It has been an interesting few days and, in the tiny world of the legal blogosphere, I haven’t been so famous since those guys who would write your essay for you for money, threatened to sue me. I gather that Twitter has been even more lively, although I don’t use it myself because: a) I doubt my ability to stop once started, b) There is already far too much legal hot air out there and c) It is frequently so unpleasant that it adds little to actual understanding. The commotion has been because in the last post (also on Legal Cheek) I said that pupils contributed nothing to Chambers. That was an error. As I said in my comment on the last post, after Sara accused me of undervaluing pupils over at Stret Law:

You are quite right and all the points you make are entirely valid. I succumbed to irritation at the original proposal and made a sweeping generalisation.

We obviously have to pay pupils, otherwise Pupillage would be restricted to the already comfortably off and, perhaps, those willing to gamble with a massive debt. But they are not being paid for what they do – even though I agree that they are usually useful (and that includes all of mine). The balance is between what pupils need to survive and what the Bar can afford and – crucially – is willing to pay. There may be an argument there for London weighting.

That, however, has not stopped people having a go. Depressingly, the standard tack amongst those who want to beat up a bit of trade has been to accuse me of not caring about pupils and being a relic of the dark ages. I am not sure if that behaviour is based on a startling lack of research – after all, anyone reading this blog is unlikely to hold that opinion and the blog is hardly a secret – or simply disregarding reality for the sake of a momentary satisfaction. The justification for such a stance is usually that the blogosphere is an unforgiving place. This isn’t a justification: that there are lots of unpleasant morons in your home town does not justify you being an unpleasant moron. The blogosphere is the same and such “justifications” are merely an attempt to avoid personal responsibility. I am unimpressed. As I have said to a number of the knockers, I spend a lot of time answering individual emails from people looking for help. It would be a shame if those people were put off by reading a load of nonsense, and I don’t see any of those people making the accusations stepping up to help aspiring barristers. Bah, humbug.

On the other hand, as one of my correspondents said to me – whilst refusing to make any alteration to what they had written, despite acknowledging it to be wrong now that they had done the basic research – I wrote it. That being so, I ought to make it clear that of course pupils contribute something during pupillage. My original comment was made in the context of a suggestion that pupils should be compulsorily recruited and compulsorily funded to an extent which more than doubles the current minimum, and should be (and, I suspect, by a majority of people, was) read in that light. And, as I said above, I succumbed to irritation at a patently silly idea and made a sweeping generalisation. As Ambrose Bierce said, “Speak when you’re angry and you’ll make the best speech you ever regret.”

I do, however, stand by the view that payment to pupils should not reflect the value they contribute. It isn’t merely that defining such value is extraordinarily difficult: the primary reason is that the aim of pupillage should not be to reward pupils for contributing value or even for pupils to contribute value. The aim of pupillage is for a pupil to be trained to become a successful member of the independent Bar.

That means that Chambers should not be constantly assessing the value their pupil adds. The question should be entirely the other way around: ask not what your pupil can do for you; ask what you can do for your pupil. What I have found really worrying about the way that people are pretending to support pupils whilst pretending that I do not, is the way in which they have phrased such “support”. Far too many of the reactions I have seen are full of self-serving ersatz indignation and can be fairly summarised as: “Look at me. I can show I’m down wid da kids by saying they contribute value by helping established figures do their research and answer questions about new law and sit there taking notes. And, if I say so, I’ll look well cool and gain even more cred by calling out a silk”. But to respond in such a way is simply to demonstrate a misunderstanding of what we should be about: if that is how Chambers are valuing the pupil, then the pupil is being let down and, potentially, exploited (I wonder, does the fee note for work based on a pupil’s research reflect the supervisor’s hourly rate, or the pupil’s?). I should make it clear that this is in no sense any criticism of Sara, whose points were made in response to me and who was nothing other than wholly reasonable. I am addressing the “contributions” of those seeking to make capital for themselves by posing as the pupils’ friend.

Pupils should be encouraged to understand their supervisors’ cases, to contribute to the process of developing an argument and to practice drafting documentation. But they should not be used as a researcher, still less as a notetaker. Research is the barrister’s responsibility. If they can’t do it, or they have too much on, they should employ a librarian/researcher in Chambers, work harder or turn the work away. Pupils’ notes should be for the pupil’s own use, not because their supervisor would rather not take their own. You don’t learn much by writing down a note of the evidence or of a con.

The big commercial sets pay a lot of money to pupils because they regard themselves as competing with the city solicitors. Personally, I wonder if they really are. Don’t the pupils at those sets have a real passion to be a barrister? Are they really going to allow the amount of money paid to them aged 23 to determine their career? But that is none of my business, because I’m not in such a set. The only sadness, as I have previously suggested, is that those sets could do something to ease the crisis in pupil numbers by splitting their award in 2 and taking on double the number of pupils who then compete with each other. But for most Chambers, who don’t have blue-chip corporate clients, the money paid to pupils is a significant feature of the budget. If a pupil is paid the minimum £12,000 and Chambers charge 20% on what is earned, then a pupil will have to earn £60,000 before the money advanced by the other members of Chambers is repaid. If the pupil makes that sum in the first year of being taken on (and not many do), that is the equivalent of a 2 year interest-free loan. Furthermore, the basic economics dictate that if there are about 200 applicants for each £12,000 post, then there is no need to pay more.

The point is that the focus of this debate should not be about the amount of the award, providing it allows basic needs to be met. It should be about increasing the number of pupillages (which, ironically, was the point the initial article focussed on, even though I think the idea a bad one). However, the number of pupillages is currently outside the control of the Bar, because it is subject to external forces to which the profession can, currently, only react. Accordingly, the debate is actually about decreasing the number of people paying the providers an extremely large sum of money for which they get very little value (that word again). The sad truth is that the BPTC is the world’s most expensive lottery ticket and it is, moreover, a ticket which gives different people a different chance of winning, without providing the purchasers with any clue about what chance they actually have. This blog exists to try and assist you when it comes to how to assess and maximise your own chances. If anything that has been written recently (by me or anyone else) makes you doubt that, please be reassured.