How to Instruct Counsel

Instructing Counsel

Americans love the phrase “Legal Team”. It is uncommon in the UK.  The majority of people go to their solicitor and at some point Counsel may be instructed.

Litigators are frequently office-based (a polite term for “chained to their desk”) and rely on barristers for their expertise and courtroom experience.

Counsel frequently appear before Judges on a regular basis and know what the Court looks for in a claim.  They have a better idea of what is relevant, and also of the evidence that a Judge likes to have presented before them to consider. Barristers also have “posher” voices, which helps, and know the correct Court etiquette.

Why use a barrister?

In summary, you use a barrister at key points in a claim. This can be at any time, pre-lit or during litigation.

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).

How do you choose the right barrister?

If you are not fortunate enough to know a barrister, start off by getting to know their clerks.

Pick up the telephone and tell the clerks what you need. This should include:

  • The area of law;
  • What stage it is at (i.e. pre-lit or post-lit);
  • If there is a Court date then let them know immediately;
  • If you need a conference then talk about availability of dates to get something in their diary;
  • How quickly you need the work turned around if there is an urgent deadline;
  • The brief factual background;
  • How junior or senior the barrister needs to be in order to undertake the work;
  • The amount of paperwork that will be sent across for Counsel to consider;
  • How you want it to be funded (hourly rate; brief fee; CFA; etc); and
  • Whether you are sending instructions (to advise) or a brief (to attend Court).

Clerks (should) know their barristers. They can direct you to the right person within Chambers. They act as the gatekeeper so make sure you are very nice to them. They might even invite you to a drinks event if you send enough work their way.  If you use them a lot then it may be useful to get a favour returned and ask them to send a barrister down to run a training session for you in-house. But let’s not get ahead of ourselves yet.

 

What next?

This was going to be entitled “How to instruct Counsel” but this often gives rise to comments on How NOT to instruct Counsel”, due to the numerous ways solicitors get this wrong.

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”).

Cover the basics

  • 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.  This comes down to the luxury of time or having a great secretary.

Develop this and get into 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.  

What do you ask for?

This depends on the claim. You may want drafting of various documents, such as particulars of claim, a defence, a reply to defence, Part 18 questions/replies, etc.

You may just want them to cast an eye over a high-risk application before you make it (e.g. Norwich Pharmacal).

Alternatively you may want them to advise you on a claim. This could range from interpretation of a contract, to assessing the prospects of success on a claim where the merits are finely balanced.

If you need specific advice on an area of law or evidence then state these as direct questions. Do not make your instructions “fluffy”.

You could, however, simply be a (cowardly) risk adverse litigator that wants to rely on Counsel’s opinion and indemnity insurance as you lack the courage to back yourself and rely on your own analysis of the claim. I am sure any barrister reading the above is smirking at this point.

 

Over and out.

Legal Orange.

One thought on “How to Instruct Counsel

  1. Pingback: CIVIL PROCEDURE, COSTS & SANCTIONS: LINKS TO ARTICLES AND POSTS | Civil Litigation Brief

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