Is there a “wrong” time or a “right” time to apply? How can the King’s Counsel Appointments’ requirement for listing 12 cases of substance over the preceding years be met by a commercial practitioner? How in practice might competencies C (working with others) and D (diversity action and understanding) be met?
New silk Ravi Aswani KC of The 36 Group reflects on the demands of applying from silk, both generally and with a particular emphasis on doing so as a commercial practitioner.
Looking back now, it seemed to me like all my peers (and barristers significantly junior to me) were all taking silk - before me! I had to keep reminding myself that it is not a race, but also to assess critically my own practice to see what they had that I did not. When I did this, I realised that in effect I had been operating at silk level for some time, acting alone against silk opponents in a significant proportion of my cases. The only thing holding me back had been myself; I decided the time was right to take the plunge.
Timing is, necessarily, a personal decision for every applicant to make for themselves. It is impossible to set out a yardstick of number of years after which to apply. What can be said though is that an objective review of your practice is something that should periodically be done.
Of course, it is not just a question of waking up one morning in early March deciding that this is the year to apply when the application opens in a few weeks’ time! It is vital to start early. The entire process from start to finish is exhausting and very time consuming. Drafting and refining the application form itself can easily take in the order of a week. More than that, the KCA requires “cases of substance” to be the ones deployed in the application to showcase the applicant’s demonstration of the various competencies. By definition, not every case will qualify. Making running notes during and after all cases is a useful practice to get into years before any application is made.
As part of a multidisciplinary chambers, I have always been all too aware that whilst my 36 Crime and 36 Family colleagues are in court, getting daily time and exposure before judges, the commercial diet at 36 Stone is very different. For a start, the long-term trend in my work has been that the arena for disputes has moved from litigation to arbitration. On top of that, parties in my practice areas regularly reach sensible commercial solutions to their disputes prior to getting into a final hearing. This necessarily limits my time before judges and arbitrators, and my advocacy is inevitably skewed in favour of written over oral.
However, as I learned, this does not mean it is “harder” to take silk for a commercial practitioner. Rather, it is necessary to maximise what you can say on your application and not overly fret about what you cannot say.
Within reason, the KCA offers flexibility both in terms of numbers and dates of cases on the application form and the choice of assessors. As to the former, I ended up using 10 rather than 12 cases and had a couple which were outside the standard 3-year period. However, I had reasonable explanations for this. As to the latter, whilst the gold standard of course remains High Court Judge or above (and it is probably important to have at the very least one or two of them), there is flexibility. I was able to name a retired Supreme Court judge who had been presiding arbitrator in one of my arbitrations, and I had many arbitrators to name who were themselves silks. Neither of these things came up as an issue from the KCA’s side during the application process.
I would also strongly recommend that applicants engage a coach to help with the process, as early as possible. This is not cheap, and whilst the official position of the KCA is that it is not necessary to pay for coaching to be successful, I have not yet met anyone who has taken silk under the modern system without having used a coach.
Finally, I would encourage applicants to make use of the ecosystem they operate in. Mentors are everywhere (including in the Bar Council’s own Silk and Judicial Appointments Mentoring Scheme, which I made use of).
Loyal solicitors are, in my experience, only too happy to bear you in mind for something particularly “silkworthy” to feature in any application. Clerks can really help too. Just make sure you keep everyone appraised of your plans from the earliest stages.
And do not underestimate the learning you can glean from negative role models. This may seem a strange thing to say, but I had several poor experiences with senior colleagues during my early years of practice. I made a promise to myself that I would avoid treating more junior colleagues in the way I had experienced. This helped me from an early stage in my career develop formalised commitments towards mentoring, especially to those from historically underrepresented groups. It also made me realise the very real importance in practice of developing soft skills and being able to interact with everyone. I had, without realising it, for years been conducting myself in ways which meant that I had plenty to say for competencies C and D of the application, which applicants sometimes neglect by focussing exclusively on competencies A and B. Ultimately, it is important to excel in all the competencies, and develop a balanced approach towards being able to do so.
Everyone’s path to silk will be slightly different and not necessarily even linear. But keep up the effort – it can be done and the hard work is definitely worth it!
Ravi Aswani KC is a commercial dispute resolution barrister. He has a broad practice which covers a number of areas including in particular shipping and international trade, commodities, energy and oil and gas, metals and mining, insurance and re-insurance, banking and finance.