Briefed: Commercial Law Updates
Briefed: Commercial Law Updates
Briefing Counsel
What will the seminar cover?
Briefing Counsel is a webinar co-hosted by Queensland Young Lawyers (QYL) and Level Twenty Seven Chambers. This is the second event in a series covering essential topics and skills junior lawyers should be on top of.
Junior barristers, Mei Ying-Barnes and Hannah Lilley, who practise from Level Twenty Seven Chambers shared tips on:
- How to find suitably skilled barristers for your matter
- What documents should be included in a brief
- Tips on ways to communicate with counsel during an ongoing matter
Mei and Hannah's advice comes from the position of having briefed barristers in their previous roles as solicitors, as well as having received briefs as barristers from boutique, state, national and international law firms. The webinar aims to help solicitors streamline the dispute resolution process by ensuring each lawyer in a team knows what is required of them and avoiding work duplications.
Who should attend?
All lawyers with litigation practices, especially those 1-5 PQE.
PRESENTERS
Mei Ying-Barnes (Barrister, Level Twenty Seven Chambers)
Versatile, client focused and approachable, Mei practises predominantly in the areas of construction, competition and property (including Native Title). She advises and appears (both led and alone) for public and private corporations, State and Federal Government agencies, and individuals on contentious matters in all State and Federal courts. Prior to coming to the Bar, she was a solicitor at Herbert Smith Freehills, an associate to the Hon. Justice Margaret Wilson of the Supreme Court of Queensland and in house at the Commonwealth Department of Resources and Energy.
Hannah Lilley (Barrister, Level Twenty Seven Chambers)
Since coming to the Bar, Hannah has been instructed in a wide range of commercial disputes including those concerning contracts, corporations, equity, misleading and deceptive conduct, banking and insolvency, consumer protection, building and construction (including security of payment), large infrastructure disputes, franchise disputes, insurance and property law. She appears both led and unled in all State and Federal courts. Hannah draws on seven years’ experience working as a solicitor, initially at Allens in Brisbane and most recently as a Managing Associate at Linklaters LLP in London. In addition to having been a solicitor, prior to commencing at the Bar, Hannah was an Associate to the Honourable Justice Patrick Keane AC in both the Federal Court of Australia and in the High Court of Australia.
Materials
The event was originally recorded as a webinar. The video recording and transcript are available here.
The recording from event 1 in the series, Life at the Bar, is available here.
Did you miss previous seminars? Check out the seminar archive on Level Twenty Seven Chambers' website for the video recordings and associated materials produced by the speakers.
Want to join future seminars live, in person or online? Register your interest.
Website: www.level27chambers.com.au
Sam Billingsley-Dadd (SB): All right. Thanks everyone for joining us today for the QYL and Level Twenty Seven webinar series. Just quickly, some housekeeping, we ask everyone keeps their mics off for the duration of the webinar. We will do questions at the end. If you have any questions that come up during the webinar pop them in the chat then we can ask those at the end for you.
We would like to start by acknowledging and paying our respects to the elders past and present and to those who have passed before us and to members of the Aboriginal and Torres Strait Islander community who are also attending here today. I want to acknowledge the Turrbal and Jagera peoples, the traditional custodians of the lands we are meeting on here today.
I would also like to thank Mei Barnes and Hannah Lilley for agreeing to present today.
Mei has a broad commercial practice with a particular focus on building & construction, competition, class actions and Native Title disputes. Mei has appeared as counsel in Queensland State courts and tribunals at both trial and appellate level and in the Federal Court of Australia. Mei is listed in Doyle’s Guide to the Legal Profession as a recommended Junior Counsel for construction and infrastructure disputes. Prior to being called to the Bar, Mei worked as an associate to the Honourable Justice Margaret Wilson of the Supreme Court of Queensland and as a solicitor at Herbert Smith Freehills. Mei is admitted to practice in Australia and New York.
Hannah has a broad commercial practice with a particular focus on energy, construction and infrastructure, competition, banking and insolvency litigation. Prior to being called to the Bar, Hannah worked as an associate to the Honourable Justice Patrick Keane AC of the High Court of Australia, as a solicitor at Linklaters LLP in London and Allen's in Brisbane. Hannah is also admitted as a solicitor of the Senior Court of England and Wales.
Thanks Hannah and Mei. Happy to hand over.
Mei Ying-Barnes (MB): Thanks Sam and thank you QYL for having us this afternoon. The topic for today is briefing barristers. Normally, if we were doing this in person, it would be easy for us to go around and ask everyone what they do and what experience and exposure they have already to briefing barristers to give us an idea of where to pitch. But because we are not able to do that this afternoon, we probably will start at a pretty basic level and try and cover everything, assuming that you might know a little bit about what barristers do from civil procedure units and what you have done through PLT but not necessarily the nitty gritty of it. Apologies to anyone who has lots of experience with briefing barristers and for whom this sounds a little bit like sucking eggs but we hope you have come along because you are hoping to hear a comprehensive talk about some of the do's and don'ts of briefing barristers.
Some of the topics that we will cover today will include what it is barristers do, how you find them, what you should brief them with and what to do when they are AWOL, how to get them, how to find out what they are doing and get them back on track.
Of course, if you have any questions, feel free to write them down, there is a chat function through Zoom, so you can let Sam know and we can answer them at the end. Or, if it is a burning question, I am sure you will find a way to get it to Sam to interrupt us to ask.
DO YOU NEED A BARRISTER? IF SO, WHEN?
MB: I suppose the first question that is worth asking is, do I need a barrister? If so, when? Hannah, did you want to address that?
Hannah Lilley (HL): Yeah, of course. As I am sure you are probably all aware, barristers are helpful for appearing and preparing to appear as an advocate. They also take roles negotiating for clients to compromise a case or representing clients in mediations, arbitrations or other alternative dispute resolution, or acting as mediators or arbitrators or experts and giving legal advice. They can get involved in cases to do those specific tasks and any ancillary tasks related to those.
