What to do on mini-pupillage

If you are hoping to become a barrister, something you will have to do is called “mini-pupillage”. This is essentially a form of work experience, where you follow a barrister in practice for anything from a day to a week. You follow them on the varied tasks which they may do during your time together, which could be spending time in chambers, or ideally observing their courtroom work. You should aim to do several mini-pupillages. Initially to help you choose your area of specialisation, and later to help you gain experience in that area and to identify where you may wish to apply for your full one year pupillage. 

This is my five point plan to get the most out of mini-pupillage. Whether you are a law degree student, a student on the graduate diploma in law, or Bar course student, this guide to what to do for mini pupillage will help guide you to navigate the experience without causing a mistrial.

Firstly: act the part!

If you are a mini-pupil, you need to show your supervisor you have got what it takes to be a pupil. (Especially if this is an assessed mini-pupillage!)

Professionalism begins with being present. Be on time and pay attention!

Barristers are always punctual. So where ever it is you are meant to go, make sure you leave enough time. Make sure you have enough credit on your mobile phone payment account or Oyster card to get there. Anticipate things can go wrong, so that you don’t leave any travelling until the last minute. Triple check when you are expected to arrive (this is not the same as the time the hearing starts!) Double check your journey path, journey time, and possible problems in advance. Being late reflects badly on you, it also reflects badly on the barrister or their chambers with who you are with. If this is an assessed mini-pupillage, this error alone could cost you a favourable assessment.

As my colleague Abigail Welsh, former practising Barrister and current Bar course lecturer of many years experience, says: “if you turn up on time, you are already late”. Things happen before the listed hearing time, and you need to be there for this. 

 

Barristers always pay attention. During a hearing they will not be looking at the ceiling or checking their notifications. They will be watching what is happening in court intently. (If you find this difficult, making notes helps some people maintain their focus. More about note taking will appear below.)

Secondly: know the etiquette.

Barristers are always smartly turned out (unless it is weekend and they are at home). Try to wear a suit or something dark and fairly formal looking. No trainers, flip flops, or overly showy heels, etc. Bright colours are a no-no, so are T shirts and other sporty clothing. This also means no tracksuits, no jeans. Please don’t show too much skin; no shorts, short tops, mini-skirts, sleeveless tops, no low cut tops. Knee length skirts, please. Go for plain dark coloured trousers, skirts, and white plain shirts if you do not have a suit. Did I mention – no trainers!

Do not drift into court with a latte in hand. This is not good etiquette. You will notice that the barristers in court might have a glass of water in front of them, but nothing else. Enjoy your coffee fix before you get to court.

Another old school point of etiquette is that barristers traditionally did not take their bag into court. They would leave it in the robing room. Some courts do not have that facility any more. But it is still a tradition not to have your bag visible on a surface such as a desk or a chair. Keep your bag on the floor, or out of sight and only keep what you need with you.

Keep your phone out of sight during court hearings and make sure it is either switched off or on silent. Ensure it is not on vibrate.

Barristers are always polite. To everyone. As bestselling author and practising barrister The Secret Barrister puts it: “Be kind to people. Few can expect to be the best lawyer in the room, but anyone can be the nicest.” In particular, do not be rude to the court staff. It’s terribly bad idea. For more on this, see Gordon Exall’s blog post: https://www.civillitigationbrief.com/2022/11/06/lawyers-should-not-be-rude-to-court-staff-indeed-not-rude-not-anyone-a-worrying-report/

The Bar is a small world and if you make a bad impression, you might find that it travels far. Of course, if your mini-pupillage is assessed, treat it as if it were a continuous interview.

SPECIAL WARNING: ATTENDING THE CENTRAL CRIMINAL COURT (THE OLD BAILEY)

If you are asked to attend a hearing at the Old Bailey, please remember this is a real privilege and this is a very important court. Security is a real concern here, as many violent crimes and/or terrorism incidents are dealt with here.

Normal practice is that you cannot take either mobile phones or bottles of water (or any other liquids) to the Old Bailey. Sailesh Mehta of Red Lion chambers advises that the barrister’s clerk should email the Old Bailey in advance to get clearance, and in this circumstance you will be able to take your phone with you. If you are a mini-pupil watching from the public gallery, you will not be able to bring your phone into the building. There is newsagent’s shop across the road who will take phones for a fee, but you risk being late if you need to pop to the shop to leave your phone and then return to the court.

Barristers and pupils (and mini-pupils) are allowed to enter via a special entrance (not the same as the public gallery). This could mean you see jurors coming in the same entrance. DO NOT talk to jurors. EVER. Ever ever. You risk ruining a hugely expensive trial if you do.

