Saturday, 31 January 2009

External Moot

On Wednesday I took the 12 o clock train to Leeds to compete in a national mooting competition.
With five days to prepare for it instead of the month and a half everyone else had I was a bit flustered, I had prepared a script, which everyone in mooting says "don't use a script! Use cue cards instead" Thankfully a faithful Alie of the script approach said for me to stick to what I know how to do, know what you are going to say well enough so that you don't have to read off it.

We pulled into Leeds about 2pm, and went into Leeds University, got lost on the campus, eventually found the building and then I sneaked off for about 3 cigarettes in the freezing cold (the weather was against me) as I tried to calm down my nerves for the moot.

About 4pm the bundle arrived which the hosting team were supposed to prepare. I turned to the copy of Hadley v Baxendale to highlight it and found that it was a print off from Westlaw.
"That's ok" I thought, Hadley is a very old case from the 1850's I wasn't going to berate the other team for not having a copy of it. Then to my horror all the cases were print offs from Westlaw!!! Bad Bad Hosting team. After the hosting team left the room, I went absolutely mental, apologising to my lecturer for my use of fairly prolific language, calmed down and tried to find all my paragraphs in the relevant pages, which took about 20 minutes longer than I had expected due to having to number every page and then scrawl through the text to find my quotes.

The moot:
We awaited in the mock court room, myself being very nervous awaiting the moot judge Mr Simon Myerson QC, so I was doubly shitting myself. He arrived and we got straight onto it, however I forgot where I was and sat down immediately instead of waiting for Mr Myerson to sit down give the judicial nod so that we may rest our tired buttocks. My partner quickly said "Lost stand up!" No doubt the lecturer who accompanied us was slightly dying inside of shame.

The lead respondent for the hosting team started first and I was second. Their argument didn't follow their skeleton which we had been given, so I had lost my 5 minutes of very carefully planned rebuttals. Not too bad I thought, given that Mr Myerson was perhaps the most interventionist judge I have ever encountered whilst mooting, I'm sure it wasn't going to make much difference.

I got up to speak "May it please your Lordship my name is Lost and I appear for the respondents on the first ground of appeal" I referred his Lordship to the first case, and my first highlighted passage, and then all chaos broke loose! "Mr Lost I know the test in Hadley, how does it apply here to what the appellant's have said" "Well my Lord I was going to cover this in my second submission" and then I paused for thought flicked through my pages of notes and said "Yes my Lord if I may refer your Lordship to the case of Victoria Laundry".

It all went well, I think I must have been grilled for about 20-25 minutes, perhaps the low light of it all was being asked to re-read a passage substituting words with the facts of the present case, as I had to then look up the passage and get my stressful head around how to say it!

My highlight, well not until I found out afterwards was a certain emphasis on a particular phrase, which made my lecturer no longer worried about my performance and my partner wet himself slightly.
"If I may refer your Lordship to the case of H Parsons v Uttley Ingham Co, is your Lordship aware of the facts of this case?"
"No I'm not"
"The defendants..."
"Oh yes the Pig case"
"Yes my Lord top grade pigs"

All went well until the final point of my last submission which to be fair was pretty poor and thought up the night before.
"My Lord it is not disproportionate to place a burden of liability on party x, because ... etc"
"Well yes Mr Lost however that isn't a very good point is it?...."
"Yes My Lord, however it is my last point.."
To which I got a laugh and a "Very well Mr Lost"

When I sat down my partner had written me a very sweet note that read "That was magnificent" to which then my face lit up like a beam of hope and I couldn't stop smiling.

Judgement was delivered and we were declared the winners! (Of course we knew this from beginning ;) All in all a good moot, with lots of experience to draw from for the quarter finals of my internal mooting competition, where I shall be mooting in front of QCs/Barristers again!

Lets hope they are just as nice as Mr Myerson and buy us a drink afterwards too!

Friday, 23 January 2009

Short Notice

Due to my recent success in my own internal mooting competition I have been asked to fill in for an external moot next Wednesday. The girl who was originally planning to do it dropped out at the last moment, so amble opportunity for me!!! The problem was circulated early in December and I'm receiving it 5 days before the moot.. luckily I have no seminars next week, otherwise I would be up shit creek without a paddle.

