Putting Aggression to Bed; Aggressiveness and Fearlessness are not bedfellows.

Last Week At that Networking Event

Last week I attended a business networking event.  I spoke to one gentleman for about a billable unit. He was approximately 60 years old. He worked in IT. Upon introducing myself and carrying a friendly smile, he said words to the effect:

‘You’re a barrister? I have never met a female barrister. And I thought barristers were meant to be aggressive. What do you do about that? You don’t seem aggressive.’

As an aside, although it is not particularly pertinent for the present issues at hand, Said Gentleman also stated, impishly, that he wanted to introduce me to his 30 year old son, despite me wearing a rather conspicuous bejewelled ring on the orthodox commitment finger.

As for Said Gentleman’s comment about ‘aggression’, I was shocked for a millisecond. Then, fearlessly, I asked him a rhetorical question (still carrying a flicker of a friendly smile):

‘Have you ever stepped into a Court?’

Said Gentleman had not. He had only seen criminal trials, mostly on American television. But he added to say that he wanted to be a barrister when he was younger and knew a barrister in Sydney but could not remember his name.

I gave Said Gentleman the benefit of the doubt and contextualised his ignorance as a compliment to my friendly demeanour and smile. Soon after, a convenient segue allowed the conversation to end.

But it did get me thinking more broadly about some of the deeply entrenched misconceptions that pervade wider society in respect of the role of a barrister, particularly the place of aggression by barristers and the consequential effects that such misconceptions have on the practice of law by women barristers, particularly in commercial law.


Let’s start with the defined terms. The Macquarie Dictionary gives the following definitions:

The noun aggression:

  1. The practice of making assaults or attacks; offensive action in general.
  2. Psychology: the emotional drive to attack; an offensive mental attitude (rather than defensive).
  3. The action of a state in violating by force the rights of another state, particularly its territorial rights.
  4. Any offensive action or procedure; an inroad or encroachment: an aggression upon one’s rights.

The adjective aggressive:

  1. Tending to aggress; making the first attack.
  2. Characterised by or prone to aggression: an aggressive personality.
  3. (of a weed or pest) spreading quickly.
  4. Energetic; vigorous.

The Legal and Ethical Foundation

Now we move on to the legal foundation.

In short, there is no place for aggression by a barrister in her or his work. In fact, there is a legal and ethical basis against aggressive behaviour by barristers. For example, in New South Wales, various provisions of the Evidence Act 1995 (NSW) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 are expressly inconsistent and at odds with a barrister being aggressive.

Evidence Act 1995 (NSW)

Section 51 of the Evidence Act (relating to ‘Improper Questions’) requires a Court to disallow an in improper question including where it is:

  • misleading or confusing;
  • unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive;
  • put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or
  • has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

The Bar Rules (Legal Profession Uniform Conduct (Barristers) Rules 2015

That there is no place for aggressive conduct can be seen, at least impliedly, in a swathe of the Bar Rules. For example:

  • Barristers owe their paramount duty to the administration of justice.
  • Barristers must maintain high standards of professional conduct.
  • Barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, bravely and with competence and diligence.
  • A barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.
  • A barrister must not deceive or knowingly or recklessly mislead the court.
  • A barrister must take care to ensure that the barrister’s advice to invoke the coercive powers of a court… is not given principally in order to harass or embarrass a person,
  • A barrister must not in the course of practice, engage in conduct which constitutes…workplace bullying.
  • A barrister must promote and protect fearlessly and by all proper and lawful means the client’s best interests to the best of the barrister’s skill and diligence, and do so without regard to his or her own interest or to any consequences to the barrister or to any other person.


  • One of the Bar Rules refers to the term fearlessly. Let it not be confused with aggressively. The Macquarie Dictionary defines ‘fearlessly’ as ‘without fear; bold‘.  As such, ‘fearlessly’ is not a synonym for ‘aggressively’.Aside from legal bases, writing extra judicially, many judges decry displays of aggression that are sometimes aired by misbehaving barristers (and lawyers). For example, Justice Ipp observed:

    ‘This general duty requires counsel to present the issues as clearly and economically as possible and, in appropriate circumstances, to co-operate so as to avoid needless disputes. Breaches will result when lawyers waste time, and are guilty of prolixity and repetition, and when the use of aggressive and discourteous tactics lead to the incurring of delay, inconvenience and needless cost. Lawyers who fail to adhere to rules and practices laid down to speed up litigation may thereby breach their duty to the court.’