SPECIAL WARNING: CROWN COURT VISITS

Never, ever talk to jurors. Whether you talk to them about the case or the weather, it may be suggested that you have influenced their mind (whether intentionally or subconsciously). This could lead to a trial having to be abandoned. This would be embarrassing for you, for the barrister you are shadowing, and for the barrister’s chambers. It also risks wasting thousands of pounds of taxpayers’ money.

Thirdly: recognise the person you are observing is at work

Please do your best to recognise that you are there as an observer and the barrister you are shadowing is there to do their job. This means that them doing their job for the client comes first. I would suggest that you do not ask questions or talk during a conference or a hearing in court. Let the barrister do their job. Unless you are asked to do something or asked if you have questions, do not interfere with client business. Save your questions for after the hearing or conference.

When the barrister is in court, you are there as their responsibility. Therefore, your conduct counts. Do not talk during a hearing, do not laugh, do not roll your eyes, do not make faces. This is a challenge. You will hear things from witnesses during a trial which are laughable, lacking in credibility, rude, silly, offensive, and other things in between. You need to cultivate a poker face professionalism where such things wash over you, and you do not display a reaction. The advocate hearing such things may well use them in their speeches later on, but they will not react at the time. You cannot either disrupt the hearing or risk influencing anyone in the room by your reactions.

Please also refrain from giving your own advice or insights in front of the client of the barrister you are shadowing. Perhaps you are right, but any interference from you risks undermining either the work or the professional credibility of the person you are observing. You are there to observe and learn. You would not want someone to do the same to you, so show the same courtesy.

Fourthly: make the most out of this opportunity to learn.

Keep a note going the whole time. You may want to ask if you can bring a computer with you for note taking. If you can’t bring a laptop, go old school and bring a notebook and pen. Too many mini-pupils just watch things happen, and don't record their thoughts at the time. This means they don’t have something to help them gather their thoughts about their experience, to help record what they have learned, to note down good practice.  Making a note will help you focus yourself on what you are seeing. It will also help you build your bank of things you can draw upon in for applications, forms and interviews.

My suggestion is to maintain focus on practice - practical skills and what you can learn about those things from watching others.

Make a note of things like:

-The facts of the case – the salient ones, not the irrelevant ones

-The legal issues in the case. Think about how the salient facts tie up with the legal issues.

-What was your case analysis?

-How did the barrister you observed use the facts, law, evidence?

-Was there anything they missed?

-Was there anything you missed?

-What parts of their advocacy was effective and why?

-What parts of their advocacy was not effective and why?

-When thinking about advocacy don’t forget good practice in Evidence in chief, cross examination and submissions (speeches)! Think about planning, analysis, questioning, use of practitioner texts, skeleton arguments, authorities, documentary evidence …

-What can you incorporate into your own practice?

-What insights into ethics have you learned?

-How did the barrister deal with the ethical issue? Why did they do what they did? What elements of the Code were engaged here? Is there BSB guidance, and if so, what does it say?

-What have you learned about practice: interaction with lay client, interaction with professional client, dealing with opponents, dealing with court staff, dealing with judges.

-What have you learned about procedure?

-How can this experience make you a better lawyer?

Fifthly: how can what you’ve learned help you get pupillage?

My list of things to look for and make notes about are designed to help you notice and record all the things that a mini-pupillage can teach you. Was there anything I missed?

What you can use from the above in your pupillage form, CV, interview answers?  Too many people are very passive when discussing their mini pupillages – “I observed blah blah blah” they tend to write. What you glean and how it makes you develop into a better practitioner is what shows you are ahead of other candidates.

Use the assessments you have made by answering the questions above to craft the answers to both the pupillage application form and your interview questions. Chambers will want to know how your legal work experience has shaped you as a young lawyer, and what you take away from your learnings. Mini-pupillage should be an exercise in active observation, critical analysis, and professional development.

Good luck on your mini-pupillage!

Using case law in civil advocacy submissions

Using the case law in civil advocacy submissions

 

You may find that there is relevant case law you will want to refer the judge to in a civil procedural submission.

This case law can serve several functions. You need to be familiar with the principle established by the case, and how it serves the function below which you need to achieve. How you use the case will depend on the function the principle will serve, as you will see below.

The functions case law can serve are as follows:

Sets out the court’s approach.

Where one of the rules do not actually tell the court how to approach the application being made, you need to check either the case law or the Practice Direction for the “thinking process” of the court. A good example is applications for extension of the validity of a claim form whilst the CF is still valid under 7.6(2). A good reason needs to be established, and the better the reason, the more likely the extension will be granted, please see the White Book Volume 1 commentary at 7.6.2. The principles for the grant of an Interim Injunction set out in the landmark case of American Cyanamid v Ethicon is another example.

