Joy Merriam shares her views on the challenges facing solicitor advocates in crime and child care.
I am honoured and delighted to be shortlisted for the Solicitor Advocate award in the 2017 Law Society Excellence Awards. I won the award in 2013 and have subsequently been involved in judging so I am aware of the high standard of applicants.
I have had my dual (criminal and civil) higher rights since 2006. I was fortunate to squeeze in on the exemption route and my referee was the now president of the Family Division, Sir James Mumby. I am a passionate supporter of solicitor advocacy and firmly believe we are equal to - if not better than - the independent Bar. However, many potential and current solicitor advocates suffer from a lack of confidence, which can be engendered by less than sympathetic judges and opponents who still hold the antiquated view that we are somehow trespassing on the Bar’s turf.
Historically, solicitor advocacy was confined to the lower courts, appearing before magistrates, Masters and district judges. That said, we have always had rights of audience before judges in chambers up to High Court level (which I exercised before obtaining higher rights in child care cases). A judge once asked me when I was going to instruct council - much to the annoyance of my guardian client (who was more than happy with her representation)! Due to the establishment of specialist family courts and revised allocation rules, these opportunities are more limited now - unless you have a practice in international law, which I, and many others, do not.
Similarly, in criminal law there are fewer opportunities for complex advocacy in the magistrates’ court. I am old enough to remember old style committals with live witnesses and officers attending in person to object to bail, which provided opportunities for challenge and cross examination. The development of sentencing guidelines has further restricted the opportunity for complex pleas in mitigation, meaning that the summary trial is really the only option for developing advocacy skills in the lower courts, before one encroaches on the crown court, which the Bar has historically regarded as its territory.
The boom in solicitor advocacy, which started in the crown court following the establishment of higher rights by the 1999 Act, has now spread to the family courts. Historically, solicitors would in the main conduct short hearings (such as directions and injunctions), but would brief counsel for final hearings and fact finding hearings. Solicitors now routinely conduct these hearings.
It is an open secret that there has been a financial imperative which has driven the expansion of solicitor advocacy; there is no shame in this. Successive governments have removed payment for conferences, outdoor clerks, preparation of briefs, etc. from scope, and the development of fixed litigator and advocacy fees makes solicitor advocacy a financial no-brainer. In addition, clients often prefer to have the solicitor they know and trust at court rather than meeting their advocate for the first time at court.
However, for our professional reputations - both individually and collectively - it is important we do not undertake work beyond our competence. How are we to hone our advocacy skills so we have the confidence and expertise to conduct these more complex cases? Especially when the opportunities for advocacy in the lower courts have diminished.
The key is training. The Bar has always had an excellent tradition of mentoring and training, and as a profession we need to develop this. The Law Society and other organisations such as SAHCA (the Solicitors’ Association of Higher Courts Advocates) are offering specialised advocacy training, and more experienced advocates should befriend and assist the less experienced advocates in their firms.
The Vulnerable Witness Training programme, which I was involved in developing, will become compulsory – the government has made that clear. The Law Society has rolled out a nationwide training programme. It is not a pass or fail course; the requirement is to take the course and the accreditation automatically follows. Vulnerable witnesses, including children, the mentally challenged and complainants in sexual cases are all too common in both criminal and child care cases. It is vital they are questioned with skill and care, and acquiring this skill through training is a massive confidence boost for an advocate.
Effective advocacy, properly delivered, is rewarding for the advocate and potentially life-changing for the client. It enhances your career and personal reputation as well as the reputation of your firm. So do not be afraid: with the support of the Law Society and your more experienced colleagues, you can do it.