King’s Counsel: Difference between revisions

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[[File:Jolly contrarian.png|450px|thumb|center|A Queen’s Counsel — {{jerrold}}, to be precise — yesterday. ]]
[[File:Jolly contrarian.png|450px|thumb|center|A Queen’s Counsel — {{jerrold}}, to be precise — yesterday.]]
}}Senior, brainy, court lawyers. The [[JC]] is lucky enough to know a few, largely because he shares with them a fondness for [[cricket]]. They are excellent men and women, to a one, but they engage in a part of the legal process of which the [[JC]] is constitutionally committed to steering as clear as he can: [[litigation]]. Not just because suing and being sued is hard, gives you a tension headache and is beset with fiddly, procedural bear traps, but because the road is strewn with absurd conventions, unarticulated rules of etiquette, and unspoken ways of behaving that you have to get ''[[Substance and form|formally]]''; right, hang whether you were right [[Substance and form|in ''substance'']]. That’s not just how the [[JC]] rolls.
}}Senior, brainy, court lawyers. The [[JC]] is lucky enough to know a few, largely because he shares with them a fondness for [[cricket]]. They are excellent men and women, to a one, but they engage in a part of the legal process clear of which the [[JC]] is constitutionally committed to steering as he can: [[litigation]]. Not just because suing and being sued is hard, gives you a tension headache and is beset with fiddly, procedural bear traps, but because the road is strewn with absurd conventions, unarticulated rules of etiquette and unspoken ways of behaving that you have to get ''[[Substance and form|formally]]''; right, hang whether you were right [[Substance and form|in ''substance'']]. That’s not just how the [[JC]] rolls.


In legal practice, court lawyering is ''golf'' you see, and the [[JC]] is a ''cricket'' kind of fellow.
In legal practice, court lawyering is ''golf'' you see, and the [[JC]] is a ''cricket'' kind of fellow, not just in pastime, but by disposition. Litigation is combative: it has ''etiquette'' to mask a fundamental ugliness. Commerce is co-operative. “Being a good sport” is a point of [[substance]] and not [[form]].


And then there is the small matter that, for any proud contracts lawyer, even ''talking'' to a Queen’s Counsel — to ''any'' litigator, really — except one you are standing next to in the slips, or who is purporting to act in an “advisory capacity” (HA!) — is a confession of ''professional failure''. We cannot notch our belt with our conquests; we have no kill emblems to paste on the fuselage. We are like dogs in the nighttime: you know us because we do not bark. We mark our serene performance by the ''lack'' of cuts, scrapes, bruises and abrasions on our pretty faces. Our measure of success is that our contracts are so clear no one would ''dream'' of litigating.
There is also the small matter that, for any proud contracts lawyer, even ''talking'' to a Queen’s Counsel — to ''any'' litigator, really — except one you are standing next to in the slips — ''is a confession of professional failure''. We commercial contracts folk cannot notch our belt with conquests; there are no kill emblems pasted on our fuselage. We must take our pleasures another way. We do this by our ''lack''of rancour; we know we have done it when we see our clients going peaceably about their business, promending down the high street in their finery, waving cheerily at us from the wheel of the fancy motorcar our careful stewardship has enabled them to afford.  


For the most part, financial services professionals know what they are about enough that their contracts — the “[[verbiage]]” — don’t wind up in court very often. When they do, it is generally as a result of some cataclysmic failure in the industry, where institutions that were supposed to have been immortal, indestructible and impervious to any kind of weakness turn out to have been run by utter morons. This happens every ten years or so; for the rest of the time the utter morons that run our institutions get away with it. But suddenly Lehman, you know. The litigation is conducted by someone — an insolvency practitioner — who will have barely the first idea about derivative contracts; and will be heard by another someone — a commercial court judge — who may not have even heard the word swap before.
We are like dogs in the nighttime: you know us because we do ''not'' bark. We mark our performance by the ''lack'' of cuts, scrapes, bruises and abrasions on our pretty faces. Our measure of success is contracts ''so clear'' that no one would ''dream'' of arguing.


