CIVIL PROCEDURE BACK TO BASICS 46: HOW TO INSTRUCT COUNSEL: HINTS AND TIPS FROM THE INTERNET
There is an ongoing debate going on on Twitter at the moment about “how to instruct counsel”. More particularly the problems caused by “instructions” being sent in a chain of emails (or other electronic communication) with major difficulties in finding the documents. Alternatively instructions are sent in a file which is, inevitably, broken. There is some useful guidance available online.
Legal Orange was always one of my favourite bloggers. Their posts are intermittent (and explained by a move to a more difficult job) and there are few recent posts. However, they have a post “How to Instruct Counsel”
The post is extremely candid in its approach.
“My personal view is that I enjoy working with Counsel. They are smart cookies. Plus they have the time to properly research, consider and prepare a claim, which is a luxury rarely afforded to litigators. Our enemies are e-mail and the telephone. Some days you don’t practice law as you fire-fight the numerous enquiries for updates on management information, funding, indemnity insurance, CPD requirements and perhaps the most importantly, clients asking you to drop everything and answer their urgent query (as a freebie that you can’t refuse because they send you work on a regular basis”
The post goes on to discuss how you choose the right barrister.
“Here is a hint, don’t just send EVERYTHING you have on file with a cursory overview of what you want (e.g. “This is an RTA. Counsel is instructed to advise on liability and quantum”).”
It then goes on to advise how to “cover the basics”
“Refer to and label enclosures. Once prepared, feel free to tab these clearly to help your barrister out. If you are really helpful then collating these with page numbering is even better. This comes down to the luxury of time or having a great secretary.”
GETTING TO THE MEAT OF THE CASE
Provide the background to the claim. Start with the factual points that are NOT in dispute between the parties. If you could provide a chronology of events then it will be gratefully received (so long as it’s accurate).
The claim may have been responded to by the opponent. Summarise their position and refer to any relevant letters or documents that either support or undermine their case.
If you have a witness statement, or taken a proof of evidence from a witness, then make sure this is explained.
Always refer to expert evidence if this is required. Make sure any reports are referenced and show willingness for Counsel to have a conference with the expert, or at least raise questions that need to be clarified.
If documents are outstanding and to follow, then make this clear (e.g. a FOI request to a local authority).
Then identify the legal basis of the claim. What is pleaded, or which areas do you consider relevant? Counsel welcomes your preliminary thoughts, whether you are correct or completely negligent. It assists the barrister in knowing how they can frame their response. Here is a clue, if you come across well on your instructions or brief, Counsel is likely to simply e-mail you what you need, or have a short telephone call.
Legal Orange then goes on to advise that you make it clear what you are asking for
“If you need specific advice on an area of law or evidence then state these as direct questions. Do not make your instructions “fluffy””
- The Institute of Legal Secretaries and PAs Instructing Counsel: An Overview of How to Properly Instruct a Barrister
- The Law Society of New South Wales has a very helpful document Working with Barristers
- Further guidance from Australia in Briefing Barristers – Lex Scripta
- Wigapedia on Legal Cheek What your Instructions say Vs. what they mean