How wigless advocates cope with the chill factor
Solicitors who have won equality with barristers are still treated with frosty disdain, says Fiona Bowden
Wednesday 19 April 1995
Winning the right to equal status is one thing. Achieving it on the ground, however, is quite another. Last month, a circuit judge, David Bentley, replied to a suggestion that he might like to consider appointing a solicitor advocate - namely Ms Naylor - to represent a client, with the words: "I don't think we need to sink that low." He later apologised formally.
Ms Naylor who is chair of the Criminal Law Solicitors Association stresses that while she has encountered hostility from judges, she has also had strong support. One judge went out of his way to congratulate her on qualifying for higher rights of audience and welcome her aboard.
In any event, she seems undeterred by the insult. She is already planning to act as junior in a forthcoming murder trial and has no qualms that her contribution will carry less weight simply because she is a solicitor.
Solicitor John Mackenzie believes he has faced more serious prejudice from judges. "Being a white, middle-class male, experiencing discrimination is a very unusual and unwelcome sensation for me," he says.
Mackenzie is one of only 65 solicitors qualified to take both criminal and civil cases to the higher courts. But he will not in future be taking advantage of these rights in civil cases. "I don't believe clients using solicitor advocates will get a fair trial and I'm not prepared to prejudice my clients' interests," he says.
Mackenzie was once a great enthusiast for extended rights of audience. A former barrister, he runs advocacy training courses and has written extensively on the subject. But after what he says were particularly bad maulings at the hands of some High Court judges, he is adamant that he will use barristers rather than handle such cases himself in future.
His High Court experience contrasts with his treatment in the Crown Court. "In criminal cases, judges have been very even-handed. They don't distinguish between solicitors or barristers." Mackenzie blames the difference in approach between circuit judges and the senior High Court judiciary on the latter's litism. "High Court judges feel they are guardians of the status quo and of the institutions of the state. Solicitor advocates are seen as upstarts who need to be kept in their place."
Most complaints from solicitor advocates about their treatment are minor: being mistaken for the court usher because they aren't bewigged; or barristers' habit of referring to each other in court as "m'learned friend" and solicitors as "my friend".
Jayne Willetts, a solicitor advocate at Edge and Ellison in Birmingham, says initial concern that she might embarrass everyone by the courtroom equivalent of eating peas off her knife were quickly allayed. "In one case, the barristers didn't seem quite sure how I would behave. Once they realised I wasn't going to dance on the table, they were fine."
Ms Naylor takes an equally pragmatic approach. She dealt with what she calls the "chill factor" from barristers by gently reminding them that, not only was she an advocate, but she was also still an instructing solicitor.
But the question of whether solicitors should wear wigs still causes concern. David Ede, a freelance advocate with Crown Court rights, says it puts solicitors at a disadvantage in front of a jury. "A lot of the performance of advocacy is putting on not just a good verbal show, but also a good appearance. You have to meet the public perception of how a lawyer ought to be." And as every TV-watching defendant or jury member knows, real lawyers wear wigs.
Jo Cooper, another freelance, agrees that the distinction should be ended, but says that while it continues it can sometimes be used to the solicitor's benefit. "The person representing the defence is sitting close to the jury. You are able to address them in quite an intimate setting. There may be advantages in having your argument put in language the jury can understand, by someone who seems more like them."
Most solicitors seem agreed that scrapping wigs for everyone is the only sensible solution. Ms Naylor, in particular, would not relish the prospect of parity being achieved by solicitors having to wear wigs. "I personally think I look very silly in one. It's one of the reasons I didn't go to the Bar in the first place," she says.
Wigs do not seem to be such an issue in civil proceedings. David Mayhew, litigation partner at Clifford Chance, says his bare-headedness hasn't bothered any of his clients. Most are delighted if the firm can handle the advocacy. "Clients get frustrated about briefing a solicitor and then finding they have to do it all again with a barrister," he says.
Mayhew has handled some important cases. He was "parachuted into" a hearing for the Securities and Investment Board when leading counsel pulled out at the last minute. "We were left two weeks before the hearing with the choice of bringing in another counsel, or doing it ourselves." SIB wasn't concerned at the novelty of having a solicitor do their advocacy and took up his suggestion with alacrity, he says.
Despite the enthusiasm of clients for solicitor advocates, Mayhew insists they are not about to put the Bar out of business. And he is not alone in believing that important distinctions between the two sides will remain. A solicitor advocate cites as proof the conversations he overhears between barristers in the robing rooms - such as "Oh yes, he's such a sweetie, I'm surprised he hasn't made the High Court bench yet,"; and "no grouse shooting in Norfolk, then?"
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