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Anger over multiple choice questions for advocates

23 February 2010

Multiple choice tests should be used to assess the quality of advocates in the criminal courts, the Legal Services Commission has said.

Solicitor advocates have condemned the idea as “outrageous” and “just about the poorest method” anyone could come up with.

The LSC recommends multiple choice tests for advocates working in the magistrates’ courts and on ‘straightforward’ cases in the Crown Courts as part of its new quality assurance scheme.

In both cases, advocates would also need to provide a ‘portfolio’ of their work and be subjected to a simulated cross-examination.

In a discussion paper published this week, the LSC said multiple choice testing was a “valuable additional tool” in assessing knowledge of new procedures or “interesting points of law or evidence”.

The LSC said that trials of its simulated cross-examination with 26 solicitor advocates and eight barristers showed that 42 per cent of solicitors had failed, compared with only a quarter of barristers.

The LSC said this showed that merely having the right to conduct trials in the Crown Court did not mean that advocates had the necessary skills.

However, David Kirwan, senior partner of Merseyside solicitors Kirwans, said the whole quality assurance exercise “smacks of bureaucracy”.

He went on: “Multiple choice questions and ticking boxes is an outrageous insult to a professional man such as myself with 40 years experience of advocacy under my belt, some of it in the 1970s when I was one of the first to challenge the Bar’s near monopoly in the newly-appointed Crown Courts.

“This exercise simply smacks of bureaucracy. I have met my share of hostile judges and also listened to the efforts of a few mediocre members of the Bar. The problem is not worthy of the unnecessary cost and effort.”

David Osborne, solicitor advocate at Hamnett Osborne Tisshaw in Sussex, said: “This is just about the poorest method of assessing advocates that you could come up with.

“Some QCs, who are highly specialised, would fail immediately because they are not up to date with the more basic types of criminal law.”

Osborne acknowledged that multiple choice tests were cheap compared with live assessments of skills such as cross-examination, which the LSC is also considering.

“Economic forces have driven a lot of solicitors into the Crown Court at an early stage,” he said.

“There is anecdotal evidence that, occasionally, they are doing a very poor job. Since we are relatively new kids on the block, the focus will be on those who do badly.”

Rodney Warren, director of the Criminal Law Solicitors Association, said he was concerned that quality assurance could “become another bureaucratic layer imposed on the lowest payment structure known in the law, namely legal aid”.

Warren said he had come across “appalling” junior barristers in the magistrates’ courts. “I sacked one of them in court and had to take over the case myself,” he added.

Hugh Barrett, executive director at the LSC, said: “Multiple choice tests are one of a number of methods proposed by Cardiff Law School for quality assuring advocates in the criminal courts.

“They enable the testing of some of the specific competences for advocates carrying out work at the lower levels and would not apply to advocates undertaking more complex cases .”

Barrett encouraged as many solicitors as possible to respond to the LSC’s discussion paper by 10 May 2010.

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