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The ink had barely dried on the Gill Review before the opening of the new Supreme Court in England precipitated a further review of the court structure in Scotland. As the merry-go-round of judicial reform continues, how does all this impact on the habits, workloads and expectations of the advocates who operate within the system?
After centuries of borderline stagnation interrupted by occasional bursts of glacial advancement, interspersed with the occasional bout of radical surgery, the last year or so has seen the Scottish Court structure blitzed by the shock and awe of reform, overhaul and review from within, from without and even from outside Scottish jurisdiction on a scale never before seen. Rights of audience are in flux following the Woodside case and the Thompson review, the entire structure and jurisdiction of the courts is scheduled for reform after Lord Gill's far reaching review, the Scottish Court Service has been restructured and the new UK Supreme Court has led to constitutional and structural confusion which prompted a review recommending further reform of the courts to create a new "quasi-federal" Supreme Court for Scotland, one of six possible options to ensure the Scots judiciary can subsist alongside it.
There hasn't quite been anything like it.
Whatever happens, Courts need Judges, and none of the reforms propose altering the training, status, role or even the number of Senators required to manage the workload. From their perspective, the changes are unlikely to affect their style of work or its significance. But what of advocates? At the last count, there were 464 practising members of Faculty, although when those of a slightly more mature vintage began to ply their trade they were much more of an elite group of around 100. Stable devolution has seen advocacy practice adapt. Once, the core skill of an advocate was that literal -yet nebulously subtle- art of advocacy, of advancing the argument of your client, of persuading, convincing, and ultimately winning your client's case by the sheer flow of your oratory, mastery of the facts and command of your brief. Some had it in spades, others less so, but essentially that was what you needed.
However stable specialistion is now routine, and akin to the solicitor branch, advocates are almost invariably specialists themselves, with a deep knowledge of their chosen area of expertise, but perhaps only a passing familiarity with others. Their entire working environment is about to be pitched on its end and torn asunder, leaving in its place something in all likelihood similar, but nevertheless distinct and unknown. What will it look like?
"Over the next ten years we'll see specialists and specialised courts, which is certainly not a bad thing. Advocates will be encouraged to specialise, judges will be encouraged to specialise. We already have some good examples of that in immigration courts. A lot of lost time has been made up for, but I don't think there is room any more for a generalist bar," says advocate Ken Forrest, who believes that acquiring a specialism is likely to be the key to survival in advocacy, where competent generalists may no longer be able to undertake the wide range of work that has always been one of the Bar's key attractions.
"You are going to have to hang your hat on something, something quite specialised, something that you can have an expectation a client will definitely want. If they can't do that, there might not be any room for them at the bar," he says.
"Frankly I don't think it is a bad thing. Ten years ago when I came into the profession I didn't see it going like this. The generalist, who could think on his or her feet, was seen as the model to aim for. I think we are moving away from that generalist approach towards a specialism in legal practice where people will only do immigration for example, or only do licensing, or only do divorce work, and nothing else. And of they are asked to do something else, they probably won't be insured for it."
That is unlikely to surprise many practising advocates, but it may come as a surprise to future clients to find clusters of advocates practising a defined range of specialisms that may not reflect the legal problem they are experiencing. The danger is that gaps will emerge in expertise as a result of market forces.
"I don't think it will have an impact on quality if a sufficient number of specialisations are identified. It may have an impact on the man in the street as an access to justice issue, if you like, because someone who has a problem may not find counsel amongst these specialist advocates - these very high powered, very clever specialists - who specialise in his or her problem," Forrest says.
"The challenge for practitioners is to identify and pursue a skill in as many specialisms as possible. Some will get left behind, and that could create an access to justice problem."
Forrest agrees that, despite essentially operating as a freelance profession with near-exclusive access to the courts, the profession of advocacy has been somewhat insulated from market forces, despite the growth in their number and the advent of solicitor advocacy. He believes that insulation is likely to get somewhat thinner as the reforms are phased in.
"I think it has been changing for some time. Some people donÕt particularly like it, others see it as inevitable and a few think it is a great thing and overdue. Not just advocates, but solicitors and the legal profession generally have probably been immune to a lot of the pressures that have affected other professions, as well as trades. Why shouldn't lawyers be subjected to economic pressure? There are always worries, but the reality of these changes is that we should cope well."
Further reform may well have been the last thing Lord Gill would have wanted to contemplate after his exhaustive review, but with parallel reforms in England leading to the creation of their Supreme Court, knocking Scotland's route to the House of Lords as the last forum in civil matters off kilter, something new is required and will arrive inevitably. The Scottish Government did their credibility no favours by emphasising their favour for two of the six possible reform options, which they dubbed the "Independence option" and the "Devolution max" option, although the six options identified were named rather more dully. The report concluded by recommending the quasi-federal Supreme Court option, which is "most likely to overcome the difficulties of reform under asymmetrical conditions."
Whilst the aims of the totality of the reforms are to improve access to justice and sharpen up the court system overall, Forrest says it is an impression shared by many in his profession that this was in many ways already happening as a result of the autonomous auspices of members of Faculty and the judiciary themselves, who may surprise some observers by becoming in fact the agents of change, rather than bulwarks against reform.
"That was my impression, very much so, before these reforms even start to be implemented. For example in cases before the Inner House, increasingly now judges are applying more pressure on advocates in terms of timeframes, I think because judges themselves are under a lot of pressure," Forrest says.
"All that is consistent with Gill, which is trying to tailor the running of the courts to be more efficient. That is no bad thing in principle. In practice, if it happening already then the Gill reforms and the impact of the Supreme Court in Scotland will just be a continuation of that. It is not against the grain; it is running with the grain.
"I believe that they are under pressure from the Lord President to get the decisions out quickly. That's good for litigants, for their legal advisers that they havenÕt been kept hanging on for months and months. Everybody wins, basically."

