A day in the life

This morning, I had to be in court at 9 am in a registrar’s list. My appearance was totally unnecessary and entirely for the sake of keeping up appearances. There had to be someone there for the plaintiff. I wasn’t otherwise in court so I agreed yesterday to be the someone there even as I immediately regretted it. I was supposed to be a person with knowledge of the matter but as the orders made were all by consent it would have been an unnecessary incurring of costs for me to become particularly familiar.

The orders were made, without any further registrarial inquiry. I guess they were sensible enough.

Senior counsel (Queen’s Counsel, if appointed long enough ago, and otherwise, literally, Senior Counsel) have a special long wig which they wear for ceremonial occasions. On my way into court I had spotted a long-bewigged barrister going through the (quite unnecessary in my view – we did fine for years without it except for paint being thrown on one judge) security check.

On my way back to the lift from the registrar’s court I saw an unusual sight. Justice Julie Ward was presiding. At the bar table were five or so senior counsel in full-bottomed wigs. There was a full panoply of court attendants. Obviously it was some kind of ceremony.

I slipped in, the solitary spectator.

I realised I was witnessing the ritual known as “making bows” – when newly-appointed senior counsel pay their respects to the court. I caught the end of her Honour’s speech. Maybe I’d missed the heavy-lifting part, but by now she was referring to her own past as a solicitor, and saying that she had previously had the opportunity of speaking with counsel in conference, but would now look forward to exchanges in the court. She invited the senior counsel to join her for coffee (maybe she said “morning tea”) “if you have time” and then the court adjourned.

As the ceremony broke up and the senior counsel started to stir from the bar table, I couldn’t resist a kind of barracking interjection. “Well, that didn’t get much of a public.” Some of them laughed.

As I left, they were being ushered back-stage to the judge’s chambers. I saw from the court list that it wouldn’t go for long: a matter was listed before her Honour at 10.00 am.

I went to the bar library. I finished an advice. I informed my instructing solicitors that the registrar had made the orders.

A fresh set of voting papers arrived for the bar council. (The first set were apparently distributed with a return-address envelope addressed to some Chinese Laundry or otherwise totally irrelevant address.) “Vote early and vote often” a colleague joked.

You have to vote for at least 5 senior counsel to cast a valid vote. I resent that deeply. I am sick of my profession being run by ambitious types jostling for appointment for senior counsel. It adds insult to injury that I am compelled to support this self-selecting cartel once they are ensconced by voting for some of them if I wish to cast a valid vote. I couldn’t find five on the list that I felt like encouraging.

You can tell from that that I don’t expect to be making my bows any time soon.

Should I vote at all given this requirement? There are a bunch of disgruntled unappointed would-be silks who are running on a platform to amend the process of selection. I’m not sure if the reform they seek would really solve the problem I complain of but I am currently weighing up my objection to the compulsory vote for senior counsel against the possibility of registering an even misdirected protest.

I attended to a few other tasks and then left early for a nap before the opera.

On the way to the SOH, I saw a few police cars parked in the vicinity of the now-cleared Occupy Sydney site on Martin Place, now reclaimed for the people of Sydney, or at least (or do I mean at most?) the homeless who congregate nightly for redistributed unsold lunches and a cup of International Roast.

The opera was Richard Mills’ The Love of the Nightingale, based on a 1989 play by Timberlake Wertenbaker.

There was a warning concerning partial nudity and that the opera was unsuitable for children. The warning was merited, not because of the nudity (as ever, male upper torsos and dancers in diaphanous outfits don’t count, so in this case Taryn Fiebig as “mighty Aphrodite” [groan] carried the mammary and nipplous burden) but because Philomel has her tongue ripped out, with tongs and a knife – you see the tongue in the tongs – before turning into a nightingale. You don’t see that quite so literally. Instead Philomel (Emma Matthews) has a long vocalise.

If the message from that is that music is a refuge from grief and suffering or even all the nasty things in this world, then on the strength of this opera and also Batavia, I’d have to say I prefer things that way. That, however, is or at least may be the subject of another post.

In the concluding section of the opera, there is a dialogue between a woman and a child. Why was it wrong to cut out Philomel’s tongue? (Her brother-in-law cut it out after he raped her and she wouldn’t keep quiet.) “Because it hurt?” asks the child. “Because,” says the woman, “it is wrong to stop the questions.” (OK: I may have got the words a bit mixed up but this was the drift. It’s a 1989 play, remember.)

Yes, it’s that clunky, but you have to take insights where you find them, however obvious. It’s not as if they were obvious to whoever ordered the clearing of Martin Place.

3 Responses to “A day in the life”

  1. Victor Says:

    Everytime I read an article by Richard Ackland on the process for selecting new Senior Counsel my blood boils.

    A layperson’s question; would the system of justice suffer if there were no QCs and SCs? I imagine the answer is (or should be) no.

  2. M-H Says:

    I love reading about these ritualistic behaviours, although I probably wouldn’t have much patience for them if they were part of my life. My son in London is in his final year of law and is now looking for ‘mini pupillages’ – what we lesser folk call ‘work experience’ I think. He is very excited to be moving out of the world of the moot court.

  3. marcellous Says:

    M-H, these things are quaint and have a certain charm, but I think that’s on the surface only.

    V – as to your layperson’s question – I’m struggling to think of any way in which the system would suffer if appointments to senior counsel were done away with.

    Conventionally senior counsel are committed to a different type of practice from junior counsel – they generally concentrate on appeals or on more complex matters (where conventionally they would have led other counsel – this was once supported by a rule which said that senior counsel had to appear with junior counsel who had to be paid two-thirds of what senior counsel were paid). There is some advantage to senior counsel and to people who are able to retain them in there being people who have been able to practise in this more specialised way. If they are any good, they can do a better job and their skills in this area will improve by practice at this higher level.

    Incidentally, there are people who are appointed senior counsel who find they cannot sustain a practice of this sort – because the briefs just don’t come in for them – the two-thirds rule used to price them out of the market they entered. It’s a Peter principle kind of thing.

    The question is whether you need to have been appointed senior counsel to develop a practice of this sort. You shouldn’t really, but the bar is such a hierarchical place that it probably helps for credibility with judges if the counsel practising in this way already has the SC or QC post-nominal. Is that a good thing? It hardly seems to be, given that it is just a brand name out for the buying by the client able to retain silk. The only positive aspect of it I can see is in the rules for legal aid where an applicant for legal may be entitled to silk (and, indeed, 2 counsel). This is useful for defendants facing particularly serious charges. But that could be done another way.

    At present I think the administration of the Bar Association suffers from the combination of the preferred position of senior counsel in its leadership and the jostling of would-be senior counsel for positions as junior counsel in its organisation (because service to the bar association, despite its indubitable self-serving aspect, is one of the criteria that the selection process then takes into account in choosing subsequent senior counsel).

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