PUPILLAGE SPECIAL: The psychology of pupils

Forewarned, forearmed: Dr Justine Rogers’ insider study of barristers and their pupils found distinct traits and pressures but there are collegiate solutions

‘Pupillage is like doing a marathon with a box in your hands. And inside the box is a glass vase which you need to keep intact, and you don’t get to open the box until the end of the marathon and for all you know the vase broke on day one!’

This was one of the many extended metaphors pupils used to describe pupillage during my DPhil study of London barristers and their pupils. While part of the barristerial style perhaps includes exaggeration, it does get at some of the real uncertainties and pressures of pupillage as a ‘year-long interview’ and the related psychological distress it can cause. This special edition on pupillage is a good opportunity to reflect on some of the (overlapping) sources of pressure.

The aim in doing so is for pupils, aspiring pupils and practitioners, especially juniors, to be better able to recognise and manage some of the challenges of life at the Bar. The second aim is to encourage further discussion within chambers management and the profession more broadly, including existing and additional solutions.

Before getting into it, it’s worth pointing out that there is much more to the Bar than presented here. The Bar is a profession of immensely positive and productive values, relationships and commitments. The Wellbeing at the Bar report, for instance, documented a high sense of purpose, belonging and engagement among barristers (Wellbeing at the Bar: a resilience framework assessment, Bar Council, 2015). But, as the report and my own research has revealed, there are some major contradictions and susceptibilities, many of which present notable strain for pupils and juniors starting out at the Bar. This article covers some of the ones I’ve identified.

The starting point

Some of the barrister’s vulnerability to psychological distress is there before stepping into chambers. It is self-selecting and exacerbated by law school. Law students are more likely than other university students to start a law degree for extrinsic reasons – for instance, parental approval, status, and money – than for intrinsic ones – like social justice commitments or altruistic motivations. Many studies have shown how external motivations are less supportive of wellbeing than internal ones. Law school in general cultivates some of this external focus, by being intensely competitive and achievement-oriented. Furthermore, legal education – and then legal practice – cultivates tendencies towards independence, over-analysis, risk-aversion, perfectionism and pessimism. As Healy, a psychologist, puts it, these traits are protective and productive in the professional sphere, they’re usually great for clients and the courts, but they tend to lead to ‘excessive rumination, cognitive distortions and other stress-inducing practices’. (See Healy, Bernadette, ‘Towards a relational perspective – A practical and practice-based discussion on health and wellbeing amongst a sample of Barristers’, QUT L Rev 14 (2014): 94.)

Gaining entry

It’s very hard to get a pupillage. Even though the interview and tenancy processes are now subject to greater external regulation and objective standards, the combination of the scarce numbers and the quantity and quality of attributes expected of new barristers creates anxiety and desperation for all but the very top students. Recent statistics suggest that only just over a third of BPTC students go on to gain a pupillage. One of the seniors told me that pupillage is now perceived as much more ‘onerous’. What he meant was that while today’s Bar is in several respects more inclusive and less elitist than before, it is at the same time more exclusive since there are more requirements placed on candidates and pupils. Many seasoned practitioners told me they simply would not get a pupillage if they were just out of law school today. These factors are pressures for pupils and junior barristers. A pupil pointed out how much personal investment you’ve made by the time you’re in chambers when you really ‘don’t know a huge amount’ about the role. Many pupils described the anxiety and self-criticism involved in being around high-achieving people all the time.

Pupillage as a rite of passage

The culture of the Bar is complex and rapidly changing, but it has been built on and still largely operates through strong internal hierarchies – within chambers, in court (with the judge at the apex) and the wider profession. Pupillage was traditionally one of the main ways in which this hierarchy was enforced. To use anthropological language, pupillage was the primary mechanism by which ‘neophytes’ were ground down to begin anew, according to the group’s rules and values. The age-old anecdotal ‘horror stories’ of pupillage, of being asked to stand all day in front of a window as a human shade, seem to have gone out with the old language and old practitioners. But there is no doubt that social interaction remains uneasy during pupillage, beset by the threat of constant judgement.

