You have a “grenade of a file” in your hands and you know its about to explode on the next court appearance, do you brief a “new” barrister to attend at the last minute and provide very scant information and then go M.I.A., so the Barrister is unable to clarify and get further instructions…. not happy! You have difficulty speaking to clients about legal costs and you don’t want to lose a client by talking about “money” and you feel very awkward asking the client for money to be put in trust, however, you need a Barrister and therefore brief him/her without funds in trust for payment of their (our your) services? These are what I call “slash and burn” type scenarios, which will suffice if you only require a one transactional briefing. However, if you desire to build an ongoing relationship with a barrister of choice, much more is required………
The Barrister/Solicitor relationship is one of “teamwork” and trust, which can only be achieved through honest, reliable and quality business dealings and competencies associated with each role, which forms the basis for an ongoing strong and trustworthy business relationship. I could wax lyrical about teamwork and its benefits….Im a twin! However, I’ll provide a very “brief”(excuse the pun) summary of what “MORE” is required by Barristers when briefed…..
Briefs are delivered to Barristers for the following purposes:
- to advise;
- to advise in conference;
- to advise on evidence;
- to advise on liability and/or quantum;
- to draw a document, such as a statement of claim, or interrogatories;
- to settle a document; or
- a brief to appear on hearing.
What Should TheFront Sheet Of The Brief Contain?
- the identity of the client;
- the court in which the matter is proceeding;
- when counsel has to go there;
- the identity of the instructing solicitor;
- whether or not there is to be a conference; and
- what has to be done with as much specificity as possible.
The Essentials To Be Included (there are more….),….These Are The Basics!
- An Index
- All issues of fact and law in dispute
- Objective observations by the solicitor who has had much more time to get to know the client and consider the matter over a lengthier period of time than the Barrister
- Copies of all pleadings
- Copies of letters seeking and furnishing particulars (or composite particulars)
- Copies of interrogatories and answers set out if possible in the same form as copies of letters
- Counsel’s advice on evidence
- The proofs of evidence of the witnesses
- Particulars of a list of documents cross-indexed by reference to pages in the brief
- Copies of all documents which are to be tendered as evidence
- Copies of other relevant correspondence;
- Copies of documents produced on discovery by the opponent if not already included.
When To Brief Counsel?
One Chief Justice who was “emphatically in favour of the view that briefs cannot be too soon prepared” went on to say that:
“Clients are not fairly treated by having their case prepared and put into the hands of counsel at the very last moment; and counsel, too are placed at a great disadvantage by this too common practice. (International Financial Society v Smith (1896) 22 VLR 114 per Madden CJ 119).”
This is not always possible, however, it must be understood that if a brief is not properly prepared when provided to a Barrister and not provided with sufficient time for the Barrister to prepare, this will disadvantage the client and possibly damage the reputation of the firm and the Barrister. If a solicitor can’t brief early due to unforeseen circumstances, inform the Barrister of this, so that ongoing open communication can follow.
Lets Discuss “Fees”
Once a Barrister is briefed, he/she is under a professional obligation to provide a cost/fee agreement to the solicitor, which sets out the “terms of engagement” including payment terms, which is then disclosed to the client. If there are perceived or real difficulties associated with the client’s payment of Barristers fees, i.e. client unable to put money in trust or pay Barristers fees, this should be discussed with the Barrister prior to him/her performing any services. Its at commencement of the brief that an open, frank and honest discussion would be best held between the Solicitor and Barrister about payment of barristers fees if they cannot be paid in accordance with the Barrister’s cost/fee agreement. If after having a frank, honest discussion agreement is reached about the clients proposed payment of fees, which alters the payment terms of the cost/fee agreement, this would need to be reduced to writing and signed by both the Solicitor and Barrister. The obligation to pay Barristers fees is personal to the solicitor, if there are no funds in trust, the solicitor is obliged to pay the Barristers fees as specified by the terms in the cost/fee agreement, unless agreement has been reached otherwise and reduced to writing.
Trust can be earned by both parties, in part, by open and honest communication between solicitor and barrister, both parties being a team player and the solicitor preparing and briefing conscientiously and competently and to disclose the barristers cost/fee agreement to the client and pay the barristers fees in accordance with the terms of cost/fee agreement or as otherwise agreed in writing. A barrister’s role is to prepare the case thoroughly and competently, always aiming to do ‘their best for each client” to obtain the best possible results and to provide a cost/fee agreement once briefed. Honesty is the key to trust, which forms a solid base, where an ongoing business relationship can be built.
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