Not getting silk – yet

If at first you don’t succeed... but don’t be tempted to reheat last year’s application. A rallying account from a third-time-lucky silk


A few years ago I spotted an xkcd comic depicting two characters; the first mentioned the well-known definition of insanity often attributed to Albert Einstein – doing something over and over again expecting a different result – and the second replied, applying the logic of the same definition ‘You’ve been quoting that cliché for years. Has it convinced anyone to change their mind yet?’

It took me back to April 2001. My application for silk had failed – again. But why? Hadn’t I appeared in more reported cases than almost all the successful applicants? Didn’t this include cases against some of the leading commercial silks of the day, including Sir Sydney Kentridge QC, who positively supported my application? What were the discernible reasons, if any, why others were succeeding when I was not? Was I insanely expecting a different result if I did not much more than update the failed application made the year before?

The silk and judicial appointments system was so different then and not just in terms of the application process or the lack of meaningful criteria, or anything that could pass as a definition of the required competencies let alone any separation between those who administered the system and those who decided an applicant’s fate.

In those days there was nothing approaching transparency – everything seemed to turn on gaining ‘support’ from an amorphous constituency of big wigs who had the power of giving your application the thumbs up or down – but unlike the arena of ancient Rome those who made the decision were invisible.

So in my case the official reason given by the Lord Chancellor’s Department (LCD) said no more than my application was unsuccessful because it had not commanded ‘enough support’.

What did this mean? How much ‘support’ was ‘enough’, from whom and by what measure? The civil servant who later that year gave me my ‘feedback’ spoke mostly in golfing metaphors about ‘not making the cut’ and was positively hostile to the suggestion that the system needed root and branch change – if it was to continue at all. Indeed, in the speech made by the Lord Chancellor Lord Irvine at the silk ceremony in 2003, he speculated that those appointed that year might be the last. But that, as we now know, was not to be.

In 2002 it plainly did not make sense for me to just go on making the same application and expect a different result.

GOING PUBLIC

Against the advice of most who counselled me strongly against ‘rocking the boat’ I decided to do something that had apparently never been done before – go public about the system. I contacted Joshua Rozenberg, editor of the BBC’s Law in Action and legal correspondent of the Daily Telegraph, who I had previously worked with. The result was a full page spread in the Daily Telegraph.

Not long after I made a formal complaint about the way my silk application had been dealt with by the LCD – and to my enduring surprise the complaint was upheld. In 2003 my application for silk succeeded. I have no way of telling whether this contributed to root and branch reform that produced the silk application process that we now have that is, by any measure, more objective and transparent. The interview process introduces a huge change in itself and is a real opportunity for advocating one’s own cause.

But before that, when my own applications had failed, I asked myself the same questions that I suspect almost all whose applications have been turned down have asked. What was lacking in my application? Did I have the right referees? Did I have enough time in court? Had I put myself ‘about’ enough? And inevitably what did ‘X’ have who succeeded that I don’t? But above all how could I put my family, who bore the brunt of my distress, through the whole process all over again?

ADVICE

The advice I would proffer is the obvious – absent some glitch in the way your application has been processed, making essentially the same application every year and expecting a different result is pointless. Yes, that may be a cliché but has it changed anyone’s mind enough not to go on repeating the past? And anyway isn’t the content always going to be dictated by the same facts?

No, for at least three reasons. First, I think that many overlook the fact that the entire application process is an opportunity for advocacy – the way in which the content is presented is as important as the content itself. Most people feel understandably uncomfortable about anything that reads like heaping praise on their own accomplishments.

The best way to ensure that the content is being presented in the most persuasive way is to have at least one and preferably two people who really know your practice and whose opinion you respect proof your application. Is it really getting the message across as persuasively as possible?

Secondly, look at the competencies and ask whether the material you have supplied really does demonstrate them – it’s the equivalent of answering the question asked. Be ruthless – discard material that does not go to the competency in question.

Thirdly, as far as possible, don’t start with last year’s application as the template for this year. There is simply too much at stake to take the quick and easy route of reheating the same application. Start with a clean sheet. Yes, I know it will take more time – much more time and to that end allocate enough time reserved exclusively to this task – but it just may be worth it in the end. Good luck!

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Philip Shepherd QC

Philip Shepherd QC is a barrister specialising in commercial litigation and arbitration at XXIV Old Buildings, Lincoln’s Inn where he leads the Aviation and Travel Law group.