This page discusses:
- Why barristers should be briefed. read
- How do you find and brief a barrister? read
- Equitable briefing - why it matters. read
- Contents of the brief. read
- When the barrister should be briefed. read
The Bar is a cost-effective way of dealing with litigation and opinion work. Barristers are directly accessible by solicitors and companies, they provide an excellent alternative to engaging the services of a law firm. In many situations, an instructing solicitor is required, but the barrister you engage may help you locate an instructing solicitor. Please refer to our section on Direct Briefing to find out when you do not need an instructing solicitor.
Given that both solicitors and barristers have rights of audience in courts and tribunals, why should a barrister be used? There are many good reasons for doing so:
- Specialist skills: the right barrister for the client and the case will be someone who has seen many similar cases progress from before formal commencement of proceedings to after final conclusion. Barristers also have specialist forensic skills and a mastery of the rules of evidence that comes from extensive experience in advocacy.
- Leadership and project management: barristers frequently form teams to deal with more complex litigation. They have experience of leading these teams to ensure that all disputes are resolved effectively. Equally, when consulting a barrister at the Commercial Bar, you can be sure that their aim is to ensure that clients avoid situations that can result in disputes.
- Negotiation and mediations skills: a key component of a barrister's practice is avoiding heading into Court or a Tribunal. Part of advocacy involves specialist negotiation and mediation skills in the hope of bringing any issues in dispute to an early resolution. Likewise, the Commercial Bar is well placed to ensure that the client achieves a satisfactory outcome to their project or problem without necessarily resorting to court or arbitral proceedings
- Independence: a key feature of the Independent Bar is just that - its independence. Barristers have a duty to tell clients what they may not want to hear. This can relieve the pressure on the instructing solicitor who will have to continue to deal with that client. It also ensures the client is getting the best possible advice, irrespective of the relationship between them and their solicitor.
- Geographical/Size advantages: many smaller firms will not have an in-house litigation team. A barrister is an ideal solution in this situation. There is no danger that they will "steal" the firm's client. It does not matter what part of the country you are in; you can still engage some of New Zealand’s top lawyers in a straight forward and simple way.
- In-house control: working with the Independent Bar can be the best method for in-house counsel to retain control of any matter.
The Bar offers a wide range of specialists from the very junior to Queen's Counsel in all areas of law.
Check out the Find a Barrister Directory on this website to find members by their areas of practice and location etc.
When briefing a barrister, a good practice is that the brief itself should include a memorandum to counsel, setting out:
- What counsel is briefed to do: frequently, counsel is briefed to advise in the matter generally. This is not helpful. At the very least, solicitors/in-house counsel should clearly articulate what the client’s expectations and instructions are and how counsel can best assist in achieving those objectives,
- Who the client is and who is giving the instructions: it sounds obvious, but this is often buried in the brief. This should be set out early in the memorandum.
- Observations about the case: Preparation of the brief involves care, skill and attention. The process of listing observations is very important. If briefs are prepared intelligently, they save the barrister much time and the client's money.
- Costs assessment: Where a costs assessment is necessary, a well-prepared brief will assist.
The NZBA is committed to developing a referral bar that reflects the diversity of the legal profession and the wider community. The Gender Equitable Engagement and Instruction Policy, which NZBA was designed with this in mind. The Policy is intended to foster a culture within the legal profession which recognises the talent of the advocate rather than the gender (or other subjective discriminatory criteria) of the advocate. The NZBA believes that the statistics of women's participation in the legal process clearly shows that the pool of talent represented by women lawyers' talent is considerably under-represented in the profession, thereby doing a disservice to the consumer of legal services. The Policy is available here.
While each brief necessarily depends on the context of the case, generally a brief should contain:
- an index;
- observations on brief;
- copies of all pleadings;
- copies of letters seeking and furnishing particulars (or composite particulars);
- copies of interrogatories and answers set out if possible in the same form as copies of letters;
- the proofs of evidence of the witnesses;
- particulars of a list of documents cross-indexed by reference to pages in the brief;
- copies of all documents which are to be tendered as evidence;
- copies of other relevant correspondence; and
- copies of documents produced on discovery by the opponent if not already included.
All too often, barristers are brought in when the directions hearings have come and gone, the witness statements are all but settled and major strategic decisions about the running of the case have already been made. Yet a barrister will still need the same amount of time to read the materials and to get across the facts. Perhaps most importantly, briefing counsel early will get them on top of the facts and more able to participate in strategic decisions about the conduct of the case. Preparation will always have to occur. You will just get better value for the client if the barrister can assist throughout the full conduct of the matter.
For further information, please email the Executive Director of the NZBA