Barristers, otherwise known as "counsel" represent clients in court, cross-examining witnesses, and arguing the client's case before a judge or, in some cases, a judge and jury.
Barristers also draft "pleadings". Pleadings, sometimes known as "statements of case", set out what each party alleges to be the basic facts, and what particular statutory provisions or legal principles will be argued at the trial. There are rules about what needs to be pleaded and at what level of detail, and generally a party cannot rely at trial on any matter not properly pleaded, so invariably the barrister, who will be representing the client at the trial, drafts the pleadings so as to ensure that all the legal arguments, which they consider ought to be raised at trial to further the client's case, can be.
Barristers, because of their experience of arguing cases in courts and tribunals, are skilled in providing legal advice, that is advice on what the law is, how it applies to the client's circumstances, and what practical steps the client can take to preserve or assert their rights including advice about what a client's chances of success would be if they were to bring a claim to a court or tribunal, or what the chances are of a client's defence being successful. A barrister's advice can be sought early on before court or tribunal proceedings are contemplated so as to inform the client's approach to resolving the issue which has arisen - perhaps taking a relatively bullish approach if the advice is that, should the matter come to court, the client is very likely to be successful, or taking a more conciliatory approach if the advice is to the contrary.
Advice can be given "in conference" - i.e. face to face at a meeting - or in writing. Often advice is given both in writing and in conference: for example a written Opinion setting out the law and the various options which the client has, with the pros and cons of each, may be given first, followed by a conference to talk through the various options before a crucial decision is made.
Although barristers are all independent of one another, in order to keep overheads low barristers typically share offices (known as "chambers") and staff - clerks - who keep each barrister's diary and negotiate fees.
When to instruct a BarristerThere are many different circumstances in which you will wish to consult a Barrister, but these can be reduced to four broad categories: (a) civil disputes (b) matrimonial disputes (c) criminal proceedings and (d) non-contentious matters. We look briefly at each in turn (see below). Most Barristers specialise to some degree - for example I practice in civil disputes, particularly disputes over land. If the matter is one where a Barrister is to be consulted then the next question is whether you should consult your chosen barrister straight away or whether you should wait until matters are further advanced. The only safe answer to this question, if you are in any doubt, is to contact a barrister for an initial consultation straight away. There may, or may not, be some time limit which you need to meet but it is only after you have put the matter before a barrister that they will be able to advise you about any time limit which may apply.
Civil disputesThe typical set of circumstances in which you will want to consult a Barrister is where you have a civil dispute, i.e. a contentious matter. This can range from a boundary dispute of a few feet to a dispute over restrictive covenants affecting a large area of land, and from an argument over a small consumer sale to a very substantial contractual dispute involving many hundreds of thousands pounds. Another possibility is that you have a complaint concerning how you have been treated by a public authority; e.g. a council or central government. It is more difficult to know when precisely to go to your Barrister in this context. In an ideal world we would all settle our differences fairly and reasonably, doing the least possible harm to each other’s interests consistent with our own rights and expectations. Unfortunately we do not live in an ideal world. If you are confident that you know what your rights and obligations are in any given situation, or if the matter is not of the greatest significance, then you may well be able to resolve matters for yourself. Common sense will very often be your guide. If you are in doubt as to your rights and obligations then it is a good idea to consult a Barrister. One of the best uses that can be made of a Barrister is to seek advice at an early stage in a dispute, in order to obtain a neutral view of the merits (i.e. the strengths and weaknesses) of your position, the nature of your rights and obligations and how best to proceed to resolve the dispute. An hour with a Barrister early on may save considerable grief and expense later. This is one of the most effective ways of all in which to use a Barrister and is very cost effective also. It can sometimes be the legal equivalent of a stitch in time saving nine. For example, you may have a dispute over a contract, it might be a building contract, the purchase of a car or an employment dispute. You can discuss with your Barrister the various options that you have and the possible consequences. A Barrister can draft a letter for you to send or simply advise you as to how to proceed. Bear in mind that there are time limits for bringing claims in courts and tribunals. In the case of some types of claim, particularly employment disputes and challenges to the decisions of public bodies, the time limit may be only be a few weeks. If you want the court to make a discretionary order that a party to do something or not do something, for example to cease building work (rather than simply awarding compensation) you are more likely to be granted the order if you bring the matter before the court before too much building work has already been done, so, even if you hope to resolve matters yourself, you should, at the same time, ask a Barrister to advise how long you have got before you have to consider making a legal claim.
