An article by Professor Jo Delahunty QC in Counsel’s October 2020 edition looked at the issue of the retention of women at the Bar. As a member of Chambers’ diversity committee, and as head of our pupillage recruitment process, I have been thinking about some of the issues raised in the article and about what both women and men can do to stand up against the ‘long hours culture’ at the Bar.

By far the most significant reason for the lack of female retention at the Bar is the difficulty in combining the career with motherhood. Delahunty’s article seems to say that this is an insuperable problem. ‘No one,’ she quotes Dame Helena Kennedy QC, ‘[can] ask for a three-day week if they are a trial lawyer’. If that were the case, then the profession of the barrister, unlike other well-established professions such as solicitor, doctor or accountant, would be incapable of being pursued on a part-time basis. This can’t be true. I certainly hope it isn’t.

Kennedy and Delahunty are right to say that it often seems to be true. Indeed, the ‘day in the life’ articles that appear in Counsel, presumably to inspire us with the glamorous lives of successful barristers, tell us that five 9-5 working days a week is entry-level stuff. Here are some extracts:

  • ‘There is little point going home because I won’t have time to engage with anyone. I’ll get some work done while I eat an M&S sandwich, then try and talk to the kids on the phone.’
  • ‘It is 5am and the Uber taxi driver has just cancelled my ride to Heathrow Airport.’
  • ‘I will not be home in time to see my girls before bed time. […] A quick call and FaceTime.’
  • ‘I arrive home at 9pm to have a late dinner with my husband and relax after going up to see the children in bed. Then a look at the COAS cases [and] private paying briefs in my diary.’
  • ‘I head into chambers and work on the Court of Appeal case until 3.45am.’
  • ‘A “normal working day” for me begins at any point from midnight onwards.’

The message comes across loud and clear: a successful barrister is someone who will not be able to spend time with their children or other family except at weekends – and often not even then. To us mere mortals this lies somewhere on a spectrum between the unpleasant and the intolerable. It is little surprise that highly educated and talented women who wish to combine being involved in their young children’s lives with having a career often find that the Bar is not for them: they have other and better options available to them.

This is a great shame. Our profession ought to be big enough to have room for people who are not prepared to spend every waking hour at work while they aim for the juiciest briefs and the starriest cases. Surely there is a place for those of us who want to have a job and a young family, and maybe a few outside interests and a social life as well?

So what can we do? I don’t think the solution is simply mentoring; this can encourage people to follow a path that few of us really wish to tread. The solution lies in structural reform.

The problem is not one created by chambers. A quick internet search for barristers’ chambers’ maternity leave policies will reveal that there is no shortage of policies permitting part-time working and graduated returns to work from parental leave. The problem is maintaining a valuable practice on a part-time basis. The problem is the court system.

That means that the problem is solvable. Think again about the medical professions: doctors save lives; we merely argue. The law is a human creation and can be recreated to serve our needs, while the human body is more intractable. If doctors can work part-time then we should be able to do so as well. The problem, it seems to me, is that our working hours are not predictable. It is often hard to say to a partner, co-parent or childcare provider, ‘I will be working only on these hours on these days’, and to stick to it. Something always comes up.

But that is not a law of nature. There will be the occasional emergency, as in any job, but by and large what we do is neither so urgent nor so important that it is not capable of being timetabled and made predictable. There is no reason every hearing – every case – should routinely be treated as an emergency that requires round-the-clock attention.

Let’s start with a standard application lasting somewhere up to a day. It will be listed for… well, when? You’ll find out. Which means, if it is ‘your’ application, that your working days and hours are at the mercy of the court. That needs to change.

Let’s carry on with that application. The evidence in response will be submitted… when? Quite possibly after the deadline. The reply evidence, the skeleton arguments – they could arrive at any time of day or night. At the hearing, the judge might ask, ‘I appreciate that it is late, but have you had the chance to consider it?’ and, as you have spent late into the evening reading everything and marking it up, you will honestly answer ‘Yes’. No harm done, it would seem. Except to your family life. (At a recent application of mine, the final round of evidence was rejoinder evidence not envisaged by the rules that was served at 10.30pm on the Wednesday, 36 hours before the Friday hearing. No one batted an eyelid.)

And what about a big trial? It might have been in everyone’s diary for a couple of years. But it is entirely predictable that the last few days before the final hearing will see a flurry of late disclosure, additional responsive witness statements, an extra expert report or two, a supplemental skeleton argument and so on, all of which have to be read and digested before or even during the trial. Why should this be? Did no one see the trial coming?

Imagine instead what would happen if timetables were made and adhered to, and if all late-served documents were simply inadmissible. Imagine if skeleton arguments had to be submitted together with applications and, if not, then no skeleton argument would be permitted. And imagine if the skeleton argument in response was due at 4pm on the date, say, four weeks later. You could catch the train home at 4.15pm that day on the basis that either you would have the other side’s skeleton by then or know for certain that it was not coming.

The same would apply to disclosure, witness statements and evidence of all kinds. Why should the upper echelons of an entire profession be largely barred to working mothers simply because people cannot stick to timetables? The legal system as a whole suffers if it lacks diversity.

If disclosure has taken place on time, and witness statements exchanged on time, why shouldn’t counsel be able to prepare cross-examination and depose the witnesses on dates fixed for the convenience of everyone? How many times have we told witnesses they ‘might be needed on Tuesday or Wednesday – probably not Thursday’? Who benefits from that? Imagine if all the witness evidence were completed over the course of a few days here and there, booked months in advance, spread over the weeks leading up to a short ‘trial’ that simply consisted of each side making closing submissions. Nothing would be lost by way of the quality of justice, but much would be gained for work-life balance. Full-time advocates could carry on multiple such trials in parallel. Part-time working mothers and fathers could do the same heavyweight litigation as their full-time colleagues, but simply act in fewer cases and manage their lives around them.

I am convinced that the strict enforcement of deadlines would make litigation far more predictable and make it far easier to combine childcare and work. This is just one idea; I’m sure others have more and better ones. If we want a profession in which parents and other carers can be involved in the lives of those they are looking after, as well as progress in their careers, then we will need plenty of new ideas. I hope that my thoughts as to practical changes will at least prompt others to put forward their suggestions. 

Professor Jo Delahunty QC’s article, ‘Women at the Bar in 2020’, appeared in the October 2020 issue of Counsel and can be viewed here.