LET’S KILL ALL THE LAWYERS

It was nearly five hundred years ago when Shakespeare penned the lines ‘let’s kill all the lawyers’ and little has been done over the centuries to displace that sentiment in the minds of those who come into contact with them and especially ‘end users’.

Michael ‘Oikey’ Gove is the newly appointed Secretary of State for Justice as well as the Lord High Chancellor, and for these important posts he brings with him the lessons learned when he was Secretary of State for Education and more recently, Chief Whip. For better or for worse, he brings with him no legal qualifications or experience, which some might say makes him eminently suited to the tasks that lie ahead.

If he didn’t know it before his appointment, Oikey now knows that the legal profession, both solicitors and barristers, is hopelessly oversubscribed.  The  latest statistics show that there is now one lawyer for every four hundred head of population, and as more and more immigrants, legal or otherwise, flood our shores, there are more and more lawyers qualifying to keep pace with demand. The major problem is that there is absolutely no demand for more lawyers, the profession is saturated, and still they come. To coin a phrase attributed to F.E. Smith, there are one hundred and fifty thousand lawyers with work for fifty thousand being done by twenty thousand.

There were two ‘game changing’ decisions in the recent past that have caused this imbalance.  The first was when the Inns of Court relinquished their monopoly on legal education, allowing dozens of colleges and law schools to offer a fast track to the Bar.  When I first came to the Bar in 1974, two hundred barristers were called at the same time.  Now it is closer to two thousand. The second was when solicitors persuaded the then Lord High Chancellor to admit them as advocates to the higher courts, claiming that to deny them would be to violate their human rights and equality of opportunity and much more besides.

The final nail in the coffin for the profession is the litigant in person, who drags down the system almost to a full stop.

Though I say it against myself, the profession is in need of urgent reform.  The delays are unconscionable, usually associated with the worst excesses of banana republics, the Chilcot Inquiry and Italy. The standard of advocacy is deplorable, with few advocates knowing how to cross examine a witness, and fewer still understanding the rules of evidence and procedure. The costs of litigation, both criminal and civil, are excessive, and the cost of legal aid to the public purse is hard to justify.

The profession needs to be streamlined without further delay. Fortunately for Oikey, he will face no real opposition to his reforms from anybody who matters.  As my profession was told back in the early 80’s, when we were complaining about legal aid fees, it we didn’t want to work for the fees on offer, there were at least ten others who would, so if you don’t like it, re-qualify as a plumber.  This was before eighty thousand Polish plumbers descended upon us clutching their tool bags and their English phrase books.

I was talking to a friend of mine who is now retired, and who acts as a witness support officer for his local court. He is appalled at the waste of court time, with cases called on, only to be adjourned because of one problem or another.  Witnesses who have attended and are expecting to have their say, are yet again sent home to return at a future date.  The remedy is simple – if the case cannot proceed, it should be dismissed.

In addition, there is this absurd belief that the judge must be kept fully occupied throughout the court day, so courts are routinely listing two trials per court.  The second trial, listed as back up, is called a ‘floating’ trial, and will only be called on if the first trial cannot proceed. This means that the second ‘floating’ trial must be ready for trial at short notice, which means that witnesses have to be warned to attend, as well as the advocates.

Finally, and whilst we still cling to the belief that trial by jury is the best way to try criminal cases, these potential jurors are summoned to attend court with no real prospect of being required.  They must be paid their expenses, and in many cases obliged to turn up every day for their two week service, only to return home unused and brassed off.

If he is determined to press ahead with his reforms, Oikey is spoiled for choice.  But he needs to emancipate the judges who have been shackled by so many administrative directives and regulations.  A competent judge is best placed to run his own court, not the civil service, and the only directive he needs to follow is to get on with the job he has been appointed to do.  In running his own court, he must be encouraged to stop prolixity on the part of advocates, and tell them when to shut up and sit down.  He must be allowed to take over proceedings where necessary, and above all, he must prevent interminably flatulent final speeches.  With proper management, a two day trial can be heard and concluded in two hours, especially if there is no jury to humour.

In this way, there will be no need to kill all the lawyers, they will simply fade away.