Immediate thought should be given to engaging a barrister if the client has a dispute that might end up in court at some point in the future. Advocacy is a specialist skill. Hence, the important role of the specialist advocate.
The focal point of litigation is advocacy. Advocacy entails communicating ideas to a court. Communication is best facilitated by keeping ideas clear and simple. Achieving that result requires time to master issues and facts and work preparing evidence that establishes the facts. The relevant material must be summarised, and the summary must be organised. Good advocacy in court is preceded by and requires much preparation work.
The advocacy task begins when the client first seeks advice and not at the much later stage when the matter is listed for hearing in court.
When the client first seeks advice about a dispute the essence of the legal problem should be identified and stated simply. It may be a matter, as it commonly is, involving questions of liability of the client or someone else to pay damages, quantum of damages and prospects of recovery of money from others. At that initial stage the solicitor should consider the need for and choice of barrister.
Advice should be given to the client at the earliest possible stage. It should be given in writing and should deal with the pertinent issues of liability, quantum, recovery from other parties and recommendations as to action to be undertaken by the client and action to be undertaken by the lawyer. The lawyer or client may want a barrister’s help at this stage.
In order to give advice properly, evidence should be collected at the earliest possible stage. This will consist of witness statements, documentary material, plans, objects, photographs and any other items of real evidence. A barrister could give some direction.
Of course, witnesses should be located and statements taken. It is important that each witness statement is signed and witnessed. There are various reasons for that requirement. Witnesses can disappear or die, or change a story. A signed statement may be capable of being used at trial. It is also important that the significance and relevance of each document, plan, photograph or item of real evidence is explained by a witness statement.
If it is thought that a matter will warrant the skill of an advocate at trial then the barrister should be briefed at the earliest stage so that the barrister can advise on the nature of the issues, the search for evidence, the prospects of success in the matter, and the desirability for settlement negotiations.
If counsel is briefed only after a matter has been entered for trial (this is the point where a lawyer certifies that the matter is ready to be allocated hearing dates), then this may be too late for optimum resolution of the matter. Evidence may not have been collected or it may no longer exist. Witnesses may have disappeared or died. Memories of witnesses who can be found may have faded. Documents may have been lost or destroyed. Real evidence may no longer exist.
Before the matter is entered for trial all relevant documents should have been obtained and all relevant witnesses should have been located and proofed. Further, written advice should have been given to the client on liability and quantum and the desirability of negotiations for settlement. Advice on evidence should have been given well before a matter is entered for trial.
In the course of litigation it will become necessary for pleadings to be drafted, interrogatories to be drafted, advice on evidence to be prepared. The lawyer or client may wish to brief a barrister to perform these tasks or to provide advice connected with these documents.
A number of hearings (chambers appearances or pre-trial hearings) will occur before trial and it might be appropriate to brief counsel. This may be so where a matter is of sufficient difficulty or importance to the client to warrant using an advocate who has appropriate experience and skill.
This is the stage of the litigation process usually associated with use of a barrister. However a barrister should have been engaged, and a trial brief commenced, at a much earlier point in time. By trial stage a full brief should be in existence with exhibits ready for tender. A barrister can give advice about the form the trial brief should take and what must be done to control the use and organisation of documents and evidence during the trial.