REVIEWS
| Date | 01 July 1963 |
| Published date | 01 July 1963 |
| DOI | http://doi.org/10.1111/j.1468-2230.1963.tb00724.x |
REVIEWS
LAWYER
AND
LITIGANT
IN
ENQLAND.
By
R.
E.
MEQARRY,
Q.C.
[London: Stevens
&
Sons,
Ltd. under the auspices
of
the
Hamlyn Trust. 1962.
x
and
205
pp. 22s. 6d. net.]
How
good
are English lawyers at their jobs, seen from. the point of view
of their
clients?
This challenging question is posed by
Mr.
Megarry
on
the
first page of this book and answered in ringing tones on the last.
“I
for
on%” says he,
“
would say that England has just cause for being very proud
of
its
judges,
its
barristers,
its
solicitors, and its legal system.” One cannot
read the intervening
200
pages without feeling that the Hamlyn Trustees
have just cause for being very proud of the learning, the industry and the
percipience of their lecturer for
1962.
At an early
stage
Mr. Megarry
introduces
us
to a character
I
have not met before
:
the Reasonable Defeated
Litigant.
Unlike the Reasonable Man
so
painfully familiar to common
lawyers, he turns out to
be
quite
a
likeable fellow. He takes punishment
in the right spirit and has even been known to commiserate his
own
counsel
on the failure of his efforts; and if he demands
“a
system of law and
a
race
of lawyers
that
all can respect and trust” he is surely not asking
for
a
whit more than
he
deserves-e.ven if he is asking
a
lot
Although
he sometimes grumbles about this and that, the
R.D.L.
is
fairly well satisfied with a
good
many features of the system,
viz:
(a)
the geographical distribution of solicitors,
(b) the ease of access which this affords to specialists in particular
(c) the devoted attention he receives from those specialists,
(d)
his
own
right to insist that his case, however hopeless it is said
(e) the rule which forbids. barristers to coach witnesses,
(f) the incorruptibility of judges, and
(g) the dignity and decorum of the courts.
This is quite an impressive list, and the reasons why the
R.D.L.
is able
to enjoy
so
many advantages are given by the author with much perspicacity.
Far the most important of them is the division of the profession into its
two
branches. Hardly anyone who knows what he is talking about is in
favour of their fusion, but no subject has been productive of more ill-informed
propaganda addressed to potential litigants. The
45
pages
or
so
in which
Mr.
Megarry demolishes these arguments should be compulsory reading
for all who are addicted to this far too prevalent heresy.
The R.D.L. may also be misled into supposing that lawyers are grossly
overpaid. This is largely the fault of the popular Press, which is given to
wild exaggeration about the incomes of barristers. (The incomes of solicitors
are apparently not newsworthy.) Since it
is
not open
to
any barrister to
publish the true figure of his earnings
Mr.
Megarry has done
a
real service
to the Bar as well as the public by reproducing the tables showing the
comparative earnings of various classes of professional men compiled by the
Royal Commission on Doctors’ and Dentists’ Remuneration in
1960
(Cmd.
939).
These tables show that even in the higher reaches of the advocate’s
profession he is quite unlikely to earn more than
€5,000
per annum when
at the peak
of
his practice and that after reaching the age of
66
he goes
down with a bump.
452
branches of the law,
to
be, shall be presented,
(I
found this very depressing.)
JULY
1963
BEVIEWS
458
Then again there are people who flog the theory that our judges would
be better judges if some of them were appointed from the solicitors’ branch
of the profession
or
from the ranks of academic lawyers. The author disposes
of these proposals courteously but firmly. The occasional bad judge is a
price that has got to be paid for a sound system of appointments. Although
we pay this price we pay in very small coin, the striking feature of
our
arrangements being how seldom we have to pay
at
all; and to my mind this
is the best argument (though the author produces additional and interesting
ones) for leaving them alone. The same applies to the suggestion which is
sometimes heard that we should save time and money if we imitated the
American practice
of
putting our submissions into writing and handing them
in to the judge instead of arguing them at length in court; but Mr. Megarry’s
observations on the
“
comprehensive orality
”
of our procedure should
be
enough to convince anyone that we use the right method.
Let
it
not be’supposed however that the R.D.L. is completely satisfied.
Mr.
Megarry recognises fully that he has some reason for grumbling, and
indeed he is rather more sympathetic to his grumbles than
I
am.
In particular,
he is sympathetic
to
the complaint that, having selected his advocate and
discussed the case with him
at
length, the lay client sometimes
finds
at
the
last
moment that he cannot have that advocate after
all
and is represented
in
court by someone else whom he has never heard of. This subject of
returned briefs is,
I
think, the most intractable
that
Mr. Megarry has
to
deal with, and
it
is no criticism of these lectures to say that he provides
no satisfactory solution; for the fact is that there is not one. The answer
has been thoughtlessly supposed to lie in the fusion of the
two
branch=
of the profession, but American experience shows that this
is
no answer
at
alleither the case
is
adjourned endlessly
or
the senior partner hands
the brief over to one of his juniors. The reasons why
I
do not share
the
author’s sympathies
to
the full
are
three:
1.
Mr. By
Q.C.
(because
the
complaint
is
much more apposite
to
leaders
than to juniors) is probably
at
least
as
competent
as
Mr.
A,
Q.c.,
even though
the client‘s solicitors have
got
into the habit of briefing Mr.
A.
2.
It
is generally misleading to talk about the lay dent’s choice of
counsel.
He has, of course, the right to choose his counsel, but he seldom has
the
know-
ledge to do
so
and
in
at
least
75
per cent. of the
cases
in
which this question
arises his advocate has been chosen
for
him by his solicitor. In
the
few
instances in which he
does
personally choose his
own
counsel
he naturally
swears by him; but the fact is that he is no better qualified to
choose
an
advocate than he
is
to choose
a
dentist. (And here,
in
parenthesis, lies a deep
mystery. You will hear people say that their stockbrokers,
or
their family
doctors,
or
their solicitors,
or
their accountants are absolutely incompetent and
they cannot imagine why they keep on going to them. But
you
never hear
anyone admit to having
4
bad dentist. The reason, if there
is
one, is probably
that the dentist in question is good
at
golf,
or
chess
or
drag-hunting, or
whatever may be the patient’s speciality.)
3.
“Ninety per cent. of all cases win
or
lose themselves,” as
Mr.
Megarry
concedes at p.
18.
I
am not myself indifferent to this problem.
Mr.
A
has been cracked up by
the client’s solicitor as being the ideal man for this kind of case and it must
be a great disappointment to have to put up with Mr. B instead. But the
client should read pp.
8-46.
He may then realise that it is one of the
advantages
of a divided profession that B can be recruited at short notice to
stand in the shoes of A, rather than have the case adjourned for six months.
It
is only as if the surgeon who was going to take out the client’s appendix had
himself had to go into hospital.
Another grumble
of
the
R.D.L.
is about costs. Even when he has a lucky
break, becomes S.L. instead of D.L., and gets judgment for
S560
and
costs
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