Last Orders at the Bar?

mountainyman

Is it time to abolish the profession of barrister?
There was a time when information was discovered at trial, whens skillful advocacy, eloquence and cross examination were important skills.

No More,
Documentation and 'discovery' are now the crucial battleground where cases are won and lost. This work is done by solicitors. The barristers job is simply to corrupt and taint the chain of evidence. To make all evidence eve where obtained in good faith 'the fruit of a poisoned tree'.

In the tribunals we see that barristers are not capable of grilling senior civil servants, politicians and successful businessmen. They are made to look like fools.

Is it time to scrap the profession of barrister?

MM

slumped

hee hee! :-)

Gonna follow this thread for sure......

johnnyskeleton

Well if the barrister's profession was redundant, they would all become solicitors, wouldn't they?

I mean, they're all lawyers at the end of the day, and if solicitors are now getting more involved in court, barristers are taking over the reigns of taking instructions and giving advice to clients.

If the bar was hypothetically removed tomorrow, they would all get jobs in solicitor's firms doing the litigation. I think in America, for example, there is a usually a litigation department in every big firm. If the bar were removed, a new distinction might pop up between old school solicitors and new solicitor advocates.

These are my general comments. As regards to your specifics, there are much better, and much more sensational, reasons to unify the professions.

mountainyman wrote:

There was a time when information was discovered at trial, whens skillful advocacy, eloquence and cross examination were important skills.

They still are. Especially in criminal law.

mountainyman wrote:

Documentation and 'discovery' are now the crucial battleground where cases are won and lost

Not where there is no documentation available (e.g. oral contracts, personal injuries, lost wills & conveyances i.e. most of the bread and butter of civil litigation anyway). Cases that do have lots of documentation often fall into two rough categories:

1) cases where both parties are professional and/or large organisations, and resolve their disputes without lawyers, or with a single arbitrator

2) cases where there is so much up for grabs (e.g. Fyffes) that both parties will spend millions fighting it out and it will be worth it for them.

Also, you might want to read caselaw and Order 31 RSC on discovery. It is a very limited procedure, and it can never be a fishing expedition. The purpose of discovery is to get supporting documents for your argument, it is not intended that some new evidence or cause of action is "discovered" from the documents.

mountainyman wrote:

The barristers job is simply to corrupt and taint the chain of evidence. To make all evidence eve where obtained in good faith 'the fruit of a poisoned tree'

I think you will have to give an example of this, or at least explain it further. Part of a barrister's job is to test the evidence. If I understand you correctly you are suggesting that barristers for both sides make a big fuss out of nothing. If this were the case, then getting rid of barristers would mean that you have to accept the assertions of the other side at face value, to your client's detriment.

The fruit of the poisoned tree rule is that a confession made in breach of a person's constitutional rights is entirely unconstitutional, and not just unconstitutional at the exact moment the breach occurred. So if a garda beats you senseless and then gets a confession, what you say after the beating is just as unconstitutionally obtained as what you said during the beating.

mountainyman wrote:

In the tribunals we see that barristers are not capable of grilling senior civil servants, politicians and successful businessmen. They are made to look like fools.

I don't think so. If you have complaints about particular tribunal barristers, prove it (although if you get your way, I will have to accept your assertion at face value). But if you are suggesting that barristers are not suitable to work in the tribunals, you would also have to say how it could be done better by a solicitor/sombody else.

mountainyman wrote:

Is it time to scrap the profession of barrister?

You might perhaps be underestimating the scope of a barrister's job. Some barristers never even see the inside of a courtroom (other than for their call, or for the occasional malpractice suit). They can act as tax consultants, or specialists in particular areas, working only to advise solicitors on the nuances of law.

I think from your argument your real question is whether we should scrap the litigation process. I would respectfully suggest that we should not, because on a fundamental level no other democratic society has abolished their litigation system, and I don't see why we should be different.

However, if you could guarantee that there will be no more crime, no more marital disharmony, no more disputes over money/dodgy builders, no more constitutional rights, no more government, no more companies winding up, no more people going bankrupt, no more people leaving vague wills etc etc, then I think getting rid of litigation would make sense. This would incidentally make the Solicitor’s profession redundant.

dermot_sheehan

mountainyman wrote:

Is it time to abolish the profession of barrister?
There was a time when information was discovered at trial, whens skillful advocacy, eloquence and cross examination were important skills.

They still are, as is the ability to guide the exercise of judicial discretion by reasoning and researching legal principles.

No More,
Documentation and 'discovery' are now the crucial battleground where cases are won and lost. This work is done by solicitors. The barristers job is simply to corrupt and taint the chain of evidence. To make all evidence eve where obtained in good faith 'the fruit of a poisoned tree'.

Documentation in many cases is of minimal value unless you can test and cross examine the mind of the document's creator. Unlike civil law systems, the common law places a premium on sworn oral evidence, with witness credibility being tested by cross-examination.

As regard barristers job being to "corrupt" the evidence. A barrister's job is to test the evidence, make sure its relevant and ensure its reliability. They also have an important function in the protection of constitutional rights by ensuring the state can not beenfit from its violation of rights.

To say this is an uncescessary or even corrupt practice, well i think you only have to look at the recent McBearty affair judgement to see what happens when these safeguards fail to work properly.

In the tribunals we see that barristers are not capable of grilling senior civil servants, politicians and successful businessmen. They are made to look like fools.

Is it time to scrap the profession of barrister?

