In the latest post in the ‘If I knew then what I know now’ series, recently-appointed silk PJ Kirby QC explains how he has come to value gut instinct on his unlikely journey to the top.
A lot has changed since I came to the Bar in 1989, having been a solicitor for several years previously. The pupil master who once told me that I had to dress “like a barrister” now turns up to chambers in jeans and Converse…
During more reflective moments I realise that I’ve come quite a long way since leaving Hull University in 1980 with a Desmond. Now a silk (pauses to laugh at the thought), with an apparently successful career at the Bar where people pay me for my opinion and occasionally even follow my advice, I must have learned something over the years.
Relationships matter. Applying for silk and the completion of that dreadful form (the “FF” as it was known by my wonderful fellow successful applicant and Hardwicke roommate of 22 years Brie Stevens-Hoare – the second F was for form) requires you to select 12 “important” cases over the previous two years. I found myself looking to solicitor assessors who I had known for 10-20 years. During pupillage I’d been told to be nice to those you meet and deal with – especially ushers. If I’d known then how those relationships with solicitors 20 years ago could shape one’s future career, perhaps I’d have worked on them all with even greater enthusiasm. Certainly, you never know where people are going to end up. During my early visits to Camberwell Green Magistrates Court I remember being accompanied by the then trainee solicitor Bob Mortimer.
Trust your instincts. As I’ve got older, and supposedly more learned in the law, I’ve actually learned to go more often with that initial gut instinct about a case. Sure, I need to consider the law and analyse the evidence, but developing and paying heed to that gut instinct is important. Too often in my early days I would allow a really “helpful” authority or several “useful” points made by a client to persuade me that we had a good case, when my initial view had been that we hadn’t. Many were the times I should have stuck with the gut view. Jonathan Sumption QC once said the law is generally common sense with knobs on. If someone with the brain the size of a planet can say that, I will feel no shame in adopting it as guidance.
Preparation is everything. In my early days at the Bar, while I would obviously read the papers, cross examination preparation consisted of little more than strategically placed sticky notes and the liberal use of highlighter pens. I was an advocate who was trained to think on my feet – I certainly did not need to write out my cross examination. As the years have gone by and the cases have, to some extent, got bigger, I have realised that proper preparation extends to a detailed planning of my cross examination. This includes, at the very least, setting out in a logical form the anticipated progress of that cross examination. In fact, such detailed preparation gives you greater freedom, so long as you remember where you are going and what needs to be covered.
Write the judgment. Over the course of my time at the Bar, skeleton arguments have become an increasingly important part of advocacy. Skeleton arguments and chronologies should be written to provide the judge with the first draft of the judgment. The judge should be led to the right answer, normally by the easiest, quickest route. I guess this is taught at Bar School, but I still see skeletons where I can’t tell what the advocate actually wants the judge to do.
Be yourself. A former pupil of mine, after quite a few drinks, said that I was a better advocate than I was a lawyer. He was right and if I’ve learned anything, it is that in some cases – although by no means all – advocacy can make a difference. Advocacy can be taught, but you need to be yourself too. Sometimes I’ve been able to use humour to good effect, with a High Court judge only considering a joke that I made during cross examination to be inappropriate once. And he only made that comment once he’d stopped laughing. So, along with that observation by my former pupil, I’d like my epitaph to say “He was fun while he lasted”.
PJ Kirby QC is a barrister specialising in commercial, costs and employment law at Hardwicke Building.