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The commercial Bar covers a broad range of practice areas, including banking and financial services, sale of goods and shipping, insolvency, professional negligence and civil fraud, insurance/reinsurance and oil and gas law. Barristers also handle matters for commercial clients that overlap with discrete areas of law such as employment, intellectual property and competition. Although advocacy is an important skill for a commercial barrister, the emphasis throughout pupillage is on developing a full understanding of commercial law principles and improving drafting skills.
Adam Kramer is a barrister at 3 Verulam Buildings and is one of a not-inconsiderable number of barristers who came to the Bar from another profession - although his wasn't a million miles away from his current employment. "My background is not totally normal," he says. "But the Bar is a profession with an unusually high proportion of people who have done something else beforehand. I was a lecturer in law. I did my undergraduate degree in law at University of Oxford and a master‘s in law at McGill in Canada, and then lectured law at Durham University for three years. The area of law that interested me was contract, and while I enjoyed being a lecturer it did occur to me that it was a bit weird to be a contract lecturer when I never actually saw any contracts, because I was just doing it theoretically. So I came down to the Bar."
Adam's grounding in the academic intricacies of contract law made the commercial sector the obvious choice, although in fact he believes that the area almost defies boundaries. "There's no real definition of commercial law," he explains. "But I suppose that if a case involves a company or someone acting in the course of their business, that may well be commercial law; it's all law arising out of commerce or business dealings. In practice, that really means business disputes - most barristers mainly deal in litigation rather than general advisory matters - and sometimes very large disputes at that. In terms of areas of law, typically the number one area you use is contract law, because that's how businesses do their deals. Second is probably tort law, with a bit of restitution thrown in. Other areas that come up include property and trusts law (often what deals are about and the way they are structured); and company and insolvency law (how companies operate and what to do when they run out of money) - these last two being legislation-based."
Commercial barristers may not see quite as much of the inside of a courtroom as some during a typical week, Adam suggests, but when big trials arise it can become something of a second home. "A commercial barrister is likely going to be in court maybe one or two days a week on average," he says. "But you have to caveat that with the fact that when a big commercial case does come to court, it can be an awful lot more. The one or two days a week will often be small trials or small hearings in advance of litigation, but the big cases, when they come to court for trial, can be anything from a oneweek to a 10-week trial or more."
Adam was initially drawn to the Bar by the chance to find the meeting point between hard law and its practical application, but soon found that he also relished the public speaking aspect - although he believes that the more timid of potential pupils should not necessarily be put off. "Initially I thought what I was going to like at the Bar was the academic bit - finding out the law, researching it, coming to a theory and being persuasive. And I do enjoy that - but the advocacy bit you can't help but enjoy as well. There's a buzz to public speaking which can make it scary and enjoyable. People have to understand that just because they find public speaking nerve-racking, doesn't mean they're not cut out to be a barrister. The real question is: when you sit down after the advocacy, is your instinctive reaction, ‘I never want to do that again'? Or is it, ‘Well that was scary, but I think it came out all right and I got a bit of a buzz out of it'? Don't think that barristers don't get nervous and we're a different breed. We do get nervous, it just doesn't overwhelm us."
So what of the strengths needed for a fruitful career at the commercial Bar? "Obviously there's advocacy skills, but that applies in general to the Bar and is no more true of commercial law than any other type," muses Adam. "Although I don't think it's any less true. Because although you are in court less often, when you do end up in court there might be £50 million at stake and you can't just come out and say to your solicitor, ‘Well, I'm really good on paper…' A combination of analytical skills and intellectual ability is also really important at the Bar, but particularly so in commercial and linked areas such as chancery or tax, because there's more law here - there are more new legal points - and there can be very complex facts."
The need to stay ahead of the ever-changing legal landscape at the commercial Bar is one of the driving forces behind the intense competition for places in commercial sets. "There's nowhere to hide - everyone at the commercial Bar is very clever," claims Adam. "That's why it's a brutal application process, in the sense that you're against hundreds of people with 2.1s from good universities. So if you are not one of them, you've no chance - and even if you are, it's still difficult to show why you are special. You've got to have some kind of commercial sense. It's one thing to know that you might win an application, but quite another to have a good instinct about whether you should actually make the application or whether it's a bad idea in the context of the litigation generally. I suppose it's common sense, but it's commercial common sense."
For those who do make it, a wealth of experiences awaits, and this is one of the biggest upsides for Adam. "The fun thing is that one day you are learning about syphonic drainage and the next you're dealing with chip and pin codes or a certain type of trust that you didn't know existed. You don't get to choose your brief as a barrister; although there's some room for specialisation, in general each case lands on your desk and that becomes your next area of expertise. You have to know the law, but also where to find the bits of law you don't know. I really like that bit. Opening the file on the next case and thinking, ‘What's going to happen here...?"
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