Tim Kevan · 10 Comments
Posted in: Uncategorized

10 Responses

  1. Lloyd - July 14, 2009

    Of course Barristers have lost the art of oratory they all come from 1 of two universities in the UK, Oxford or Cambridge who cookie cut their students just so they have an Oxbridge degree. They forget the purpose of the career, defend the client to the best of your ability and with the Chambers acting like sheep why not let Barristers act like sheep and talk like accountants and while we are at it let solicitors have the right of audience in any Court who care about the standards of the Bar anyway.

  2. Will - July 14, 2009

    Most of my opponents are now grey, dull and over analytical to the point that they miss the overall point of the case which is painting the picture to the judge or jury. So much is dependent upon oratory, especially in criminal trials and it is a great shame to see what now passes for the junior bar attempt to give closing speeches and construct intelligent cross examination. I was against a lady the other day whose closing argument was the most jumbled rubbish I had ever listened to in my life. The huge personalities have all gone or are retiring. Chambers now choose pupils who all fit the same boring stereotype that includes having no life experience outside the law (other than the experience that will help them gain pupillage) and little personality. It is they who are to blame for the bar becoming a less colourful and less interesting place and they who will eventually, because of the protection of their own interests, restrict the new blood of the bar to a point whereby the circulation is cut off altogether.

  3. Jeremy - July 14, 2009

    Some credit has to be given where it is due. I have haunted a few courts where I have been impressed by the level of advocacy and oratory finesse. We have to remember also that not every case is as socially important as, though a fictional piece, Atticus Finch’s defence in To Kill a Mockingbird. Lets not patronise the jury!
    I agree though, the Bar has created this image of itself, which may or may not be accurate, that in order to get in (let alone succeed) you have to fit the mould. Diversity is not embraced in the true sense. We need to bring back some big personalities where possible.

  4. LLoyd - July 14, 2009

    Will and Jeremy, I note the esteemed company I am keeping on the comments site. While I am not involved in the law I have a keen interest in it as my son if about to commence a BVC. Can you tell me what is wrong with a LLM from KCL, National Mooting champion and finals in all moot competitions he has taken part in,sat with Judges in the High court and considered extremely bright. Why oh Why do Chambers look only for OXBRIDGE students regardless on what they studied. I would love to hear from the numerous Barristers who read this column

  5. John Scott - July 15, 2009

    Law is meant to be boring. The point of the whole sorry process is to move us away from exciting disputes that end in violence to a socially acceptable form of resolution. That means that people involved have to believe that it was “the law” that determined the outcome not “the man”. There is no suggestion in this post that the focus on technical points is in some sense bad – arguably it is good.
    At a more mundane level, one possible explanation is the rise of the law degree – lawyers now tend to be technical specialists, rather than people coming in with relatively little technical knowledge, at least at first.
    The other main change is the total eclipse of jury trial in the collective memory of most counsel. The more flamboyant arguments run with juries, not with judges. As juries have been eclipsed from more or less all civil disputes, lawyers only need communicate with other lawyers. And lawyers have always focused on the detail. Even defamation cases are very rarely before a jury, if only because the vast majority of defamation cases never make it to trial.

  6. Kate Barclay - July 15, 2009

    This is just rubbish. Most cross-examinations in civil trials (and I exclude most family law from this, as it is important to be gentle in such cases) are far more rigorous and penetrating than in criminal trials, which are limited heavily by the jury’s attention span and the relative lack of preparation time that the barristers have.
    Most experienced civil barristers are effective and forceful advocates. Not the day they start – they’re far too nervous. But give them a few years (and a few years’ confidence) and they will develop an individual style which will tend to be effective, penetrating and even, sometimes, fascinating to watch.

  7. Academic Barrister - July 16, 2009

    I very much agree with the observation about enormous skeleton arguments in civil cases. I was in court this week against a relatively junior London counsel on a fairly simple point, for which she produced a skeleton argument of 21 closely-typed pages (much of it nonsense in my opinion, but that’s another matter). Skeletons are supposed to be SKELETAL – to identify the major points of the argument, not to be a thesis is themselves. As Chadwick LJ said some years ago about one wordy skeleton – ‘that’s not a skeleton, it’s a great fat stiff’. But ofr course many barristers have got into the mindset of thinking that the skeleton shows that they have prepared properly and justified their brief fee. In fact it is often quantity over quality. The best skeletons get to the point and focus the judge’s mind quickly and efficiently.

  8. Robert - July 16, 2009

    It would seem as if the only Barristers with flare read this site as I have to agree with BabyB, most Barristers a dry, uninteresting with little flare or imagination and is driving the Judiciary to a boring and inhumane death with their droning on and on like the poor judge is an idiot and does not understand the point of law. OH for the days of Barristers with fire in their belly and a fight in their eye.

  9. Robert - July 16, 2009

    To Lloyd- Nothing wrong with a KCL LLM but try and tell Chambers that. I agree there is an elephant in the room and the short sighted, pupillage committees do not have the balls to take the best man or woman for the job rather a safe, justifiable ( WELL how was I to know they were no good they went to Oxford or Cambridge) choice is all goes wrong- Cowards

  10. Lloyd - July 19, 2009

    Here is a statistic to support my worries about the bar. Taking 95 students offered pupillage in the top London sets overt he last few years 85 were Oxbridge students. How come is the Oxbridge degree so much better than Kings, LSE, Bristol, Nottingham, Warwick et al??