Briefing a Barrister

What is a barrister?

A barrister is a lawyer. A barrister acts as an advocate in court to argue a client’s case. This may be before trial (the “interlocutory” stage), at trial (where witnesses are called and evidence is given) or on appeal (where the reasoning and correctness of the decision of the interlocutory or trial court are challenged). Barristers prepare documents and give advice connected with this advocacy function.

The barrister’s work comes from other lawyers rather than directly from clients. The lawyer rather than the client is responsible for payment of the barrister’s fees.

A barrister is an independent lawyer. Barristers work individually and not in firms. However most form communities with other barristers in common “chambers” which have some shared facilities and services. The barrister must be free to accept work from all who request it within the constraints of his or her competence, expertise and experience.

The advocate barrister performs “paper” functions and advocacy functions. The former include preparing opinions, pleadings (the material facts of claim or defence), interrogatories (formal questions seeking to elicit admissions from the opponent) and advice on evidence (how to prepare for trial). Advocacy work might be carried out in chambers (pre-trial, interlocutory) hearings, or before a Court of Appeal.

Increasingly in Australia, in addition to their experience in court many barristers have acquired advocacy skills through training provided by Law Societies or the Bars of the various States and through the Australian Advocacy Institute.

A litigation solicitor differs from a barrister. A litigation solicitor prepares cases for hearing. The preparation tasks include speaking with the client, finding and interviewing witnesses, finding other evidence, engaging experts, giving advice, preparing court documents, or forwarding material to a barrister. At times a litigation solicitor might appear in court as an advocate.

In Australia, lawyers are entitled to work as barristers and solicitors.  Solicitors can be trial advocates. However a barrister typically joins a Bar (an association of barristers or set of chambers) and undertakes to the State appeal court that he or she will work exclusively as a barrister.

Not all barristers are trial or appeal advocates. Some lawyers present to the public and the legal profession as barristers but they are not trained or experienced advocates. They are effectively freelance legal advisers who distinguish themselves from solicitors only because they obtain their work mainly from other lawyers and practise from a set of chambers with other barristers. They might for example provide commercial advice. In addition some lawyers practise as barristers in chambers who have had a great deal of past experience as litigation solicitors preparing cases for trial but they have had limited advocacy experience.

If a trial lawyer or appeal advocate is required, records of decided cases (civil trials and appeals) that identify the court advocates for the parties are accessible from online databases.  This online information can be searched. The search results might provide guidance on how to choose a barrister for a particular task.