Clerking cock ups part three

Sometimes the dividing line between clerking brilliance and clerking cock up can be very narrow. Sometimes the mess can arise because a clerk has been trying to do his or her best.

In one sense you're much less likely to ever make a mistake if you are extraordinarily unambitious in what you try and do. A clerk can take the view that once there is something in the diary against a particular barrister's name that is it. Anyone who wants to instruct the barrister to do anything else, they are told the barrister is busy. Anyone who has a case which has an application which needs covering will likewise be told that Chambers cannot manage it once each barrister has a "tick" of some work against their name. That may lead to work going out of Chambers, and it may lead to big cases being lost to the barrister and Chambers because solicitors will be more keen on clerks from elsewhere who are prepared to put the extra effort in to give the service, but it does mean that things are relatively simple for the clerk. Your job is easier and you are not taking any risks that if things do not work out quite as anticipated that you may suddenly find that you are short of a barrister to cover something.

Although barristers usually complain about their clerks making them too busy, they complain even more about not having enough work and even more about not having enough money. In the same way they will complain about their practice not developing in the way they would like, when of course often squeezing extra bits of work in to impress solicitors is precisely the way that you will do it.

A good clerk will therefore be trying to make you is busy as possible, an exercise it should be noted which makes the clerk's life a good deal harder than it would be if it was not attempted. (Although incidentally it also means whether through a percentage or other performance related targets that the money paid to the clerk will be higher). Inevitably however there will be times when the plan to squeeze in as much work as possible goes spectacularly pear shaped. That then makes life a lot harder for the barrister and the clerk.

On this particular occasion a lady barrister had a conference fixed for 2 PM with a firm that we will call Smith's. However she was also offered a hearing in a list which started at 10:30 AM and which it was generally thought would get on and get finished relatively promptly. She would thus have to take the short walk from court to Chambers and do a conference after the case had finished.

Needless to say on this occasion things did not go as anticipated and by late morning it was clear that even if the case started before lunch, it was not going to finish until sometime during the afternoon. There could be no question of making the clients and/or solicitor wait around all afternoon until the case finished, so one she had telephoned her clerk to tell him of the problem, he then had to make a decision.

Obviously someone else could not take over the case in court, so someone had to take over the conference. As it happened another barrister, who was experienced in the same type of cases, had come back from court having finished early. This was the perfect scenario. The clerk explained what needed doing, went up to the lady barrister's desk and retrieved the Smith's papers, gave them to the new barrister who had just over an hour to prepare, and the problem seemed sorted. Or so everyone thought.

The barrister started the conference, having greeted the clients, by giving a quick summary of how he saw the position and the issues. It was a shareholders dispute, with arguments about who had what rights in respect of which shares, and so he quickly in a few sentences summarised the legal principles and how that seem to apply to the facts. He then said "Let's now go into the facts in more detail" there was silence. Everyone seemed stunned. Eventually after a pause, the solicitor from Smith's said "I'm sure that's an excellent analysis of the law regarding shareholders dispute, but we are here about a property repairs case.".

It so happened that the lady barrister had two sets of papers from Smith's sitting on her desk. The clerk, having seen the Smith's name on the papers, assumed he had picked up the right one when he hadn't. Thus the replacement barrister had just prepared the wrong case.

However the new barrister had the solution. He had also done lots of property repairs cases. "Give me half an hour and I will get to the bottom of this." he said. And he was as good as his word. Any dispute with the solicitors that would cause a long-term problem had been avoided. Unfortunately, they wrote a letter the next day, saying that although they were happy with the advice that had been given, since it was such a shock to the client that the barrister had prepared the wrong case first that they did not see how they could charge the client anything for the services of counsel and so did not propose to pay a fee. This was not a saga which anyone thought would look very good if enforcement steps were pursued. Thus the replacement barrister had a lot of aggro and a lot of work and no money to show for it. He had thought of going out for lunch with his friends instead of going back to Chambers on the fateful day, and now he wished he had done just that.