A less obvious option, which I have found has been quite significant and helpful, is in matters where solicitors have a bit of a strained relationship with the solicitors on the other side. There have been a few matters I have been briefed on where my role has started off as something that may have been more involved like appearing at the trial but in the end the most significant part of it was actually communicating with the barrister on the other side and counsel-to-counsel discussions just really trying to get to the core of the issues between our clients and discussing in a very rational way that was very separate to the clients’ invested interest in it, to work out what the real issues are to resolve the disputes without the need for a trial. I think that is one of the matters I had not quite appreciated in my role as a solicitor previously was very helpful to brief counsel for.
MB: That is a good point because part of the reason why we have an independent Bar and why it is so important is that it sometimes is good to have a third party come in and provide a perspective that solicitors or the client have not seen yet because it is impossible to get across the facts from the client without starting to already form your own view about how things might go and there is a lot of filtering that has to happen in relation to the facts and material. But when you are able to package it up and deliver it to someone whose job it is to provide independent advice on things all the time, sometimes you can get a new insight that you would not otherwise have had. That is a big part of what we do and why the split profession continues here in Queensland now, even though increasingly solicitors are doing advocacy work and barristers get drawn in to do work that is traditionally solicitors work, like discovery or other bits and pieces that we would not say necessarily are our core work but work that we are permitted to do under the rules and very happy to do if it assists the client really. So that is a good place to start. Did you have anything else to add [Hannah]?
HL: No, that is everything.
WHAT TYPE OF BARRISTER DO I NEED AND HOW MANY?
MB: So, the question I suppose, once you have realised that you do want a barrister, that is you have got litigation or some kind of contentious matter and you would like advice or you need help drafting material or arranging conferences with witnesses, the next question is, who should I get? And how many people should I get? There are a couple of ways you can go about doing that, Hannah and I will go through them.
To start with, the most important thing for you to work out is what you need done and when, and what the client's budget and goals are because a lot of that is going to dictate who you go to and what you ask of them. When you deliver that first phone call, which is “I am going to try and get this barrister to take this brief”. Often, to be fair, it is a competitive market and we want the work so we are very happy to hear when the phone rings what it is that you need a hand with. But also, it helps us if you are able to gather the information that we need to make a decision about whether we can realistically do a good job on that piece of work. A bit of forethought on your part is extremely helpful for us in doing that. So, I suppose starting with the area of law, you will all know which area that you predominantly practise in or that you are currently streamed into, whether it is family or crime or commercial law. But then, there will be considerations about specific experience that people might have in areas like insolvency or native title or areas that really, once you have done it once or twice, you have got a good handle, or QBCC stuff, often, where there is a statute that governs and the stuff that comes in is really bread and butter for particular people, that can be helpful.
That said, most people at the Bar will happily put their hand up to do most things that come in. Our job is to get across what the law is and we should be able to do that across all areas or we would not try and do the job. The most important question is, what do I need to be done and when do I need it done by and how many people need to do it? which is really a budgetary question for you and the client. Silks, it used to be the rule that they would charge double what it was that the junior costed and you would not appear without a junior. That has changed now, we have Silks in our chambers who are happy to be briefed by themselves and not necessarily require a junior to have an ongoing role in the matter or to have a main role and have a junior who just does a little bit. Feel free to ask them and be honest with them about what the budget is and how much involvement you expect them to have because that will prevent you from having bill shock and from the client having bill shock as well about who is going to be doing the work and think about is it a matter which would work well having a junior, even a baby junior doing a lot of the work overseen by a Silk, or is it something where you get more efficiency briefing a senior junior to do it who does not need a leader or who might be ready to be doing matters by themselves or a senior junior who could appear with another junior because some of the juniors at the senior end – that is probably eight or nine years call since they came to the Bar – are ready to appear with a junior and to make some of the calls that are simple to ordinarily make. You might be getting them at a great price because in a few years they will be taking Silk and they will be charging a lot more. Those people will be looking for that kind of work because they want to establish themselves as leaders who are ready to take Silk too. So, having a think about that dynamic can be helpful as well.
Any other comments [Hannah]?
HL: Yes. I guess, more practically, in terms of how to find the person that you would like to assist you, there are lots of ways to do that. As a solicitor, I often started by asking my colleagues for the positive experience they had previously or if they had any recommendations. Otherwise, there is the Queensland Bar website, you can use all the different filters to find someone, either seniority that you need or the practice area that you need. There are also chambers websites now, for many, if not all chambers, that also have filters or information regarding people's practice area and the type of work that each of them take on. Also, if you know there is someone in particular that you have in mind that has been recommended to you that is unavailable to help, you can also ask them for recommendations of who else they think would be a good person to help. Some chambers have clerks who are able to assist with who might be appropriate and also the distribution between senior and junior or senior junior for the matter, depending on the value or the subject matter or the size. So, there are lots of different options of how to find someone to help you.
EXPLAINING WHAT YOU NEED FROM COUNSEL
HL: In terms of just thinking about what it is you need from counsel, Mei briefly touched on this. Thinking quite specifically about the tasks. For example, it is quite common to have a brief, “Can you prepare a Statement of Claim?” or “Can you prepare a defence? We need it by this date.” We are able to confirm our availability to do that but then once we receive the brief sometimes there are additional tasks in there that are needed in the same time period, for example providing advice on prospects, or if part of the job involves going through a lot of documents that have been collected but the solicitors have not had the time or resources to commit to going through it. Again, they are large tasks that will require additional time, which we are very happy to help with but if we are not aware of those tasks when providing the time estimates it is important to understand so that there is no disappointment in managing expectations for when things can be done.