MM

Any evidence to support this allegation? or is it just unsupported personal opinion. I think the solicitor's opinion is more at risk from conveyancing being undertaken in future by licensed conveyors.

maidhc

PIAB seems to have taken a lot of work from Barristers, and were it not for solicitor's constant fear of being sued for professional negligence would probably be used less than they are.

I think there is a role for "consultants", like the Constance Cassidys of this world, but for much run of the mill litigation I think the Barrister is a luxury that most clients can ill afford. I'd suspect in the next 20/30 years the distinction between barrister and solicitor will wither, with solicitors moving up the food chain away from conveyancing, and barristers becoming more involved in dealing directly with clients.

johnnyskeleton

maidhc wrote:

PIAB seems to have taken a lot of work from Barristers, and were it not for solicitor's constant fear of being sued for professional negligence would probably be used less than they are.

This could go full circule. A report published this year (I think I read about it in the Irish times at the start of march) showed that PIAB was not availed of in many situations (i.e. settled beforehand, or exempted). It is also often appealed, and a lot of the time claimants will seek legal advice even though they will not get back their costs. So I wonder if PIAB will have a long term effect on personal injuries work. If you bear in mind that the primary purpose of introducing PIAB was to reduce the cost of claims to insurance companies, do you really blame many clients and their legal teams being suspicious of the awards given. I suspect that the people who are happy with their PIAB awards might not have the best cases in terms of strict proof, and so will accept a lesser sum rather than run the risk.

maidhc wrote:

I think there is a role for "consultants", like the Constance Cassidys of this world, but for much run of the mill litigation I think the Barrister is a luxury that most clients can ill afford.

I'm not so sure. Apart from the fact that litigation does require a specialist (which not every solicitor's firm can afford to maintain), a busy firm of solicitors might not have the resources to research each case fully or prepare for court.

I suppose a very basic example is if a solicitor charges €200 p.h flat fee, and to deal with a case he would need to do 5 hours of research to advise a client on a point of law, it would be easier for him (i.e. more time to deal with other clients) to get a barrister to do it, and I'm sure he would find a barrister prepared to do it for a fraction of the €1000 it would cost for the solicitor to do it. This is because either a young barrister will work for 5 hours at less than €200 p.h. or else because a specialist will know the particular area much better and so will spend less time researching.

maidhc wrote:

I'd suspect in the next 20/30 years the distinction between barrister and solicitor will wither, with solicitors moving up the food chain away from conveyancing, and barristers becoming more involved in dealing directly with clients

Whether this is a good thing or not is a different story, but it remains to be seen. I don't think the allegation that the two professions are a money making racket is valid, but nor do I think that the reasons that were once there can remain true in the future.

There are, by the way, several barristers who do conveyancing, and barristers deal with their clients in many ways such as consultation, advice etc. If they were to become more involved with dealing with clients, this would probably mean that they are approached directly by the client and that they advertise. I think it is a good thing that a barrister can be detached from his client and say to him, "look, you just don't have a good case".

I also think that if you have a legal problem, you will most likely go to your local solicitor and ask them to help, and they will contact a barrister who specialises in that area. It would not be practical for people to find the lawyer who can best help them if there was not the dual profession.

Orchard Rebel

johnnyskeleton wrote:

I wonder if PIAB will have a long term effect on personal injuries work. If you bear in mind that the primary purpose of introducing PIAB was to reduce the cost of claims to insurance companies, do you really blame many clients and their legal teams being suspicious of the awards given. I suspect that the people who are happy with their PIAB awards might not have the best cases in terms of strict proof, and so will accept a lesser sum rather than run the risk.

I'd concur with that view. I was speaking to a litigation solicitor in Cork recently who told me that after the PIAB came in their caseload dropped considerably. However, in recent times the trend has reversed and people are now increasingly instructing solicitors to handle their claims.

What this, I think, shows is that:

(1) The PIAB is being shown up for what it is - a wealth creation vehicle for the insurance companies.

(2) That many people lack confidence in the arbitration process (or their ability to advocate by themselves) and prefer to take their chances with a solicitor, even though the costs may be higher.

On the main point, I think we've already seen a narrowing of the boundaries between solicitors and barristers already - the concept of solicitor advocates is already well advanced in the UK and I think will slowly catch on here. Many barristers already work in the larger solicitors' firms as consultants and can rise to the equivalent of partner level.

However, I still think we are a long way off unification of the two professions, since both jealously guard their privileges and being naturally conservative institutions, are unlikely to do away with 700 years of independence without considerable resistance from within their own ranks.

NUTLEY BOY

OP do you suffer from insomnia ? If so, I strongly recommend that you read the Law of Evidence. Try "Cross & Tapper on Evidence" for starters. It's a complete riot.

In about a year from now when you have finished it tell me if you still think that there is no need for forensic advocacy skills to deal with all that discovery material and all that flows from it in the court room ?

You say that "The barristers job is simply to corrupt and taint the chain of evidence. " That is so cynical I think that you must be doing the Junior Cert this year. The barristers job on direct examination is to present the evidence and his job on cross-examination is to subject it to scrutiny to see if it actually stands up......:)

johnnyskeleton

mountainyman wrote:

Is it time to scrap the profession of barrister?

So, unless the OP has anything further to add, no.

Anyone want to take a cheeky swipe at solicitors?

I forgot to mention earlier that barristers can be as active in discovery as solicitors can, whether it is drafting, the application, or deciding what is relevant.