Chambers can be an all-consuming environment. Half-joking, a junior told me: ‘Chambers is small and full of strong thinkers. You’re paranoid you’re going to poison the climate against you with the wrong socks or the wrong tie.’ He mentioned a joke made by a senior about chocolate biscuits (at tea) being for tenants only. Being in chambers all day as a non-practising pupil and/or a pupil in largely advisory areas of practice, magnifies these sorts of worries. Some of this uncertainty and related feelings of being a bit bored and useless have been reduced by the introduction of compulsory learning and feedback activities for pupils. But pupils can be embarrassed about these requirements and sceptical about their legitimacy in a situation in which they perceive that tenancy is the only test that matters. Many juniors said that pupillage helped forge strong relationships and vouched for the extensive legal, ethical and moral support available once you achieve tenancy, particularly from within chambers. We know that mentoring is on the increase at the Bar overall – and it needs to be as it is essential to sustained engagement in practice.

The barristerial role

While the focus changes once you have tenancy, being a barrister continues to be a very public role, resulting in self-consciousness. There are strong, often rigid rules from how you look and speak to the sorts of ideas about how law should operate. Again, this uniformity and predictability has several positive, necessary functions, but it can come at the cost of autonomy, diversity and innovation.

If you’re a pupil on your feet, or a barrister in court, this visibility is self-evident. A practising pupil is better able to break the intense atmosphere of chambers mentioned above, but they face new threats of judgement and conflict. These include, at least occasionally, outbursts or barbs from the judge or ridicule or character attacks from the opponent. Gino Dal Pont in Lawyers’ Professional Responsibility (Thomson Reuters 2016) advises students to aim for a tone of ‘dignified restraint’, and highlights how adversarialism is vitally supported by courtesy and fairness. But exercising this restraint can be hard in the face of incivility from colleagues and resilience can be difficult to maintain, especially over time, when the lines between intense criticism and bullying are not always clear and when overwork means they may be felt as the same anyway.

In addition, clients may expect their barrister to display personal acrimony to opponents or the judge. Indeed, all barristers have parts of their role that involve ‘emotional labour’ or feigning or suppressing emotions for their job. This is tiring. Criminal, family and immigration lawyers are at additional risk of burnout from vicarious trauma and compassion fatigue.

Making the emotional life for barristers even more challenging, barristers don’t often know whether and how to ‘internalise’ a win. If they win, they cannot always be sure if it came down to their skill, or the facts or the proclivities of the judge. Further, a victorious client may not be satisfied or grateful anyway, concluding that they knew they were right and didn’t need the law all along.

Finally, celebrating a win is fraught. At the commercial/Chancery Bar, for instance, it’s not really proper for a barrister to be all (with weird, fitful dance moves), “Yessssss! I won! How good am I at my job?! Let’s talk it through from the top!’ At the criminal Bar, where frank socialising is more common, they recognise they might get a client off, only for them to breach bail. In both practice areas, it’s usually straight on to the next matter.

‘Non-traditional’ status

The Bar was historically white, male and privileged (members from distinguished universities with high attainment). Indeed, it remains largely so in many pockets of the Bar. It is important to point out that the Bar’s professional bodies are probably unparalleled among professions in their efforts to make chambers more aware of the biases in selection, and fairer in their approaches to pupillage training and work allocation.

Nonetheless, life at the Bar continues to involve extra layers and levels of difficulty and distress for those from non-traditional backgrounds. Indeed, women barristers are more likely on average to experience bullying, harassment and discrimination, as are those with the following characteristics: BME, disabled, primary carer status, minority sexual orientation and non-Oxbridge background.

Women have reported being pushed into the practice areas of family and sex crime (see Snapshot: the experience of self-employed women at the Bar, Bar Council, 2014). Both areas involve higher risks of secondary trauma and burnout, mentioned above. These are also areas in which there is more bullying and harassment. Women barristers are far more likely to be primary carers of their children than men barristers. In the context of small numbers of women at the top, it is still intimidating raising issues around maternal (or parental) policies when they might be, or are, perceived as self-serving.

One tacit criterion of pupillage and tenancy applied more strictly to women is good looks. On the way back from court, and five mentions, a criminal pupil put on make-up, explaining that it was important to look good in chambers. All of this adds pressure and stress.

