Devil’s advocate: life as a judicial assistant at the UK Supreme Court
SLN assistant editor Kapil Summan visited Parliament Hall in Edinburgh to hear former Supreme Court Judicial Assistants (JAs) give their first ever talk in the UK about their roles at an event held by the Scottish Young Lawyers’ Association (SYLA) and kindly hosted by the Society of Solicitors of the Supreme Court.
Few would feel up to the task of arguing the merits of a case with a Supreme Court Justice but for Judicial Assistants playing devil’s advocate is a routine part of the job. They are kept busy in a varied role that also sees them dealing with “compatibility issues” and preparing press summaries and bench memos.
Scots Jim Duffy and Michael Deacon, barristers at One Crown Office Row, spoke about their experiences as JAs.
Jim described the role as “potentially career transforming”, adding that it was useful to have a JA among the seven “who knows the difference between avizandum and abracadabra” and who can also explain substantive Scots law issues.
He went on to discuss the history of the JA role. Unlike in other courts, such as the US Supreme Court, where the analogous role of law clerk is long-established, the JA role is relatively new. There were four or five JAs who worked in the old Appellate Committee of the House of Lords who were “by all accounts housed in a turret of the Palace of Westminster, waiting to be called upon by Lord Bingham or Lord Philips whenever they could assist with a legal issue.”
But when the functions of the Appellate Committee transferred to the Supreme Court there was a clean break between the court and Parliament. One of the consequences of this was the formalisation of the Judicial Assistant programme and an increase in the number of JAs to eight. However, there are only seven positions available each year as a permanent JA, currently Penelope Gorman who assists Lady Hale, acts as the lynchpin of the programme. JAs might find themselves working for one of the Justices or two, with the most senior Justices generally having one JA each.
Jim, who assisted Lord Reed and Lord Hodge, explained that one of his main roles was dealing with compatibility issues between Scots law and the European Convention on Human Rights (ECHR). This saw him often “deciphering” voluminous applications from lay individuals and identifying whether there was a genuine compatibility issue.
He described the appeals dealt with by the Judicial Committee of the Privy Council, which JAs also work on, as “quite a leap” from the Supreme Court work as they involve issues such as whether the death penalty should be applied or whether a sentence should be commuted – as well as “massive financial regulatory” cases involving, for example, the Cayman Islands.
JAs also write press summaries of cases, with the assistant for the Justice who gives the main judgment usually being the one who drafts the summary. This can be “quite challenging”, Jim said, because the different judgments might vary significantly, or the case might just be very complex. Crucially, the summary must fit on two sides of A4 paper – something easier said than done.
Another part of the role is to prepare bench memos, or permission to appeal applications. These are sent to Justices who sit in a panel to decide whether permission should be granted for appeal. Those documents must also be comprehensive and concise. Jim explained that JAs must convey what the case is all about; the appellant’s best arguments; the respondent’s best arguments; and what the lower courts decided.
Michael assisted Lord Walker of Gestingthorpe until his retirement in February 2013, following which he assisted Lord Toulson who took his place and also Lord Reed.
He discussed the life of a case at the Supreme Court and gave some reflections on the role. He said as a JA it was an invaluable learning experience to work for the Justices.
“The Justices are working at such a high level you can’t fail to learn from them”, he added.
Each Justice has a different way of dealing with a case when it comes in: they either use JAs as a sounding board, having read the case or they receive summaries of the issues from them. Michael said these early conversations between Justice and JA are “massively interesting” and marvelled at how quickly justices were able to get down to the “nub” of a case.
JAs find themselves in the unique position of already knowing what the Justices think are the relevant issues at the hearing stage, allowing them to see the contrast between the advocates’ and justices’ beliefs about what the central issue of a case is, which can sometimes be stark. JAs are also treated to the spectacle of seeing some of the finest advocates in the UK perform in court. During his time as a JA, Michael singled out Dinah Rose QC, James Eadie QC and Richard Keen QC, among others, saying they epitomised the standards that could be reached in the profession and that they were “fantastic to watch”.
Following deliberations in a case, JAs meet with their Justices. Michael said the Justices would tend to ask “what do you think?” – initially a daunting prospect. However, the discussions that usually follow that question present an invaluable learning experience to a JA, being “like a series of vivas” over the course of the job. JAs also look at first drafts of judgments and might be required to play devil’s advocate to identify weaknesses.
The role also provides JAs with the opportunity to learn how to be a better court advocate by gaining exposure to a range of advocacy styles. Michael said: “Some barristers will stand up and basically try to beat the bench into submission with an emotive style, but then you’ll also have Chancery barristers who will be more measured and slow”. He added that one QC has the marvellous ability of being able to deflect a tough question from the bench by treating it as everyone’s problem to be solved instead of wavering as other advocates might.
And the practice of whittling down written material, whether for press summaries or reports, mean that JAs have the opportunity to significantly develop their analytical skills over the course of the year.
He added that there is a “luxurious element” to the job, saying: “How many times in your legal career do you get to sit back, look at all the different areas of law on a regular basis, hit the hot topics and deal with the big issues that arise in those areas?”
The role is also, of course, an incredible CV boost. Whether you plan to go to the bar or, as many do, return to work as commercial litigation solicitors, having a reference from the UKSC is no bad thing.
Jim said that the performances at the court were often “stellar” and that he actually kept a jotter in which he would note down all the things he picked up from advocates – both good and bad.
He went on to describe “pinch yourself” moments, particularly during the Washington DC trip, which he said was the highlight of the year. The programme is an exchange between the US and UK Inns of Court of Judicial Assistants and Temple Bar Scholars, “people with extremely impressive CVs”. Following that visit the JAs visit Washington DC – which Jim summed up as a being like a week-long episode of House of Cards given the range of institutions the JAs visit.
Jim and his cohort saw four cases in the US Supreme Court and met Justice Steven Breyer who told them about his life, his appointment by Bill Clinton and his confirmation by the Senate. But Jim said that up there “with the most surreal moments of my life” was meeting the late Justice Antonin Scalia, the arch-conservative of the bench.
Extraordinarily they even had an opportunity to visit the Pentagon. There they met the head of legal at the US Air Force where, along with the top brass, they discussed the legality of drones and other issues. The group also visited Congress, the House of Representatives and the White House. They were later hosted by the American Inns of Court at a “massive banquet” in Philadelphia.
Contracts run from September to July and each applicant must have at least a 2:1 in their LLB and must be qualified as a lawyer in the UK, either as a solicitor, barrister or advocate, having completed or be about to complete their traineeship, pupillage or period of devilling. Successful applicants cannot continue with any private legal work. At a social event in July successful applicants get the chance to meet the justices and the outgoing JAs.
The Justices are keen on recruiting candidates from across the UK and applications from Scottish lawyers are welcomed by the Court.