Civil disputes also include disputes in the wider family such as disputes between adult brothers/sisters about matters such as inheritance and property rights. For matrimonial disputes, and questions about under age children (whether their parents are married or not) see below.
Matrimonial DisputesYou may wish to consult a barrister if your marriage breaks down or any other serious issue arises in respect of family relationships or children. Included here would also be care proceedings or anything else concerning family rights and responsibilities which is of concern to you. This does not necessarily mean that a Court will be the best place in which to resolve such issues. There is increasing use of alternative means such as mediation. Parties to family disputes above all are encouraged to settle their differences as amicably as may be possible in order to save costs and emotional harm to themselves, their former partners and their children. But if Court proceedings are necessary then your barrister will represent you in Court.
Criminal proceedingsA society creates all manner of rules for its members. When those rules are particularly important for the good government of a community, they have to be enforced. Societies enforce rules by creating penalties for their breach. This is the essence of criminal law; a rule made by society which members of that society respect or else face a penalty. Criminal offences range from very modest offences which are not truly criminal in the popular sense of the word (the parking ticket is the best example), to crimes of the utmost severity, such as murder. Typically, the more modest the offence, the less likely it is that any particular state of mind is required at the material time. It is enough if the facts comprising the offence are proved by the prosecution. By contrast, the more serious an offence is, the more likely it will have to be proved that what was done was intended. In all criminal proceedings it is for the prosecutor to prove the case beyond a reasonable doubt or, in other words, so that the Court is sure of the guilt of the defendant. Whether you need a Barrister or not for a criminal matter very much depends on the seriousness of the case. It is unlikely that you will want a Barrister for quite minor matters where the worst you face is a modest financial penalty, and where the alleged offence does not involve any imputation on your character which might have future repercussions in terms of, for example, your ability to get a job. Again common sense will guide you. If in doubt consult a Barrister. There is often rather more to a criminal offence than you might expect; for example theft is (a) the dishonest appropriation of (b) property (c) belonging to another with (d) the intention of (e) permanently depriving the other of it. There are five quite separate elements to be established before the crime of theft is made out. A Barrister will help you to understand whether you have committed an offence or not, whether you have a defence and how to deal with the matter generally. A Barrister can assist you in Court, whether to contest the charge in a trial or to make a plea in mitigation of sentence on your behalf.
Non-contentious mattersExamples of non-contentious matters include transactions such as buying a house or other land, making a Will, creating a Trust, creating a company, or entering into a commercial contract. What all these things have in common is that there is no legal dispute (though there may be negotiation and bargaining particularly in the case of buying a house or other land or for a commercial contract) but even if the transaction might be in essence quite simple, there are certain legal formalities which are either required by the law (e.g. in the case of buying a house, making a will, or creating a company) or are good practice (e.g. in the case of most commercial contracts). In the case of most transactions you can go to either a barrister or a solicitor. In general you would go to a solicitor if you know in detail what you want to do but just need the legal formalities to be dealt with (this would normally be the case for buying a house or other land and may be the case when making a Will or creating a company). You are more likely to go to a barrister if you not only require the formalities to be dealt with but also need advice about the best way of arranging matters to achieve your objectives. This is often the case with commercial contracts and Trusts, and might apply to some Wills and some company structures.
This page was lasted updated in March 2017. Disclaimer