The English common law is a primary choice of law for international business, because it consistently gives the parties exactly what they agreed: what you see in the contract is what you get.
The same cannot be said for the English legal system: there are barristers, solicitors, Inns of Court, chambers, compulsory disclosure, cross-examination and the loser pays rule. There is much to confuse non-English lawyers and mistakes can be expensive for their clients. Those who know enough to avoid confusion can add real value for clients who have English law disputes.
This blog focuses on a single feature which is key for international lawyers’ understanding of the English legal system: why it has two kinds of lawyer – barristers and solicitors – and what each of them does.
Barristers and solicitors: what is the difference?
To understand the difference, the key thing to bear in mind is that they run completely different business models to support their legal practices.
Solicitors practice within law firms: profit sharing entities, familiar to lawyers around the world. This risk-sharing model allows senior lawyers to employ teams of junior lawyers to do the heavy lifting on cases: corresponding with the client, the court and the opposing parties and collecting the evidence for trial.
Barristers are self-employed individuals. They operate from ‘chambers’, which are cost-sharing organisations; barristers practising in chambers together do not share profit or spread risk. They cannot employ junior lawyers to do the heavy lifting on cases; they do not collect evidence, correspond with the court, opposing party or the client. Instead, they are specialist sub-contractors to law firms in England and around the world. Those law firms do all that heavy lifting that allows barristers to conduct their practices.
What barristers do
What, then, do law firms ask them to do? Two things: to provide advocacy services and the detailed legal advice necessary for effective advocacy. That means they have particular familiarity with three key aspects of English dispute resolution:
- the detail of the cases which are the source of the common law,
- the cross-examination of witnesses; and
- the oral and written judicial argument that pulls the first two aspects together.
But aren’t those the fun bits of being a lawyer? Well, yes. So why would a law firm outsource the fun bits? Well, that depends on the kind of law firm…
English solicitors’ reasons for using barristers
Let’s take English solicitors first. You have to bear in mind two characteristics of common law dispute resolution. The first has already been mentioned: the source of law is not a readily-comprehensible, unifying civil code, but thousands of cases decided over centuries; it takes time to master the case law in sufficient detail to argue cases.
The second is the nature of hearings: they take time because of the detailed case law that needs to be considered and because a great deal of work is done orally: from argument to the cross-examination of witnesses. Trials are all-consuming and can last months. So the nature of common law trial work means you have to focus all your time and attention on it to succeed.
That gives the English law firm a choice: it can either recruit and manage expensive, in-house advocacy talent, or it can outsource it. The former is capital-intensive and risky. The latter involves no capital and no risk. You might object that risk is necessary for reward; and true it is. But the existence of a ready supply of barristers in England means solicitors do not have to take that particular business risk in addition to all the other risks they have to take in order to run successful disputes practices.
The existence of barristers allows solicitors to make the following calculation: few cases come to trial; most settle. Solicitors make most of their income preparing cases for trial, not in trial. So it is less risky and more profitable to recruit junior lawyers to help prepare cases for trial rather than recruit senior advocates to fight trials. If the trial happens, solicitors retain a barrister as advocate in the case; they make just enough of the barrister before trial to ensure the trial will run smoothly if it does happen. Meanwhile, the senior solicitors focus on managing their teams of lawyers and winning new business to keep their practices growing. It is an effective business model, even if it leaves the fun bits to barristers.
The risk-reduction that barristers offer to solicitors is more extensive than that basic analysis allows. First, solicitors do not take the risk of losing a client by instructing a barrister on their cases; the barrister’s clients are law firms: no risk there. Second, a firm’s choice to recruit in house advocates is a choice taken once and once only, for better or worse. By contrast, a firm’s choice to instruct a barrister is taken on each new case, so it can choose an advocate with precisely the right expertise for the case. That means the firm can sell its trial preparation practice to assist in disputes in which the firm itself lacks specialist expertise. That reduces the firm’s risk and maintains its profitability.
All in all, therefore, barristers’ and solicitors’ different business models allow them to run complimentary, not competitive practices.
Non-English lawyers’ reasons to use barristers
Now let us consider why non-English law firms would use barristers. The answer is: for the same reasons, but more so. Many non-English law firms have clients with disputes under English law. Most feel the need to pass those cases on to an English law firm; if they do, they lose all or almost all the revenue from the case. To the extent they stay involved, they have little control over the process or the outcome, but they do have the unenviable task of handing the English firm’s very large invoices to their client. It is rarely a comfortable experience.
Note, however: the more sophisticated non-English law firms engage a barrister as their own sub-contractor on English law cases. That completely changes their experience of conducting English law disputes.
In arbitrations, the non-English law firm is free to do exactly the same job an English solicitor; the sub-contracted barrister provides the English law advice and advocacy that the law firm itself cannot provide. By stepping into the shoes of the English law firm, the non-English firm both reduces its client’s legal costs and takes a larger share of them.
In litigation, the non-English law firms must engage a solicitor, but the sophisticated firm nevertheless engages a barrister as its own sub-contractor, rather than allowing the solicitor to engage the barrister. That gives the non-English firm a better flow of information and greater control over the process, so it can better manage its client’s expectations and liabilities.
So: sophisticated non-English law firms do not let the English law firms reap all the competitive advantages barristers offer to law firms; they take those advantages for themselves. Your firm should do so too. Be sophisticated: develop trusted relations with an internationally-minded barrister today; it will be invaluable when your client is involved in a dispute under English law.