The Jackson reforms have placed new demands on lawyers specialising in civil adversarial work. Hardwicke barrister Gemma Witherington tells Bar student Alex Pritchard-Jones about six qualities that wannabe litigators must possess to thrive in a much-changed environment.
1. An ability to assess risk
The curtailing of no win-no fee arrangements means solicitors and barristers need to pick their cases very carefully if they are to be commercially successful. Since the Jackson reforms were implemented in April 2013, Witherington says that she and her colleagues “are very rarely charging success fees.”
This, she continues, “has quite a big impact as previously we were spreading the risk of signing up cases because the ‘uplift’ [or success fee] was compensating us for the cases we didn’t win. Now we are charging no uplift whatsoever, which means we are analysing cases very carefully when they come in because we no longer have that cushion of an uplift to fall back on.”
Accordingly, chambers and firms want their pupils and trainees to be able to assess risk, and at the application and interview stage hope to see them use their previous experiences — be it pro bono work or some form of work experience — to demonstrate an aptitude for sound analysis.
2. Super-human powers of organisation
November’s Court of Appeal decision to deny the law firm representing Tory MP Andrew Mitchell its costs in the “Plebgate” libel action put the frighteners on litigators throughout land. The hardline judgment left Mitchell’s firm, Atkins Thomson, a whopping half a million pounds out of pocket for the simple reason that it submitted documents relating to its budget a day late.
“Diarising key dates and making sure you don’t miss deadlines becomes even more important,” says Witherington, “as we know since Mitchell the circumstances in which relief from sanctions are granted are much rarer.”
With the legal profession still reeling from the severity of the Mitchell judgment, this year’s wannabe litigators may find favour from interviewers by portraying themselves not simply as organised, but super-organised. Juggling a range of different activities with studying is good practice, and the sort of thing chambers and firms will be keen to hear about.
3. A willingness to fight hard
The Jackson reforms are achieving the impressive feat of making litigators even more cut-throat, with the stricter rules being used as an additional stick with which to beat opponents.
“Parties are seeking to exploit points they’d never have taken before,” reports Witherington. “If they notice a witness statement is served a day out of time, or if a cost budget doesn’t have a signature on, parties are very quick to call up the other side now and suggest that they go to strike them out, or invite the other side to make an application for relief from sanctions — and indeed they are even opposing relief from sanctions a lot more than they used to…It’s a more cut-throat, strategic and tougher environment to work in.”
Lawyers-to-be need to find a way to show that they’re up for a scrap.
4. A co-operative nature
In showing that one is up for a scrap, it’s very important not to come across as a psycho — because, somewhat counter-intuitively, the Jackson reforms have made cooperation more important than ever. Cooperation with those on your side, that is.
Again, explains Witherington, it comes back to the fear of missing those deadlines:
“Working together closely between counsel and solicitors from an early stage so deadlines aren’t missed has become increasingly important,” she says.
5. Ease with responsibility
An increase in professional negligence cases arising from — you guessed it — lawyers missing deadlines and breaching much more strictly-enforced procedural rules has compounded litigators’ post-Jackson blues. What this means in practice is enhanced stress levels, says Witherington.
Legal hopefuls should consider emphasising their devotion to extracurricular activities that illustrate an ability to switch off (transcendental meditation, stamp collecting…?) while also providing evidence of head prefect-like enthusiasm for responsibility.
6. A commitment to keeping up-to-date
Lawyers are nervously gauging the effect of the Jackson reforms by monitoring each new decision. The good news is that the hardline seems to be abating slightly, with hope that the Mitchell decision represents a high water mark in judicial ruthlessness. Top chambers and firms expect students to be aware of the latest developments.
“It’s absolutely essential that you’re keeping up-to-date with case law,” says Witherinton. “Even on a weekly basis now there are new decisions coming through and decisions being overturned. And so what we do in chambers is have a network of people keeping up to date, checking different blogs and websites…and we share all of that information.”
Listen to Pritchard-Jones’ discussion with Witherington (both of whom are pictured) in full in the podcast below.
