• Solicitors conduct and manage potentially litigious matters and must obtain all appropriate statements and evidence.
  • At various stages a solicitor may brief a barrister to provide advice or advocate for the client.
  • The solicitor will brief counsel by providing them with the authority and instructions to act.
  • Briefs must be prepared with due car, skill and attention.
  • Observations and statements in a brief must be complete, comprehensive and concise.

Briefs and counsel

  • Briefs can be to:
    • provide advice generally,
    • provide advice on evidence,
    • settle pleadings, interrogatories, letters, and
    • appear at a hearing.
  • If requesting advice generally, confirm the scope and range of matters to be covered.
  • Ensure there is always a clear and common understanding as to the expectations.
  • A well-prepared brief enables a solicitor to:
    • establish a good working relationship with the barrister,
    • enhance a collaborative working relationship,
    • contribute to the preparation and presentation of the case in a cost-effective manner, and
    • assist the assessor/taxing officer in the assessment or taxation of costs.
  • A solicitor’s responsibilities includes updating briefs over time.
    • This may need to be done progressively rather than periodically.
  • Briefing a competent barrister is often crucial to the success of a case.
    • Barristers’ specialist skills and understanding of the rules of evidence are usually superior to that of solicitors.
    • Barristers can provide expertise, objectivity and independence.
    • A second opinion may change a client’s perception on particular issues.
  • Briefing a barrister on routine matters and mentions may be economically preferable if the solicitor has to travel a significant distance to court.
  • Always obtain instructions to brief counsel before doing so and advise as to likely costs.
    • Although the fee agreement is between the barrister and solicitor, the client should be given a copy, have it explained to them, and sign it to acknowledge its contents.

Factors to consider when selecting a barrister

  • Take into account:
    • the nature of the legal problem,
    • the client’s budget,
    • the personality of the client and the barrister,
    • the location of the barrister and the court in which the matter may be heard,
    • the expertise and reputation of the barrister,
    • the seniority and availability of the barrister.
  • Do not assume a retainer exists — confirm that the barrister accepts the brief and agree on matters of timing.
  • Senior counsel are usually briefed to appear as advocate at trial or appeal or advise on more difficult cases.
  • Senior counsel may be briefed in addition to a junior barrister, depending on size and complexity of the case.
  • Discuss with the client and junior counsel (if briefed) whether senior counsel is necessary and appropriate.

Items included in briefs to counsel

  • Items included in briefs to counsel are:
    • a coversheet,
    • an index,
    • the observations,
    • a chronology of relevant events,
    • witness statements,
    • requests for particulars and interrogatories,
    • expert reports,
    • use of copied documents in the brief, and
    • bulky annexes to the brief.
  • The coversheet (or first/title page if a folder is used) indicates precisely what counsel is being asked to do.
    • There is no standard form, but information is similar to the coversheets of filed pleadings.
    • It is essential to note each task for which counsel is briefed on the coversheet
      • If a bill of costs is assessed on a solicitor/client or party/party basis the assessor will consider whether it was reasonable to do the work.
      • The note should authorise counsel to do the work and charge a separate fee for each.
    • If counsel is to confer with the solicitor or client, the brief should be marked ‘conference’; otherwise if they are giving advice in conference, it should be marked ‘brief to advise in conference’.
    • The coversheet should specify any dates set down for trial, and pre-trial and court-appointed conferences.
  • The index allows counsel to ascertain where documents are located in the brief.
    • It should be immediately after the coversheet and separate to the observations.
    • The order of the documents in the brief is usually a matter of preference, but observations, pleadings, requests for further and better particulars of pleadings, further and better particulars, and a statement of issues in dispute should be at the start.
    • The order of documents should be logical and consistent, with all correspondence placed together.
  • Observations are a summary of the facts and issues of the case.
    • They will vary from case to case and will be influenced by:
      • the type of matter and the jurisdiction,
      • the stage of the matter and available detail,
      • the familiarity with the type of matter,
      • the research that has been undertaken,
      • counsel’s preferences,
      • the number and complexity of the issues in dispute,
      • whether advice on further preparation is required, and
      • whether the brief relates to an interlocutory or final hearing.
    • Observations should be brief, to the point, and clearly identify the issues in dispute.
      • An unnecessarily lengthy document may be penalised by a costs assessor or taxing officer.
      • If it covers complex factual matters, paragraphs and sub-headings may be appropriate.
    • Observations should include an assessment of the case and the reliability of likely witnesses.
    • Observations should provide details of:
      • any offers or counter-offers made (and whether on an open/without prejudice basis),
      • any unusual circumstances,
      • any problems relating to the prospect of enforcing judgment,
      • any matters raised in the pleadings that are difficult or unusual,
      • any facts or issues of special significance, and
      • any matters of particular concern.
    • Observations might include a standard request of advice on any other matters required to protect the client’s interest.
    • It is good practice to conclude the observations with a request for counsel to perform the particular task and to appoint a conference if necessary.
    • Dates for court-prescribed conferences or hearings may be included in the observations and coversheet.
  • A chronology of events should follow the observations:
    • It should be set out on a separate page immediately after the observations.
    • It should list significant events and documents along with their dates.
    • It should be in column format in date order, starting with the earliest date first (dates in the left column).
    • This chronology will contain information significant to the client’s case.
      • It is different to the chronology tendered in court which will only contain facts agreed between the parties.
    • A third column may be included containing comments of the solicitor.