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Introduction
The relationship between the Bar,
and the solicitors’ branch of the legal profession, is a symbiotic one
- barristers and solicitors live off one another. It is obvious that
barristers live off solicitors, since almost all of our work comes to us
from solicitors. What may not be so immediately obvious is
that solicitors are also very dependent on the Bar, particularly - but
not solely - in the case of solicitors who practise as litigators.
It is, of course, possible for solicitors
to survive in practice without briefing the Bar. Solicitors who practise
exclusively in areas like conveyancing have little need of the Bar’s services.
Solicitors have a right of audience in all Queensland courts, and many
solicitors appear as advocates, especially in the Magistrates Courts and
in less complex matters (such as chamber applications) in higher courts.
However, attempts by some firms, in recent years, to establish their own
in-house advocacy services have not been conspicuously successful.
In many parts of the Common Law
world, the work of barristers and solicitors is performed by a single profession,
such as in the United States and Canada. But in Australia, separate
Bars have survived and prospered. Even in those parts of the country
where the profession is legally “fused” - where legal practitioners are
admitted as both barristers and solicitors - the great majority of complex
litigation is still conducted by members of independent Bars. That
this has occurred is a recognition of the fact that, by briefing members
of an independent Bar, solicitors can add value to the services which they
render to their clients. Barristers do this in four ways:
(1) First, by providing expertise
which the solicitor’s firm does not possess. This expertise may relate
to a specialised area of the law, such as intellectual property, or trade
practices, or tax, or town planning. More generally, however, the
Bar consists of specialist advocates, and very few solicitors have the
opportunity to develop the level of advocacy skills and experience possessed
by most barristers. One of the incidental advantages of our divided
profession is that it allows smaller firms, including suburban and provincial
firms, to access specialist knowledge and skills which allow them to compete
on an equal footing with big City firms.
(2) Secondly, many solicitors find
it advantageous to be able to obtain a “second opinion” from an independent
legal practitioner. As a practical matter, few if any solicitors
will refer a client to another firm unless they can feel complete confidence
that the client will eventually come back. Since barristers do not
deal directly with members of the public, a solicitor can retain a barrister
to provide a client with specialist advice, without any fear that the client
will be “poached”.
(3) Thirdly, barristers can provide
a very cost-effective service. The nature of practise as a solicitor
demands a fairly high level of infrastructure - I understand that, for
many firms, 75 or 80 cents out of every dollar billed to clients goes in
staff wages and other overheads. Barristers, by contrast, operate
with reasonably low overhead and infrastructure costs. This means
that barristers, and especially more junior barristers, can provide their
services at a much cheaper daily or hourly rate than solicitors of equivalent
standing.
(4) Fourthly, even if a case does
not involve a particular area of legal specialisation, very few solicitors
can obtain the amount of experience which most barristers have as in-court
advocates. Of course, this is particularly relevant where a barrister
is briefed to appear in court. But it is also relevant in other ways
- for example, where a barrister is briefed to provide an opinion.
The ultimate test of the correctness of any legal proposition is whether
it will stand up in court. And it is difficult to assess whether
a legal proposition will stand up in court, unless one has “hands on” experience
of conducting cases in court.
The object of this morning’s paper
is to identify a number of considerations which will assist in making the
experience of briefing counsel a happier one on both sides. I will
say, immediately, that my motives are not entirely altruistic. It
is as much for the Bar’s benefit, as for the benefit of solicitors, that
the relationship is a mutually satisfactory one.
More detailed guidance on this subject
can be obtained from my paper, “Preparing Briefs Made Simple”, which was
published in the Queensland Law Society Journal, June 1991, volume 21,
No.3, commencing at p.261. What appears here is really only a summary
of what is contained in that article, updated in a few minor respects.
1. Select Counsel
Appropriate for the Task
Many firms have a regular “stable”
of counsel whom they usually brief. You may find that your firm ordinarily
uses a particular barrister for personal injuries matters, a particular
barrister for criminal matters, or a particular barrister for commercial
matters. If your firm has a good working relationship with a particular
barrister, that is a very good reason to use the barrister in any matter
falling within the range of the barrister’s experience or expertise.