MB: I think that is right. If there are other tasks, like having a conference before anything is drafted or before anything is finalised, that is really helpful to know, especially if you are going to have a Silk involved because their diaries can be quite busy - so can your junior’s diaries - so if you happen to know that you are going to need them for an hour or half a day to talk about the document, or you think that the client might have a particular view about how it is run, they will need for warning, but they might not necessarily need to see the document fully drafted, you could consider building in there that you want to have a conference a week before the documents are filed and probably not put the filing date as the due date because it is likely the barrister will open it up and work out when actually it needs to be filed. If they are a junior, they will think about when the Silk is going to need to see it. So, you do not need to case manage that side of things. But if there are points at which you are expecting them to have read material, it is really good to make those clear because I can tell you, at this time of year, how many briefs come in on the promise that you will not need to read anything until the end of the month or especially ones that come in November or December, where there is no work required until the new year when actually they would really love you to read that before the end of the year, which is fine but you just need to know that is the case because if you say you do not need to do any work on it, at that time of year, you can guarantee no work will be done. Unless you absolutely say “Please do a little bit” or “Just read the observations and let us know if you if anything jumps out at you as a problem or something that we should be aware of”. It is really like Hannah said, managing expectations.
HL: Similarly, this will be especially the case if you are dealing with a new client, is, I am not going to tell you how to do the job, but we do not necessarily understand the practicalities of how you will seek instructions and how long that will take. So, if there are board meetings or client meetings or numbers of levels of supervision within the client or your firm that need to be addressed before something can be filed it, making that really clear to counsel as well so that they have the drafts to you in time for you to take those steps because if you say it is due in court on this date, that is not necessarily going to be top of counsel’s mind to build in a day or many days for those steps to be taken. Again, something important to keep in mind so that counsel is put on notice of your timing needs, once they draft or do the work that they are supposed to do.
MB: The other thing I would say about when you making the decision to brief counsel and how you go about doing it before you have sent the brief is that if you call at the beginning of the month it is probably a good idea to call again three weeks later when you finally get instructions from the client to brief the barrister because until a brief actually comes in we do not usually consider that we have accepted that brief, so diaries change and sometimes it is for the better because you might have someone who has a big matter that settles and now they are available and they were not before. But it might work the other way where they have unfortunately just been dragged into a massive urgent Royal Commission and they cannot take anything now for six months. So, it is good to be aware that we understand the limitations that are placed on you guys about having to put a few names down and a few numbers for different rates. You should never feel embarrassed about that when you call a barrister. They should know about the fact that you are calling other people and you are just calling around because you want to know what their prices are like, that is absolutely something you should do. But, be aware that until something written has been received in chambers, it is likely, unless you have asked them, and you can do that, you can ask people to set aside time or block their calendar out. Different barristers have different feelings about being asked to do that in the absence of a brief but most people anyway, until we have something won't think that we are retained in that matter so we will take on other things unless we are told otherwise.
I thought that might be a good point to quickly ask whether Dan or Tamara have any comments because this part of the process is something that they are very heavily involved in because Dan fields tens of calls every day, and on his days off, to try and find barristers. Dan, do you have any comments?
CHECKING FOR A BARRISTER’S ISSUES OF CONFLICTS
Dan Perry (DP): What about the issue of conflicts?
MB: That is a good point. When you are calling, it is always really helpful to have the party names because by the time we have been around a little bit, often there are, the name that you are using for a matter might not be the name of the parties who are in the matter, so we might not immediately be aware of a conflict. But, if you can list out who it is, who there might be, if there is a potential family conflict, which actually, you would think with three Doyles in chambers that would happen but it does not happen that often. Usually, the barristers keep most of the information confidential but you do not know necessarily what arrangements, what exposure, they might have had to matters just through speaking with colleagues or through providing advice which was confidential which never made it onto a court file. So, it is really helpful for us if you can tell us who the parties are and who any related entities who might become involved are. Sometimes it is also good for us to know who else has been on the file and who you are coming into replace. It is always an awkward call when you are being called to reply to someone who has been elevated to the bench. It is good context and in terms of conflicts it is part of our professional obligation.
Anything else Dan?
WHEN SHOULD A BARRISTER ISSUE A COST AGREEMENT?
DP: Yeah, at what point do you issue cost agreements?
MB: I personally do not usually issue costs agreements until I have got a brief because part of the professional rules require me to give an estimate of how long I think that work will take. It is really hard to do that based on a phone call. I think my fee agreement is four pages or something, it is not short. I do not want to do it unless I think I am really going to do that work. Do you have a different practice [Hannah]?
HL: It depends on the case. Sometimes I am told it is “…a one volume brief. We anticipate it taking you a day” or something like that where they need the estimate and the letter before they can get instructions to brief me. It is different each time depending on that and for many matters I need to accept the brief before there are necessarily instructions on what specific tasks I am undertaking. Again, it is quite difficult to produce an estimate at the beginning, whereas I can give my terms and then produce an estimate later when the specific tasks arise and I am more aware of how long it might take.
MB: I do think more and more now people want to know how long it will take and we give an estimate, as we are supposed to, if we know what the scope of work it is going to be, for how long it will take and how much it will cost. But people call and they want to get an idea from you about how long it will take, which is fair enough. So, if you think your client might want to know that, or you want to know that because the retainer is between us and you, not with us and the client. So eventually, when we come and harass you about bills, we are going to be harassing you and not the client. It is probably worth saying “What's your estimate?”
I have had firms ask me “How long do you think the Silk will take to do it?” I absolutely cannot tell you any of that, that is a black box which unfortunately is your problem to negotiate with them. The junior-Silk relationship is also a really fun part of being at the Bar because you will find when you call counsel to brief them, some Silks have juniors who they like to work with. You can go with whoever you like, whichever juniors you like, but know that the ones that they put forward often are ones that they have a good relationship with. There is some benefit in going with someone who the Silk gels with. But they are professionals and they will work with everyone. So, your preference is at the end of the day the most important thing.