Establishes either the burden or standard of proof.

The general civil burden is allocated on the basis that “he who asserts must prove”. The general civil standard is on the balance of probabilities (it is more likely than not). However, there are some applications where the case law gives guidance on either the burden or standard of proof. An applicant will want to argue this has been met, obviously. The respondent has the possibility of not only arguing rebuttals on whether the legal test was met (arguing that the applicant has not made out the grounds for an order to be granted), but also arguing that the applicant has failed to discharge their burden to the appropriate standard.

Helping the court understand the legal test by offering guidance on the meaning of the rules.

The phrase “Real prospect of success” as used in applications for either setting aside of default judgment or an application for summary judgment is defined in the case of Swain v Hillman. Therefore you need to know how the court defines “real” as it is different from the meaning in the ordinary world of common parlance. In Swain v Hillman, real was defined as “realistic as opposed to fanciful”. Something which is fanciful is far fetched or unlikely. Therefore you will need to use the facts and evidence to demonstrate realistic chances of success which are not fanciful or far fetched if you are for the applicant. The respondent on the other hand needs to undermine the strength of the applicant’s case to show it is far fetched, unlikely and unrealistic either factually, evidentially or legally.

Where the case law is an important procedural authority.

Denton v White is an example of this, as this case represents judicial guidance with wide applicability (here it is relief from sanctions and all implied sanctions). The three stage approach to relief from sanctions is contained in Denton, meaning that any application for relief from any sanction (including implied ones) have to cover all three stages. But Denton also deals with other fundamental principles, like dissuading opportunism by innocent parties in obtaining a litigation advantage against a defaulting party.

Where a case clarifies confusion which existed in a particular area.

Denton v White offered important clarification of the approach to relief from sanctions in Mitchell v News Group Newspapers.Therefore it needs to be drawn to the court's attention and the main principles from the case need to be outlined to the court.

 

What you need to do in your oral and written advocacy

You need to therefore be aware when considering the application you are making, what case law is relevant and which function the case law fulfils. You may also need to read the original case rather than just rely on the brief summary in the White Book commentary.

You can refer to the White Book commentary if it sets out the matter in enough detail, but don’t forget to cite the relevant paragraph of commentary in both your skeleton argument and oral performance and don’t forget to present it as being commentary rather than the rule. Case law reports are a primary source, but the commentary although learned, is a secondary source; it was compiled by the editors of the White Book.

When you are relying on case law you will need to cite it in the skeleton argument. The judge and the opponent cannot be “taken by surprise” by the sudden citation of cases in oral submissions delivered without warning. Letting the judge know in the skeleton argument helps the judge form a preliminary view. Informing your opponent is a professional courtesy required in the interests of justice. [You may want to append the relevant headnote and relevant paragraphs of the judgment to your skeleton argument as appendices.]

When structuring your skeleton arguments and submissions it is important to think about where best to include any case law that you want to draw to the judge’s attention.

As a general rule, where you intend to make any arguments on the basis of the case law (particularly say if you are deploying it to help the court understand the legal test),  it is better to include relevant case law as part of your ‘submissions section’ rather than under the ‘legal test section.’ If you include case law for this reason under the legal test it will appear ‘orphaned’ from the facts of the case and therefore it may not be clear to the judge how it relates to the arguments that you are making.

However, for other uses of case law then it may well be better to include as part of the legal test. Where the case is an important procedural authority – as in Denton v White – which sets the parameters for the arguments that you will need to make, then it is important to include this as part of the legal test to give the judge the framework for analysing your submissions.   

Reflecting on how and why you are using the case law, using the guidance above, should help ensure you deploy it in writing and oral submissions to maximum effect

Please also, where you cite case law, remember to give:

1.     The full case name and citation

2.     The principle of law established by that case

3.     Apply that principle explicitly to your case

4.     Please avoid using civil procedure cases dating from before 1998 and the Civil Procedure Rules, as the rules themselves changed. (Unless this authority is vital, or your only option; Norwich Pharmacal and American Cyanamid v Ethicon are examples of pre-98 case law you would definitely need to rely on in the relevant applications.)

 

Don’t just recite the facts of the case. Many students do this – or they rely on the outcome of the case. Never forget that your case may have different facts, and you cannot ask the judge to impose the same outcome without having good reasons. Use the principle established by the case. If needed refer the judge to the relevant paragraph of the judgment. You should then explain how the facts and evidence in your case should be interpreted in the light of the principle you cite. Draw the judge to the conclusion to be drawn, don’t just “hint” at what you want the judge to decide.

