It’s 0800 and I’m at the Stratford Magistrates Court to prosecute traffic cases – and there’s a trainee (“pupil”) barrister here who does not know if she is prosecuting or defending – all she knows is the case is a Special Reasons.
I don’t mean “she doesn’t know which side she’s on” in an existential way – she really doesn’t know whose instructed her.
How can this happen?
A barrister’s clerk is like a personal assistant – except clerks also strike deals with solicitors, often the in the late afternoon on the day before the trial / hearing, and they are the ones who tell the barrister where they’re going the next day.
Here’s how it usually plays out:
“Missy H, You’re at Lavender Hill Magistrates Court tomorrow for ‘Chancing Our Arm Solicitors dot com’, £150.00, I’ll send the papers to you as soon as I get them”.
You’ll notice in my, “which side are you on” colleague’s case, her clerks didn’t even bother to tell her who was instructing her.
In the rush to a find an available barrister, sometimes instructions get lost in translation. Especially, when nobody’s bothered to send you the client’s papers.
Here’s the faulty system
As long as a clerk’s got a tick against a barrister’s name showing your case is covered, the clerks and solicitors don’t care if the barrister receives the instructions at the last minute – or if they don’t have your papers. The clerks attitude towards the barrister generally is, “Oh well, she can figure it out when she gets there”.
The reason why it doesn’t matter to the clerks or solicitors if barristers get instructions at the last minute is because they are not the ones who have to understand all the evidence in the case and come up with persuasive submissions which compel the magistrates to give you what you want – all just minutes before court starts.
And here’s something else you may not know: the clerks especially do this to the pupil barristers. The clerks may not be saying it out loud, but the gist is, “She’s a pupil and she’s going to do whatever we say because if she doesn’t, I’ll make sure she never gets fully qualified”.
The pupil barrister told me, “This client’s going to be really pissed off if I don’t have any papers”.
No kidding. Especially if the client has paid thousands in the hope that they’re going to get a premium service.
This last minute approach to Criminal or Motoring law client instructions is not an emergency one off – it happens every day.
It’s hard to get the most out of the barrister if the barrister is in a perpetual state of worry about the unknown instructions – and then having to do last minute fire-fighting to get your case up to speed in 20 minutes.
And this one case is probably not the only last minute job a barrister will deal with in the course of the day.
Last minute instructions – and barristers constantly having their fees chiselled down by both government and solicitors – goes some way in explaining why there’s a stampede of barristers leaving Criminal law.
The biggest surprise I’ve overheard being revealed in court was a client tell his barrister, “I’ve paid £1,000 for you” – where upon the barrister told the client he was getting a mere fraction of that fee.
Beat the system with Direct Access
Direct access is a win/win for barrister and client. With direct access, the barrister has checked their diary and ensured they are able to devote the time needed to give your case 100% focus. The opportunity for deep thinking gives the barrister the chance to devise a strategy leading to the best possible result – and you get this in return for an upfront fixed fee.
Direct access is not a substitute for Criminal legal aid – and not everyone is suited to act as their own solicitor. But if you are organised and able to deal with your own paperwork, then direct access may be an ideal way for you to save the expense of hiring a solicitor and give yourself the time with your barrister to maximise your chances for success.