Civil and commercial litigation is exciting, cutting edge and prestigious. It can also be ‘run of the mill’, cheap and stressful. What can junior litigation solicitors do to enhance their professional development in the modern world, asks Gareth Raisbeck.
I started my professional life at Cardiff University, studying the Bar Vocational Course (BVC) under some truly exemplary and inspiring litigators. My unconventional route to cross-qualification took me in-house and then into private practice.
I say this primarily because I did not complete a traditional training contract, and therefore I have a different view of the profession. Over time, I have had the pleasure of training junior lawyers in civil litigation to some considerable success, and can identify some pitfalls they all faced, as well as provide some basic advice to get you started.
The rules and the research
The Legal Practice Course Outcomes 2011 state that students must ‘demonstrate an understanding of the Civil Procedure Rules (CPR), the overriding objective, and their application’. However, life in the fast lane of litigation often highlights the deficiencies in trainee and junior solicitors’ understanding of the most rudimentary principles of civil litigation.
You should be able to locate the CPR and case law without access to a search engine.”
The main difference I have observed between BVC and LPC graduates concerns the method by which they undertake research. The reality is that the LPC denies students the in-depth analysis of the CPR and using litigation-based legal research techniques, owing to the breadth of subject matter the LPC covers. Indeed, the need for speed and efficiency in practice often translates legal research into superficial Google searching and an indifference to traditional practitioner texts. You must learn from the outset that this is a poor methodology.
The Ministry of Justice publishes the CPR on its website, for the public. A solicitor is an expert in legal practice and, therefore, not ‘the public’. Your knowledge is expected to plunge to much greater depths. The origin of your knowledge must come from more appropriate sources.
Your firm should have access to a suitable hard or electronic copy of a civil procedure practitioner text (such as the White Book Service, Blackstone’s Civil Practice or the Civil Court Practice). Use it in preference to anything else. Litigants in person often rely on the rules alone and fail to adequately argue their cases owing to their lack of knowledge of explanatory case law. This is excusable, but not for solicitors. You should be able to locate the CPR and case law without access to a search engine.
In light of Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v TH White Ltd [2014] EWCA Civ 906, prospective litigators cannot appropriately act in their clients’ best interests without a broad knowledge of the rules. Solicitors cannot argue that an error was as a result of a mistake and expect leniency, as was once the case. Ignorantia legis neminem excusat.
These cases provide a case in point. Rule 3.9 of the CPR is much shorter than it once was. We were previously provided with a significant checklist that instructed practitioners on how to address an application for relief. With this gone, the guidance contained in Mitchell and Denton is invaluable in preparing and advising on such an application. Bare rules will not be enough.
With the number of opportunities to appear before the courts decreasing, is there any need for a junior solicitor to undertake any advocacy?”
Every act taken in your career as a civil litigator will be against the backdrop of the CPR. The Rules should, indeed, be at your fingertips. You should have an encyclopaedic knowledge of certain parts of them. For example, part 13 concerns applications to set aside judgment. The rules themselves are easy to understand, and there is a plethora of explanatory case law. Prospective clients should expect their expert adviser to know the rules without reference to them. Become accustomed and learn to love the CPR.
Similarly, practitioner texts on specific areas of law, such as Chitty, Clerk & Lindsell and Gatley are as invaluable in modern legal practice as they always have been. As students rely on legal texts, solicitors must rely on their own. The comprehensive analysis provided by such texts is simply unavailable elsewhere.
However, modern legal research is not limited to legal practitioners’ texts. Whilst Twitter is a possible procrastination tool (given the chance), there are few avenues that provide up-to-date, minute-by-minute legal updates. It is incredibly beneficial to have knowledge of topical legal developments that impact your client’s case. To get you started, I wholeheartedly recommend the following:
• Zenith Chambers’ Gordon Exall’s @CivilLitTweet – up-to-date case development analysis
• John Bates’ @MrJohnBates – an academic touch to civil dispute resolution from Northumbria Law School
• Professor Dominic Regan’s @krug79 – the professor should need no introduction to civil practitioners.
The solicitor as advocate
I sometimes wonder how solicitors who have never stepped foot into a court room can adequately advise a client of the likelihood of success of a particular application or case. It certainly is not uncommon for junior litigators to be solely office-bound, but why is this?
In discussions with long-qualified practitioners, you will discover two things. First, solicitors used to attend the county court on a reasonably regular basis. Second, junior counsel used to be instructed to attend court for the simplest of hearings far more often.
The rush of court is unrivalled. There is, in my opinion, little that will teach you as much about true legal practice than a difficult court room appearance.”
In recent years, the considerable growth in advocate agency firms and the increase in and emphasis on pre- and post-issue ADR have drastically reduced the scope for advocacy at the junior end of both limbs of the profession. Woolf, Jackson and MoJ reforms have streamlined the court process to the extent that court hearings have been in decline for nearly 20 years. With fewer hearings, the opportunity to appear in court decreases.