But what happens when your firm’s
preferred barrister is not available, or a matter arises which falls outside
that barrister’s experience or expertise ? Or it may simply be the
case that, because your firm does not do a lot of litigation, the firm
does not have an established relationship with any member of the Bar.
When choosing barristers, three factors should be taken into account: seniority,
specialisation and experience.
It is as much a mistake to brief
a counsel who is too senior, as it is to brief a counsel who is too junior.
On the one hand, the barrister whom you normally use for “crash and bash”
cases in the Magistrates Court may be somewhat out of his or her depth
in a High Court appeal. The barrister may be flattered by the offer
of such a brief, but you will not be doing any favours, either to the barrister
concerned, or (more importantly) to your client.
On the other hand, seniority normally
carries with it a higher price tag. Fee structures within the Bar
are probably more variable than those of any other profession, ranging
from junior barristers who may charge as little as a few hundred dollars
per day, up to the top QCs at the Sydney bar who reportedly charge as much
as $12,000.00 per day. Your client will not thank you for briefing
even a Brisbane QC - whose fees are much more reasonable than their Sydney
counterparts - to do a case which could easily be handled by an experienced
junior.
Specialisation and experience are
separate but related concepts. A barrister may specialise in a particular
branch of the law - say, personal injuries matters, or family court matters,
or criminal matters, or local government matters - or perhaps something
more esoteric, like intellectual property matters, or tax matters.
This usually means that the barrister is very familiar with the statute
and case-law relevant to the area of specialisation. This makes it
particularly appropriate to brief such a barrister in matters involving
an issue of law within the barrister’s area of specialisation, whether
it is a brief to provide an opinion, or a brief to argue the issue at first
instance or on appeal.
However, even in matters not involving
a specialist area of legal knowledge, it may be helpful to engage a counsel
who has relevant experience. If, say, you are acting for the plaintiff
in a medical malpractice action against a cosmetic surgeon, it may be appropriate
to brief a counsel who has appeared in similar cases - not because the
counsel necessarily has any specialist legal knowledge applicable to such
a case, but simply because the counsel has experience in similar cases,
and may be familiar with the factual issues likely to arise.
Choosing appropriate counsel should
not be a matter of guesswork. In some cases, it may be appropriate
to brief someone you know socially, or someone that you were at school
or university with. But, in order to choose counsel best qualified
for the task at hand, you may need to seek advice - from other lawyers
in your firm, or from friends with other firms. If you have a good
working relationship with a particular barrister - or if your firm has
such a relationship - you should not hesitate to ask that barrister for
a recommendation, if he or she is unavailable, or if the particular matter
falls outside his or her area of practice.
2. Discuss the
Matter with Counsel Before Sending the Brief
From time to time, all barristers
receive briefs which simply arrive without any warning. Often this
is fine. But sometimes, it is a problem - for example, because the
barrister:
- Is not available at the times
required;
- Is too busy to attend to the matter
with reasonable promptness;
- Feels that the matter falls outside
his or her area of experience and specialisation, or requires a more senior
or more junior barrister;
- Has a possible conflict; or
- Is unwilling to accept the brief
for reasons related to fees.
Commonsense will tell you that there
are three situations where you must contact counsel before sending the
brief. The first is where the brief requires an appearance on a particular
day, so you need to ascertain counsel’s availability for that day.
The second is where paperwork is required urgently or within a limited
period of time - for example, because a limitations period is about to
expire - and you need to know whether counsel will be able to complete
the task in sufficient time. The third is where a special arrangement
is proposed in relation to fees: for example, if it is proposed that counsel
be briefed on a “speculative” basis, or if only limited funds are available
to pay counsel’s fees.
However, it is a good idea always
to contact counsel before sending a brief. Otherwise, various risks
are involved: that counsel’s fees may be higher than you anticipated; that
counsel may take longer than you expect to attend to the matter; or that
counsel may have to return the brief because of a conflict.
3. Specify on
the Brief Precisely What Counsel is Instructed to Do
It is amazing how often briefs are
sent to counsel, which do not state specifically what counsel is required
or expected to do. Each brief should have, either on the front page
or on the back sheet, a clear and succinct statement of counsel’s instructions.
It is desirable that this should
be informative, rather than cryptic. If the brief is a brief to appear,
the notation should specify where counsel is required to appear, and when.
