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Three things I wish I had known before joining the Commercial Bar

Editors PickThree things I wish I had known before joining the Commercial Bar

After a year of pupillage and some months into tenancy, there is still a lot that I do not know about the commercial and chancery bar. Every day is a new day of research and is a process of refining known skills. Despite this, when I take stock of where I was a year and some months ago, I feel as though I didn’t know anything about what I was getting into when I joined the commercial bar. Whilst these certainly weren’t detrimental to me in the long run and if anything has added to the excitement of developing my career at the Bar, it would have perhaps made the early days a little bit easier.

 By Adil Navaid, Commercial Barrister at St Johns Buildings

  1. The breadth of the commercial bar

I remember coming into pupillage thinking I’d be doing a very select few areas such as bankruptcy, contractual disputes, and consumer rights. In hindsight, this was a very ill-informed and perhaps naïve view. I did not appreciate the breadth of the areas that are incorporated into commercial law, including Sale of Goods, Shareholder Disputes, Corporate Fraud, Sports Law, IP and Design Infringement, Data Protection and Privacy, Agency, partnership, Defamation and Breach of Confidence, Landlord and Tenant, Commercial Tenancies, Insurance claims and so forth. The list is truly extensive. One may join a set which specialises in work in a specific area, such as Landlord and Tenant work, but the chances are that you will need a working knowledge of or may be required to undertake work in other areas within commercial law. I’ve seen senior practitioners drop certain areas or become known for their expertise in more niche work, but especially at the junior end it seems more the norm that you practice a wider range of work.

So then, what are the real implications of this? In my view, the most profound impact is on how you view your own development as a commercial barrister. Because of how broad the nature of the work is, I am often required to know at least a bit about a lot, and ideally a lot about a lot. This means that I should be able to have a good amount of knowledge to be able to take on cases that I perhaps haven’t specialised in before. At times, it feels great to be able to take stock of what you realise you’ve learnt and your ability to call upon a different area of law to assist with a case. Recently, in a case regarding insolvency and contractual debt I learnt how to employ the use of a Quistclose trust. This may sound very trite to anyone senior reading this, or even to myself reading this in a year’s time, but this is why you have to take a view of your own development in light of the breadth of the area of law. I had learnt about Quistclose trusts, and I had learnt about dealing with contractual debts. I had never joined the two. Now I have and I won’t forget it. It was the first time I made the connection between what I thought were two separate branches of laws but in reality, they were much more closely linked than I had realised.

As my pupil supervisor said to me during pupillage, you have your ‘known knowns’ that you can refine, your ‘known unknowns’ that you can research but you also need to focus on reducing the amount of ‘unknown unknowns’. This will often just happen as you go through your career, where you’ll come across something you didn’t expect to and suddenly the ‘unknown’ becomes ‘known’ – a permanent change (unless you forget it). But it can be easy to become disheartened when you constantly realise you just don’t know enough answers in light of all the areas you operate in commercial law. I’ve had moments where I’ll start the day feeling pretty good about myself, having written (what I thought was) a great advice the day before, and then get into a case that I just do not know enough about. By the end of the process, I will inevitably know enough. But that process can be tiring and disheartening at times, and I think it would have better prepared me had I known the breadth of the area I was getting into.

  1. A paper-based practice

I have not worn my wig even once. This isn’t a massive issue because I don’t look great in it, but in all seriousness it’s a little indicative of a wider reality and that is the amount of paper-based work you get. However, it isn’t the extreme end as is sometimes portrayed, either.

I am, in reality, on my feet nearly every day of every week. However, I have seen from more senior members that this is more of the case at the junior end than the senior end. Commercial barristers do have hearings, especially interim hearings and case management, and even final hearings/trials. At the junior end, there are a lot of small claims track trials which tend to settle less due to the nature of the litigants engaged in them and the lower value, as well as possession hearings and winding-up hearings. There is a real bulk of Payment Protection Insurance work nowadays in the small claims track which can often fill diaries, too. Having said this, the reality is that more cases settle in commercial law than many others, and this is because of the very obvious element of money that plays on the minds of the litigants involved. You should never seek to litigate on principle alone in commercial law and this naturally informs not only the litigants who are involved but also the advice you give to those litigants. As such, a two-week trial may settle on the first day and suddenly you may think you have a two-week void in your diary with nothing but circuit dinners to keep you busy. But that is where the paperwork can come in.

What I did not realise was the amount of paper-based work that I would be completing. This works out for me personally because I love this aspect of my practice; I like getting into an advice and researching all the nuances and different routes available to the client and providing realistic, commercially pragmatic advice as to the next steps to take. It’s not instantly rewarding at times because often you are only at the start of the litigation process with statements of case or even pre-litigation advice. But then the flip side is knowing that you may be handling this case for the next two years to come and that you can be a part of it from its inception. Having said this, it can be taxing, too.

Paperwork is sometimes difficult to manage and balance with being on your feet. It is hard to go off to court after prepping, sometimes after travelling for a few hours both ways, being somewhat drained from a difficult argument or from just being ‘in-the-zone’ when you’re in court, only to then switch gears and get into a thick bundle and to research an area you need to know a little more about. Just as you have to get into a mindset for court, you have to do the same for paperwork. This can make the workday feel a lot longer than it is and sometimes (or even often) make your evenings go a lot slower. Written advocacy and advice requires the same skills as you would employ in your oral advocacy – a strong voice, good research and thorough analysis. But it sometimes can feel like a different process and that’s why it is important to be alive to this reality of the commercial bar, where you are required to switch gears and to be meticulous in your research and to be precise with your wording when typing out your view. Paperwork is certainly not unique to the commercial bar, but it does appear to be more prevalent as a cornerstone of the average commercial barristers practice and as such it is important to take into account when embarking on a career as one.

Adil Navaid, Commercial Barrister at St Johns Buildings

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