WHAT SHOULD BE IN A BRIEF AND HOW SHOULD IT BE ORGANISED?
MB: In terms of what is actually in a brief, that is different for each matter. Obviously, it is different for each matter but I say that because it is different now than it was pre-COVID, I think. We had always got eBriefs for briefs where there was a lot of material. Now we get a lot of eBriefs, I think, because people work from home and it is a lot easier to prepare an eBrief from home, and to take an eBrief home, than it is to take a hardcopy brief around. During COVID, a lot of people became comfortable working with electronic briefs. It saves a lot on printing. They are a bit more common now.
There is a structure we love them to have, if you have time. Obviously, if you are briefing for an urgent injunction which is happening in half an hour in the Supreme Court you do not have time to do anything except hand us a copy of the application. That happens, we understand that. Often in those matters there is literally one handful of documents that you have to go off to make half an hour of argument. That is just part of the job. But once it is more complex, and especially if a matter has been kicking along for a number of years, or you might have briefed a couple of people already, there can be an art in working out what should go to the barristers. The reality of it is that everything you send to us you could assume we may bill you for reading. So, there is some benefit to the client in having a think about what actually does the barrister need to see. What were your thoughts [Hannah]?
HL: Earlier, I canvassed some opinions in Chambers from various barristers to see if they had any thoughts on things that we should share. I think the main point that was established was that people have varying needs and varying preferences. The key is to speak with counsel about those preferences. That will minimise the efforts that you have to go to in the sense that you can get it right the first time and there is no confusion between you. Also, there won't be wasted costs and that sort of thing. With hardcopy briefs, I understand that some barristers, if they accept a matter will just receive a hardcopy brief. These days, I think it is very important to just ask first because there are many barristers that actually now prefer entirely electronic briefs and actually have no interest in a hardcopy and do not want to see it in their office. That is great for solicitors and clients as well for those costs. Just picking up the phone and asking counsel is a great place to start. It is also quite common for people that prefer hard copies, these days they probably prefer both electronic and hardcopy to work from. Having access to both of those is also really helpful if they still prefer to work with paper.
Then there are other matters within that that are very much a preference. You know, there are different ways of providing an electronic brief. Some counsel prefer to receive single PDFs for each document with an index with hyperlinks to them. That is one way of producing them. Some people prefer the single PDF that has the bookmarks to each document. I have identified that people have very strong views on that preference. Again, that is worth checking first. Some of these preferences will be tied to practical matters like how they can control F through a document, some people prefer to have the entire brief to control F through. Some people prefer being able to identify a single contract or a single pleading, to do that, to be able to quickly find things. All of those options take considerable amount of time for the solicitor team, being able to work out which one everyone is happy to work with saves a lot of time.
The other one there is making sure that all of the brief that the solicitors and barristers, and then senior counsel and junior counsel have, are all the same, or at least marked in the same way so that if you are having calls remotely and someone is going to draw attention to a document or paragraph within a document there is a clear structure of tabs and page numbers or paragraph numbers that is the same within each of those briefs that everyone can use to make sure they are on the same page. That is one that can get quite frustrating for everyone involved if you are not able to find what people are talking about.
MB: You might already know this if you ever had to paginate an affidavit in the Federal Court. Every individual document has a different number or reference. Occasionally I have a Silk and they will call me and say “I'm looking at document one of the brief” and you realise that in fact there are five parts and each part has a different letter associated with it. So, in fact, there are six documents that could be document one. It is fine for me, I am very happy to wait for them to find which document they actually mean, but they are not happy to wait. My general feeling with that is that some of the stuff, when you look at the court rules, the way they require things to be done, that is a helpful guide of how we can do it. If you adopt a numbering system which makes you think “If the barrister calls me and says ‘I want a copy of this document’ how will they be identifying it to me?” It is also good when you are getting an advice back or something and you want it to cross reference the documents, everyone knows what everyone is talking about. Just practically you will get a better outcome if the documents are easy to find and arranged in a logical way.
I find that the best briefs will have the material organised in a logical way. The frustrating thing about that is that everyone has a different view about what that is. As a starting point, you could probably assume that you will need any court documents that are already filed. Any statements or evidence that is already filed in the matter, depending on what you are asking them to do. Often barristers like to see the advices that other barristers provided on the matter, even if only because the introductory section of that advice is going to have a good summary of what the case is about.
If there are court precedents that your firm already has that you expect to be adopted or that you would like to see, which can be as simple as a blank court form which just has your firm's contact details in the footer, that is a good starting point because at least you won't then be reformatting the document when you get it back from the barrister and it saves us time because we then do not have to look up your fax number. Things that you do not need to pay us for. That kind of thing is practical.
HOW TO PREPARE OBSERVATIONS & INSTRUCTIONS TO COUNSEL
MB: I did want to say something about observations to counsel and instructions. Often, briefs will contain a section at the beginning which is called observations or instructions to counsel. The main benefit of that document is that it is your chance to tell the barrister what you think is the most important part of this case before they read anything else. It gives you a time to crystallise in your mind what it is that you want them to do and raise any pertinent issues so that all of your good thoughts about the matter come to the barrister at the time when they are fresh and reading it for the first time. Those things are captured in one spot. It is the document that you would expect everybody to read. There are lots of documents in the brief that… I have had solicitors say “I kind of hope you don't read them all because some of them I've just put in there to sort of help you in case you go down this rabbit hole or whatever.” The instructions bit is really important. If you can spend a little bit of time on that, it will save everyone a bit of time at the end of the day. It basically should read like the synopsis of the case that you would expect a judgment to start out with: Who are the parties? What is it about? What do you need counsel to do? If you think it will take a particular amount of time and you have agreed on a particular time or you have agreed on some kind of fee arrangement, that is a good place to put that because it guides what the engagement is and what it is going to be. If you can arrange the facts chronologically that is really helpful, if you have done a chronology that is a really helpful document to include in the brief.
