Briefing a Barrister for Corporate Counsel
In-house counsel with a current practising certificate or government solicitors can brief a barrister directly to appear and advise.
THE PROCESS OF BRIEFING
- Ascertain the barrister’s availability to undertake the work and their fees;
- Advise the barrister who your client is and the other parties, to establish whether the barrister has any potential conflicts of interest;
- Discuss the circumstances of the dispute or the cause for the advice, and the broad parameters of the proposed brief;
- Discuss any urgent deadlines or timing issues.
Once engaged, the barrister will provide a standard costs agreement and a disclosure statement. The costs agreement will identify the barrister’s fees and method of charging. The disclosure statement will include an estimate of the barrister’s fees for providing the legal work required.
The barrister will need to be supplied with a formal brief of materials which will comprise all information relevant to the matter including:
- Names of all relevant parties;
- Synopsis of facts and issues;
- Copies of all relevant documents, which will usually include Court pleadings, correspondence, witness statements, and affidavits;
- Particular questions requiring answers.
Ideally, a well-designed brief will enable the barrister to:
- understand the information, documents, issues and client objectives; and
- focus on the key points of your case.
Other matters which might usefully be included in the materials will vary from case to case, and should be discussed.
Whether the brief is in hard copy or delivered electronically (or some combination) should be discussed with the barrister.
A brief is typically best structured with the Memorandum to Counsel at the front. The Memorandum to Counsel sets out the relevant factual and legal issues and includes key information about the brief. Unless there is a particular advantage in having the barrister look at the issues afresh, there is value in taking the time to give the barrister the benefit of your consideration of the issues. It will include a statement of the client’s objectives, the tasks that the barrister is to undertake and highlight client expectations based on any timing sensitivities or deadlines.
Key documents are ideally cross-referenced in the Memorandum to Counsel. Never include original documents or evidence in the brief.
A useful structure for a litigation brief is to group the current pleadings including particulars as the first group of documents. Superseded pleadings that have been overtaken by amendment, notices of appearance, subpoenas and other less critical court documents are often omitted.
Getting the most out of Barristers
It is sometimes useful to organise a preliminary conference or call to discuss the matter shortly after the barrister has received the brief.
Keep a copy of the brief and update it with any supplementary materials that you provide to the barrister.
Update the barrister on developments as they occur after the brief has been delivered. Be involved in the analysis. Working as part of a team is motivating, efficient and productive. Cultivate a relationship where you and your barrister work together to bounce ideas off each other and work collaboratively to achieve the best outcome for the client.