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Penny Madden QC interview

by Penny Madden
13 May 2016

Penny Madden, a partner at Gibson Dunn, was one of the three solicitor advocates that took silk in 2016. She discusses her journey towards becoming a QC, and her hints and tips for approaching the application process.

Over the last few years, more solicitor advocates in the international arbitration sphere have applied to take silk and been successful, so I suppose the idea was increasingly on my radar. Arbitrators and peers also started to ask me if I was going to apply. I then looked at the cases and advocacy I had done over the past few years, as the QC application process is really about whether you can demonstrate that you already have the advocacy practice of a silk - ie that you have done enough complicated, high-value cases, and can submit strong examples of written and oral advocacy to support your application. I looked at the breadth and depth of the advocacy I had done, and having talked to people who had already been through the process, I thought it was worth throwing my hat into the ring.

I did not broadcast that I was applying, but was very lucky to have the support of key peers who have been through the process as well as some very eminent arbitrators who provided excellent advice. Cyrus Benson, Lord Falconer and Philip Rocher were also all great sounding boards here at Gibson Dunn.

What advice do you have on the application process for anyone considering applying next time?

In practical terms, bear in mind that it is a long process and you should prepare your application well in advance. I only started doing the application a month beforehand, which proved to be very tight. I didn’t anticipate how time-intensive the application process would be. Also, the application is primarily an evidence-based submission, so the first question to ask yourself is whether you have the top-level examples of written and oral advocacy that would support an application? Then you must determine whether you have the support of fellow practitioners who have seen your advocacy skills in practice. And whether you have the requisite number of judicial assessors who have seen you argue cases and would be willing to provide their observations and comments?

The form itself is very detailed. It looks for evidence of certain skills that denote excellence of advocacy, so you must give comprehensive examples of the ways in which you have used your advocacy skills in specific cases. It takes considerable time and effort to collate the necessary illustrative cases, and to respond to the questions succinctly, but also in enough detail. You also have to give yourself time to approach practitioner assessors, client assessors and, most importantly, judicial assessors, to ask them if they would be prepared to listed as assessors in your application.

The other time-consuming part of the process is preparing for the interview. Although it’s only 45 minutes long, it is a very concentrated and pressurised session. You are answering questions that are designed to elicit evidence in support of your application, while at the same time you are being assessed on the advocacy skills that you are bringing to bear in answering those questions. It’s important to give enough detail, but also to be precise, pithy and clear.

How do you think becoming a QC will impact on your work and practice?

In international arbitration, the advocacy at hearings is often divided between first chair and second chair advocates. Taking silk puts you very much in the first chair seat (unless, of course, you are co-advocating with already more senior advocates). At Gibson Dunn, we undertake our own advocacy, and often face a QC on the other side. Whilst taking silk doesn’t change the nature of the work or the way in which I personally conduct oral advocacy, the title does give clients confidence as to equality of arms, especially with the increasingly number of English qualified international arbitration practitioners taking silk. That said, there are many superb international arbitration advocates who are either not eligible or have not wanted to apply for silk, and it would be wrong to overstate the importance of a title. Whilst some clients may prefer a QC, many clients will be indifferent to this - what they really care about is how well the case is argued.

Do you think that it’s more challenging for solicitor advocates working outside the arbitration sphere to gain the requisite advocacy experience the QCA is looking for?

Yes, and I think the small number of solicitor advocates from outside the sphere of international arbitration applying each year underlines that. This year all three of the solicitor advocates that took silk were international arbitration practitioners. There are other areas where solicitor advocates undertake their own advocacy - in criminal cases and employment tribunals, for example - and I would expect to see more solicitor advocates coming through in the future from these disciplines. But it’s a frustrating situation even for the junior bar, because clients invariably demand a QC for serious or high-value complicated cases.

Tips for success

  • Talk to both solicitor advocates and barristers who have been through the process to get as much information as you can about what to expect.
  • Take a serious look at the evidence of your recent advocacy experience that you can put forward, and ask yourself whether these cases are of sufficient importance and complexity to denote the practice of a silk.
  • Ask for honest feedback from your practitioner assessors as to how strong your application would be.
  • Start preparing as early as possible.
  • Think carefully about what you have done in furtherance of a legal community that should be truly reflective of the wider social fabric of society. Consider how you have promoted diversity and addressed issues of inequality, and what leadership skills and contribution to mentoring others you have shown.

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