If you are a client, you will only need a barrister if your matter if complex, or if you are heading off to trial.
If you are a lawyer, whether in-house or in private practice, you will work with many barristers throughout your career. If you are a junior lawyer, briefing your first barrister can be a daunting experience. It was for me when I got my first trial.
So, what do barristers do? Why do lawyers use them? How do you choose a barrister? And, how do you brief one?
What barristers do and why brief them
Most people associate barristers with black robes and wigs. They are most frequently seen in the media representing clients in criminal matters. However, barristers do a lot more than that. A great deal of time is spent on undertaking legal research and writing advices on evidence and prospects.
When I briefed a barrister for my first trial, I knew that she would settle my trial affidavits and prepare the examination-in-chief, the cross-examination, and the opening and closing addresses. What I did not appreciate was that if I had briefed her a lot earlier, she could also have advised me on the additional evidence and witnesses that we should try and obtain, and on the prospects of success. Being a junior lawyer I lacked experience and underestimated my client’s weaknesses and the other party’s strengths. I very quickly learned that getting a barrister on board early would benefit my client and make my job easier later on.
When I developed a good working relationship with barristers with different personalities and styles I felt confident in picking up the phone and having a chat with them about a client whose case was becoming complicated. You should do the same. Developing this type of relationship with barristers will lessen the stress you are under trying to juggle complex files.
Once substantial work is required you will find that your barrister will want to be paid. Despite public perception, barristers’ hourly rates can be lower than solicitor’s. Because they are experienced in drafting pleadings, affidavits and submissions, they will probably do it more efficiently than a solicitor. Overall, a barrister’s fee for these could be lower than yours, freeing you up to do other work.
So, develop a good working relationship with a number of barristers, and don’t be afraid to talk to them before you brief them.
How to choose your barrister
If you know that you need a barrister on a particular case, how do you choose one? Generally, you brief a barrister who practices in the same area of law and has a good reputation. But, if you were like me, you probably briefed your first barrister because your partner or another senior lawyer in your firm told you to. In time though I had enough autonomy to venture out and make my own contacts. I often found that I could not match my client’s needs with the barristers I knew. Observing barristers in court was not always a good representation of what they would be like with my client or with me in conference.
Most lawyers have briefed barristers they swore they would never brief again. I recall when one senior barrister I briefed came to court barely prepared, tried to bluff their way through, and then send me a bill for over $5,000. Another very experienced barrister advised me to draft orders which were completely unenforceable, and because they had my name on them, embarrassed me in front of the judge, my opponent, and my client. These are just two examples.
I quickly learned that the barristers I chose to work with were ones who:
- Would pick up on my mistakes and not embarrass me in front of my client for being junior and inexperienced;
- Would advise on additional matters even if not asked, for example, if they noticed something I had missed;
- Were always prepared for every conference with the client and especially for court;
- Would try to develop some sort of a relationship with my client and not ignore them (after all it is the client who pays!);
- Would have copies of cases and written submissions for each court appearance (unless briefed the night before); and
- Would return emails and phone calls at least the next day.
If you are a lawyer, you have probably developed a similar list after your experiences with barristers. My advice is that, if you are briefing a barrister for the first time, you should not be afraid to tell them what you expect. They will appreciate it, as do I.
Finally, when choosing a barrister, check if they charge cancellation fees. Cancellation fees can be costly for your client, and some barristers don’t charge them. Speak with your barrister, and check their costs agreement and costs estimate.
How to brief your barrister
Only a decade ago many barristers were only accessible on their chambers phone line. All I ever got was the secretary. That is not helpful when you have a trial listed in two weeks, and need to secure a barrister quickly. So, brief a barrister that is accessible.
Before you send the brief speak with the barrister to see if they understand the issues and will accept the brief. Even if they are available on the day you need, they may be booked every day beforehand and not have the capacity to prepare for your matter properly. You probably don’t want a barrister who is in court every day, preparing for the next matter the night before. Experience is one thing, but exhaustion is another.
Traditionally briefs were always in a folder with each section clearly marked and separated. Although preferable, that is not always possible. I frequently receive electronic briefs from rural or interstate firms. If the matter is urgent, it is better to receive the documents by email and have them immediately, then wait a day or 2 for delivery. Not all barristers accept electronic briefs, so make sure you check.
Whether the brief is in a folder or by email, make sure it contains:
- An instruction page setting out who the parties are, the dispute, the issues, what is agreed, what each party wants, and whether offers have been exchanged;
- A chronology if you have prepared one;
- A separate section for relevant correspondence;
- A separate section for court documents; and
- A separate section for other documents such as medical reports or financial documents.
Finally, be clear on what you need the barrister to do. If it is a trial, do you need the barrister to draft, or just settle the pleadings or affidavits? Do you need a written advice on evidence or prospects? Make sure that you have enough time to have at least one pre-trial conference, and always pass on the barrister’s fee estimate to the client.
Having a number of reputable barristers to choose from will allow you to brief the right barrister for you, your client, and the nature of the dispute.
How I can help
If you have a family law, personal injury, or employment law matter that you may need to brief a barrister on, contact me. I will discuss the matter with you. If I am not the right barrister for your particular case I will be able to refer you to one of my colleagues who will be able to assist.