Even after Woolf, many juniors gained their first experience of court at charging order hearings, dealing with both undefended matters and (often last-minute) set-aside applications from disgruntled defendants. The introduction of simplification of charging order procedures following the Civil Procedure (Amendment) Rules 2016 will only decrease these opportunities. This, I suspect, is not the end of the story.
The current system of small claims hearings and fast track trials on virtually all cases that run to full-term will soon end. Briggs’ vision of an online ‘solutions’ court is likely to manifest itself in the short- to medium-term. We are yet to see how cases will be judged, but Briggs has suggested cases be determined on papers, by telephone, by video link and (in exceptional circumstances) by trial. Interim hearings and trials are bound to decrease.
It remains to be seen whether firms will instruct counsel to undertake the remaining telephone, video or court hearings in online cases as they currently do. I would suggest that this work could be easily and cost-effectively undertaken in-house, but I am biased based upon my experience.
With the number of opportunities to appear before the courts likely to significantly decrease further, is there any need for a junior solicitor to undertake any advocacy?
I often hear it said that it is unfair for a solicitor to appear before the courts, and far more cost-effective for both client and firm to instructcounsel instead. This can be true; it is not cost-effective for solicitors to travel at significant hourly rates to far-flung corners of the circuit, for example. However, surely some of the costs of a solicitor’s preliminary advice, counsel’s instruction, counsel’s fee or (possibly) a solicitor’s representative at court ‘sitting behind counsel’ could be jettisoned or redirected internally? Presumably, this is the reason why some larger firms operate advocacy units. So, an advocate can provide an additional revenue stream in a changing legal environment.
An advocate can provide an additional revenue stream in a changing legal environment.”
From a personal development point of view, there is nothing better than court experience. The pre-hearing preparation requires you to fully analyse the case, the law and the rules. The reality of appearing before a seasoned district judge and the anxiety that is likely to rise in you at the thought can only make you up your game. Juniors do not want to be questioned by a judge on a topic they failed to prepare for. Anxiety breeds knowledge retention.
In conclusion, the rush of court is unrivalled. There is, in my opinion, little that will teach you as much about true legal practice than a difficult court room appearance. The breadth and depth of experience will translate into a confidence that clients and employers will value. You may even benefit from more work as a result.
The solicitor as expert
Some solicitors operate on the premise that they are the ‘general practitioners’ of the legal profession, acting as glorified legal postboxes or instructing counsel to advise on or draft anything of any significant complexity. This is plainly out-of-date practice.
In the past, high street solicitors could be a ‘jack of all trades’. Mr Justice Singh delivered a lecture to the Society of Legal Scholars in 2013 entitled ‘The Unity of Law – Or the Dangers of Over-Specialisation’, in which he said that: ‘Gone are the days when legal practitioners did a bit of everything.’
The hierarchical nature of the solicitor and barrister professions does not exist beyond certain individuals’ imaginations. Solicitors are as capable of being experts as their counterparts at the bar.”
What did he mean by ‘a bit of everything’? I recently spoke to a solicitor who drafted wills in the morning and prepared a capital murder case in the afternoon. That is about as disparate as a workload can possibly be.
The main difference between specialisation of Sir Rabinder Singh’s 1980s experience of legal practice at the bar and the experience of junior solicitors in 2017 lies in the ability to determine one’s specialisation. There is far greater competition in numbers, and a London-centric superiority complex can be impenetrable for lawyers from the provinces.
On that basis, junior solicitors may not be able to specialise in their preferred area of law. Indeed, one’s specialisation is often determined by available vacancies and the commercial necessities of the firm. Whatever your area of law, however, you need to be the expert in it.
In the past, barristers were seen as the premier practitioners. My personal view is that this is no longer the case. The lack of available pupillages has seriously impacted on career decisions. Also, the liberalisation of legal services has allowed solicitors to undertake advocacy before the senior courts if they so desire. A solicitor is simply a different job; no more or less prestigious. The hierarchical nature of the two professions does not exist beyond certain individuals’ imaginations. On that basis, solicitors are as capable of being experts as their counterparts at the bar.
With the introduction of the online court, solicitors will inevitably take on more unbundled consultant work or else lose out to direct access counsel. Now is the time to stop relying upon third party legal consultants where you don’t have to. Revenue streams for civil litigators will not remain constant. Therefore, you must consider how you will provide diversified services in future. The first step is acknowledging that, for certain work, counsel are becoming competitors in civil litigation and their instruction must be used both sparingly and intelligently as the legal framework evolves.
Conclusion
The world of civil litigation is rapidly moving on from the heady pre-Woolf days. The new millennium has brought a cataclysmic shift in procedure, technology and commercialism. Juniors entering this branch of the profession need to establish themselves as experts, keep abreast of developments and look to diversify their skills before Briggs’ reforms fully emerge. Good luck!