If it is a brief to advise, counsel should be told what kind of advice
is sought - is it advice on evidence, or advice on prospects of success,
or advice on some specific legal issue?
4. Include
“Instructions” or “Observations” as the First Item in the Brief
It is traditional for a brief to
begin with the Instructing Solicitor’s comments on the case, referred to
as “Instructions to Counsel”, “Memorandum to Counsel”, or “Observations”.
There is no set form which this
document must take, and its contents will depend on the nature of the particular
case. However, matters which should generally be included are:
- A brief summary of the facts and
issues, not descending to details (which should generally appear from witness
statements and documentary evidence), but by way of a broad “over-view”
of the case.
- Observations highlighting specific
issues which are potentially problematic, including cross-references to
witness statements and items of documentary evidence which are regarded
as critically important.
- The results of any legal research
which has already been undertaken, including reference to any statutes,
regulations, by-laws, etc., which may be relevant; to any case-law which
may be relevant; and to any legal arguments which may not be immediately
apparent from the pleadings or other material in the brief.
Instructions are not intended to
take the place of proper witness statements or “proofs of evidence”.
If the Instructing Solicitors are aware of relevant facts which may not
emerge from witness statements, it may be convenient to mention these.
But, except in the very simplest cases, it is unacceptable merely to summarise
the client’s instructions without furnishing a proper statement.
The instructions should also elaborate
on precisely what counsel is instructed to do. In the case of a brief
to provide an opinion, it is often useful for the solicitors to specify
precisely the questions and issues which counsel is required to address.
For example, in a brief to advise in connection with a “restraint of trade”
clause in a contract for the sale of business, the instructions might conclude
by asking specific questions, such as:
1. Is the “restraint of
trade” clause void for uncertainty ?
2. If not, does the clause
offend -
(a) Any provision of the
Trade Practices Act ?
(b) The common law “restraint of
trade” doctrine ?
3. If “yes” to any of the above questions
-
(a) Is that clause “severable”
from the other provisions of the contract ?
(b) Can the clause be “read down”
to give it a more narrow operation ?
4. What are the consequences for our
client if the clause is held either to be void for uncertainty, or to offend
the Trade Practices Act, or the common law “restraint of trade” doctrine
?
5. What proceedings (if any) are
available to our client, and if in which Court should those proceedings
be brought ?
A list of the other matters which might
be included in Instructions to Counsel is set out in the article previously
mentioned, (1991) 21 Q.L.S.J. at pp.264-65.
5. Ensure that
the Brief Includes Everything that Counsel will Need
This remark may seem self-evident,
but again it is astonishing how often counsel are sent briefs from which
critical documents are missing. In litigious matters, for example,
there is simply no excuse for failing to include all of the pleadings,
any relevant Affidavits, interrogatories and answers thereto, discovered
documents, witness statements, and relevant correspondence.
One of the difficulties in preparing
a brief is that you may not feel confident in judging whether or not a
particular document is relevant. This is not a situation for applying
the old adage, “if in doubt, leave it out”. Unless you are completely
satisfied that a particular item has no relevance whatsoever to the task
which counsel has been briefed to perform, you should include it.
In the long run, it is much better to waste a few minutes of counsel’s
time reading a document which is only marginally relevant, than to take
the risk that counsel’s advice may be worthless because counsel did not
have the opportunity to consider a document which he or she might regard
as critically important.
6. Do Not “Load”
the Brief with Material that is Entirely Irrelevant
At the other extreme, it is unfortunately
very common for briefs to take the form of a photocopy of the entire solicitor’s
file. Providing counsel with too much material is almost as bad as
providing counsel with insufficient material.
Some particular matters to look
out for are these:
- In a litigious matter, there may
be a number of chamber applications before the case is ready for trial.
Sometimes, the documents relating to these chamber applications will be
very relevant at trial: for example, if there has been an application for
summary judgment, and the defendant has filed an affidavit setting out
the facts relied on in defending the case, this may be of great assistance
to counsel in preparing to meet those grounds of defence at trial, and
in cross-examining the defendant if the defendant’s trial testimony conflicts
with the contents of the affidavit. But documents relating to procedural
chamber applications, such as an application to dispense with the signing
of a Certificate of Readiness, are very unlikely to contain anything which
will be useful for counsel at trial.
