2024xii30, Monday: Non-zero.

I can’t stand zero-sum thinking. Never could.

It represents much of what I think is poisonous in the world. A simplistic, stupid, short-sighted approach to life. The idea that for me to win, you have to lose is puerile at best; much more often destructive.

I’m not saying it never applies. But in most of life, there’s a way to make the pie bigger; not simply grab someone else’s piece.

So what on earth am I doing at the Bar? In one of the few walks of life in the world where ultimately zero sum is all there is? Where once you’re in court, barring last-minute settlement, someone - as the jargon has it - always has to come second?

I’ve asked myself that repeatedly over the past near-decade: the period in which I was training, then practising, as a professional advocate.

And while I don’t have a final answer, two recent happenstances - alongside one long-held belief about the nature of our trade - have crystallised a possible one.

Ways of seeing

The first such was a conversation with Josh Ray, a new tenant at our Chambers. Josh is an American attorney and an English barrister: a fabulous lawyer doing all kinds of fascinating and exciting things in white collar crime. We’re blessed to have him with us. We were talking about the split profession here, and like an idiot I made an assumption that (coming from the US) he probably saw it as antediluvian. I was wrong. He was a fan. Partly for financial reasons; for some kinds of work, particularly advisory, direct access makes a lot of sense both for a corporate client and for us. But also because of the independence that self-employed, solo counsel can bring - coupled with the speed of response. We’re expected to be the devil’s advocate (sorry) as well as the trusted advisor; the distinct nature of our relationship with lay clients, alongside the fact that all successful courtroom strategy starts with imagining how you’d put the other side’s case as well as you possibly could, requires empathy as well as (on occasion) aggression. And independence, while by no means necessary, certainly helps with that.

That lines up with the long-held view I mentioned. Which is that at heart legal expertise and advocacy are our toolbox, not our job. In line with the cybernetics idea that the purpose of a system is what it does, the purpose of litigators in general, and advocates in particular, is to be trouble-shooters. We get brought problems as they swell into disputes (sometimes in time to forestall that; far more frequently when it’s too late), and we try to solve them.

Here’s the thing, though. We argue our client’s case, fiercely. We make the best deals we can find. We look for every millimetre of advantage. But it’s an oddly collaborative approach. The Bar is a small world, and the various specialist Bars far smaller still. After a while you get to know those you’re against. And as a former supervisor once said, there’s far more often than not a landing space to be found; and you end up in court when someone’s got their sums wrong. Has miscalculated the value, the probabilities, or both.

Defining the team

Which leads neatly to the second happenstance. Adam Grant is that rare beast, a writer of business books I’ll actually read. (Generally that’s a genre I run screaming from.) His “Give and Take” is a masterpiece, a set of insights into successful professional relationships which I’ll carry to my grave. His end-of-year round-up included a piece about the 2024 Paris Olympics, and spoke of his surprise at how often spectators were cheering both sides - not just their own.

Now, Adam coupled that with something that to me is a truism of such long standing that it ought to be a cliché: that patriotism doesn’t have to be about wanting other countries to be worse than yours, or thinking they are. (In my argot, that’s nationalism. And it can get lost.) But there’s a better truth in his piece, I think, hinted at by his reference to how some athletes help one another.

And that’s what hit home about this weird job. Sure, there are those at the independent, self-employed Bar who pick a side. Even a cause. And some of those end up with enemies: other counsel they can’t stand, who tend to rep the other side.

But most of us will prosecute and defend. Work for employees and employers. Rep the regulator, and speak for the regulated. Which means our oppo today may be our team-mate tomorrow. You see this within chambers: ours, for instance, has a number of the best pensions practitioners in the business, both silks and juniors, meaning they're often on opposite sides of the same case... and then on the same side in the next. I fought a hard battle with another counsel this time last year over the Customs and Excise Management Act 1979 and the importation of nitrous oxide (sadly I came in second, if I think a reasonably worthy one). And now we're repping the same government department in another customs-related matter: he's covering the regulatory bit, and I'm doing the parallel civil lawsuit. So we're talking, and collaborating, and sharing.

And that, I think, is where the zero-sum ends for us and the positive sum starts. Yes, in court there’s a winner and there’s a loser. But the joy of the independent Bar is in a sense the team is the Bar - all of us. There are very few counsel I’ve been against that I don’t respect; few I don’t like. The vast majority are people I’d work with happily if the circumstances arise. Even when I lose, I learn; and I learn when I win as well, because usually my oppo has found some way to surprise me. And - again with a very few exceptions - it’s common to celebrate others’ successes. Because we learn from them, too; and hope, in time, to work with them. Or come up against them. Either’s good.

(And then, of course, there are clients as well. The fact that our primary clients are other lawyers, not lay people, is another way the pie gets bigger. Because - once more - the collaborative process leads to growth for all concerned, and a solicitor who’s on the opposing side this week may call you next week if they like how you handled things. It’s called grown-up professionalism. Thank goodness for that, and God help those who are unfortunate enough not to understand it.)

Add to all of this the core ethical requirement to collaborate - within the bounds of fearless representation, of course -in service of the courts and of justice at large (and the fact that sometimes courts and tribunals just make mad decisions and everyone knows it), and the picture’s more or less complete.

So maybe it’s not so weird a life choice I’ve made. A world in which even where someone has to come second, everyone gets a bit better each time round. If they’re willing enough, and humble enough, to take advantage of it. And where since everyone knows someone is going to lose, losing is only professionally problematic if you do it unprofessionally.

2+2, not 2-2, after all. I'll take that calculation. With pleasure.