It is important that the client knows that the solicitor is going to brief a barrister and has expressly agree to that course. The issue should be discussed with the client and the solicitor should obtain a general authority to brief or specific instructions to brief on a specific matter. The basis upon which the barrister will charge should be discussed and agreed.
There is no set formula for briefing a barrister, but the ease or difficulty of the barrister’s task will depend on the quality, form and content of the brief. The quality of the brief may affect the quality of the product that the solicitor receives back from the barrister and the time taken for the barrister to complete the task.
The solicitor should give the barrister a summary of the facts from which the problem emerges, a concise statement of the problem and a statement of what the barrister is being asked to do. Observations on the law may be helpful.
To the fullest extent possible a brief in a matter that might end up at trial should provide relevant factual material and documentary material and reference to any cases or statutory provisions that the solicitor considers to be relevant. Where there is doubt about relevance, material should be provided rather than omitted. It is much easier for a barrister to ignore material than to begin reading a brief only to discover that material that should be there is missing. If material is missing the barrister must ask for further information or documents. This is time wasting and inefficient and may create unnecessary delay in the progress of the case.
In any case that might go to court, whether a barrister has been briefed or not, at the earliest possible stage the solicitor should prepare a brief. The brief should be kept separate from the correspondence and court documents on the solicitor’s file. The brief should include documents that identify the issues in dispute, documents and items that are relevant to prove or disprove the issues in dispute and likely to be used at trial, and the court documents or correspondence that might be used at trial or in settlement negotiations.
These are the documents and items that form the basis for advice and recommendations to the client.
The brief should be organised in a rational way, usually according to the expected order of use of the documents to tell the relevant story at trial. The brief should be kept under ongoing review.
Usually it is helpful to start by reviewing the categories of documents and preparing a brief index. An example of a brief index is at the end of this web page. These are the documents the lawyer will need to review in order to provide updated or progress advice to clients.
Advice should be given at periodic stages relating to the progress of enquiries or litigation, issues of liability, quantum and settlement, and recommendations for further action. The brief should provide for “post opinion” documents. When an update opinion is required the task of review may then be limited to earlier letters or documents of advice and the newer “post opinion” documents. The makes review and the provision of advice more time efficient and less costly for the client.
Never supply black and white photocopies of photographs. Supply the originals or good colour copies.