Thomas Leaming

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.

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.