The political and practice climate

Taken together, today’s pupils and juniors find themselves in a highly pressurised political and practice environment. All areas of legal practice have introduced into chambers more management structures, a more aggressive commercial orientation, and a language of efficiency. The corporate-client sectors have become more competitive and the legally aided, less remunerative. Both ‘hemispheres’ involve greater insecurity and unpredictability of work, real and perceived, for practitioners. The possibilities of new technologies, while exciting, are at the same time an additional source of competition and uncertainty. This situation can result in taking on work when one shouldn’t, to make ends meet, and in certain contexts, understaffing and isolation, and generally an erosion of intrinsic motivations that drive engagement and excitement about being a barrister. It might seem strange to end on the institutional level when discussing pupils and juniors, but this is where some of the major pressure points on entry and participation at the junior end are being generated. Crucially, it’s at this broader, collective level where many of them are being resolved and must continue to be addressed.

Contributor Dr Justine Rogers is a Senior Lecturer in Law at UNSW Sydney whose research focuses on changes to the legal professions. 

SOURCES OF SUPPORT AND STRATEGIES

  • The Bar Council has an excellent Wellbeing at the Bar portal with practical resources to support your own and your colleagues’ mental wellbeing. It includes advice tailored to common problems (like bullying, financial stress, alcohol addiction), personal stories, tips on how to start conversations with others about mental illness, and five strategies on staying well (taking notice, staying active, connecting with others, learning and staying curious, and giving to others). The portal also includes resources for chambers and other organisations to implement effective infrastructures and cultures that support wellbeing. Such a culture supports the organisation’s core legal duties to their staff. 
  • LawCare offers free, independent and confidential over-the-phone counselling (0800 279 6888). Talking to someone can help you cope and lead you to the right support.
  • One of the most effective safeguards against mental distress is having a good mentor. The Bar Council has a mentoring service to pair up barristers including those considering applying for Silk. The ideal arrangement for pupils and juniors is a mentor in chambers, then at least one mentor outside chambers. Certain issues are likely to be more easily and sensibly discussed with colleagues outside chambers, at least as a first step before raising it internally.
  • In your early years at the Bar, it might not occur to you to become involved in the Bar Council or other associational body but these matters ultimately involve collective issues and should not be put down to individual resilience alone. They include fundamental questions about what it means to be a barrister, what relationships the Bar ought to have, and is willing to have, internally, with its clients, government, and the wider public, and what working conditions fairly enable barristers to maintain their immediate responsibilities, social commitments and their personal wellbeing.
  • Until then, it is worth remembering that becoming a barrister is a slow and ongoing exercise in mastery and that many colleagues are likely experiencing similar fears and worries as you are or have at some point in their careers.

REFERENCES AND FURTHER READING

  • Baron, Paula. ‘The Elephant in the Room? Lawyer Wellbeing and the Impact of Unethical Behaviours.’ Australian Feminist Law Journal 41.1 (2015): 87-119.
  • Dal Pont, Gino. Lawyers’ Professional Responsibility, Thomson Reuters, 2016.
  • Harris, Lloyd C. ‘The emotional labour of barristers: An exploration of emotional labour by status professionals.’ Journal of Management Studies (2002): Vol 39, Issue 4.
  • Healy, Bernadette. ‘Towards a relational perspective-A practical and practice-based discussion on health and wellbeing amongst a sample of Barristers.’ QUT L. Rev. 14 (2014): 94.
  • Pirie, Fernanda, and Justine Rogers. ‘Pupillage: the shaping of a professional elite.’ The Anthropology of Elites: Power, Culture and the Complexities of Distinction (2013): 139-163.
  • Rogers, Justine. ‘Feeling Bad and Being Elite: A Comparative Analysis of the Anxieties and Uncertainties of Aspiring Barristers.’ Comparative Sociology 13.1 (2014): 30-57.
  • Rogers, Justine. ‘Representing the Bar: how the barristers' profession sells itself to prospective members.’ Legal Studies 32.2 (2012): 202-225.
  • Tani, Massimiliano, and Prue Vines. ‘Law students' attitudes to education: Pointers to depression in the legal academy and the profession.’ Legal Educ. Rev. 19 (2009): 3.
  • Snapshot: the experience of self-employed women at the Bar, Bar Council, 2014
  • Wellbeing at the Bar: a resilience framework assessment (RFA), Bar Council, 2015
  • Bar Council Wellbeing at the Bar portal
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Dr Justine Rogers

Justine is a Senior Lecturer in Law at UNSW Sydney. Her research focuses on the changes to the legal professions, legal ethics, and lawyers’ identities and work. She is currently chief investigator in an Australian Research Council Linkage grant on the future of the professions.