Tamara McCombe (TM): Do you think solicitors should provide their opinion on how they think the argument is going or what the pertinent laws are to do with the dispute?
MB: I personally do not mind. I am very happy for people to tell me what they think the causes of action are, or prospects, or whose evidence is going to be important or not important. But I will take that with a grain of salt because you have asked me to look at it afresh. But it is good for me to know if I am going to have to tell you that I think that we diverge on that question. It is good to know straight out that that is going to happen. What do you think Hannah?
HL: I think that is really helpful. I do not think it is necessary for the solicitor team to do that work just for the purpose of those observations. But if the work has already been done, especially where it has been communicated to the client, I think it is really important that we understand where you are coming from, what has been communicated. That is something that is at the forefront of our mind when we do the work. As Mei said, maybe we do not necessarily agree, or we think that there are other things that are relevant, but that means there is a conversation to be had. Also, where the works already been done by the solicitor team, it just means it won't be wasted and there won't be duplicative work, so we see where we are coming from. I think it is really helpful.
On a matter I recently received, the solicitor team had already put together a draft defence and they had pleaded certain causes of action and not pleaded certain causes of action against certain parties. That was in the observations, they were just notes about why those decisions had been made which is really helpful to me to understand. Of course, I will be looking at it from first principles either way but just understanding the thought processes behind it are really fantastic.
Also, depending on what we are being briefed to do, sometimes the content of those observations is essential to being able to do the job. There have been briefs I know people receive where they will receive the pleadings in the matter and they are asked to draft a defence with not much else. So, what is the defence? “Well, it's the client's position”. The observations are one place that solicitors can include the information that they have inevitably already discussed with a client, or if not, probably should discuss with the client or at least frame why that has not been had yet and the barrister will then need to be involved in having the discussions because you cannot plead a defence to a Statement of Claim in isolation without understanding the facts behind the matter, especially where the intention is to plead some type of oral agreement or oral terms that we are not otherwise able to identify from documents provided. Those sorts of things are really important to see in observations or statements from the client or something like that.
MB: I think that is right. If you can tell already that there is going to be evidence that you need from the client or some kind of further information it is probably worth flagging, even if it is just to say “We know that in the Statement of Claim a bunch of things are alleged to have been said against the client, we are investigating those” or “We are aware that you probably don't want that. It's not done yet. And we don't want to hold up the brief and we want you to start straightaway but just know that it's been started.” Alternatively, “By the way, the party that we are suing is a person who we quite like and we don't want you to consider any of the claims which are particularly…the client would never entertain the claim about this.” Then we know, okay, great. I won't waste your time telling you that you have got a possible claim here.
A few practical things. It is really great if any electronic brief can be text searchable. Occasionally, we get documents that are PDFs and they are not OCRed. Some people have Adobe Pro so you can render the documents but sometimes you might have the document in Word or you might have a better version. We always prefer a text searchable one, if you have one. If you have precedents and court forms that you expect us to actually be editing or if you have done a draft you want us to settle, all that will have to be in Word so that we can actually do that work. Sounds obvious, but it is just one of those things you might not think about because you are busy pulling all the documents together, which I know is intensive because Hannah and I have definitely prepared our share of briefs to counsel as well.
HOW TO PROVIDE SUPPLEMENTARY BRIEFS TO COUNSEL
DP: Supplemental briefs to counsel. How do you like them to interact with your initial brief when it is received electronically?
MB: That is really difficult. I will be extremely difficult and say that my favourite way to receive the supplementary brief is when you send someone over to chambers to sub the documents out. That is my favourite way. I am not that much of a diva to actually require you to do that though. Some people will make you come and change things over. But it is quite difficult. At the end of the day, if you have been doing a matter for a long time and you found that you are up to, I think I have one in my room, it is like supplementary brief 23. It is quite a lot and we are heading to trial now. What in reality is likely to happen is that we will send everything back and we will ask for a trial brief which has the court bundle, it has the evidence as filed, what are the objections, and the stuff that is actually rubber hits the road I need to know where this is, referable to volume number and trolley so that you can find everything really easily because I think there does come a point at which you draw a line under it and start again but I think it is a really hard one. What do you think [Hannah]?
HL: Often this will be something that will probably be obvious from the beginning of briefing counsel and that if it is a matter that is likely to be infinite and where a process of discovery is likely to be ongoing, there is almost inevitably going to be the need for updating briefs to counsel. Considering that at the beginning when the hardcopy or the electronic brief has been designed and doing that in a way that you have a plan of how those updates will happen in the future, that may also be something that you do discuss with at least junior counsel, the preferences of how that is done because it gets quite challenging, as Mei just described, with those hardcopy bundles, but also with electronic briefs as well, where often for example, a workshare brief is shared with counsel. They will often, if not always, download that to their own computer and be annotating and highlighting the documents from a desktop or wherever they store their documents. If the intention is to constantly update the online brief, and assume that counsel has access to and knowing when all those things are coming in, that is something that should be discussed before the matter starts so that either counsel does not download it to use as a separate database or coming up with a system to alert counsel to what documents have been added or replaced, just because you get a few months in and it becomes impossible to catch up with what you have missed or what has changed since you downloaded the full copy. Again, it is just coming up with a system on how those sorts of things will be dealt with because in matters where, at the beginning when you are briefed, the client may still be extracting documents and finding things that may be relevant, they will keep changing as the review begins. But also, when disclosure is exchanged in the proceedings, then there will be some sort of brief probably coming out of that and then when witness statements are produced. So, it is thinking about how the brief initially can be adapted, if needed, in those types of matters that are likely to sit in for years.
