HOW TO INSTRUCT COUNSEL: USEFUL GUIDES: “DO NOT MAKE YOUR INSTRUCTIONS FLUFFY”
The post yesterday covering a case where counsel’s advice was altered led to some interesting discussions on Twitter. This led to a thread where one lawyer said that they had not been taught how to instruct counsel at any time when doing their professional education. This may be an appropriate time to look again at guidance on instructing counsel.
Legal Orange is long retired blogger, there was a brief post in January 2018 “Just stopping by”. When Legal Orange was blogging they wrote with a lot of commonsense. Their post on “How to Instruct Counsel” is timeless. The whole post is worth reading and Legal Orange gets a bit of a shock when WordPress tells them that their visitor numbers have risen. Advice given includes:
“Why use a barrister”
“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).”
2. “How do you choose the right barrister?”
“Pick up the telephone and tell the clerks what you need”
3. How (instruct Counsel.
“Give the correct title which indicates where it is at (e.g. Proposed Proceedings, or the Claim No and relevant Court).
Identify who you are instructed on behalf of / act for. Do not forget to state the obvious that you act for a claimant, defendant or another (e.g. Part 20).
Explain any relevant insurer involvement and funding. If this relates to Counsel’s fees then state this very clearly.
If there is a Court hearing then provide full details. If you feel general then include a copy of the Notice of Hearing received from the Court.
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…”
4. Get 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.
5. Know what to ask 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”.”
CUNNINGHAM-HILL AND ELDER: CIVIL LITIGATION
There is a whole section online of “Guide for Preparing Instructions to Counsel”
There are 16 pages here of invaluable guidance.
“When Counsel receives a set of instructions or a brief, the documents he or she receives will form the entirety of what he or she needs to deal with the matters being asked of him or her. Unlike legal representatives who have a more ‘hands-on’ role of the case file as a whole, Counsel with be taking a searchlight view of a particular aspect (that he or she is being asked to deal with) and will have no other information about the case, or documents, other than the information supplied to him or her with the brief or instructions. This applies even when Counsel has been engaged previously in the matter. Each set of instructions must be complete and contain all that Counsel needs for the particular action being asked of him or her”
Wigapedia on Legal Cheek What your Instructions say Vs. what they mean
18. “The Client has a number of witnesses” = The client has a large extended family”
- 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
Years ago I instructed counsel, I can’t remember what it was in connection with. At some point quite late in the day an alternative cause of action came up. I asked why she hadn’t put it in the pleadings and she said she hadn’t been instructed to. Needless to say neither she nor her chambers were used again, and since then I always add a line at the end of the brief to the effect that if anything else relevant that hasn’t been referred to comes to mind “counsel will advise accordingly.”
About 15 years ago I sent an instruction to another barrister. In the covering letter I asked for an estimate of cost. He did a couple of hours work and then put in a report and a bill. When I asked what had happened to the estimate he said he hadn’t been told I wanted one. I paid because they threatened to blacklist me, but now I make it quite clear in the covering letter that the instruction or brief is submitted on condition that no expense is incurred until estimates have been received and approved (I’ve never been back to that chambers either).
Before email became widespread I notified a clerk last thing one Friday afternoon that payment had been received for a Monday morning 10.30 hearing. The barrister (very recent call) had asked me to let her know so that she could prepare over the weekend. On the Monday morning the barrister called and asked whether I still needed her for the hearing, the clerk having failed to pass on the message. We tend to communicate with counsel directly now so it’s very unlikely ever to happen again, but always ask for such messages to be acknowledged, and if you don’t get a reply call to check.