The Bar: A year in advocacy
Herbert Smith's advocacy unit was greeted with significant scepticism from the Bar when it was launched. A year on, Rachel Bennett reports on the unit's progress and its successes to date
April 05, 2006 at 08:03 PM
5 minute read
The Herbert Smith advocacy unit has been in place for almost a year, making it a good time to reflect on how the unit has stood up against the sceptics and how it has measured up to our own expectations.
In true counsel style, let us go through the evidence. The unit is growing – Herbert Smith partner and solicitor-advocate Adam Johnson has recently joined the group and two further associates will also soon be joining, taking the total number in the unit to eight.
But it is not just about numbers. Groups within the firm which perhaps expected to benefit less from the 'in-house counsel' facility (for example the international arbitration group, which would normally undertake the advocacy on their own matters) have made use of the unit. This, in turn, has benefited the unit's advocates, who have had a broader range of subject matters in their caseload. It has proved to be particular popular among foreign clients who are used to more of a 'one-stop shop' approach.
Murray Rosen QC and Ian Gatt QC have already clocked visits to the Court of Appeal. These illustrated one undeniable benefit of the unit to the firm's clients – each have had cases in which they were instructed just three weeks before the beginning of the hearing, but with quick and easy access to the documents and those instructing them, they were rapidly able to get up to speed sufficiently to take the cases successfully through the hearing.
The members of the unit have worked on a large number of interim applications, for example for specific disclosure (including third-party disclosure), search and seizure orders, Norwich Pharmacal applications, various freezing injunctions, anti-suit injunctions and jurisdiction challenges. The group members have also been keeping up their drafting skills, with plenty of pleadings and witness statements being produced. The firm has also been able to use the unit to produce opinions in such diverse areas as the boundaries of lawful tobacco advertising and the enforcement of settlements.
The unit has proved useful in providing witness familiarisation training sessions for clients on cases where the advocates are not otherwise involved. In addition, it has worked hard to promote advocacy opportunities within the firm, so that advocacy skills and experience are built up not only within the unit but firm-wide. For example, the unit has set up and now coordinates a pro bono initiative which sees advocates representing parents appealing to the Special Educational Needs and Disability tribunal against Local Education Authority decisions as to their children's special education requirements.
Rosen and Gatt have also represented the firm in outside advocacy-related events, have conducted various workshops and have designed and are now running cross-examination classes for anyone within the firm wishing to develop and improve their skills in this area. The firm has also taken the advocacy training for higher rights qualification in-house, for which Rosen and Gatt are the heads of quality assurance.
As for the impact on the long-term future of the Bar, Herbert Smith continues to maintain that the service it provides complements that offered by the Bar. This was the expectation at the outset and it is being borne out in practice. The unit's instructing colleagues have continued to offer the members of the unit where suitable, alongside alternatives from the independent Bar.
Therefore some of the anticipated benefits of the unit are being realised. In particular, the costs benefits which it was considered would accrue, have been achieved in practice. Not only does the presence of a member of the unit often eliminate the need for an additional Herbert Smith representative to remain at any hearing (thus reducing time costs for attendance at court), but comparisons suggest that the fees charged by the unit's advocates compare favourably with those charged by the independent Bar when the synergies of the integrated approach are taken into account.
In the context of the current climate, where recovery of fees is increasingly difficult, this will surely find favour with the costs judges and, in the context of such uncertain recovery even in the event of successful litigation, will be welcomed by clients.
What of the suggestion made by some that the members of the unit would not see sufficient advocacy to remain at the 'top of their game'? Experience and time spent 'on their feet' so far has shown this concern to be ill-founded with members of the unit being kept busy.
One year on the message is this: the advocacy unit has been integrated, both within the firm and among the other members of the Bar who have found themselves working with members of the advocacy unit. The real beneficiary has been, and will continue to be, the client and that is, after all, the very focus of our professional obligations and the legal profession (whether barrister or solicitor) as a whole.
Rachel Bennett is an associate in the advocacy unit and litigation and arbitration division at Herbert Smith.
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