In-House Counsel, United Kingdom / Great Britain

If You Have A Taste For Tedium . . . .

In-house litigator Mark Herrmann, now living in London, wants to know: why would anyone want to become a solicitor, who doesn't get to speak in court, as opposed to a barrister?

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dartboard pen on target inside straightAs observant readers know, I’ve been living in London for nearly four years now.

That means that I’ve trotted down to English courts a few times, and I’ve tossed back a few pints with local solicitors and barristers.

The combination of those two things — observing local trials and losing my inhibitions — prompted me to ask English solicitors an unseemly question: “Why would anyone possibly want to do your job?”

I understand why one becomes a litigator in the United States: You watched Perry Mason (or LA Law or Boston Legal, depending on how old you are). You thought it would be cool to bring people — opposing witnesses, jurors, whoever — to tears with your eloquence. So you went to law school to pursue your dream.

That makes sense to me. (More than just sense: For me, it was Perry Mason.)

But why would anyone become a solicitor in England?

In England, solicitors do only pretrial work: They exchange documents, handle discovery disputes, write pretrial motions, and prepare witness statements. [“Witness statements” is British for “direct testimony that is typed up and submitted before trial” in English courts, akin to some American bench trials.] Then, just when the going gets good — as trial approaches — the solicitor hands the whole case over to a barrister: When the time comes to actually try a case, the solicitor sits in the back of the courtroom and watches. (Every once in a while, the solicitor passes a note up to the barrister, who crumples and discards it, unread.) Only the barrister speaks during trial.

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So I understand why you’d want to be a barrister: You want to be Perry Mason! Or Arnie Becker! Or Captain Kirk Denny Crane!

But why would you possibly want to be a solicitor?

If memory serves me, Tom Hanks once said that he couldn’t imagine choosing to be a lawyer for a living, because it’s like being paid to do your homework. (I just Googled that, and I can’t find the reference online. Maybe I’m making it up.) (That seems unlikely, because it’s funny.)

That’s how I feel about someone choosing to become a solicitor: Why would anyone possibly choose to live a life of pretrial tedium, knowing that if a case ever went to trial, the barrister would do the good stuff?

So, having no sense of propriety and a beer too many, I asked a solicitor.

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He promptly lied to me.

Quoth the solicitor: “Solicitors do the good part of the case. We learn the facts; we develop the theory of the case; we do first drafts of the witness statements. By the time the case is going to trial, every important strategic decision has already been made. The barrister is liked a trained monkey, who gets up and asks a bunch of questions on cross-examination.” [Note to my British barrister-buddies who are reading this column: He didn’t really phrase it that way; I’m taking a little poetic license to emphasize my point and make this column more readable.] “The barrister doesn’t do anything important.”

Other solicitors have told me similar stories; I’ll call them slant lies. They sound like this: “Being a barrister is a monastic life. You never work with clients, because the client is the solicitor’s problem. You never work with witnesses, because in England we don’t prepare witnesses before they testify; that’s considered to be unethical. As a barrister, all you do is sit in your chambers drafting legal opinions and outlining your brilliant cross-examinations. Then nine out of ten cases settle, so you rarely get to deploy your brilliance. That’s not a very interesting life.”

Balderdash!

I’ve never seen a trial that wasn’t chock-full of surprises. Even when the direct testimony is submitted before trial, witnesses always surprise you on cross-examination, and an able cross-examiner will react and take advantage of opportunities. A bad cross-examiner — one who can do no more than read the questions that he’d prepared in advance — will simply plod ahead, losing the case. Cross-examination requires real skill, and the drama of the courtroom is what litigation is all about.

So stop lying to me: Why did you really choose to become a solicitor?

Here’s my guess: In England (and many other countries that work on the solicitor-barrister system), barristers are all basically sole practitioners. Although a barrister may be affiliated with a bunch of other barristers — “chambers” — each barrister is basically responsible for sustaining his (or her) own practice. The barrister must develop a reputation, and impress solicitors, and maintain a sufficiently high profile, to stay busy. There’s no law firm feeding the barrister work.

Solicitors are often different. There are, of course, sole-practitioner-solicitors, just as there are sole practitioners in the United States. But many solicitor-litigators work at large firms that, like Walt Whitman, “contain multitudes.” Those firms hire corporate lawyers, and tax lawyers, and litigators — solicitors — just like their American counterparts. (Indeed, some of these joints are the London offices of big American firms.) Once in a long while, you’ll find a barrister working at a big firm, but that’s uncommon. That would involve either an unusual arrangement or a former barrister who’s moved on — someone who couldn’t support himself as a barrister and so retired into the solicitor’s lifestyle that required less personal skill at developing business.

What do you think?

I’m wide open to reaction here. In fact, I intend to send this column to a couple of solicitor-friends and invite them to spit in my eye. (I’ll keep a handkerchief handy.) But I’d be surprised if thousands of young adults in England every year were knowingly choosing to do the tedious, boring part of litigation for a living. That seems inconceivable.

Perhaps those young people didn’t understand, before they started studying law (which one can do as an undergraduate over here), precisely what their chosen field entailed? (I sure didn’t; I thought I’d be like Perry Mason. Shows what I know.)

Perhaps those students considered becoming barristers and decided that there’s some aspect of a barrister’s life — going from trial to trial for a living is too stressful?? — that they couldn’t bear?

Maybe something else, which I’m overlooking entirely?

But, until I’m told otherwise, I’m standing by my thesis: People become solicitors because they’re interested in litigation, but fear that they won’t be able to develop enough business to support themselves. That’s the only reason why you’d enlist for a lifetime of pretrial tedium.

No?

[Feel free to crucify me if my thesis is wrong; that’s why I teed it up for discussion. But please don’t crucify me for my intentional omissions from today’s column: I’m well aware that some solicitors qualify as solicitor-advocates and occasionally stand up in court. But that’s a minority. And I’m also aware that a few English barristers’ chambers are now so well-respected in particular fields that the reputation of the chambers themselves — and not the individual barristers — attracts some business. But again, that’s the exception; I’m focusing on the rule here.]

Mark Herrmann is Vice President and Deputy General Counsel – Litigation and Employment at Aon, the world’s leading provider of risk management services, insurance and reinsurance brokerage, and human capital and management consulting. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

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