- Similarly, correspondence relating
to purely procedural matters is unlikely to be of any help to counsel.
A letter from a provincial firm to their town agents, merely asking the
town agents to attend to the filing of the Writ of Summons, is a good example
of what should not be included in a brief.
- Ordinarily, superseded documents
- such as pleadings which have been amended - are likely to be more confusing
than helpful. But this is not always the case. If amendments
involve a radical change in the nature of a party’s case, that may become
relevant in cross-examination as to the party’s credit. By contrast,
if the amendments are merely a matter of “tidying up”, counsel need not
be bothered with the earlier version.
- It is extremely desirable to avoid
the inclusion of multiple copies of the same document. In the course
of interlocutory steps, a number of Affidavits may be filed each of which
exhibits copies of the pleadings: if the pleadings appear at their proper
place in the brief, it is unnecessary and wasteful to include additional
copies as exhibits to various affidavits. It is worth remembering
that the public - and especially sophisticated commercial clients - are
becoming increasingly conscious of the way that some firms treat photocopying
charges as an important “cost centre” in charging their clients.
On a taxation of costs, a firm is unlikely to be renumerated for providing
counsel with more than one copy of relevant documents.
- You should have the courage to be
ruthless in omitting material from the brief which is clearly irrelevant.
The inclusion of unnecessary documents wastes time and money, and can contribute
to confusion and delay on the part of counsel. This does not, however,
detract from what I said earlier: if you have any doubt as to the possible
relevance of a particular document, you should include it in the brief.
Often, it turns out that a document which appears at first sight to be
of only tangential relevance can take on added significance during the
course of a trial.
7. Arrange the
Brief in a Logical Order
The two golden rules for preparing
a brief are these:
- First, except in the very simplest
of cases, the brief should be divided into separate sections, each containing
documents of a like kind: for example, one section containing instructions
to counsel; another section containing the pleadings; a third section containing
other court documents; a fourth section containing witness statements;
a fifth section containing expert reports; a sixth section containing discovered
documents; and a seventh section containing correspondence. Other
categories which may be relevant in appropriate cases include previous
instructions to counsel, and counsel’s previous advices; loss adjusters’
reports; documents obtained by third party discovery; documents pertaining
to related litigation; and so on.
It may also be appropriate,
in some cases, to have sub-divisions within the divisions that I have mentioned.
For example, in the “pleadings” section of the brief, you might have a
sub-division for the current pleadings, and a separate sub-division for
superseded pleadings. If expert’s reports have been exchanged, you
might have a separate sub-division for the reports of experts retained
by each of the parties; and if different areas of expertise are involved,
you might have a sub-division for the reports of medical experts, another
for the reports of engineering experts, and another for the reports of
accounting experts.
- The second golden rule is that,
except in the most unusual circumstances, “the only logical order is chronological
order”.
Some other considerations relevant
to the physical format of a brief are these:
- It is vital that the brief be
sufficiently secure to prevent pages coming adrift.
- The form of binding should be
such as to allow the brief to be opened, and left open, at a particular
page.
- Especially where it is anticipated
that there may be further documents to be added to the brief, it is helpful
if the brief is in a form (such as “ring binder”) which allows pages to
be inserted and removed easily.
- It is more convenient for a brief
to comprise a number of small volumes, than one large volume, as smaller
volumes are easier to manage, and facilitate cross-referencing between
various sections of the brief.
- Where a brief is divisionalised,
and if the brief is not big enough for each division to occupy a separate
volume, cardboard “dividers” or the like should be used to separate the
divisions.
- Where a ring-binder or lever-arch
file is used, documents are more manageable if each separate item is stapled
together.
- Except for the very smallest briefs,
all briefs must be indexed and paginated. If the brief is divisionalised,
it is sometimes convenient for each section of the brief to be separately
indexed and paginated.
- It is essential to ensure that
all documents incorporated in the brief are copied as legibly as possible.
Often, by the time that a document finds its way into a brief, it is a
third or fourth generation photocopy. Sometimes this can’t be avoided;
but where possible, the effort should be made to ensure that all copies
contained in the brief can be read.