Now, readers, exactly the same thing is true of litigators. They ''hate'' financial markets transactions. They’re so hard, they give you a tension headache, they are beset with fiddly, procedural bear traps, and because the road is strewn with absurd conventions, unarticulated rules of etiquette, and unspoken ways of behaving that you have to get ''[[Substance and form|formally]]''; right, hang whether you were right [[Substance and form|in ''substance'']]. It is much more fun cross-examining [[Mrs. Pinterman]] about her alibi, establishing the [[mens rea]] and objecting to things. I mean security waterfalls? COME ON.
===Sources of expertise===
For the most part, [[financial services]] professionals know enough of what they are about that their contracts — the “[[verbiage]]” — don’t often wind up in court. When they do, it usually follows some cataclysmic failure, where institutions that were conventionally understood to be immortal, impervious to weakness and managed by enlightened auteurs turn out to have been run by morons. These discoveries tend to be cyclical; over-lionised morons may go years or even decades without being exposed. But, suddenly, [[Lehman]], you know. [[Enron]]. The commercial world is all at once awash with litigation — much of it conducted by, on behalf of and in front of people with barely the first idea about the complexities of financial services contracts.


Queen’s Counsel might see {{isdama}}s — quite a few of them at once — every decade or so, whenever a systemically important financial institution hits the wall. In-house legal eagles — people like you and me, my brothers and sisters — we live with them, animate them, ''give them life'', every day of our working careers. So if you wanted to ask a down-home expert how the mechanics in an {{isdama}} work, ''you would go find someone in the [[doc unit]]''. Do you see where I am going with this?
Now, readers, exactly the same thing is true of litigators. Just as commercial lawyers hate litigation, litigators ''hate'' financial markets transactions. They’re hard, they give you a tension headache, they are beset with fiddly, procedural bear traps, and the road to their comprehension is strewn with absurd conventions, unspoken rules of etiquette and modes behaviour that you have to get ''[[Substance and form|formally]]''; right, hang whether you were right [[Substance and form|in ''substance'']]. It is much more fun cross-examining [[Mrs. Pinterman]] about her alibi, establishing the [[mens rea]] and objecting to things. I mean security waterfalls? COME ON.


Now every now and then, the partnership of Allen & Overy, of Linklaters, or Clifford Chance (who between them ''wrote'' the damn things, back in the day, by the way) are presented with a question of profound importance on the construal of an {{isdama}} or a similar contract form. Is a derivative really insurance?  
So every now and then, Queen’s Counsel might see {{isdama}}s — like Clapham omnibuses, often quite a few come along at once — every decade or so, whenever a systemically important financial institution reveals itself to have been in the hands of morons. But for them, {{isdama}}s are exotic butterflies to be pinned, labeled and enclosed in glass cages. For we in-house [[legal eagle]]s they are a more quotidian experience. We live with them, animate them, ''give them life'' every day of our working careers. We know them, deeply, in a way no Queen’s Counsel ever could, or would want to.
===Who should answer curly questions on ISDAs?===
Now every now and then, a curly question might arise as to the meaning of an {{isdama}}, or a {{gmsa}}, or a {{gmra}}. It might perplex [[Magic circle law firm|magic circle]] [[partner]]s — people who, let it be said,''wrote'' the damn things, back in the day —but to give those august men and women the benefit of the doubt, they don’t see so many master agreements these days. So if a practical person wanted a sensible answer on a curly question on how an {{isdama}} should work, who would she ask?


Anyway, this is about a special kind of golfer. Now there are all kinds of hazing rituals and  
Do you see where I am going with this? My friends, ''I'' would ask a down-home expert. Ideally, ''someone who has spent twenty years in the [[doc unit]]''. To be sure, end users are falling over themselves to rid themselves of these people and replace them with school-leabers in Bucharest, but they are a tenacious bunch. Many are still around.


 
But this is ''not'' what [[magic circle law firm]]s do. Instead, they ask the one group in the world who charge ''more'' than they do, and who are ''less'' likely to have a practical clue what the right answer should be: [[Queen’s Counsel]].
By the way: ''never'' say “Queen’s Council”.
{{sa}}
*[[Inhouse legal]]
*[[Magic circle]]

Revision as of 14:21, 18 March 2021

Office anthropology™
A Queen’s Counsel — Sir Jerrold Baxter-Morley, K.C., to be precise — yesterday.
The JC puts on his pith-helmet, grabs his butterfly net and a rucksack full of marmalade sandwiches, and heads into the concrete jungleIndex: Click to expand:
Tell me more
Sign up for our newsletter — or just get in touch: for ½ a weekly 🍺 you get to consult JC. Ask about it here.

