First, might we, as a profession at least to some extent take back control of our lives by improving our own email behaviour? We could, for example, think harder about whether inter partes emails we draft overnight, might be better sent in the morning – say after 08:30. We cannot insist on anything, but we could lead by example. Such initiatives, if they take hold, might reduce stress, restore some work/life balance and make us better at what we do. Many would welcome developing protocols that hold in check the exploitation which comes with the assumption that we are accessible 24 hours a day.
Just in case anyone who is not at the Bar does not understand, most barristers, in addition to a ‘normal’ working day, already work for several hours overnight especially if we are preparing for court. The suggested overnight email restraint would allow us to plan and prioritise our work more effectively around our other commitments by preventing the disruptive effects of unscheduled digital bombardment. That’s all. And while I’m at it, I recommend we each sign up to this charter: emailcharter.org
Second, judicial case management and its effect on advocacy.
Barristers are highly trained. Nowadays the competition for pupillage is so intense that the intrinsic potential of the young Bar is extremely high. What they learn depends, of course, on how they are taught – both by their peers in chambers, but also by what happens in court.
Before the days of active case management and the plethora of form filling and checklists, barristers necessarily had to think more for themselves. They had to anticipate. They had to speak to each other to narrow the issue. Once they had found what, if anything, divided them they would ask the judge for a ruling and so make progress. Cases would not routinely be listed for preliminary hearings to work through checklists. They were only listed at the instigation of the parties if, as was rare amongst the best of them, they discovered that they could not agree. If they had failed to spot a problem before trial that ought to have been resolved, they worked very hard to avoid it derailing the trial – not least because the responsibility was theirs. Judges trusted them.
With close case management, the sense of responsibility changes. That is what happens when anyone in authority micromanages any workforce. People stop thinking for themselves. The less we think for ourselves, the less pride we will take in what we do. We concentrate on what is left to us, and try to make an impact there. It is also a question of trust. There is no one less trustworthy than the person who feels untrusted. If judges let it be known that they will trust the individual advocates, those entrusted generally raise their game. So less becomes more.
For some this suggested approach to improving matters will be counter-intuitive and I accept it is chicken-and-egg: individual irresponsibility calls for more management, but too much management dulls individual responsibility. But isn’t close case management very dull, not just for us but also for judges? Those that want to be judges because they fancy that part of the job, probably shouldn’t apply. But generations of judicial enthusiasm for intervening in an adversarial system has become the norm and the spoon-feeding of advocates by the court has come home to roost.
How can this be changed? I wonder if there isn’t a failure to grasp the opportunity that brilliant young barristers offer, to break this cycle. If the problem lies not with them but with less competent others, is it fair to dumb down the whole show? Or should those who are not up to it, be exposed as such? Allowing the market to operate promotes excellence, and that is what the Bar is about. We need to enable the young Bar to compete on merit in order to ensure that those who are not up to it, give way to those who are.
I agree that all this requires a change of judicial culture. But if we value our adversarial system and we want the parties to take more responsibility, a first step might be for the judges to pull in their necks a little. The young Bar will respond and the rest of us are increasingly irrelevant. That way quality advocacy stands a better chance. So do the judges. So does adversarial justice. And all of that is manifestly in the public interest.
Third I would like, as a parting shot, to express my profound confidence in the Bar and its future. The last few years have enabled me – required me – to listen to the profession I have tried to represent. The more I have listened, the louder I have heard its heartbeat and the beat is strong. Perhaps unsurprisingly given the fierce competition and the ethos we share, I have met scores of clever barristers who are motivated to serve the profession in order to defend and enhance it, because they believe it operates in the public interest.
Not everything is good. If the inadequacies of public funding are not addressed the self-employed Bar will move away from that work and that will be in no-one’s interest. We do it better and more efficiently and provide better value than any competing model could deliver.
But the confidence of our profession can in the long run remain high, because you cannot keep a good idea down: independent advice and advocacy delivered fearlessly by individual barristers in competition with one another.