Home » Uncategorized » Why Confucius Would Vote ‘NO’ (if he were alive, and a CBA member)

Why Confucius Would Vote ‘NO’ (if he were alive, and a CBA member)


Armchair football managers

I don’t want to write for the blog. I don’t trust blogs. To my mind they’re up there with Twitter and Facebook; too much stuff said too quickly by too many people with too little insight and zero responsibility. Like earnest blokes talking about whether Southend will miss the play-offs because of an inflexible 4-4-2. It might be genuine insight. Or it might just be talk.

I’m not an expert on the future of the criminal justice system. I’m a keen amateur, but if you want figures ask Chris Henley. I’m not a political type. I can’t detect subtle currents in party politics. I’m not an accountant or a business analyst. I can’t tell you what big solicitors’ firms will or will not do.

I am an advocate, and that’s the only expertise I can bring to bear. So I have approached the ballot question as an advocate.

I am not going to address all the issues that have been raised time and again on this blog. You don’t need any more speculation about whether the Lord Chancellor is ‘on the back foot’ or ‘REALLY on the back foot’. I adopt the submissions already made supporting the ‘NO’ vote. Repetition won’t improve them. My contribution is merely a couple of thoughts.

Better is the enemy of good

Every advocate has experienced what I am about to describe. You are in court cross-examining and it is going well. You are asking a tight chain of closed questions. The witness is flagging; to begin with they were analysing each question, trying to see where it might be leading. Now the witness is struggling to give a respectable answer to each question as it comes, just trying to bat them away. The weaknesses of their evidence have been exposed. You can feel you are winning. You might be starting to enjoy yourself. An observer might later say you had the witness on the ropes.

And then it just goes wrong. The classic beginner’s error: one question too many.

It is drummed into us early on in our careers. October 1998 for me, Middle Temple Advocacy Course: ‘Better is the enemy of good’. It was an expression I had not come across before. I didn’t get it at first. But, as every honest advocate knows, sooner or later you experience it first-hand. Although you don’t see it coming, the moment you have gone too far, realisation strikes you like a fist. You give away all your gains in the pursuit of more, an afternoon’s careful work undone in a moment.

A number of people throughout history have warned of the dangers presented by the quest for ‘better’. Clever guys like Aristotle, Confucius, Voltaire. More recently Robert Watson-Watt, less immediately familiar, but also pretty clever. He was one of the pioneers of the early warning radar system that alerted the RAF to Luftwaffe bombing raids during the Second World War. His maxim was this: “Give them third best to go on with. Second best comes too late. The best never comes at all”.

And isn’t that precisely where we are? We have made gains that we all hoped for, but which few expected would actually be achieved. Three months ago those gains would have been met with disbelief. But now hubris has taken hold and the drive from some quarters is to press on for more, ‘because it feels like we are winning, because our opponent is on the ropes’. Pause for a moment. Have I been here before?

Trust your leader

The best silks are masters of knowing when to stop. They take the tough decision and just stop talking. Their duty is to do the best for their client, not gamble their client’s chances in the pursuit of perfection. Many a junior has tugged the sleeve of their leader, suggesting they go further, ask one more question that will surely win the day, only to be dismissed with a terse shake of the head.

Nigel Lithman and Tony Cross have been our leaders for many months. They have, time and again, demonstrated insight and formidable strength of purpose. They are not pushovers, stunned into obedient submission by sitting in one of the Lord Chancellor’s comfy chairs and being offered a biscuit. They know their brief, they have watched the trial unfold and they have formed a view in the best interests of their client. You don’t have to agree with them, but let’s all concede that no-one has a better insight into the tactical complexities of our debate. They aren’t omniscient (who knows: they might be completely wrong!) but they have a better chance of being right about our situation than anyone else.

There are no easy answers. All we can each do is apply our experience and judgement to the situation in which we find ourselves. In my view, ‘the deal’ represents our best chance for the future. That’s just my opinion, but I imagine Confucius and the rest of the lads might agree with me, which is some comfort.


Thomas Payne


One thought on “Why Confucius Would Vote ‘NO’ (if he were alive, and a CBA member)

  1. Thom

    Much as I respect your views, and the efforts of Nigel and Tony, the Criminal Bar has never been in the business of accepting Second Best
    In any case, the Second Best advocated by supporters of the No Vote, is illusory.
    It suggests that we are retaining a status quo for a year, so nothing is lost.
    The Yes vote argument is simple. In a year, the hand that feeds us will have withered. Without the supply of work from our solicitors to provide that status quo, preserving current fee rates is meaningless.
    If there is no work, there is no fee, so it doesn’t matter whether its at the same rate or not.
    Dual Contracts will destroy our solicitor work base, as surely as it will destroy us, a factor that your post does not address.
    It is not speculation, it is already happening. As solicitor fee cuts bite harder in the next year, more and more work will go in house.
    When the axe falls and Dual Contracts are introduced, instructing the Bar, for those few firms of solicitors that remain, will be economically impossible.
    Solicitors are now showing bite, by refusing to apply for Rep Orders in new work. Their inspiration for so doing has undoubtedly come in part, from the Bar’s own Direct Action.
    They have responded.
    They need our support. It is beyond doubt a symbiotic relationship. We MUST support them by continuing our action. We must finish the job.
    Giving up now would be like the rider of the leading horse in the National pulling up before the last fence, saying “Ive shown I’m the best, why bother to prove it by riding on to the Winning Post.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s