Aspiring barristers: which practice area is the most 'legal' problem focused? Watch

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Report Thread starter 9 months ago
...and the least fact based?

Of course criminal cases mainly turn on the facts, and I've heard that 'commercial' law is more legal problem based....but this term 'commercial' law encompasses (or can encompass) a lot of areas. I've heard some barristers refer to construction work as 'commercial' law, but then another barrister told me that barristers in sets like One Essex "would not really see construction cases as commercial", and that such cases are mainly fact-based.

Which areas of law (obviously, traditional chancery work will be) focus the most on the legal issues?

Thank you!
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Report 9 months ago
From a solicitor's point of view, I'd say that tax law is the generally seen as the most "legal" practice area. This is because there is reams and reams of tax legislation which gets changed all the time, so there is lots of law to argue about - tax disputes often turn on specific points of statutory interpretation.

I would say that the vast majority of cases are litigated based on disagreements over facts rather than on disagreements over what the law is, in every practice area.

"Commercial" is indeed a broad practice area. I would interpret it as referring to disagreements between businesses. 90% of the time these are breach of contract disputes. There will be particular specialisations within that (such as shipping, construction, intellectual property licensing, technology etc.) - some of which are more specialised than others but they are really all fundamentally about breach of contract.

Commercial cases are generally about whether someone is in breach of contract or not, and if so what remedy ought to be awarded against the defaulting party. These are usually factual questions.

At the end of the day you are being paid by a client to solve their problem. Any instruction you are ever going to receive will be about a legal problem, clients are not going to pay a barrister hundreds of pounds an hour unless something has gone badly wrong.
Crazy Jamie
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Report 9 months ago
(Original post by jacketpotato)
I would say that the vast majority of cases are litigated based on disagreements over facts rather than on disagreements over what the law is, in every practice area.
I agree. Really the only time that it is likely that you'll be involved in disputes as to the law is on appeal, and obviously no one has a practice based on appeals. Beyond that, even in legally complex areas the majority of cases involve disputes as to what the facts are and how they apply to the law, not legal disputes as such. At the risk of over simplifying matters, the more 'legally complex' areas of law are really only measured by the volume of law that you have to know before you can effectively practise in it, but even then most disputes are fact based regardless of the area.

For example, you can practise in personal injury law at a junior level knowing virtually nothing about the law beyond extremely basic principles of negligence. The same is not true of employment law, where every different type of case has individual legal principles and tests that you simply have to know. Once you do know them most employment tribunals again come down to the facts, but you have to put the work in to know the legal principles first. We have a number of very junior members in my Chambers who are doing personal injury and employment law, and they have told me (when asking for employment law advice) that they find employment harder simply because there's more that they need to know. Frankly early on your common sense can carry you most of the way in personal injury, but it absolutely cannot in employment law, where you have to know the law, tests and principles for each case you do.

Interestingly enough, I had to recently read some advices and pleadings from a colleague of mine who does contentious probate and other associated work (it was part of assessing a pupil who had tried their hand at the same paperwork). I know nothing about the law in those areas and do consider them to be legally complex, but on reading those advices and pleadings it was clear that fundamentally the same applies as with any area, which is that once you know the legal principles, most cases come down to factual disputes.

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