MB: Yeah. One of the other difficulties is that, if at all possible, it would be great for the senior and the junior briefs to match because the Silks will be using both the one in their mind and the one that is written on the brief schema. Everything fits together, they just call us and say “I'm looking at this document.” There is very little intro at the beginning of that conversation, it is a lot easier if they match. I know that is really difficult to do if you want the junior to read everything but you do not necessarily want the Silk to read everything, I appreciate that is difficult. But, if it is possible to hold off and to try as much as possible and to keep them be consistent throughout that makes our lives a lot easier. I think it is easier for the Silks too because they then do not have the frustration when they discover that you are looking at something different, it makes them irate. Maybe I just work with crusty Silks. No, they are all lovely but their time is money, obviously. Being able to find the material quickly in court, which is the main thing for us, that is the stress when you are asked to find something when everyone is looking at you. That is when you just want to know where everything is.
HL: In the process of canvassing the opinions I did, I will acknowledge that counsel can be needy sometimes, but that is another benefit of having a junior on the matter in that you can discuss with them what you are doing to help and they can of course have those discussions with the Silk and help you work out what would be best or what is preferred in a given matter. I am certainly happy to have those discussion.
MB: I often get calls from solicitors saying “How should we brief this Silk? What do you think they need?” Often the answer is not much because they have independently asked me to do this other work which is preparing them so I know already what it is that they have got, what they are looking at. Generally speaking, most of the Silks will want…I find I often either make it myself or ask to be given a hardcopy of the pleadings which is spiral bound so that you can quickly flick between them all, so you can marry up the allegations against one another really quickly. I always lose it to the Silk because they see it and they are like “I would like that document. Where did you get that?” You have to say “I asked for it.” You just have to give them your copy and then make another one because the pleadings are a core document, they will have to be in any brief that goes out.
That is a good one to ask. Feel free to call the junior, it is part of our job, which is unwritten but uniform, that we are the interface between you and the Silk a lot of the time. If you have a question about it, you feel a little bit embarrassed about calling them or you just would like a second opinion or a sounding board, we are very happy to do that because if you brief the Silk well they are happy, we are happy. It is all a good team and we are all one team.
WHAT NOT TO BRIEF COUNSEL WITH
MB: I was going to talk about things not to brief us with and the only one here that I will mention in the interest of time is correspondence that is not strictly necessary. I think every brief that I get has a tab which is called ‘correspondence’ and often it is correspondence between you and the other side’s solicitors. I do not usually care about that. I do, I am very interested. I am very glad that you are all working to get the thing resolved but it is rare that that is material to what I have been asked to do. If what I have been asked to do is settle the pleading, I do not need to see the other correspondence which is sort of tangential to that. Thinking about what would you actually need to prepare for this application, you can give me a quick overview of where things are at with the other side, if there is a possibility that it might settle, or you might reach agreement on a particular part, but I do not necessarily need to see the primary correspondence.
That said, if it is something where correspondence is part of the test for what we are seeking, so if you are seeking strike out or it is a mandatory requirement under the rules that you have written to the other side, or we are seeking particulars and we have asked for them in correspondence, obviously, we need that stuff. But, if you are able to have a think about how important is it. Like, if you were returning from leave, would you go back and read all of these documents to get yourself across the matter? If the answer is no, then I probably do not need to read them to get across the matter either, even though surely there is person on the file who has read them all and we need their knowledge.
Do you have any documents you think probably should not go in a brief [Hannah]?
HL: Not any specific ones. I think it is more being mindful of whatever you put in the brief we will feel compelled to read because we have to really. If there are lots of lengthy documents and just going in just in case, really have a think about whether that is necessary because we will read them, it will be time and money. If it is urgent, it will delay that. If you are not sure, you can call us and ask. It is just making sure we really focus on what is essential to the task to get the task done with as minimal as possible costs for the client so that they are happy.
There are times when the brief consists of a file of documents that has no particular order, as we mentioned earlier. If that is necessary because of the resources of your firm or the urgency or the time and there is just not a way to put together a structured brief it is absolutely fine. It is just when you call to ask if counsel has capacity to help, it is making clear that part of the brief work is to go through all those documents and work out what is relevant, work out where it is, what needs to be done in finding the important facts from those documents because it takes a lot of time. It is making sure that everybody is aware, especially the client, at that time that that will take more time than just providing the advice or drafting pleadings and that sort of thing. Just managing expectations for everyone.
HOW TO KEEP IN CONTACT WITH COUNSEL
MB: The last topic I thought might be worth discussing today is what you do when your barrister is AWOL. I say that because I have a lot of friends who are solicitors and it is just a part of this job that, for lots of reasons, we are not able to answer your calls and emails at the time that you would like. I appreciate for you that you sometimes send a brief off and you have no idea what is happening on it because you do not see us day to day. You might know that we are working on other matters or that we have other commitments. So, how can you manage that side of the relationship?
The first thing to say about that is that it is a relationship. You should absolutely feel entitled to ask your barrister how things are going. Asking if they need anything is a nice way of saying “What are you doing? Are you doing it?” They will be because it is stressful for us having work hanging over our heads that is not done. You can be sure that that stress is motivating us. But, I think it is fair to say “Just checking. Are you on track to have it done by this date? I promised the client that it is going to be ready on that date.” Do not feel bad about a call like that because we do get them and we are working for you and with you. We should be able to accommodate that kind of thing but know that we obviously cannot respond to calls or emails when we are in court. Even if we are junioring, especially when we are junioring, we cannot respond to emails during business hours. So, you get a lot of random emails at six o'clock when you are going through, trying to catch up on, what happened during the day while you were in court. If it is urgent, probably the best thing to do is call chambers and say “I really urgently need to get a message to this person.” The PA will make a decision about how they are going to get it to us, they can run a Post It note down to court to get something really urgent to us and get a response from us if you need to. So that is an option.
