advocate clinical

We are often asked by clients why we instruct advocates in our cases and how their role is different to that of the solicitor.

What is an advocate?

Advocates in Scotland are similar to barristers in England and Wales. To become an advocate in Scotland you must have completed a law degree, the Diploma in Professional Legal Practice and a two year traineeship to qualify as a solicitor. Most advocates work as a solicitor for a period of time before embarking on their career as an advocate.

The training to become an advocate is known as “devilling” and this usually involves an eight or nine month period of unpaid training with an experienced advocate, known as a “devil master”. A final examination is completed in order to qualify as an advocate. The Faculty of Advocates is the professional body for advocates in Scotland.

What does an advocate do?

Advocates are instructed by solicitors and form part of the “legal team”. Some of the tasks involved in being an advocate include:

  • Drafting legal documents, such as written pleadings (the document setting out a client’s case in writing)
  • Meeting with clients and providing legal advice
  • Researching relevant case law and legislation
  • Negotiating with the opposing party’s advocate
  • Appearing in court

Most advocates initially deal with all types of legal work, and specialise in a particular area of the law after a few years of practice.

What is the difference between an advocate and a solicitor?

Advocates have “rights of audience” in the high courts, such as the Court of Session, whereas solicitors do not. This means that advocates are able to appear before judges in the highest courts. Solicitors can appear in the lower courts, such as the Sheriff Court.

Solicitors work within a law firm, whereas advocates are self-employed. Advocates cannot be instructed directly by clients - this must be done through a solicitor.

Solicitors instruct expert witnesses and are the main point of contact for these witnesses. Advocates cannot instruct experts directly.

Advocates cannot speak to factual witnesses (other than the pursuer) in advance of the final hearing of evidence, known as the “Proof”, as this could be perceived as them “coaching” their witnesses. Solicitors are able to speak directly to all witnesses, and often take statements from them.

Why do we instruct advocates in clinical negligence cases?

We instruct advocates in these cases for a number of reasons.

Many of our cases are raised in the Court of Session. We must instruct an advocate to appear in court on our behalf as solicitors do not have rights of audience in the Court of Session.

Clinical negligence cases can be extremely complex, both in terms of the legal arguments presented and the detailed medical evidence involved. We tend to instruct advocates with a great deal of experience in clinical negligence cases. It is beneficial to a client’s case to involve an individual with this additional experience.

Even when a case has been raised in the Sheriff Court, it can be useful to instruct an advocate to bring on board their additional expertise. Advocates assist in many ways, including preparing the written pleadings; preparing other written documents; attending meetings with expert witnesses and clients; valuing the claim and appearing in court for hearings, including the Proof.

Have any questions regarding advocates? Get in touch with our Clinical Negligence team.