Benchmark revisited part 5

Whilst the outfit (when you are wearing robes) normally marks you out as a silk, there are two circumstances when it might not. Leading counsel wear one or other form of a special type of jacket under the silk robe (usually made these days of artificial silk or that and a mix). One form of this jacket is a special black court coat known as a frock coat, which is worn with a waistcoat. Most silks wear the other variant which is a long-sleeved waistcoat in the same type of style with no frock coat, known as a "bum freezer" (because it ends at the waist) or "monkey jacket" (derivation unclear but probably because of the types of jacket monkeys used to wear in the circus). Some advocates now wear a "monkey jacket" even where they are not silks, presumably to give the impression that they are (although I am not sure what purpose that can serve except possibly vanity as they strut around outside court). The other thing to remember is that albeit that they do not wear the special jacket, the gowns of court ushers are a little similar to silk gowns, albeit not of the same material and not as smart. I saw a leader once walk out of court whilst he was waiting for a case to come on, take his wig off because it was a hot day, and have someone walk up to him and say "Are you the court usher? Can you tell me about the listing in this court?". "That will stop me getting too big for my boots" the silk said to me.

I have certainly noticed that silks get away with things that juniors would not. This is something I noticed when I was a junior, and it still remains the case. I once saw my then leader (now on the High Court bench) get away with asking a question which albeit heavily disguised, was a leading question and I'm sure had I asked that the Judge would have jumped on me. When I asked my leader about it afterwards he was entirely frank that he thought his question had strayed well onto the wrong side of the line. "Perhaps judges think you are allowed to ask leading questions when you're leading counsel" was his quip.

In the Chancery Division urgent or short applications are dealt with on applications day before the judge (it used to be called motions day, and in the old days counsel used to appear in their robes whereas they now appear in their suits). Nowadays the judge has a quick run through the list and listens to the time estimates. He will then decide which order to take cases in. In the past an additional factor was the entitlement of a Queens Counsel appearing to have his case heard first. Some years ago, before I took silk, I was present on a busy motions day when a QC present said that his application would take about 45 minutes to an hour, and he wanted to be taken first. He was. It took all day. Like many other counsel present who had a wasted day, I was virtually frothing at the mouth.

There is one great advantage about being a QC in court and that is when you are presenting a difficult case or point to a judge you do not know. Some barristers take totally stupid points. Most barristers will only take a bad point if it is in fact their best point, and sometimes a difficult point which sounds a load of rubbish at first blush actually has something to it. When you are in front of a judge who knows you, if you are taking what at first sight seems a daft point, because he knows (presumably and hopefully!) that you know what you're on about, he will keep an open mind whilst you develop a point so that he can see where it is going. I sometimes found as a junior if you were trying that in front of a judge who had never heard of you, that it was all too easy for him to assume that you are a lunatic who wouldn't know a bad point if it hit you on the head with a baseball bat, and might thus close his mind to the argument. That doesn't mean that you can't force it open again, but it just makes the whole job much harder. One thing that I found as a silk is that in such circumstances usually even the judge who doesn't know you will give you the benefit of the doubt at first to allow you to develop your argument.