It is probably worth establishing at the start…If once you have spoken to them for a little while, you get a feel for whether they tend to prefer email or phone calls. Do not be afraid to pick up the phone and call. I would say as well that, obviously Hannah and I are accommodating, partly because we were solicitors before we were barristers, but also because we are junior, so I say this to you that I think you should always feel free to call your barrister and ask how it is going. Know that senior juniors will not appreciate that. They are just very busy. But, I do not think that should discourage you from calling and trying to make them aware of the fact that it would be good to have some dialogue. They will probably tell you, in subtle ways, if they do not appreciate that, but I think it is better than you just wondering in the dark whether things are happening or where things are up to. You might find that you then get referred back to the junior quite a lot. I would say not to feel bad about that because that is a big part of our job, finding the Silk, where they are up to, where things are at. It is fine for you to call the junior first and is politically, and as a career move, very bad for us to throw them under the bus when it is in fact on the Silk’s desk. Usually, we will just take that call on board and find out what is happening with it without having to trouble you with calling the Silk. I am certainly always happy to have that conversation with people. You should feel free to talk to your barrister about that sort of thing.
Do you have any other comments [Hannah]?
HL: I agree with everything you said. Also, just appreciate that when you do call the junior that we do have to often find our leader, corner them and get answers from them. That can also take some time which makes it a little bit unhelpful if you are calling us for an answer and we have to put a placeholder while we go out and find out what the answer is. But, as Mei said, always call if you are wondering because you have a right to know what is going on. If we are acting by ourselves, we can help you out, or if we are being led, we can find the answer for you. Always just ask.
As you know, when counsel are in court and you urgently need to get in touch with them, as Mei said, when you are contacting a PA or someone in chambers, they will often have other methods to contact us with that have also been discussed previously. For instance, I am out of action today, if you need to urgently text, or those sorts of things, which we have discussed.
MB: Most people's core commitments will be in their diary. Certainly in our chambers, everyone's core commitments should be in their diary so that people will be findable, even if they have not communicated very well with their PA.
DP: Question. Notifications from instructing solicitors regarding key milestones, how and what do you like to receive by calendar invites?
MB: I like them to be in my diary, especially if they involve an interface between the parties or between the court, then they are a must. If it is a meeting with the client, it is not as critical, but it is good for me to know that you probably want the advice before this time because you have to take it to the board or something like that. I personally find it helpful. I know not everyone does. It is not a bad idea to ask but I know of Silks who like to know that kind of thing because it helps them manage their diary. What do you think Hannah?
HL: I think it is really helpful. In London, it was just always if you arranged any type of anything, there was always going to be a calendar icon for it, any deadline. I found that very helpful, in my mind anyway. Whenever I agree to meet someone here, I do the same thing. In my mind, if it is not helpful to the person I am sending it to they can delete it. Especially, as a solicitor, if you have an expectation that something will be done by a date or that someone will attend something on a date I absolutely think, if you are putting a calendar icon in for yourself, why not invite particular people.
Another one that is really helpful is, on a matter where there are multiple counsel on the same team, if there is a review hearing or some type of meeting coming up in the future, it may not necessarily be clear, for example for me as a junior, whether I am to attend or everyone is to attended or just the QC is to attend those sorts of things. If that is specified in the calendar invite or in an email separately in advance, that is really helpful to know whether that should be blocked out in our calendars or not.
MB: I will say though, if you are going to adopt a practice of doing that, then you religiously have to update it when the court diary changes because I have also had times where I have called someone and said “We've got a hearing next week” and they say “Oh sorry, we've just agreed an order to move things about a bit”. It just means that sometimes if it is sitting there in my diary and I know that it might not be reliable, then it undermines the whole process. Otherwise, it is really helpful.
Sam, did anyone have any questions via text line? Or do you [Dan and Tamara] have any?
WHAT ARE THE CRITERIA FOR JUNIOR AND SENIOR JUNIOR BARRISTERS?
SB: We do a few questions. Earlier, you touched on the years’ experience between a junior, senior junior and a Silk. One of the questions asked if you could touch back on again, more generally, when is someone going to be considered the junior or senior junior?
MB: I think that is a subjective question, although Dan might have a different view about that. You have readers who are people in their very first year. I suppose, officially, there is just the two-tier system, you are a junior or a Silk. But, more realistically, 1-5, 5-10 maybe 5-9, and then you have the 9+.
You might already know this, in Queensland, you are not really encouraged to apply for Silk until you have been at the Bar for 12 years. You could assume that the people who are around the 12 year mark are thinking they are on the cusp. They really need to start thinking about that from 9 years-ish about the kind of work that they are doing because one of the criteria for being selected to be appointed as a Silk is that you already basically be ready to be a Silk. That means that they need to be appearing in lots of courts and getting a lot of face time with the judges from a couple of years out. In our chambers, the people who are thinking about that are already doing the things that they need to get a Silk application in, ideally with a junior. You might then start getting calls from people who are around that 10 year mark who are saying “I'd like a junior” but they know that they are junior too so they will ask “Can I have a baby?” I say baby, so maybe their first or second year would be a baby junior. It is not as derogatory as it sounds. I have no qualms about being a baby junior because you get great work as a baby junior, you get to junior some very good up and coming senior juniors. They are 5-9 [years call], ideally in a chambers. We, [Level Twenty Seven Chambers], try to have an ecosystem where we have a few people at each level because we all have different strengths and we know that clients only need people at a particular level. Did you have anything to add on that [Hannah]?