I'm not sure how much I should mention, perhaps evening mentioning that I'm not sure what I should mention is a dead giveaway.. (you'll understand if you are friends with me on facebook)

Needless to say Wednesday will be very interesting!!!

I've also secured a mini with a leading criminal chambers, though the date they have offered me is right in the middle of my final year exams? Hmm exams or work experience...

Saturday, 17 January 2009

Mooting Third Round

So I have made it through two rounds so far of my university's internal mooting competition.
Not so great considering other people's achievements, but also not that great as I was in the same position in my first year. The top 16 mooters go through this round to the quarter finals, slightly daunting as I have yet to be up against someone who is really good; people in the first round and second rounds were the light hearted people who thought "lets give it a go" rather than some of the dedicated third years who spend about 3 weeks preparing for a moot. Conversations with other people taking part in the moot also mentioned the lack of "really good people" so I gather this round will be a tough one as most of the weaker competition has been sifted out.

The moot problem I am currently facing falls square into a medical law and ethics topic, which I study and suprisingly the course leader writes the moot problem questions. For some reason I am finding it extremly hard to come up with anything for the negative of the certified question "is a doctor or surgeon under a duty of care to inform the patient of signficant factors relating to that individual doctor or surgeon?"

I have no clue who the other people I am mooting against are, but I do know that I have a judge who is scholary in the field of Tort Law.

If I even manage to complete my skeleton before 12pm on Tuesday I will be wonderfully surprised. That and the third year is demanding a lot from me, with mooting, the LAC, and now I have involved myself in a Pro Bono Unit Human Rights thingy, all so I can boolster my dreadful CV.

In addition I also think I should start charging at least £5 for my Doging Fare Evasion guide, firstly because it makes up the majority of my readership, and secondly because I want money!!

Thursday, 8 January 2009

The Future of The Criminal Bar

*Please note this post is full of hyperbole which will know doubt get me in trouble much like it does for any prosecutor*

I have attempted in previous posts, to outline some serious threats to the criminal Bar (now spelt with a big B, because after all it is somewhat important). These mainly being solicitor advocates, the Legal Services Commission and the Lord Carter reforms. I don't think it will be necessary to repeat my ramblings on either three topics seeing that they raise the blood pressure of any actual or potential criminal barrister. What I am however trying to attempt is to conclude what my assessment is on the situation and my learned friends to see whether endeavouring to be a criminal barrister is worth the hassle nowadays.

The impending doom

There is likely to be at some point in the near future an implosion in the criminal bar. It raises questions whether us students should get our foot in the door before the system crumbles or should wait to rise out of the ashes. The Barrister v Solicitor line has been irrevocably blurred to the point that both sides are in a silent(or not so silent if we read The Times) war with each other. The system of interdependence has broken resulting in the current feud of the legal profession.

Barristers depend on solicitors for instructions. Solicitors however are now seeing that some of the work done by barristers isn't really that difficult and with the addition of the Legal Aid reforms firms feel it would be much preferable to keep costs in house and use solicitor advocates. This is obviously cost-efficient for the solicitor and also more efficient in the sense that you may have the same solicitor representing you in the police station and at the Crown Court. This will lead to a lack of work for barristers in the Crown Court.

Not quite so apocalyptic?

Is it likely that this will have a major effect on the criminal Bar, very junior and some less junior cases will go to solicitor advocates. What is however unlikely for the time being is solicitor advocates appearing in the High Courts, Court of Appeal or House of Lords. I believe that your standard solicitor advocate will be appearing at one or two Crown Courts that are local to their practice and perhaps a wider range of practice for more established solicitor advocates.

Now what does this mean for the Bar? The work is definitely going to change, having less trial work will ultimately lead to barristers being relied upon for their "specialisms" in chosen fields, most notably serious crime such as homicide and sexual offences, for the time being will be instructed to counsel and junior practitioners will appear with their more learned leaders. As solicitor advocates are not generally experienced enough, and would as I have heard prefer cases to go to barristers.

Specialism will therefore become more and more important for barristers at the criminal Bar. As noted above if there is less junior trial work they will have to pair up in order to survive, the very nature of criminal work may change as we know it.

A mutual agreement?

Unless there is a mutual agreement between solicitors and barristers about the criminal justice system and how it works it it very likely it will implode. Easy solutions could be made to reassure the next generation of young barristers that the criminal bar will not die and that it is a worthwhile pursuit. The recent bickering between both sides, barristers deeming solicitor advocates as inadequate and the majority of solicitors viewing barristers as pompous and in some cases "dreadful" shows that a coherent system needs to be put in place. There need to be clear roles for each party.

