When to direct brief
Direct briefing of specialist barristers by in-house lawyers can facilitate independent, expert, timely and cost-effective advice when there is uncertainty, the need for clarity, or the desire to inform decision making.
Direct briefing is particularly useful for commercial or government clients wanting general advisory work, pre-litigation strategy, mediation and (in appropriate cases) court appearances.
The Association of Corporate Counsel (formerly the Australian Corporate Lawyers Association) has been a supporter of direct briefing for a number of years. As CEO Trish Hyde commented in 2013:
"The benefits of direct briefing are not theoretical, they are real. In my former corporate roles direct briefing gave quick and cost-effective expert opinion on pivotal issues to better inform our approach to strategic issues. When you can access a Silk and gain strategic insight it is a competitive advantage. When you gain such insight on sensitive strategic issues, it is priceless."
To facilitate access to willing counsel, the New South Wales Bar Association has recently modified its "Find a Barrister" search facility to help identify counsel who accept Direct Briefs from corporate counsel (government or private) without involvement of external solicitor.
When not to direct brief
Direct briefing may not be appropriate for more complex matters, in which an external firm of solicitors with better resources to undertake detailed factual investigations, manage large numbers of documents and manage complex litigation can be retained.
Barristers have close working relationships with full-service and specialist firms of solicitors across Australia and overseas, and can provide assistance to help you decide the right firm of solicitors to assist in those more complex matters.
A modern barrister maintains an online practice, using secure document management & file-sharing services for their matters.
An electronic brief can be an effective way to arrange urgent, or at least initial, advice. Simply deliver a USB, send an email with attachments, or create a link to DropBox or other online secured document server, particularly when documents are voluminous.
Hard Copy Brief
Alternatively, a hard copy brief can (also) be provided. Even if an electronic brief was delivered, hard copies may be requested, for example to facilitate a comparative document review, or to inspect particular documentary evidence.
Original documents should never be included in a brief.
A copy of the brief sent should be kept.
Contents Of The Brief
Be it electronic or hard copy, it will be most efficient for the brief to:
- contain a summary of the relevant facts by way of a broad “overview” of the matter,
- identify the key documents to be considered,
- set out a list of questions or issues to be considered, perhaps highlighting specific issues which are potentially problematic,
- set out the results of any legal research which has already been undertaken,
- summarise any preliminary views about the issues in respect of which advice is sought,
- highlight the client's objectives or expectations,
- emphasise any time sensitivity or deadlines,
- enclose all relevant documents in chronological order (be ruthless in omitting material which is clearly irrelevant).
If in any doubt as to what should be included in a brief, you can send a brief email or make a quick call to the barrister or their clerk.
Direct briefing provides access to specialist expertise in every area of the law. Strategic, early and direct involvement of a barrister saves time and money.
Date: 1 October 2016
Dominique Hogan-Doran SC is an Australian Barrister, Arbitrator and Mediator. She was recently Recommended by Doyles Guide in its Leading Commercial Litigation & Dispute Resolution Senior Counsel NSW 2016 and was awarded the "Barrister of the Year" Award at the Lawyers Weekly Australian Law Awards. Dominique represents the Australian Bar Association on the Law Council of Australia's Future of the Australian Legal Profession Committee.