BARRISTERS
WAITING FOR SOLICITORS AS CLIENTS--"DEVILLING"
--JUNIORS--CONDUCT OF A TRIAL--"TAKING SILK"
--BECOMING A K. C.--ACTIVE PRACTICE--THE SMALL
NUMBER OF BARRISTERS.
Having been called to the Bar, the question first confronting the
young barrister is whether he really intends to practice. He may
have read law as an education, meaning to devote himself to
literature, to politics or to some other pursuit, or he may have
embraced the profession in deference to the wishes of his family and
to fill in the time while awaiting the inheritance of property.
Supposing him, however, to be one of the minority determined to rise
in the profession, he is confronted with formidable obstacles, for
he can not look to his friends to furnish him with briefs. He can
never be consulted nor retained by the litigants themselves. The
only clients he can ever have are solicitors, whose clients, in
turn, are the public. He never goes beyond his dingy chambers in
the Inns of Court, where, guarded by his clerk, he either wearily
waits for solicitors with briefs and fees, or, more likely still,
gives it up and goes fishing, shooting or hunting. And this
furnishes the market for the alluring placards one sees at the old
wig-makers' shops in the Inns of Court: "Name up and letters
forwarded for £5 per annum."
The early ambition of the young barrister is to become a "devil" to
some junior barrister, who always has recourse to such an
understudy, and, if the junior is making over £1,000 a year, he
continuously employs the same devil. This term is not applied in a
jocular sense, but is the regular and serious appellation of a young
barrister who, in wig and gown, thus serves without compensation and
without fame--for his name never appears--often for from five to
seven years. The devil studies the case, sees the witnesses, looks
up the law and generally masters all the details, in order to supply
the junior with ammunition.
Before the trial the junior has one or more "conferences" with the
solicitor, all paid for at so many guineas; occasionally he even
sees the party he is to represent, and, more rarely, an important
witness or two. The devil is sometimes present, although his
existence is, as a rule, decorously concealed from the solicitor.
If the solicitor, or the litigating party, grows nervous, or hears
that the other side has employed more distinguished counsel, the
solicitor retains a K. C. as leader. Then a "consultation" ensues at
the leader's chambers between the leader, junior, solicitor, and,
occasionally, the devil.
At the trial, the junior merely "opens the pleadings" by stating in
the fewest possible words, what the action is about--that it is,
perhaps, a suit for breach of promise of marriage between Smith and
Jones, or to recover upon an insurance policy for a loss by
fire--and then resumes his seat, whereupon the leader--the great K.
C.--really opens the case, at considerable length and with much more
detail and argument than would be good form in an American court. He
states his side's contention with particularity, reads documents and
correspondence (none of which have to be proved unless their
authenticity is disputed--points which the solicitors have long ago
threshed out) and he even indicates the position of the other side,
while, at the same time, arguing its fallacy. Having done this, he
leaves it to the junior to call the witnesses--more often he
departs from the court room to begin another case elsewhere, and
returns only to cross-examine an important witness on the other
side, or to make the closing speech to the jury. In this way a busy
leader may have several trials going on at once. The junior then
proceeds to examine the witnesses with the help of an occasional
whispered suggestion from the solicitor, who is more than ever
isolated by the departure of the leader, and the devil is proud when
the junior audibly refers to him for some detail.
If the leader is absent, which frequently happens notwithstanding
his fee has been paid, inasmuch as no case is deferred by reason of
counsel's absence, the junior takes his place, while the solicitor
grumbles and more devolves upon the devil.
Occasionally, indeed, both leader and junior may be elsewhere and
then is the glorious opportunity of the poor devil, who hungers for
such an accident, for he may open, examine, and cross-examine, and,
if neither his junior nor his august leader appear, he may even
close to the jury. The solicitor will be white with rage and
chagrin, wondering how he shall explain to the litigant the absence
of the counsel whose fees he has paid, but the devil may win and so
please the solicitor that the next time he may himself be briefed as
junior. This is one of the things he has read of in the Lives of the
Lord Chancellors.
The devil is in no sense an employee or personal associate of the
junior--which might look like partnership, a thing too abhorrent to
be permitted. On the contrary, he often has his own chambers and
may, at any time, be himself retained as a junior, in which event
his business takes precedence of his duties as a devil, and he then
describes himself as being "on his own."
Having gained some identity, and more or less business "on his own"
from the solicitors, a devil gradually begins to shine as a junior,
whereupon appears his own satellite in the person of a younger man
as devil, while the junior becomes more and more absorbed in the
engrossing but ever fascinating activities of regular practice at
the Bar.
