An essential skill
for a law graduate is being able to put together a brief for a barrister. Even
if you work in an advisory practice and rarely work on litigious matters, you
may have to brief a barrister to provide advice or settle a contract or other
document. If you worked as a paralegal prior to graduating, you may already
have experience putting together a brief. Law firms expect law graduates to be
able to put a brief together, yet the skills required are rarely taught. Mastering
the ability to put together an accurate and succinct brief is important as it
will help you gain the trust of your team, the barrister you are working with,
and can lead to increased responsibility such as drafting observations and
managing matters with a barrister directly.
1.
Identify purpose of the brief
To identify the
purpose of the brief ask yourself what work the barrister will be doing for
you. Will the barrister be attending court, attending conciliation, settling a
document, writing an advice, providing oral advice, or providing other legal
services? At this point you may want to consider the Bar Rules which provides
guidance on what work a barrister can and cannot do. In NSW, Bar Rule 74
states:
74. A barrister
must confine the barrister’s professional work to:
a) Appearing as an
advocate;
b) Preparing to
appear as an advocate;
c) Negotiating for
the client with the opponent to compromise the case;
d) Representing
the client in a mediation;
e) Giving legal
advice;
f) Advising on
documents to be used in the client’s affairs;
g) Acting as a
referee, arbitrator or mediator; and
h) Carrying out
work properly incidental to the kinds of work referred to in (a)-(g).
The briefs you
are most likely to prepare as a graduate are:
·
Brief to appear (at a hearing, at directions, at
a costs hearing, etc.).
2.
Select your barrister, ensure a retainer is in
place and communicate need to use barrister with client
If you work at a
law firm, chances are a barrister has already been selected, a retainer is in
place and your client is aware of the need to involve a barrister in their
matter. Ask your team’s secretary or assistant to ensure the barrister knows
the brief is coming. If unsure, phone Chambers ahead of time to ensure the
barrister is able to take on the brief. If you work at a smaller firm, the
client’s budget may be smaller and may dictate which level of barrister you
use, so it is important to communicate with your client about their budget and expectations
prior to selecting a barrister.
3.
Write observations
If you are fresh
from university, a more senior lawyer is likely to have written the
observations for you. If that is the case, ask if they need you to proof read
the observations. Even if you do not need to proof read the observations, you
should read the observations thoroughly, as they will identify the documents
you will need to locate and collate for the brief.
Points to note
when drafting observations:
·
Prominently position the text that explains what
you expect the barrister to do (e.g. attend a hearing on 17 March 2016) and any
timeframes (e.g. please provide a written advice on this matter within two
weeks of receipt of this brief);
·
You should include a short narration of key facts,
but you can refer to documents included in your brief such as a chronology or
facts contained in a client’s affidavit or draft affidavit;
·
The focus
on the brief should be the legal issues you have identified and any analysis
you have undertaken of these key issues;
·
Refer to all documents you intend to attach to
the brief as this will help put the documents in context for the barrister;
·
If you are going to include documents of
marginal relevance, justify why you have included them in the brief;
·
Number your paragraphs;
·
Triple check spelling and punctuation.
A full blog post on drafting observations is coming soon, but for the
meantime, look at observations colleagues have drafted in the past to help you
understand what content should go in the observations.
4.
Collate and prepare documents
All relevant but
no irrelevant documents should be provided to the barrister. Irrelevant
documents waste the barrister’s time and may unnecessarily increase costs for
your client. Ordinarily a document should only be included if it is referenced
in the observations. If a document is not important enough to be mentioned in
the observations, the barrister probably does not need the document. If you
have not written the observations yourself, and you are coming into the matter
cold, to find out which documents to collate, read the observations, as
observations should refer to each key document included in the brief. You may
also have to prepare documents from scratch. Unless exceptional circumstances
exist, your brief should include a chronology. If no chronology has been made,
take the initiative to make one yourself.
