Adam Johnson, a commercial litigator and arbitrator at Herbert Smith Freehills, was one of six solicitor advocates to take silk this year. We speak to him about his experience of the application process, the impact on his practice, and his thoughts on the state of advocacy in 2017.
Solicitors must familiarise themselves with what it involves. The best thing to do is to print off the application form and the competency framework, and study them both carefully. Work out critically whether you have the all evidence available to support your application and fulfil all of the criteria. You need to provide evidence from a number of cases you have dealt with over a two-year period, and identify referees – they will include judicial or arbitral referees from those cases, and client and other contacts (eg experts) who have encountered you in your professional life as an advocate.
You need to understand that it is a rigorous and extensive process. If you sit down with the form and feel that you don’t have the evidence available yet, you need to devise a plan for accumulating it. Realistically, if you are starting from a limited base, it’s a three- to five-year process.
In my case, I made a conscious effort to plan and organise my own diary and caseload in a way that gave me the best chance of being involved in significant cases over the relevant timescale, which ultimately fought or at least produced hearings.
One of the challenges for people like me working in a large commercial practice is that, very often, we handle large litigation cases, which will sometimes run for a couple of years on their own. Sometimes they will settle before trial or a substantial hearing. In many instances, you will do a good job for your client if you avoid a trial or a substantial hearing. So accumulating the experience of contested hearings you need to fill in the application form successfully is not entirely straightforward.
My approach involved two strands: planning and organising my work in a way that gave me the best chance of accumulating the right number of ‘flying hours’; and also frankly being opportunistic, and taking any hearing I could to give myself the best chance of being involved in hearings which fought and did not settle. So there is a lot of hard work involved just to put yourself in a position where you can have the best chance of fighting contested hearings and grabbing the opportunities to demonstrate what you can do.
I work in the in-house Advocacy Group at Herbert Smith Freehills (HSF), and effectively work as an in-house advocate for partners on cases HSF is handling. This gives me a degree of variety in my workload, and I was supported by many colleagues. But if you are a practitioner outside an advocacy group and you are just running your own cases, I can see that may present additional difficulties.
Probably little impact in the short-term, in the sense that in many ways I have had a leader-type role for some while.
Longer-term, there is no doubt that having the QC badge is widely regarded as a mark of quality, and that will make the conversation with prospective clients much easier in that they will have a high degree of confidence that my competency as an advocate has been tested and approved. In that way, I would hope silk will make a difference.
I think there will be more integration between the role of advocates and the ‘traditional’ role of the solicitor. We have been moving in that direction for a while, and in my mind that’s a healthy trend.
From the solicitor’s perspective, if you understand what the process of advocacy actually involves, and the pressures on someone presenting a case, I think you are much better able to understand your role as the person who is managing the case and acting as the interface with the client, because you understand what the end product is supposed to be.
On the other hand, if you are an advocate with some understanding of the way in which the solicitor’s traditional role is managed, you will have an appreciation of the pressures that arise and the difficulties that are created through routine parts of the litigation process (in particular, managing disclosure in large and difficult cases). You are able to convey to the court a better sense of the client’s overall position.
It’s still a work in progress, but I perceive a greater sense of cohesion developing.
Be realistic, but confident. Many of the routine parts of a solicitor’s practice involve a high degree of advocacy (for example, producing correspondence, negotiating with an opponent etc). Solicitors should be confident that the skills they are deploying much of the time provide a very strong platform for developing their advocacy skills, and they should be confident doing it.
If you sit down with the application form and decide you don’t have the evidence to take things forward, ask yourself how likely it is you will be able to accumulate it within that two to three-year timescale, and devise a plan. Do your best to implement it, but be open-minded about other opportunities as and when they arise.