- Autumn 2023
- Being a good junior: a summary of suggestions from the Inner Bar
Being a good junior: a summary of suggestions from the Inner Bar
What makes a good junior? There are many views and tips to be found in available articles and recent CPDs which have been drawn upon for this article. They reveal that the silks of today were often the anxious and out-of-their-depth juniors of yesterday. What follows is a compendium of various suggestions, including suggestions made by Ian Lloyd KC, Max J Kimber SC, Robert Newlinds SC, Stephen Lloyd SC, Sandra Duggan SC (as her Honour then was), Kate Eastman AM SC, Ingmar Taylor SC, Michael Hodge KC, Dr Ruth Higgins SC, Elizabeth Raper SC (as her Honour then was), Richard Pontello SC and Sophie Callan SC. While some suggestions are universal, there are also those that are idiosyncratic, since what makes a good junior for one silk will not be true for all.
Robert Newlands SC recounted in a 2016 CPD an incident early in his career while being led by David Jackson AM KC in the Court of Appeal. He described David as a silk who does precisely tell you what he wants you to do: (1) do not take notes (he knows what he said); (2) do not interrupt; and (3) do not do anything other than follow his script and hand him the relevant authorities at the specified page. At this stage Robert was yet to learn the benefit of using tabs or post-it notes to mark pages. His proposed solution was to lean forward over the bar table and use each of his 10 fingers to try and hold open the various law reports set out in front of him. When David got to the first authority in his script, Robert ‘panicked a little’ and all the authorities fell over the front of the bar table except the one David wanted. David, having been interrupted mid submission, stared down at Robert, took the book and gave an austere direction that David would handle the reports going forward. Robert did nothing else for the rest of the case.
Your role is to make the silk look good and to work as part of a seamless team.
A compendium of suggestions by leaders for what makes a good junior
The first lesson is that each barrister will have different expectations of the senior/junior working relationship. You will never satisfy everyone. The vagaries of each case, together with the silk’s predetermined notions of what the junior’s role will be, requires that each junior is flexible with their approach to a new brief and new leader. In that spirit, the below takeaways are by no means prescriptive and only intend to provide a malleable framework for juniors to utilise depending on their leader.
• Your role is to make the silk look good and to work as part of a seamless team.
• Assume that you are going to be running the matter. This not only prepares you in case your leader cannot appear, but ensures that you know the material, improves your chances of getting a speaking role and shows that you are committed to the case.
• Do unled work – this allows you to appreciate what would assist your leader and will improve your forensic and strategic decision making.
• Ask the silk what they want, suggest tasks that you could do and identify what needs to be done between the two of you. Do not delegate unless the silk agrees.
• Answer questions with economy as if you were in court (e.g., ‘yes’, ‘no’, ‘the answer is yes, but there is another issue…’).
• Identify what the deadlines are, communicate them with the silk (possibly even send calendar invites and communicate early if you are not going to be able to make a deadline) and agree on when drafts will be prepared and stick to it – the best junior is a reliable junior.
• If you are too busy to do a good job or meet the deadlines, do not accept the brief. There is nothing worse than overpromising and underdelivering (or delivering late). Mention time constraints early on and otherwise make clear when you will be available. Many silks expect a reply to their email within a 24-hour period and do not want to hear that you had to complete something for someone else first.
• Do not be a ‘yes person’. Be ready to tactfully correct the silk (preferably not in front of the client) or discuss an issue. You may have identified something the silk missed or had not read. It is better to correct a silk early rather than let the court correct them.
• Be conscious of costs. It does not always arise, but be prepared to communicate with the silk about how long you should be expected to spend or charge for certain tasks. Depending on the case, it may be a bad look if your bill is higher than the silk’s. Your role is to make the silk look good and to work as part of a seamless team.
• One of the reasons you have a silk is the benefit of their experience in relation to decision-making and strategic calls. If you are in doubt about something or wondering about a particular strategic step, go and tell the silk. Use it as an opportunity to learn. With time you will become more confident with what you are doing and will probably do this less.
Recommending other barristers to the client and working with someone new
• Good juniors work with a range of silks and good silks have access to a range of juniors.
• When recommending a silk or junior to the client, do not just suggest someone who you always work with. Think of who you want an opportunity to work with.
• Sign up to and abide by the Law Council of Australia’s Equitable Briefing policy: https://www.lawcouncil.asn.au/policyagenda/advancing-the-profession/equalopportunities-in-the-law/national-modelgender-equitable-briefing-policy. This involves making a commitment that 30% of the barristers that you recommend will be female. This breaks down the barriers of patronage and allows you to learn from others who may approach a case differently from those you have already worked with.
• Be prepared to contact the silk at the start of the case to arrange a conference or ask what they want you to do.
• Understand the boundaries of the senior/junior working relationship. All barristers must comply with Bar Rule 123 which provides that a barrister must not, in the course of, or in connection with, legal practice or their profession (including connected social functions), engage in conduct which constitutes: (a) discrimination, (b) sexual harassment,or (c) bullying. Be familiar with the Bar Association Conduct Guidelines(https://nswbar.asn.au/uploads/pdfdocuments/5_Guidelines.pdf) and if you are uncomfortable, one avenue is to report pursuant to your relevant chambers guidelines (if any) and the Bar Association guidelines.
• Be punctual (the same applies for attending court).