Further reading:

The legal test in civil submissions: https://snigsclassroom.blogspot.com/2020/11/the-legal-test-in-civil-submissions.html

Starting your civil submission: https://snigsclassroom.blogspot.com/2019/10/starting-your-civil-submission.html

This blog post was written with the kind assistance of Jonathan Waghorne, a current BVS student. Thanks to him for reading a draft of this blog post, and thank you for writing the paragraphs on where to include the cases in the skeleton argument.

10 Bar course knowledge subject tips

These are my 10 Bar course knowledge subject tips. These tips will help you, regardless of your provider. So whether you are doing City's BVS, the BTC or the BPC, this should be of assistance to you*.  

 

1. Always use the syllabus when studying: the syllabus will tell you what you need to know - and in what level of detail - as well as what you don't need to know. Never make assumptions - always check the syllabus.

2. Begin with understanding each topic. Trying to learn something thoroughly without understanding it, is almost impossible. If that means you start with lecture notes, textbooks, revision guides, that is fine. Work your way through the resources you have been provided, pausing when you come across something you don’t understand and addressing that problem before moving on.

3. Once you have that understanding, you can start to drill down into the detail. You will need to look at the specific wording of certain rules and provisions. Now is when you need to crack open your Blackstones and White Book. The subtle differences between “may” and “must” are important here, also the factors involved in discretionary decisions, etc. Using the syllabus as set out above, you need to be clear about which rules are tested, which cases you need to know by name, which Practice Directions (PD) you need to have checked (and which paragraphs), which paragraphs of Blackstones and the White Book you need to have read and made bullet point notes on.

4. Do not cut any corners. There are no quick fixes. You need to cover everything. You then will need to revise everything. My favourite topic as a tutor might never come up; I am not writing the exam paper! So you can’t expect any hints from tutors or former students.

5. Make your own notes. They will help you make your own sense of the material. EVEN IF your provider gives you documents, slides etc. They can help you with your understanding. But because you have not organised the information yourself, it will not "stick" as well. Think about how you want to make your own notes. Some prefer to type their notes. If you do, then you must ensure you are meticulous about saving and backing everything up.  However, old school handwriting works for a lot of people. The research paper "The Pen is Mightier than the Keyboard" (Mueller & Oppenheimer, 2014) suggests that the link to memory from writing is better than with typing. The challenge with paper notes is organisation and filing. Whether you use paper or typed notes, make sure you date everything. Immediately after a session, make sure you fill in any gaps in your notes; do it while your mind is fresh.

6. Participate in your sessions. It is only by attempting the questions that you will be able to bring your knowledge together into a cohesive whole. Being able to explain your understanding will clarify and deepen your knowledge. The BVS is very much a “Learning by doing” course – (social constructivist/constructivist pedagogy). Sitting back will not assist you constructing your own knowledge.

7. Form a study group from the outset. Supporting each other, learning from each other's insights are important. We are also social animals. It is good not to feel alone. Covering the material with a group can help lessen the load - divide the topics between you. You can hold your study group sessions in person or online, depending on when you want your sessions and where you all are located.

8. Think about the questions you are being asked to answer in class. What facts are being used in the question? Why these particular clues? What are the clues in the question to trigger the relevant knowledge? What sub-questions do you need to know the answers to in order to be able to answer the main question?

9. Test yourself regularly. Testing helps train the brain's recall. The top quizzers in the world regularly use self-testing to keep their knowledge fresh. A "test" doesn't always have to have the purpose of obtaining a pass mark - training your brain is just as useful. Many students avoid testing themselves because they worry about not achieving the pass mark, and so they put off doing mocks and tests; they only test themselves at the end of their revision period. This is the wrong approach as the testing is not to check if you can pass – it is a learning technique in itself. You can use the questions provided by your law school, or you can try to write your own, or get your study group to write a few questions each to create a “paper”. At its simplest, you can just cover up your notes and see how much you remember.  

10. Start as you mean to go on. Especially at the beginning of the course, because work piles up and the concepts become more complex as you progress. Keep up as well as you can. If you fall behind, try to catch up. Don't leave making your full set of notes to the last minute. Don't leave trying to understand the subject matter to the revision period.

Good luck with your studies.

 * BVS = Bar Vocational Studies, BTC = Bar Training Course, BPC = Bar Practice Course

This is an expanded and updated version of my blog post on BPTC knowledge tips, which you can find here: https://snigsclassroom.blogspot.com/2018/10/10-bptc-knowledge-subject-tips.html