Finally, but most importantly, it
is extremely imprudent to include original documents - such as title deeds,
mortgages, signed contracts, and the like - in a brief to counsel.
There is always a risk that such documents may go astray, and it must be
understood that barristers simply do not have the facilities to keep such
documents in safe custody.
If a document is unsuitable for
photocopying - such as a colour photograph, or a blueprint of a building
plan - proper reproductions should be obtained and included with the brief,
rather than providing counsel with originals.
8. Prominently
Highlight Matters which Counsel Should Note
Solicitors like to brief what are
termed “fashionable” counsel - that is to say, barristers who are good
at their job, or at least have a reputation for being good at their job.
This means that “fashionable” counsel become busy, and are often juggling
briefs while they try to finish opinions and other paper-work between court
appearances.
If there is something that counsel
should know about as soon as he or she receives the brief, it should be
marked on the outside of the brief, preferably in large red lettering.
Otherwise, there is a risk that the brief will wait in the barrister’s
queue of pending briefs, until he or she gets to it - by which time it
may be too late.
This is particularly important if
there is some finite time-limit, such as a limitations period due to expire
in the near future. But there are other things which should also
be highlighted, where appropriate. This includes:
- Any “out of the ordinary” arrangement
concerning fees: for example, if the brief is delivered on a “speculative”
basis, or it if is a “Legal Aid” brief for which a scale fee applies, or
if limited funding is available.
- It is also desirable to identify,
on the outside of the brief, trial dates or dates of other forthcoming
court appearances. This enables the barrister, or the barrister’s
secretary, to ensure that the correct dates are in the barrister’s diary,
and conflicting engagements are not accepted.
- It is extremely helpful to identify,
either on the cover of the brief or at a prominent point within the brief,
the individual within the briefing firm whom the barrister should contact
if it is necessary to discuss the matter. This should include, where
possible, that individual’s direct telephone number, and email address.
- If more than one barrister is
briefed in the same case, the brief should also identify (preferably on
the outer cover) the name of the leader or junior, and contact details.
Other matters which should be readily
apparent on the face of the brief include the name of the barrister who
is being briefed (this may seem silly, but it helps to avoid confusion
when the brief is delivered to chambers occupied by several barristers);
the name and contact details (including postal and/or DX address, telephone
and facsimile numbers, and email address) of the briefing firm; and the
name of the matter, so as to identify both the briefing firm’s client and
any other party, in such a way that the barrister can immediately identify
if he or she has a possible conflict.
I understand that both Law Society
and Bar Association statistics confirm that most disputes between counsel
and solicitors fall into two categories: disputes over fees, and complaints
about delay on the part of barristers. The risk of any such disagreement
is greatly reduced, if any special requirements are clearly identified
by the briefing firm to the barrister. If there is a “deadline” applying
to the task for which counsel is briefed, or if any “out of the ordinary”
arrangement applies in respect of fees, the solicitor is on very firm ground
if these arrangements are immediately apparent on the face of the brief.
I should add that the risk of unfortunate
misunderstandings can also be reduced, by the instructing solicitor maintaining
contact with counsel. If you deliver a brief clearly identifying
the date on which a limitation period will expire, you may be justified
in arguing that it is counsel’s fault if counsel does not return the brief
in sufficient time to issue proceedings before that date. But this
will not be of much comfort to your client, nor will it necessarily protect
your firm from an action for professional negligence. The barrister
will not be offended if you ring up, a few days before the due date, and
enquire as to progress - or even leave a message with the barrister’s secretary
to remind him or her of the due date. This may save a lot of embarrassment
for yourself, your firm, and the client - not to mention the barrister.
9. Arrange Conferences
where Necessary or Appropriate
Conferences are of two kinds.
First, there are pre-trial conferences
where the barrister meets the client and other witnesses, discusses their
evidence, and - without “coaching” them as to what they should say - offers
them advice as to the manner in which they may give their evidence.
Such conferences are essential in almost every case where witnesses are
going to give oral testimony.
Sometimes, conferences are also
arranged so that counsel can be briefed, and give advice, in conference.
Generally, this is not a particularly satisfactory arrangement, and it
would be my recommendation that it not be attempted except in cases of
urgency, or where advice is sought on a very narrow issue.
