I have been having a few discussions lately over whom to instruct for some upcoming hearings in cases I’m looking after. And then, by co-incidence, I read Legal Beagle on the barrister’s fear of being briefless.

Of course, I realise that barrister’s tendency to look down on solicitors as mere paper jugglers and file carriers is born of anxiety and resentment of their dependency upon the file carrier’s favour. So, in a spirit of rapprochement with the senior wing of the profession, I thought a little account of how and why Counsel gets selected might soothe some paranoid souls. I should point out that this is purely from experience of a legal aid litigator’s point of view. Those barristers in other fields will just have to remain anxious.

Choosing Counsel is something of an art form rather than a rigorous procedure. I like to think of it as a combination of skill and intuition, although it may well appear to outsiders, particularly the barristers concerned, to be more akin to a cross between whim and pin the tail on the donkey.

Every solicitor has their favourites, of course, but it is never a closed list. New barristers are added, others drop off. Oddly enough though, Chambers and barristers schmoozing and offering jollies doesn’t seem to play a huge part in the process.

Being subtracted from the list can be for a whole range of reasons: poor performance in court, obviously, but also letting us down through lateness or lack of attention to a matter; an emerging tendency to push for settling where we think the case deserves better; not wanting to push a case on its particular facts; or a hike in fees making the barrister pricey for the kind of matter we’ve been using them for, all could play a part. Something as small as not calling us directly after a hearing if no-one is assisting can be significant. Of course, there is no ‘one strike’ rule, it takes an accumulation of concerns.

Even how a Chambers’ clerking seems to be run plays a part: bounce us through double booking or sudden unavailability too often and the whole chambers gets a black mark or two, which can be enough to drop a particular barrister off the list.

Getting added to a list, barristers possibly will be worried to know, is rather more random. Recommendations from colleagues are often important, as is being publicly visible as good at certain kinds of case or area. But solicitors are a conservative lot on the whole and tend to stick to a particular range of Chambers. Clerks rely on this, but rather too much sometimes. We will shift a matter across Chambers if our first choice is unavailable and the alternatives aren’t on the solicitor’s current preferred list, assuming that our second or third choice elsewhere are available.

So it is often an emergency that provides an opportunity to audition new Counsel, often a junior. Something like a sudden application hearing, an immediate stay of eviction hearing, or maybe an unexpected falling through of settlement plans (I’d usually try to have Counsel booked ahead of time in any case, but sometimes events overtake you).

Faced with no alternative, and after asking colleagues for suggestions, to no avail, one accepts someone new put forward by the clerk as available and shoots off instructions. This is their chance to shine; a good performance on late instruction, and/or with scanty facts, or with a difficult client, will be remembered and talked about. A couple of juniors I’ve first instructed in these circumstances have been used by my supervisors and by me on a fair few other matters since. Others haven’t, because I wasn’t impressed and said so (yes, me, a paralegal. My opinion is considered).

Having established a working list, it is then a matter of choosing Counsel for a case. Expertise in the area of law is one factor, of course. For example, in a Housing practice, there will be a couple of counsel who are preferred for advising and drafting grounds for s.204 Housing Act 1996 appeals, because, even though the grounds may well arrive at the very last minute thus driving us to distaction, they are very good at producing effective grounds out of difficult cases. Then there will be a couple of counsel preferred for without notice Judicial Review applications, for similar reasons. There will also be a counsel or several to whom one will turn for arguing a difficult or innovative case turning on points of law.

But in the broader field of, in my role, possession, eviction, disrepair and illegal eviction cases, then it is a question of matching counsel to the needs of the moment and the case. This is where skill and intuition come into play.

What approach will work best at this point, given the case, the available facts, the client and the opposition? Do we want all out passion and aggression? Do we want a forensic approach? Will the client’s situation or point of law be the crux? Do we need someone who can be relied on to do very little when the opposition appear to be shooting themselves in the foot? Or do we need a persuasive storyteller? Will someone be likely to push every point of quantum as is necessary, or do we actually want someone likely to pull off a decent settlement before the hearing? Does the matter need careful handling of the client by Counsel? Will Counsel be able to work with this client? Who has a history with or against the opponent?

I’d say that, for the majority of our matters, all of the Counsel that we generally instruct would be potentially competent to deal with it, but the question is which is best for the specific case. Like everything else in litigation, the decision is a tactical one.

So there we have it. If you are a barrister whose instructions from a firm seem to have tailed off, it may simply be that they haven’t had the right kind of case or situation for which you come to mind for a while. Or it may not…