When a barrister is needed for a case how does a client or lawyer find and select a barrister with the ability, skill and experience that matches the task ahead?
Common reasons for the choice of a barrister include recommendation via word of mouth from a friend or associate, recommendation from another lawyer or barrister, or prior use of a barrister. The informed consumer of legal services may require more information about a barrister. Sometimes recommendations might be based more on perception than fact.
Barristers advertise. Associations of barristers publish directories or like documents containing information about their members. These directories may set out academic qualifications, number of years of experience and areas where the individuals would accept work. Information of a like kind may now be found on Internet sites.
The directories, whether in hard copy or provided through web sites, typically provide information about the kind of work barristers would be willing to perform. They may not always provide information about the work the individual barrister has in fact performed or is skilled to perform. They do not always provide data in a manner that can be independently verified by resort to publicly available documents.
Statements of work areas can be misleading when they are not backed up by verifiable data on nature and extent of experience. A member of a particular bar association may claim to accept work in a specified area and yet may not be expert in the field. Some may have more expertise than others. Some will have more advocacy experience than others.
Australian States have systems for appointing barristers as “Senior Counsel”. An appointed “Senior Counsel” is not necessarily a barrister with greater talent skill and experience than a barrister not so appointed. For a particular case a “Senior Counsel” might not be the preferred choice over another barrister with greater factual seniority, or more relevant talent experience and skill.
The survival of systems of appointing some barristers as “Senior Counsel” might be seen to reflect an aspect of legal professions not keeping pace with the modern world. They could be viewed as a relic from the past practices in England and in countries of the British Commonwealth of appointing some senior barristers “Queens Counsel“.
There are ongoing debates in different jurisdictions on whether these systems should be retained and, if so, by whom how and on what grounds appointments should be made. One important issue is whether seniority, which is a matter of fact, sensibly can be bestowed by appointment, or determined by the “esteem” of “peers”. Other issues include whether the appointment process and outcomes should be open to public scrutiny, whether appointment as “Senior Counsel” gives an appointee an unwarranted competitive advantage over a more factually senior barrister, and whether denotation of seniority might mislead a member of the public or the legal profession on questions of talent skill and experience when considering a choice between counsel.
The practice of denoting seniority by appointment has been abolished in Ontario in Canada. The United States of America has not needed an equivalent system for the proper functioning of its legal systems. It is not something that other professions have required in order to function.
Barristers are service providers. As with any other provider of a service a barrister should be able to demonstrate relevant expertise and experience in a particular area by reference to a portfolio of work. As an advocate a barrister should be able to point to a portfolio of decided cases where that person has acted as advocate for a party. There is an increasing number of databases of decided cases against which claims of expertise might be checked or where the name of an experienced and suitable advocate might be found by reference to proven work performed in decided cases recorded in the database.
The writer is an advocate for abolition or reform in Western Australia. In this State, since 2001, a process has been in place for a State Chief Justice to confer the title “Senior Counsel” annually on a small number of barristers. As a member of the Council of the Western Australian Bar Association I presented to that Council a paper dated 30 June 2015 setting out why this process should be abolished or reformed in Western Australia.
Recorded (in a database) experience as an advocate in trials and appeals may assist a lawyer or client in the tasks of searching for and choosing a barrister. The informed consumer of legal services can cross check or supplement traditional methods of referral with information that is now publicly available. This data may provide a guide to the individual barrister’s portfolio of work. The recorded work of individuals can be compared.
The Australian AustLII database https://www.austlii.edu.au can be searched by name for a given individual to find records of Australian cases where that individual has been the barrister for a party before or at trial or on appeal. In Western Australia the Supreme Court and the District Court each has a searchable online database. These databases can be searched to find evidence of work done in court by a particular barrister.
These searches provide some empirical evidence of the nature and degree of experience of a barrister, or each of a number of barristers, who might be considered as candidates for the task required. What the barrister indicates a willingness to do can be checked against cases the barrister has in fact done. Apparent expertise, experience, or seniority can be checked against evidence of expertise, experience and seniority that is relevant to the particular case.
Database search results do not solve the problem of how to choose a barrister. However they provide a consumer of legal services with additional information that once was not available and that may help the consumer make a better informed decision. They supplement and can be balanced with information from traditional sources such as recommendations, prior use of a barrister and bar directories.