Some points should be noted in relation
to both kinds of conferences:
- It is inappropriate for counsel
to confer with a lay client, or witnesses, without the instructing solicitor’s
firm being represented at the conference.
- A conference is never a substitute
for a proper witness statement, or proof of evidence. For a barrister
to meet with a client or witness, without a proper statement, in order
to ascertain what (if any) relevant evidence the client or witness can
give, is a time-consuming and expensive process, the results of which are
generally unsatisfactory.
- Conferences with witnesses should
be arranged at different times, so there can be no suggestion that one
witness has been “coached” by over-hearing another witness’s potential
testimony.
- Conference times should, of course,
be arranged with counsel well in advance. In particular, pre-trial
conferences should be arranged well prior to trial. The idea of having
counsel meet the client and other witnesses, for the first time, on the
morning of trial, is unsatisfactory for everyone concerned.
10. Ensure that
the Situation Regarding Fees for Counsel is Clearly Understood
As previously mentioned, disputes
relating to fees are one of the two main sources of disagreement between
solicitors and members of the Bar. Such disputes can be minimised,
if not totally avoided, by ensuring that the situation is clearly explained
and understood.
If counsel is being asked to accept
instructions on a “speculative” basis, this should be discussed before
the brief is delivered, and clearly stated on the brief. If counsel
agrees to accept a brief on such a basis, it is prudent to enter into a
“speculative fee agreement” in writing, which should be signed by the client.
If the fee is a fixed one - such
as a Legal Aid “scale” fee - or has been negotiated in advance, this should
be clearly confirmed with the brief.
The responsibility of paying counsel’s
fees rests with the instructing solicitor. If you have any doubts
about the client’s ability to pay, or indeed about the client’s willingness
to pay, you should ensure that you have funds “in trust” before counsel
is briefed.
It is also the ethical responsibility
of solicitors to remit funds to counsel, as soon as counsel has performed
the work for which he or she was briefed, and the money has been provided
by the client. There have been cases in which a solicitor has been
held to be guilty of unprofessional conduct, by retaining money in the
solicitor’s general account which was intended to pay counsel’s fees.
From time to time, problems arise
in relation to paying counsel’s fees, either because the client is not
forthcoming with funds, or because funds held from the client prove to
be insufficient. In such a case, it remains the professional responsibility
of the solicitor to pay counsel’s fees, even if the firm has to pay those
fees from its own resources. But if it is clear that the problem is not
the fault of the instructing solicitor, and if the instructing solicitor
is taking appropriate steps to recover money from the client, most barristers
will be willing to wait so long as the situation is clearly explained to
them. If you have such a problem, the first step is to discuss it
with the counsel involved, and ascertain whether he or she is prepared
to extend an indulgence. Unless you can come to some satisfactory
arrangement with counsel, there is a risk that your firm’s name may be
placed on the “Private List” maintained by the Bar Association.
If, on the other hand, there is
a genuine dispute about counsel’s fees - if you consider that counsel has
charged too much, or charged for work which was not properly performed
- a “protocol” exists between the Law Society and the Bar Association to
deal with such matters. It is important that you articulate your
concerns, in writing, promptly after receiving counsel’s Memorandum of
Fees. If you do not do so, you may not be able to take advantage
of the “protocol”
Conclusion
I concluded my 1991 article in the
Queensland Law Society Journal by saying this:
“If in any doubt as to what
should be included in a brief, the obvious course is to ask the barrister
for whom the brief is intended. It takes only a five-minute phone
call to enquire (for example) whether counsel wants to be briefed with
copies of each of the 3,000 invoices upon which a creditor relies in an
action against a debtor. Articled Clerks and young solicitors might
well profit from occasionally asking barristers whether the briefs which
they prepare are satisfactory, and whether there is anything which can
be done in the future to improve their usefulness: I think that I can speak
for the great majority of the Bar, in saying that we would be more than
happy to assist in that way. In my experience, the standard of briefs
prepared by my solicitors in Queensland is generally very high, but it
is in the interests of both branches of the profession, and our clients,
to improve those standards, or at least to ensure that they are consistently
achieved.”
Those remarks are as true, today, as
they were eight years ago.
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