When I started as an articled clerk in the early 90s, one of the senior partners at my firm gave me a copy of a paper, which I have now unfortunately lost, on how to best prepare a brief.
I think of that paper from time to time because preparation of a brief is a skill which, in the age of email, is “evolving”, to put it diplomatically.
Last year I was fortunate enough to receive some instructions, via email, for a matter which kept me occupied for a good three or four days. Unfortunately for the client, at least half a day of that time was spent reading, printing, organising and collating the twenty-nine emails and 90 or so attachments of which the brief consisted.
Why does the quality of a brief matter?
A barrister is briefed for specialist advocacy skills or for advice, or both. Both advocacy and the giving of advice involve the communication of ideas in a clear and simple form.
An advocate uses those ideas to persuade, whilst counsel preparing an advice uses them to inform and advise. In both cases the barrister must master the relevant facts and issues before forming and presenting the ideas. The material needed to achieve that mastery is in the brief.
A barrister can be much more effective, more quickly, if the brief is a reasonably comprehensive, well organised and a well summarised extract from the solicitor’s file.
As a bonus from a cost perspective, a good brief can both reduce the amount of preparation work required by Counsel.
Ten Tips in the Age of Email
As best as I can recall, the gist of that lost paper (with a few updates for modernity) was as follows:
1. Provide a hard copy of the brief to counsel. Even if urgency requires documents to be emailed to counsel immediately, always make sure that a complete hard copy brief is provided as soon as possible. It saves a lot of time in printing and collating materials that could otherwise be spent working on the matter briefed.
2. Feel free, if a matter is urgent, to email copy of the key documents from the brief. For example, the memorandum to counsel, a copy of the index to the brief, plus a copy of the handful of key documents that can get counsel started. By this I would mean no more than perhaps 2 or 3 documents at most. So if the case has already been issued, that might mean the statement of claim and the defence.
3. The memorandum to counsel is a great opportunity to tell counsel what the case is about and your views on it. Usually by the time counsel is briefed, a solicitor acting in the matter has built up a very valuable store of information and opinion about the case, the issues and witnesses. It is great practice to provide that information to counsel in the memorandum. Give a summary of the relevant facts, identify the relevant parties, identify the relevant causes of action and defences, and of most value, give your own view of the merits of the case. For the same reason, it is good practice to give a copy of advices that have been given to the client by the solicitor about the matter, plus any file notes from the solicitor’s file that are relevant, for example memorandums concerning the characteristics of witnesses.
4. Counsel should be informed of any discussions that have taken place to try to resolve a matter. If a matter has reached the point where counsel has been briefed where there had been no commercial discussions to try and resolve the matter, that would be very surprising. If that were the case, there should be an explanation as to why that is the case.
5. Ideally, briefs should be provided to counsel sooner rather than later. The reason is that once counsel has had an opportunity to review the brief, counsel may be of the view that the proposed course that the client wants to take is not advisable. For example, if the brief is to make an application to Court on an interlocutory matter, it may be that the interlocutory application is in counsel’s view unlikely to succeed, and not worth issuing. If counsel is briefed before the application is issued, the potential cost of withdrawing the application, or the cost of proceeding and failing, can be avoided.
6. As far as the contents of the brief are concerned, it very much depends upon what the purpose of the brief is. But for example, for a trial one would expect to receive:
– The current version of the pleadings.
– The relevant trial directions
– The parts of the discovery that will be relevant.
– Any expert reports.
– Any recent relevant correspondence between the solicitors.
– Witness statements, or draft proofs taken from witnesses.
– Copies of any advices given by previous counsel or by the solicitor to the client where relevant.
– Any memoranda prepared by the solicitor in-house on questions of law that are relevant to the proceeding.
– Copies of any legal authorities, including legislation or cases relevant to the brief.
– Any correspondence regarding settlement.
7. The index to the brief should be set out in a logical manner. There is no hard and fast rule for how the index should be organised, as long as it makes some sense.
8. As a general rule counsel should never be provided with original documents. They should be kept by the solicitor at all times. This applies to not only Court documents but also to discovered documents.
9. Where photographs are provided, or reports include coloured diagrams, it is very helpful to have colour copies of those that are clearly legible. There is nothing worse than working with grainy, difficult to recognise, black and white copies of photographs or diagrams from reports.
10. Keep a copy of the brief on your file, and for long running matters, periodically update counsel’s brief by refreshing the index and taking out materials that are no longer needed – eg, material relating to an application that is complete.
11. [At the very helpful suggestion of Dominique Hogan-Doran, whose blog can be found here: http://hogandoran.com/] Prepare a chronology of key facts for the brief. The best form of the chronology is not set in stone, and depends on the stage of the matter, but my preference is to include the date of the event, the relevant source document(s), where the event is pleaded, and any comments of the instructor on the significance of the event.
In concluding, perhaps one of the biggest benefits of a good brief is that it exploits human laziness! Barristers are, by human nature, more likely to pick up a well organised brief over a poorly or unorganised brief and start work on it. The response time from counsel is likely to be a lot quicker.