If you have
created a quality legal research memorandum for the matter, include this in
your brief. Not only will this help the barrister with authorities, the document
will have your name on it, and is a good way to start getting your name out there.
If your boss does not want it included, they will let you know when they review
the brief.
5.
Select folder and dividers
Many barristers
edge on the OCD end of the personality spectrum. They like to have new white
folders and the more expensive looking dividers. For the uninitiated, there are
two types of folders you will encounter as a lawyer:
1.
D-Ring –a basic folder with two (or four)
D-Rings at the centre. To open the D-Rings you snap them open with your hands.
This is the cheaper variety which barristers generally do not like. If you look
at the hands of older barristers you will see faint scar lines from past altercations
with such folders.
2.
Lever Arch – similar to the D-Ring, but with a
lever mechanism that opens the rings for you in a civilised and safe manner.
Generally these folders will be stronger and more robust than the basic D-Ring.
There are a variety of different brands out there, but if you go to Office
Works to have a look, the best ones available are the Bantex A4 2 Ring Lever
Arch File. A Lever Arch costs between $6 to $10, so if it is cheaper you are
probably not looking at a Lever Arch. Always purchase white. Black and coloured
folders are for lawyers who do not know what they are doing.
When the matter
concludes, the barrister is meant to return the brief back to you in the folder(s)
you provided, so if you are working at a law firm and not paying for the folder
yourself, you may as well give them the best. When selecting dividers, choose
plastic over paper, as they are more robust. If you only have paper dividers,
try and at least use the dividers with reinforced hole punches. Some QC’s and
SC’s have preferences when it comes to types of folders (2 binder or 4 binder –
but always white lever arch), photocopying (double or single sided – if in
doubt copy single sided), and securing documents (staple, paperclip or nothing),
and types of dividers (i.e. A-E or 1-5). Ask your Senior Associate or other
colleagues if they know about the barrister’s preferences. If in doubt phone
the Barrister’s Chambers. You may be asked to redo the whole task if the
barrister is not impressed on your first effort.
6.
Insert cover page and index
Check if your
firm has a template for the cover page and/or index. Your team’s legal
assistant may be able to help you with this if you are struggling. If you are
making the folder cover from scratch it should contain:
1.
Type of brief – brief to advise, brief to
appear;
2.
Name of the matter – i.e. if it is a litigious
matter the name of both the parties to the dispute;
3.
Name of barrister and address of barrister’s
chambers;
4.
Name of your firm, name of contact lawyer and
contact details of lawyer.
Remember you
need a cover page for the front of the folder and a label to insert in the folder’s spine so that when the folder
is on a shelf you can identify what is inside the folder.
7.
Get brief checked by more senior colleague
This step is
particularly important if you are a paralegal, a graduate who is not admitted
or a lawyer who is still on a probationary practising certificate. Even senior
lawyers can benefit from having another lawyer read over their work.
8.
Make copies of the brief
For large
litigation matters you will usually need three copies: the original for you to
keep, a copy for the barrister, and a copy for the junior barrister. If it is
an advice, you may just need the original and one copy for the barrister. Do
not fall at the last hurdle. Make sure your photocopying is accurate and that
you have not photocopied double sided documents as single sided documents.
9.
Deliver the brief
If the brief is
urgent, offer to deliver it by hand. Meeting your barrister in person is one of
the best ways to gain the trust of your barrister. Do not just shove it into
their hands and leave, unless the barrister is in an obvious hurry, such as
where the barrister is robed up and about to attend court in the morning. Stand
your ground, as the barrister may ask you about the brief, and using your
knowledge gained from reading the observations and the documents in the brief,
you may be able to assist the barrister and even impress the barrister. Other
options for delivery obviously include express post, courier and hand delivery
by a paralegal. Do not send a brief by ordinary post, as you will not be able
to track the brief. Express post and registered post both allow for parcel tracking.
Keep a copy of the tracking number. If the barrister does not receive the brief
for any reason, you will be first in the line of fire.
Happy brief making!