This obviously leads to problems of whether a solicitor should really be allowed to practice advocacy and whether direct access to a barrister should be allowed to give "advice". Both give rise to the fact that each party is trying to out do one another instead of working together.

If both are trying to perform each role then should this be continued or should it be resolved by confining them to their original roles? This legal evolution of adding on tidbits to one an other's profession is unlikely to go away. Nor do I suggest is the problem between the two professions.

What is key to perhaps understanding the view of solicitors is that they see barristers as pompous, overpaid and why should it be their "right" to be the next judiciary. They have a direct line to the Home Office, the Prime Minister and the Ministry of Justice. They have power to effect very influential people because ultimately they come from a similar background, Oxbridge educated etc. This lack of diversification in the Bar (though I profess it is becoming better) annoys solicitors. I was told recently by a solicitor advocate that the more the Bar pulls strings to only enrich their own profession solicitors will try and claw back what they can from there.

Essentially the idea here is that there is a lack of balance between what solicitors are paid and what barristers are paid. An average partner of a criminal practice makes about £40,000, that is the starting salary of many students a Magic Circle and Silver Circle firms. According to BarBoy (please inform me if I am wrong) a junior criminal barrister can easily make £40,000. Why is it that solicitors should be paid more than barristers? This problem needs addressing, barristers must show and prove why they deserve to be paid more, by proving their worth. The days of old are gone, which is why many barristers I believe are struggling to make ends meet.


Much of the focus of this post has been on the discussion of the solicitor advocates affect on the criminal bar, this is only part of the larger dilemma of a bewilderingly crippled criminal justice system.

Whilst criminal barristers are losing more work due to solicitor advocates they are also having their work depleted by in the in house advocates of the CPS. Whether or not these advocates are deemed as "failures" is not to be discussed here they have a job to do and they are put under an increasing amount of pressure to do it.

The polarisation of the Bar may even have a bigger effect than solicitor advocates in total. Half of the work disappearing to the employed Bar must have a notable effect, but does it matter less because these advocates once belonged to the independent bar so are more trustworthy to conduct cases? I am unsure with my limited knowledge to make any such contention.

Nevertheless there appears to be a lot of work being swallowed up by otherwise than the independent bar.


The majority of the reasons why the criminal bar looks doomed, is because it simply isn't viewed as cost efficient. Solicitor advocates and the CPS have no real alternative otherwise than to instruct their own counsel if they want to get by. Will this mean a rise in miscarriages of justice or a deflated notion of justice for all if the independent criminal Bar cannot function as it once did? I again am unsure.

I am sure that it will never be the case that you can pay less and get more in the criminal justice system and it will lead to the brightest and best candidates looking elsewhere to finance lives of luxury that their other seemingly bright friends have chosen in general common law, company law, litigation etc. This is a serious problem that needs addressing.

Will there be enough work for me when I qualify? It is unsure, it all depends on what agreement the Bar and the Law Society can make with one another before the situation implodes and chaos runs amok. Hopefully they will. The current forecast is that there will be light spells and maybe storms, leading to very specialised work in the higher courts for the time being.

Is it worth it? Imagine yourself in 20 years time, and ask yourself if there was anything that you would regret not having done. If you think you would regret not being at the Criminal Bar despite all its difficulties then that is the area for you. If not then it is likely you could probably get away with something else. What is certain is that competition for the Criminal Bar is as tough as any other area. We all hear the phrase "if you are determined enough you will succeed" but how determined does one need to be, in able to try and predict the future of the profession you wish to enter hoping that it will be the right choice and also still alive and kick well enough that you will be able to make a decent living out of it?

I suppose there is always hope....

*note - I hope for a particular reader that this is a little bit more ambitious than my usual posts ;) *

Saturday, 3 January 2009

New Year Resolutions

NList of things to achieve.
1. Get a first.
2. Lose two stone
3. Make this blog more discursive.
4. Get a part time job so I can pay for going Euro railing and a trip to Japan.
5. Win the internal mooting competition.

All of which could be quite achievable.. if only I wasn't studying jurisprudence!

Hope you all had a very nice Christmas and wish you all the best in 2009!