Barristers and the Telephone


                                             

The telephone was the first device to become widely available and provide a means of instantaneous communication between individuals at different locations. For social interaction it of course had the advantage (compared to letter writing) that those communicating could hear each others’ voices. Looked at from a more practical point of view we can say that particularly for business use it had two advantages over the public postal system. It allowed decisions, such as orders for goods, to be communicated instantly. A second – related – advantage was that it allowed information gathering in an interactive way – where questions can be asked and further questions arising from those questions asked, in a way not easily done by letter in a reasonable timeframe.

Semaphore towers, which also provided instant communication, existed long before telephones became available, but the nature of the infrastructure meant that they were not means of instantaneous personal communication in the same way as telephones became, because the individual wishing to communicate would have to write their message and deliver it to the semaphore operator. And the later telex and fax, which used telephone lines, were never, in practice, a means of instantaneous personal communication for business because offices tended to have a single (or a limited number of) central fax or telex machines rather than having machines on everyone's desk as was invariably the case with telephones once they caught on.  

Telephone use increased gradually during the 20th Century, coming into widespread use in the second half of the century. By the end of the 20th Century, email – which had the same two practical advantages (instantaneous and interactive), as the telephone, over the post – was becoming widespread. By this time mobile phones were becoming common and so such phones, which could be carried anywhere, had a temporary advantage over email which required a computer, but it was not long before smartphones with email capability appeared and so emails could also be sent and received anywhere. Since around 2010 the vast majority of mobile phone sales have been smartphones and virtually all mobile phones now in use are smartphones with email capability. In 2018, 87% of the adult population of the UK had a smartphone. 

Many people prefer email communication to the phone because it can take less time. If you phone, the person you are phoning may not be available. You can leave a message for them to ring you back but, when they do, you may not be available, so the time taken for you to listen to the other person’s phone ringing, leave a message, and for the other person to listen to the message, ring and listen to your phone ringing, is unproductive time. Email is interactive and virtually instantaneous but does not require the two people in communication to type at precisely the same time.

Some people can find it stressful to talk to someone on the phone without being able to see their facial expressions – particularly someone they do not know well. And even if it does not cause stress, communicating by voice, without being able to see, alters the phone user’s behaviour to a degree. In face to face conversation, there are natural pauses, and we can also discern, by body language, when someone is thinking before replying and distinguish that from a shocked silence, or a deliberate silence of disapproval. In face to face communication sometimes body language is used to indicate a response without words being used at all. When using the phone we try to keep talking and avoid pauses because we know (from our own experience) that the other person may find pauses disconcerting or might misunderstand them. “The phone went silent” is a staple of many a novel, used for dramatic effect. We know that it matters. So whereas in a face to face conversation people if necessary take time to think before responding, in telephone calls there is pressure to avoid silence. Different people react to this pressure, at different times, in different ways. They may repeat something they have already said - or say the first thing which comes into their mind - while they think of a more considered response. This can cause misunderstanding. Or they may feel pushed into making a definite response when ideally they would have wanted to think more about it first. Of course with email you can’t see body language either but email avoids the stress and potential for misunderstanding inherent in the artificial situation of having to avoid natural silences in conversation.

If you analyse a typical phone call, it includes quite a lot of repetition and small talk which may be agreeable in a social call but can waste time in business settings. There is also the question of keeping a record. Email is its own record but you have to make an effort to write down what is said in a phone call. That takes more time.

If you are buying an important service (as distinct from buying standard manufactured goods) you might feel that you want to meet the provider of the service, but generally that it what you will want to do – actually meet them – rather than rely on impressions in a phone call.   

Of course there are a few situations where a phone call is essential – 999 calls to the emergency services, for example, where there is threat to life and limb, and every second may count - but in most situations – leaving aside social calls where voice has its own importance – it is perhaps surprising that we still use the phone for business as much as we do.

Partly it is convention and habit. We don’t normally expect to talk to a doctor or an M.P. on the phone so we make an appointment and go to see them. But generally we do expect to be able to talk on the phone to the garage repairing our car. There may be no real reason why garages do not communicate by email, but generally they don’t and because they don’t our first instinct is to phone. And any garage without a phone would lose business. It is largely convention and habit.

People expect solicitors to be available on the phone. Increasingly email is being used and when solicitors contact clients it is usually by letter or email, rather than phone, but there is an expectation that the client can always choose to phone the solicitor, and any solicitor not willing to talk to clients on the phone would be likely to lose business as it is the expectation that clients can phone. Of course there is no guarantee that you will actually be able to speak to the solicitor normally dealing with your case – they may not be available. Someone else may say “can I help?” which you may welcome or dread – it is not always easy to say “No. I want to speak to..” when someone is keen to help instead.

Talking about legal matters on the phone has its own particular potential problems. You don’t want to take action based on a misunderstanding of advice being given, and it can be difficult in a phone conversation for a lawyer to fully convey all the qualifications and options. There is also the possibility of the lawyer not fully appreciating the facts as you have described them and on which any advice may be based. Despite these potential problems solicitors will talk to clients on the phone because that is expected and also because it is profitable – every minute on the phone is charged at the fee-earner’s hourly rate and short calls are traditionally rounded up to the nearest 6 minutes - but certain factors mitigate the risks. There are two factors in particular. First, the solicitor will make a file note of the conversation (which itself adds to time and cost) and secondly the solicitor will generally speak in a qualified way (e.g. “It could be the case that…if so…”). Solicitors generally instruct barristers to provide specialist advice at strategic points and to draft key documents (as well as to represent the client in court or tribunal) and because of this solicitors make a practice of qualifying what they say – not just on the phone but in letters and emails as well – because they are aware that more definitive (or even different) advice may in due course be given by a specialist barrister.

Barristers have never talked to clients on the phone. This is because throughout the 20th Century – which is the time period during which phones came into general use – barristers were not permitted (by the Code of Conduct) to talk to clients without a solicitor being engaged by the client as intermediary. So the client always phoned (if they did use the phone) the solicitor and if it was appropriate for advice from a barrister to be sought the solicitor would send written instructions to the barrister. If a conference (i.e. a meeting) was arranged with the barrister, both the client and the solicitor would be present and the solicitor would make a note of what was said. There is, in any event, less risk of the client misunderstanding advice given at a conference because in a conference lasting an hour or two, things can be gone through in more detail and a conference is usually followed by the barrister providing a written Opinion or written Advice (an “Advice” is generally shorter than an “Opinion” and focuses of some particular aspect) so that the client has it in writing.

Since 2004 barristers have been able to provide their services to clients, in some civil matters, on a “direct access” basis without a solicitor being needed, but by 2004 email was in widespread and increasing use and there was no need to contemplate using the phone – with all its inherent disadvantages where legal services are concerned - when the client was contactable by email.

Solicitors invariably charge the client at an hourly rate. Although for some types of work barristers may charge at an hourly rate, for the great majority of  work which barristers do a fixed fee is agreed – which would be difficult to do if they envisaged talking to the client on the phone when doing that work – so using email rather than the phone fits in well with the more cost-effective way in which barristers have always worked.        


This page was lasted updated in October 2018          Disclaimer