Senior, brainy, court lawyers. The JC is lucky enough to know a few, largely because he shares with them a fondness for cricket. They are excellent men and women, to a one, but they engage in a part of the legal process clear of which the JC is constitutionally committed to steering as he can: litigation. Not just because suing and being sued is hard, gives you a tension headache and is beset with fiddly, procedural bear traps, but because the road is strewn with absurd conventions, unarticulated rules of etiquette and unspoken ways of behaving that you have to get formally; right, hang whether you were right in substance. That’s not just how the JC rolls.

In legal practice, court lawyering is golf you see, and the JC is a cricket kind of fellow, not just in pastime, but by disposition. Litigation is combative: it has etiquette to mask a fundamental ugliness. Commerce is co-operative. “Being a good sport” is a point of substance and not form.

There is also the small matter that, for any proud contracts lawyer, even talking to a Queen’s Counsel — to any litigator, really — except one you are standing next to in the slips — is a confession of professional failure. We commercial contracts folk cannot notch our belt with conquests; there are no kill emblems pasted on our fuselage. We must take our pleasures another way. We do this by our lackof rancour; we know we have done it when we see our clients going peaceably about their business, promending down the high street in their finery, waving cheerily at us from the wheel of the fancy motorcar our careful stewardship has enabled them to afford.

We are like dogs in the nighttime: you know us because we do not bark. We mark our performance by the lack of cuts, scrapes, bruises and abrasions on our pretty faces. Our measure of success is contracts so clear that no one would dream of arguing.

Sources of expertise

For the most part, financial services professionals know enough of what they are about that their contracts — the “verbiage” — don’t often wind up in court. When they do, it usually follows some cataclysmic failure, where institutions that were conventionally understood to be immortal, impervious to weakness and managed by enlightened auteurs turn out to have been run by morons. These discoveries tend to be cyclical; over-lionised morons may go years or even decades without being exposed. But, suddenly, Lehman, you know. Enron. The commercial world is all at once awash with litigation — much of it conducted by, on behalf of and in front of people with barely the first idea about the complexities of financial services contracts.

Now, readers, exactly the same thing is true of litigators. Just as commercial lawyers hate litigation, litigators hate financial markets transactions. They’re hard, they give you a tension headache, they are beset with fiddly, procedural bear traps, and the road to their comprehension is strewn with absurd conventions, unspoken rules of etiquette and modes behaviour that you have to get formally; right, hang whether you were right in substance. It is much more fun cross-examining Mrs. Pinterman about her alibi, establishing the mens rea and objecting to things. I mean security waterfalls? COME ON.

So every now and then, Queen’s Counsel might see ISDA Master Agreements — like Clapham omnibuses, often quite a few come along at once — every decade or so, whenever a systemically important financial institution reveals itself to have been in the hands of morons. But for them, ISDA Master Agreements are exotic butterflies to be pinned, labeled and enclosed in glass cages. For we in-house legal eagles they are a more quotidian experience. We live with them, animate them, give them life every day of our working careers. We know them, deeply, in a way no Queen’s Counsel ever could, or would want to.

Who should answer curly questions on ISDAs?

Now every now and then, a curly question might arise as to the meaning of an ISDA Master Agreement, or a Template:Gmsa, or a Global Master Repurchase Agreement. It might perplex magic circle partners — people who, let it be said,wrote the damn things, back in the day —but to give those august men and women the benefit of the doubt, they don’t see so many master agreements these days. So if a practical person wanted a sensible answer on a curly question on how an ISDA Master Agreement should work, who would she ask?

Do you see where I am going with this? My friends, I would ask a down-home expert. Ideally, someone who has spent twenty years in the doc unit. To be sure, end users are falling over themselves to rid themselves of these people and replace them with school-leabers in Bucharest, but they are a tenacious bunch. Many are still around.

But this is not what magic circle law firms do. Instead, they ask the one group in the world who charge more than they do, and who are less likely to have a practical clue what the right answer should be: Queen’s Counsel.

See also