The role of persuasion

  • Barristers are engaged in the task of persuasion. Being aggressive is not being persuasive.  Judges do not want or tolerate aggressive advocates. Rather, they want thorough preparation, strong analytical abilities, a deep understanding of legal principle and sound judgment on the part of the advocates. These are the real tools of persuasion. They are not unequally endowed upon any particular gender.

What is the problem with misconceptions? 

  • In addition to being irksome, misconceptions have the tendency of causing material disadvantage, particularly where they are proliferate over gender lines.In the case of some misconceptions in the practice of law, they impact on the discrepancy between the number of women joining the Bar, remaining and advancing at the Bar.  In NSW, approximately 80% of all barristers are male (that is not a misconception, it is statistical data).Examples of particularly repugnant misconceptions include:
    • ‘The best barristers are the aggressive ones and male barristers are more aggressive than women’.
    • ‘Advocacy work is more suited to the masculine personality, and therefore male barristers’,
    • ‘Female barristers are not suited to lucrative commercial work at the bar performed predominantly by male barristers’.
    • ‘Women are not sufficiently forceful and cannot be relied upon to stand their ground where that is required’.

    As Her Honour Justice Perry observed:

    ‘Such perceptions may contribute to statistics that show that women are accepted as good ‘worker bees’ but less likely to be given the role as lead counsel. In my experience, the assumption that women can’t be aggressive is simply not the case…One of the most aggressive advocates that I have encountered, and dare I say, unpleasant, was a woman’.

Snapshot of the Profession over the last 2 years

  • Once upon a time, the legal profession, as a whole, was markedly male. Now the gender scales have just turned and women comprise 50.1% of the legal profession.  But despite this relative gender parity, the gender discrepancy at the Bar, particularly in the senior ranks, remains shockingly wide.
    • In NSW, approximately 80% of all barristers are male.
    • In NSW, approximately 90% of senior barristers are male and 10% are female.
    • In NSW approximately 77% of junior barristers are male and 23% are female.

What is being done to equalise the gender disparity

  • Equitable Briefing Policy

    The Equitable Briefing Policy was launched by the Law Council of Australia in 2016. It encourages persons and entities that select barristers to make all reasonable efforts to brief women.  The goal is for women to be briefed in at least 30 per cent of all briefs, and to receipt at least 30 per cent of the value of all briefs by 2020.

    Its introduction stirred flurries of discontent. I remember hearing disgruntled murmurings like, ‘But the Bar is a meritocracy’. So, it is. But such a policy is not inconsistent with briefing on meritorious grounds.  And, it should be remembered that there is a place for progressive policies that positively discriminate in order to improve (let alone level) long entrenched gender disparity at the Bar.


    The good news is that the first data released under the Equitable Briefing Policy indicates improving trends.  The major findings (released in July 2018) include the following:

    • Female barristers (senior and junior) received 20% of the total briefs.
    • Female junior barristers received 72% of the briefs and male junior barristers received 72% of the briefs.
    • Female barristers received 15% and male barristers received 85% of the total fees charged by barristers.

Concluding Remarks

    • Aggression has no place in the contemporary practice of law. And, in any place, it is not a gender specific attribute.
    • Being aggressive is not being persuasive.
    • ‘Fearlessly’ is not a synonym for ‘aggressively’.
    • Effective advocacy calls for effective preparation and assiduous learning. Those tools can be equally developed and utilised by women and men.
    • Sign up to the Equitable Briefing Policy, champion it, and if you do not know a single female barrister, I can give you a list of more than 500 names.
    • Smile at networking events and use effective persuasion, such as fearlessness, strong analytical abilities and sound judgment, to counter misconceptions.

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