MB: I found it was often clear which sort of level that you needed, depending on the sort of work product that you need. Where matters are huge, really document heavy, fact heavy and someone needs to trawl through many hundreds of documents, you want a baby junior to be doing that because they have often have the time and capacity but also the charge out rate that is as economical as possible. You do not want anyone five plus years trawling through disclosure platforms or hundreds of volumes of documents as the first port of call on that exercise just because they often do not have time but also it will be so expensive. Whereas if it is a very technical discrete piece of advice on a really complex area of law, a senior junior or even a Silk is quite appropriate to really dig into that one point and produce an advice.
MB: I did not mention before but obviously at the Silk end as well there are junior Silks and then mid Silks who are reasonably experienced and then your senior heavy hitting Silks, they might only have an advisory capacity at the very end, or do particular strategic applications or to just do the opening part of a trial and they generally understand that that is their role and sometimes they do not want to do the other stuff because it is boring to them now so they are happy to have that. Although, you might find that some of them are absorbed enough by the detail that you are essentially getting them across the whole matter anyway. Do you have anything else to add Dan?
DP: Not really.
HL: You will also find that you have the brief that either if you ask them or they will come to you if they think that there could be a better distribution of work to a more appropriate level. So, if you have briefed a junior and they think it is something that is complex and warranting of having a senior junior or Silk on the matter they will usually tell you that that would be helpful.
CAN BARRISTERS PROVIDE COMMENTS ON THE WORK FORMAT?
MB: That is a good point as well. I will repeat the question. Dan was just saying, can we provide any comments on the format of what the work is going to look like and if it is going to be an advice on prospects, or if it is going to be going ahead with something, or maybe providing an oral advice.
I will say people are more flexible now, I find anyway, how they would like to have the advice in a way that is tailored to how much the client needs and how much they are willing to pay. You could assume that an oral advice will be shorter and less expensive than a written advice. But if your purpose is, for risk purposes, to run it through counsel and that is a big part of what we do, then you need something in writing. Silks, if they are very time poor, sometimes prefer an oral advice but if they think you are going to trigger their insurance policy they will want it in writing. It is worth having a think about and a discussion because if you do not intend to read, especially if you do not want a detailed advice, then making that clear upfront so that we know this is just supposed to be a little or this needs to be War & Peace on this topic and the client must know everything that there is to know about it, or whether it can be done orally.
I think I was speaking to someone the other day who said that they were under time pressure with a Silk so they ended up just having a call where the Silk gave their advice and the junior chimed in when they thought it was appropriate and the solicited took notes. [The solicitor] sent a file note of the call to the Silk, the Silk had a quick read and said “Yeah, that reflects what I think I said” and that was the extent of the advice. Then you get your oral advice, but then you have been able to do the bulk of the work so you do not incur the cost of the Silk typing it up, or the junior typing it up and then getting the sign off which is probably what will be needed in that case.
Were there any other questions Sam?
WHAT HEADINGS SHOULD BE IN THE INSTRUCTIONS TO COUNSEL? HOW DETAILED SHOULD INSTRUCTIONS BE?
SB: We did have a couple. Given the time, we might just do one more, if that is okay. What sort of headings would you expect to see in the instructions? And then, how much detail? Would you expect to go into each of those? Would you be looking for a full chronology or just a high-level summary?
MB: Probably depends on the matter. But in the instructions or observation section, there would be one which says ‘background to the proceeding’ which says “This is the court we are in. Here are the parties. This is the general nature of the claim.” Then there will be a background factual section which goes over: how did the dispute arise? How did we get to where we are today? A section which is about where are we today, so next steps. This is what you are being asked to do. This is why you have been brought into the matter. Here are the things we have already done but here is where we see the matter going. Then usually, there is a section which is called ‘fees’ which says, “This is what you've estimated it'll cost and this is the due date. And you're briefed with this Silk” or “You are briefed with this other junior” or “Give us a call if you'd like to discuss”. Then what is the actual next step, “We'll be receiving a draft from you” or “We'll be conferring with you please advise a time that's convenient”, that kind of thing. They would be the ones I would think of.
Do you have anything different [Hannah]?
HL: I think just with the level of detail, for example, you said we then have a chronology and what level of detail. I think, depending on what is in the brief and what work has already been done, make sure you are communicating the level of detail that has already been worked on so work is not duplicated. You know, someone at your firm has already gone through all the documents provided and is aware of the circumstances, what the story is, definitely include some type of explanation of that. Equally, if the work has not been done, include the documents you have received and explain that and ask counsel to do that as part of their task. There are some matters where I have received relatively limited observations, going through some documents myself and then later found out that there was a bit of a chronology at the solicitor's office that had already been produced, or I put together lots of questions about what I would need from the client in order to produce a defence, it turned out there was already a file note when the client had spoken with a solicitor about what their view was on how it should be defended. It is just making sure that whatever information you have received from the client that is helpful to the task is in some way communicated. That is really helpful.
Dan was just saying, all tasks, instructions and deadlines and appearances need to be in bold in the instructions because that is what will be read first and also what will be included in our calendars.
MB: I think we have gone over, sorry about that Sam.
SB: No, no. It has been really great. I am actually working on a brief at the moment so I will go back and rehash it all out and start again. It has been been really useful.
Thanks so much everyone for joining us. I hope to see you at the next one.
Do you have any final remarks Mei and Hannah?
HL: I just wanted to say, if to any extent it sounded like we were complaining about briefs at all, we absolutely love receiving briefs. We love doing work for you and our comments are more about making sure we make it as efficient a process so that we can all work together and focus our time and energy on what is briefed to us and what needs to be done for the client instead of having to redo things or get confused between each other about what we are working with and what we need to do. Hopefully none of that sounded like we were just airing grievances because it is more just worrying about duplication of work and unnecessary expense incurred.
MB: I know there are a few questions we did not get to today. If you do have them and you would still like them answered, feel free to send us an email and we can answer them quickly, or slowly, as the day has panned out. Thanks all for joining us.
HL: Thank you so much.
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