• Whenever possible, arrange to meet with your silk 15 minutes before a conference with a client to ensure that you are both on the same page and can iron out any issues.
• Before the conference, read the brief, be prepared to give the silk a rundown on the pertinent facts and what you see the key issues as being while identifying any leading decisions that may be applicable.
• Be on top of the material so that when a certain issue is raised you can hand over the relevant documents.
• At the end of a conference (including lengthy or important teleconferences), draft an email to the solicitor for the silk to settle, summarising the key points discussed and next steps. This acts as a file note and ensures that everyone knows what they are meant to be doing.
Research / advices and other documents
• Ask the silk if they use a template or style guide.
• Communicate clearly about any time/costs constraints, what needs to be addressed and by what deadline.
• Ensure that the draft is provided to the silk on time and be honest if you have not been able to address something.
• Do not leave spaces for the silk to fill in. Prepare the document as if it is a final product.
• Where applicable, footnote in the draft document the source of the material you are referring to so that the silk can locate the material and delete the footnotes after.
Preparing for hearings / appeals
• Be on top of the timetable and any practice notes about due dates.
• Prepare a detailed chronology and, if applicable, an evidence matrix early on – an evidence matrix compares the pleadings and identifies what evidence supports each disputed pleading.
• Be at the nerve centre of evidence gathering and run investigative steps past the silk.
• Be prepared to run the directions hearings and interlocutory hearings.
• If not already ordered by the court, ask the silk if they want an outline of submissions.
• Prepare a closing submissions template for your silk to settle before the hearing. This document can be added to at the end of each day as the hearing progresses. This also sets out your case theory and allows you to track how the case is going.
• Ask the silk if they want a script for cross-examination, oral submissions or any other discrete arguments. At a minimum, it is always useful to prepare a cross-examination schedule that identifies the key topics for cross-examination and where the evidence for each topic is located.
• Speak to the silk about you preparing a list of authorities and an objections schedule, what types of objections they want to make and what evidence they want to leave in.
• Speak to the silk about the sequence in which they will deal with each topic so that you can follow them during the hearing and be ready to pass them each document when needed (this is particularly important forcross-examination).
• Print copies of everything, tab relevant evidence/authorities, and have a filing system in place to enable the smooth running of the hearing – you need to know the material back to front so that when the silk asks you where something is, you can find it promptly.
Hearings / appeals
• Communicate with your leader beforehand about whether they want you to have a speaking role (the solicitor and client should also be consulted).
• Know where your leader is going with their oral submissions or cross-examination. This allows you to be prepared to pass documents or identify if something is missed.
• Pass notes to your leader, do not speak to them while they are making submissions.
• You are in charge of MFIs, exhibits and use of technology. Keep a record, store the documents and be ready to pass up and get back each document when needed and to assist with any technological issues.
• Keep the bar table ordered and try to assist the silk in not losing documents.
• If you do not know the answer to something, be honest. The silk will likely just relay what you say to the court.
• At the end of each day: a. review the transcript, make any corrections for the silk to review and update a transcript index (usually divided into topics) that identifies where in the transcript each topic was addressed by which witness; and b. fill in the draft closing submissions where applicable.
• Do not tell the silk they did a bad job when they finish in court or otherwise be overtly negative or critical. Be positive and supportive.
• When the case is over, thank the silk and, if appropriate, indicate that you would like to work with them again.
Stephen Lloyd SC in a 2021 CPD noted that all juniors need to ‘be good at the law’ but if you are able to master a number of the above takeaways, then that will likely distinguish you from other juniors who may be just as intelligent.
Further resources addressing what makes a good junior
In recent years the New Barristers Committee has organised a number of CPDs targeted at addressing what makes a good junior barrister. Each CPD is accessible through the NSW Bar Association’s online CPD platform, including:
• ‘How to be a Good Junior,’ from 20 June 2016 featuring Robert Newlinds SC, Sandra Duggan SC (as her Honour then was) and Dr Ruth Higgins (prior to herelevation to the Inner Bar);
• ‘Working with silks,’ from 17 August 2021 with Stephen Lloyd SC, Michael Hodge KC, Elizabeth Raper SC (as her Honour then was) and Sophie Callan SC;
• ‘What to do when your leader does not appear,’ from 11 October 2022 with Geoffrey Watson SC, Justin Hogan Doran SC and Anna Garsia; and
• ‘Working with silks,’ from 27 October 2022 with Ian Lloyd KC, Kate Eastman AM SC, Richard Pontello SC and Greg O’Mahoney.
Beyond CPDs, Neil Williams SC and Alison Hammond authored Learning to Litigate which was recently published by Federation Press and was reviewed in the Summer 2022 edition of Bar News. Chapter 19 of Learning to Litigate specifically addresses ‘How to be a good junior’. Max J Kimber SC also authored a 2019 article addressing what makes a good junior – the article and a CPD that accompanied it can be viewed here: https://www.statechambers.net/cpd-videos. Interestingly, Max noted at the start of the CPD that thinking about the senior/junior working relationship made him realise the need to have an upfront and ongoing conversation with his juniors about what his expectations were and what they could do to better assist him. It is hoped that juniors can refer to this article for guidance and a reminder of what they should be striving for day-to-day, and that leaders might be prompted to reflect upon, and maybe even proactively communicate, their expectations for their juniors. BN