As a new year dawns, it is a good time to reflect. For me, it is difficult to believe that it is 30 years since I was a “devil” at the Bar. In January 1986, I was starting with a new “devil-master”, Matthew Clarke, who later, as Lord Clarke, served as a judge in Scotland. I required to transfer to him because my original devil-master, Ronald Mackay (who, as Lord Eassie, retired recently after a distinguished judicial career), had “taken silk”, as his appointment as Queen’s Counsel is described. Ron Mackay gave me, as a real novice, a good initial grounding with his rigorous use of language and appropriately critical use of a red pen on my early draft pleadings.
While deviling with Matthew Clarke, I was introduced to David Hope QC, Lord Hope of Craighead as he became and Deputy President of the Supreme Court when it was inaugurated in 2009. In July 1986, shortly after being admitted (or “called) to the Faculty of Advocates, I found myself instructed as junior to the man regarded as one of the most eminent silks of his generation. I recall discussing my draft petition for judicial review in David Hope’s chambers in the New Town, a daunting moment in the career of a newly-called advocate. As I recall, we ended up before Temporary Judge John Horsburgh QC a short time later, ultimately being unsuccessful in our quest to overturn a decision by the Secretary of State for Scotland. However, working with David Hope on this and, subsequently, several rating and valuation cases in the Lands Tribunal, taught me that the very best counsel will identify arguments where none previously seemed to exist and present them as if they had been obvious all along.
Looking back, I wish I had had more confidence during my time at the Bar to try new arguments, and not merely assume that the judges would see through my points and knock them down. I was rather enslaved by the cases I read and not willing enough to explore new possibilities. I believed that the really great advocates were somehow set apart and had some additional insight which was not given to the rest of us, mere mortals.
These top counsel were highly intelligent of course. What defined them most, however, was hard work. No stone was left unturned in the quest for an argument that would prevail. I recall late night conversations with Nigel Emslie QC (like David Hope, a future Dean of Faculty and later Lord Emslie) in which he would scrutinise all the points for and against, working on his examination of witnesses with meticulous detail. Before “mind-mapping” was even on our horizons, Nigel Emslie’s papers were colour-coded and even the court pleadings – the Closed Record – would sometimes be highlighted with an array of colours, reflecting different points and arguments. My recollection of David Hope’s preparation is that he would work out his many lines of questioning and the possible responses, supplemented by the follow-up questions for different answers. This sort of attention to detail trained the brain in advance to anticipate the many avenues down which evidence might flow. And all of this before modern neuro-science endorsed so much of what these outstanding professionals did naturally.
The other attributes that were abundant in counsel like David Hope, Nigel Emslie and Ronald Mackay were courtesy and humility. They were unfailingly polite – to clients, to judges, to other members of the Bar (even the most junior) and to staff. They hardly ever raised their voices, in court or elsewhere. They didn’t need to. Every word was carefully measured. They had dignity and no need – or desire – to promote themselves at the expense of others. And yet they all achieved high office and are highly respected by their peers. It is encouraging that, in James Woolfe QC, the Faculty now has a Dean who exhibits the same characteristics.
Back to 1986. That summer was a baptism of some fire. Appearing in the motion roll in the Vacation Court was a great way to gain experience on one’s feet. Some days, the number of instructions would exceed a dozen. There was often little time to prepare. Apart from occasional appearances in Summary Causes in the Sheriff Court, I had no prior experience of standing up in court. There was no advocacy skills training in those days…..indeed, it was nearly ten further years before the first Foundation Course for devils took place. That is, however, another story.