Chief Justice's wake-up call to the bar 'n' grill

"Earl" Warren CJ says the Victorian bar should do some deep strategic thinking ... It's dropped the ball and allowed law firms to steal its turf ... Fight back ... Promote ... Expand into new territory ... Get technological ... Get with it

Warren: structure of the bar is both a strength and a weaknessVic CJ Marilyn (Earl) Warren passed last weekend at the seaside.

On Saturday (March 5) the better part of the day was spent at Peppers, Torquay, talking at VicBar's inaugural CPD conference.

By Sunday (March 6), she had whisked herself to the Gold Coast, where she unpacked some thoughts to the Queensland Bar's annual knees-up.

Both speeches are interesting and worth reading.

Saturday's epistle was particularly feisty. It was a challenge to the Victorian Bar to wake up and get with it. Her remarks could apply equally to the other bars around the country which are inward looking and unimaginative.

She pointed out that Victorian and federal courts have never had more judges and magistrates and cases to hear. VCAT alone handled 90,000 cases a year and the federal jurisdiction has expanded extensively in recent times.

"Yet the Victorian bar is reputed to have suffered work shrinkage. It has even been suggested that the reputation and status of the Victorian bar has has dropped. It is said only a very limited number fall into the top national rank of first choice counsel."

There are all the usual explanations for this, including the rise of the national law firms, which mostly have their HQs in Sydney. This shift in the litigation axis caught VicBar short.

"Maybe with hindsight, Barristers Chambers Ltd should have acquired sets of chambers in Sydney to encourage members of the Victorian bar to work in Sydney. It is not too late. It would be an interesting step in the interests of the institution of the Victorian bar. Why stop at Sydney?"

The bar's recently released discussion paper on clerking points to a consideration of opportunities to develop relationships with interstate sets of chambers or clerks. This should be pursued.

Warren said the structure of the Victoria bar is both its strength and its weakness.

Low barriers to entry and cheap chambers are just the ticket, but as an enterprise the bar lacks "sharp market focus".

Some still see it as as "an elite secret society" rather than an institution of specialised advocates.

"The Victorian bar does not sufficiently promote itself as a centre of strategy specialists."

The law firms in the early 1990s took the opportunity to minimise, even eradicate, the need for counsel to advise early on about the strengths of a case and the strategy to be adopted and then give advice on evidence.

The firms moved in for the kill and they approached litigation on a "risk aversion basis - they must cover and promote every point, just in case".

"The bar largely failed to respond to this development."

The CJ asked:

"Why not advertise in the commercial press: 'Have you met your barrister yet? How much is your lawyer charging before you will see your barrister'?"

Then there is the decline in the quality of advocacy.

"Many barristers do not understand the components of advocacy.

I have experienced it myself as a trial judge, and commercial judges tell me, time and again, that many commercial barristers do not know how to lead a witness, how to cross-examine or re-examine effectively or how to make persuasive, penetrating submissions other than in written form."

Yet, Warren believes a bright new dawn beckons. "A new era awaits the Victorian bar."

More global 500 companies are based in Melbourne than Sydney; there is the significance of the unique "Collins Street spine"; and on recent figures Victoria outpaced NSW on economic performance.

What needs to happen, according to the CJ is for the bar to get close to Indian lawyers, and to explore opportunities in China and Singapore. "Why not set up chambers in Singapore?"

"The bar cannot continue to do things in the same traditional way."

The reforms in England, where barristers can engage in "mixed partnerships" should be examined. Barristers should also get with the technology, and social media.

"Why not set up a criminal bar Twitter account to publish research, papers, case summaries and the like?"

Three important suggestions from the CJ were:

• The bar must devise strategies to draw back and seize control of litigation in Victoria;
• It must reconfirm and market its skills in advocacy;
• It must market what it has to offer - value for money that is not time based.

In other words, some deep strategic thinking about the very nature of the bar.

See the Chief Justice's speech: Playing at futurology

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More to come from Gold Coast Queensland bar conference ...

See The duty owed to the court