Barristers specialise in disputes and court work.  A barrister has three main roles:

  1. To provide independent advice on the prospects of success for the case; 
  2. To prepare and present the case so that it has the best possible prospects of obtaining an outcome which achieves the client’s objectives; and
  3. To engage in and advise on settlement discussions (as required).

A lawyer who I once worked for used to say, a good litigator argues the cases which they’re going to win and settles the cases which they will lose.  That sounds simple enough, but the ability to differentiate between the two situations is the real skill.  This is judgement, in the sense of knowing how the decision-maker will approach the dispute.  It is at the heart of all three facets of a barrister’s role.

Logic and legal skills almost go without saying but are only part of the mix.  Being able to identify a potential argument is important, but more important is knowing whether or not a Judge is likely to agree with that argument.  Relying on a range of different arguments can obscure what might be a reasonably strong argument, and lead to the Judge doubting (even at a subconscious level) its correctness.  

This involves considering how judges decide cases generally – how the Judge is likely to react to an argument or a set of facts, and reconcile those points with the merits.  An added dimension can be how the particular Judge might respond based on their background, other cases which they have decided and their personality.  Being part of a large chambers and being able to speak to colleagues is very helpful in that respect.

Being a barrister involves anticipating reactions and being able to formulate an appropriate strategy.  Psychology and empathy are equally vital.  This is a matter of recognising the human dimension:

  1. how the other party will respond to your client’s action; 
  2. levers for settlement; how a witness is likely to come across; and
  3. what your client wants to achieve.

A good advocate is one who is willing to play the long game, avoiding point-scoring for its own sake.  While some cases , in my experience unchanneled aggression and refusal to make appropriate concessions can undermine a client’s position.  That is particularly the case bearing in mind that 95% of cases settle.  Respecting your colleagues and having good working relationships with them, despite your respective clients’ differences, can make it easier to reach a settlement which may be the most efficient course for all parties.