Reaching a certain degree of prominence, a junior at the common-law
Bar may next "take silk;" that is, become a K. C., or King's
Counsel, which has its counterpart at the Chancery Bar, as will be
explained later when dealing with the division between the law and
equity sides of the system. Whether a barrister shall "apply" for
silk is optional with himself and the distinction is granted by the
Lord Chancellor, at his discretion, to a limited, but not
numerically defined, number of distinguished barristers. The phrase
is derived from the fact that the K. C.'s gown is made of silk
instead of "stuff," or cotton. It has also a broad collar, whereas
the stuff gown is suspended from shoulder to shoulder.
Whether or not to "take silk," or to become a "leader," is a
critical question in the career of any successful common law or
chancery barrister. As a junior, he has acquired a paying practice,
as his fee is always two-thirds that of the leader. He has also a
comfortable chamber practice in giving opinions, drawing pleadings
and the like, but all this must be abandoned--because the etiquette
of the Bar does not permit a K. C. or leader to do a junior's
work--and he must thereafter hazard the fitful fancy of the
solicitors when selecting counsel in important causes. Some have
taken silk to their sorrow, and many strong men remain juniors all
their lives, trying cases with K. C.'s much younger than themselves
as their leaders.
They tell this story in London: A certain Scotch law reporter
(recently dead), noted for his shrewdness and good judgment, having
been consulted by a barrister whether to "apply for silk," advised
him in the negative, but declined to go into particulars. The
barrister renewed his inquiry more than once, finally demanding the
Scot's reason for his advice. The latter reluctantly explained that
the barrister had a good living practice which he would be foolish
to give up. Being further pressed, he finally said: "In many years'
observation of the Bar I have learned that success is only possible
with one or more of three qualifications, that is, a commanding
person, a fine voice, or great ability, and I rate their importance
in the order named. Now, with your wretched physique, penny-trumpet
voice, and mediocre capacity, I think you would surely starve to
death." The barrister did not "apply," but never spoke to the
Scotchman again.
The anecdote illustrates the crucial nature of the step when taken
by any barrister, and even if taken with success, yet there are
waves of popularity affecting a leader's vogue. Solicitors get vague
notions that the sun of a given K. C. is rising or setting--that the
judges are looking at him more kindly or less so, therefore K. C.'s
and leaders who were once overwhelmed with business, may sometimes
be seen on the front row with few briefs.
A successful K. C. leads a strenuous life, as may well be
appreciated if he be so good as to take his American friend about
with him in his daily work, seating him with the barristers while he
is actually engaged. One very eminent K. C., who is also in
Parliament, rises in term time at 4 a.m., and reads his briefs for
the day's work until 9, when he breakfasts and drives to chambers.
Slipping on wig and gown at chambers and crossing the Strand, or
arraying himself in the robing room of the Law Courts, he enters
court at 10:30, and takes part in the trial or argument of various
cases until 4 o'clock, often having two or three in progress at
once, which require him to step from court to court, to open,
cross-examine, or close, having relied upon the juniors and
solicitors to keep each case going and tell him the situation when
he enters to take a hand. From 4 to 6:30 he has consultations at his
chambers, at intervals of fifteen minutes, after which he drives to
the House of Commons, where he sits until 8:30, when it is time for
dinner. If there is an important debate, he returns to the House,
but tries to retire at midnight for four hours' sleep. Naturally the
Long Vacation alone makes such a life possible for even the
strongest man.
[Illustration: CROSSING THE STRAND FROM TEMPLE TO COURT]
His success, however, means much, for there lie before him great
pecuniary rewards, fame, perhaps a judgeship, or possibly an
attorney-generalship, both of which, unlike their prototypes in
America, mean very high compensation, to say nothing of the honor
and the title which usually accompany such offices.
The English Bar is small and the business very concentrated, but no
statistics are available, for many are called who never practice. By
considering the estimates of well-informed judges, barristers and
solicitors, it seems that the legal business of the Kingdom is
handled by so small a number as from 500 to 800 barristers, although
the roll of living men who have been called to the Bar now includes
9,970 names.
We have no Bar with which to institute a comparison, for each county
of every State has its own and all members of county Bars,
practicing in the appellate court of a State, constitute the Bar of
that State, which is a complete entity. Great commercial centres
have larger ones and have more business than rural localities, but
no Bar in America is national like that of London.
It would be interesting, if it were possible, to compare the
proportion of the population of England, which pursues the law as a
vocation, with that of the United States, but no figures exist for
the purpose. The number of barristers includes, as already stated,
those who do not practice, while an enumeration of the solicitors'
offices would exclude individual solicitors employed by others, as
will be explained hereafter. The aggregate of these two uncertain
elements, however, would be about 27,000. The legal directories give
the names of something like 95,000 lawyers in America of whom about
27,000 appear in fifteen large cities--New York, for example, being
credited with over 10,000, Chicago with over 3,500 and San Francisco
with about 1,500--leaving about 69,000 in the smaller towns and
scattered throughout the land. These tentative, and necessarily
vague, suggestions rather indicate that the proportion of lawyers
may not be very unequal in the two countries.