Expense of two counsels better value than a movie-style team
American legal dramas such as Ally McBeal and Steve Bucho's excellent Murder One have introduced us all to the concept of 'second chair'.
Members of the American legal profession, unlike their English counterparts, are not divided between solicitors and barristers. American law firms can provide both advice on legal matters and representation in court. They put together a team of at least two lawyers to conduct the case in court. The main advocate is assisted by the lawyer occupying 'second chair'. They probably got this idea from us. (After all, the pilgrim fathers did take our legal system with them, although you'd be hard pushed to recognise it now. ) On this side of the Atlantic we often have two trial lawyers, known as leading and junior counsel. Leading counsel is usually a QC and junior counsel is anyone is who isn't a QC, however long in the tooth they may be: there are numerous 'juniors' knocking about the Inns of Court who have long since passed their half century.
Urban myth, fuelled by a reluctance to see lawyers in a good light, would have it that it is an absolute racket to be obliged to engage two lawyers (for the price of three, so the myth runs), one of whom sits in 'second chair' for the duration of the trial with the proverbial Biro up their nose.
There are various analogies which demonstrate the role of junior counsel. My favourite is perhaps the calm and majestic swan that moves effortlessly across the water powered on by unseen feet furiously flapping underneath.
Leading counsel conduct cases with similar calm majesty only because their juniors are working away like the clappers in the background.
Preparing for trial involves a tremendous amount of work. It ranges from cerebral legal research to mundane photocopying. In between there is usually the task of mastering vast quantities of documentation. As more and more of the trial process is conducted on paper, written statements from any number of witnesses have to be cross referenced to the contemporaneous documents which span the life of the contract, checking for blunders upon which the unfortunate witness can be cross examined. This job has to be done by someone and it is seldom the swan, believe me.
During the trial, leading counsel conduct the case, and perhaps their juniors do appear to do nothing more than take notes with a Biro (or more often these days, on a laptop). The public did not see them in Chambers at 6.00 that morning searching through 150 odd lever arch files in response to their leader's enquiry 'where did so and so say such and such'. Nor were they spotted leaving Chambers at midnight, throwing the remains of their MacDonald's supper in the bin on the way out Some wonder why you need two counsel at all.
Returning to our American cousins, whose approach, as depicted in the movies, shows that they would be hard pressed to do it with two.
In Reversal of Fortune Jeremy Irons played the celebrated Claus von Bulow, charged with murdering his wife, Sunny. His famous lawyer recruited an enormous legal team who holed up in his house for months, living, eating and sleeping with the case. Despite this considerable input, the case was apparently cracked during a game of basketball in which members of the team wore T-shirts depicting key items of evidence.
Similarly in A Few Good Men Tom Cruise headed up a legal team who worked (we were told) an astonishing 20 hours a day during which witnesses were endlessly rehearsed and coached all with a view to establishing that a hapless soldier had been murdered by his comrades because Jack Nicholson had ordered 'a code red'. Despite all these lawyer hours, they still managed to overlook the fact that their star witness hadn't actually been where he said he was but was saying something he'd been told to say.
Against this background a two-counsel team seems rather good value.