Stressful times at Brisvegas bar 'n' grill
Friday, November 25, 2011
Justinian in Silk selection, Sir Terence O'Rort

Silk appointments gridlocked ... Old favourites rejected, again ... Grim economic conditions for juniors ... Helpful advice on how barristers can ingratiate themselves ... Constable Plod takes an insensitive attitute to late BAS and tax returns ... Sir Terence O'Rort explores the misery  

Disappointment all round at the Brisvegas Bar & Grill at the announcement of the latest batch of Daphnis' finest.

Out of almost two Melbourne Cup fields of forty-three applicants (see list) only three were successful: Susan Brown; Liz Wilson and Damian Clothier.

The forty also-rans will have to wait till next year to saddle up again.

Various wags have suggested that Daphnis followed the tried and tested formula: one government lawyer, one criminal lawyer and one commercial lawyer, with as many as possible of the female persuasion.

That's not to suggest that this year's trifecta did not deserve appointment - far from it.

Clothier SC: big firm favouriteSusan Brown is well known for her work for the corporate regulator ASIC; Liz Wilson is an experienced criminal lawyer who was recently counsel assisting at the Floods Inquiry; and Damian Clothier is a sought-after commercial type who is a favourite of the larger firms. 

As for the also-rans - some of them have been applying for decades and obviously don't get the message.

Their best hope is to wait until Daphnis heads up the hill to the governor's pad at Bardon.

The problem with that idea is that the CJ has another seven years at the helm, if he wants it.

Some of the old nags that keep applying will be almost as old as Daphnis when he goes.

The other difficulty is that just as the Daph was passed over for the High Court there is no guarantee that he will make it up the hill.

There is at least one other candidate currently on the Supreme Court who may well usurp Daphnis for the governator's job. 

Among the contenders for silk are a number whose card has been marked by the faceless men and will never be appointed no matter who is chief of the Supremes.

They know who they are and so does everyone else - so what's the point of applying repeatedly?

Then there are those candidates who are seriously bewildered as to their lack of success on multiple occasions. Paradoxically, this lack of insight may be one of the reasons why they are never appointed. 

de Jersey: seven years to go

At least in the last few years the "crazies" have given up applying for silk. These "folk", as the Ruddstar would call them, had a tenuous grasp on reality and were unsuitable for appointment. 

The unsuccessful candidates go through terrible angst, yet the question remains: why bother?

No one really cares and those solicitors who matter know who is good and who is not. The addition of a few post-nominals cannot disguise identifiable blemishes - such as narcissism, poncing, indolence and megalomania (and they're the least offensive qualities). 

*   *   *

The GFC has taken a dreadful toll on the Brisvegas senior bar with a number of experienced and well-regarded silks either upping stumps and either moving to Sydney or Melbourne to ply their trade or maintaining expensive chambers in southern cities.

Most of the bar here signed leases in the nice, new shiny buildings at the corner of Turbot Street and George Street at square metre rates that would make your eyes water.

With the contraction in litigation generally associated with the economic malaise, trips to court have become less and less frequent.

There are a lot of crosswords being completed by morning tea in chambers at the moment.

The old rule that 80 percent of the work at the bar goes to the same 20 percent of barristers has never been so true. Some are doing extremely well, thank you very much, but many at the junior bar are starving.

What can a keen young junior do to attract work?

Well, quite a lot according to the bar & grill's august journal of record Hearsay. 

The May 2011 edition of this organ contains useful suggestions for those starting out on the caper. Some of the advice comes from junior barrister David Chesterman (does that name sound familiar?) 

  1. Your masters and chamber colleagues are your best source of work in the early days of practise. I would suggest choosing masters whose areas of practise reflect those areas which interest you. The same can be said of chamber groups.
  2. In your first month at the Bar, call on as many silks as you can who practise in those areas of interest to you.
  3. Think about supplementing your income by tutoring, writing court reports, or contributing for a loose-leaf service.
  4. Maximise your exposure to the profession by writing articles or presenting lectures on topics of general interest to practitioners.
  5. If possible, for the first 6 months (or so) of practise, avail yourself of the opportunity to squat in another barrister’s chambers or to occupy a reader’s room. Doing so will alleviate some of the financial pressures, and will give you the benefit of familiarising yourself with a group before committing to it.
  6. Keep your overheads down: record your time in excel rather than expensive software; casually enlist the assistance of a book keeper; and do you own typing.
  7. Keep track of your finances, and account for GST and income tax every time you receive a payment. One method of doing this is to set up a few savings accounts (one for GST, one for income tax), which can be easily managed via online banking platforms, and amongst which any fees received can be distributed proportionately.
  8. Make yourself available to accept briefs. Stay in chambers all day even when you are quiet – you never know when the phone will ring, and if you are not there to answer it, the brief will go elsewhere.
  9. Take every piece of work in your chosen areas of practice that comes your way. It gives you experience. Experience is the most precious commodity when you start practise; it is (of course) what separates the junior barristers from the more senior. The faster you can gain experience the more you will gain confidence, which will make you a better advocate. It will also make you more widely known.
  10. Lastly, be easy to brief - be assiduous, obliging, economical and affable. 

John McKenna SC, in the same edition of the journal, suggests that junior counsel should "bring with them an engaging and unpretentious personality. For most solicitors, there is usually no good reason to deal with counsel they cannot abide." 

Ain't that the truth.

Hearsay also regularly features a section called "In the Prism", in which prominent members of the barristerial species are interviewed and provide the benefit of their thoughts.

Morris QC: at the feet of HoratioA brief selection will get the message across:

Lord Eldon (aka Tony Morris QC): 

Q. What is your idea of earthly happiness?

A. A winter's day at Point Lookout; light rain falling on the corrugated iron roof; a good book and a mug of hot chocolate; my wife at my side, and Horatio (our loyal Saint Bernard) at my feet.

Alternatively, cross-examining a witness who is telling lies - who is smart enough to know that he is going to be caught out - but who isn't smart enough to foresee exactly how it is going to happen. 

Ken Fleming QC:

Q. If you could change one thing about yourself, what would it be?

A. My propensity for gaining weight when I enjoy my greatest indulgence. 

Andrew Philp SC:

Q. Which words or expressions do you most over-use?

A. Mate, let's settle this. 

Fascinating, I know, but that will do for now. 

*   *   *

As if grappling with these issues wasn't daunting enough. Now the pesky plod from the Bureau de Spank has stuck his beak into the affairs of the bar & grill, in league with the fiscal fiends at the ATO.

Witness the punishment meted out to Brisbane barrister Bruce Laurie and well-known North Queensland barrister Mark (Sludge) Donnelley.

Both Laurie and Donnelley were a tad lax in their lodgement of BAS and income tax returns and both ran foul of the LSC plod.

Poor old Brucie was publicly reprimanded by QCAT and Sludge voluntarily offed himself by not applying for a ticket since 2008. 

The insensitivity of Constable Plod is alarming. There's no appreciation that barristers are special people, subject to enormous stress that can bring on lapses in functionality. 

Sir Terence O'Rort reporting

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (
See website for complete article licensing information.