How Often Should I ask a Barrister for Advice?

At various points during the course of litigation you will need to ask your barrister for advice. How often, and when, you decide to ask for advice will affect how much it costs.

Introduction: how barristers work

Most litigants only have to deal with one court/tribunal case at a time. If you are a senior manager in a large organisation, especially an organisation operating in a field which is prone to litigation, you may be dealing with several court/tribunal cases at any one time, but for most individuals, and many smaller businesses, the current case being litigated is the only case they have to deal with. Because of this you are likely to become very familiar with all or most of the details of your case so that you can instantly recall most details without having to look them up. 

It is easy to assume that a barrister who you consult during the period of, say, a year, that your case takes to come to trial, will also be able to instantly recall all the details of your case, but this is not so. Because of the work they do, barristers develop the ability to absorb a large amount of detailed information and retain it for a relatively short period. So a barrister preparing to represent a client at trial will spend days preparing by reading the documents in the Trial Bundle so that they can effectively question witnesses at the trial and address arguments to the judge, but, one month later, the barrister will have forgotten much of the detail because they will have had to deal with many other cases meanwhile. 

Similarly, when giving a written Opinion a barrister will typically spend some time reading documents and information you provide before writing an Opinion. If you ask the same barrister, 3 month's later, to provide a further Opinion after reading further documents, the barrister will not have remembered all the details and so will also have to re-read documents provided 3 months earlier. It may not take the barrister as long to do this as they did 3 months previously because they are likely to remember the broad outline of the case, but still it will take them rather longer than if you had provided further documents and asked for further advice only 3 days after receiving the Opinion, when the details would still have been fresh in the barrister's mind.

If you bear the above in mind, and plan, so far as it is possible to do so, how and when you ask for advice, you can save a considerable amount on money in terms of fees for advice over the course of the litigation. If, in the past, you have consulted solicitors (e.g. about some other matter) bear in mind that using and communicating with a solicitor is different from a barrister. Traditionally solicitors not only dealt with legal work but also carried out the general management of the affairs and property of their clients, particularly the landed gentry, with the general idea being that the client would leave everything to the solicitor, and “leave it all to me” is still the general approach with the client expected to do only the irreducible minimum and the solicitor being on call to answer the client’s queries at any time. For example a question may occur to a client. The client could look at a written Opinion previously provided by a barrister to see if that answers the question, but it is easier to just phone the solicitor and ask. Solicitors are used to answering the same question, or variations on the same question, multiple times. The meter is running and it is all part of the service. 

But a barrister will write an Opinion and won’t expect to be asked for a further Opinion unless and until something changes or until advice on some new aspect is requested. So engaging a barrister direct requires some thought and work to make sure that all the questions you want answered are raised when you ask the barrister for a written Opinion, and you need to not only read the Opinion when it is provided but also be ready to consult it, if a further query subsequently occurs to you, to see if it answers that query before you consider paying for a further Opinion.

Below are some tips to help you. 

The advantages of an initial conference

In some cases there are not many documents and a barrister will be able to read them all before writing their Opinion. At the other end of the scale, for some cases there are a vast amount of documents, typically emails going back years. If there is a large amount of documentation, one option is for the barrister to simply read it all but that is costly and often a better way is to make the documents available in a manageable form in cloud storage, and for you to meet the barrister for a conference and answer their questions, going through the documents. Because you are likely to be very familiar with most of the documents (particularly if they are emails you have sent and received) you are likely to be able to quickly identify documents in response to questions from the barrister such as "when was such and such first mentioned?”, or "did you complain about this in an email?" etc. thus saving time (and, ultimately, money because a fixed fee can be agreed for conference and subsequent written Opinion on the assumption that because you can guide the barrister through the documents, that will reduce the amount of reading they need to do).

Doing it this way is particularly useful if you have a large number of paper documents and you are not sure whether they are relevant or not. You can scan in and load to cloud storage key documents which are clearly relevant (it is good to provide the barrister with key documents in this way prior to the conference) and then, at the conference, a by-product of going through documents and answering the barrister's questions will be a better understanding of what types of documents are likely to be relevant or not relevant, which will help you decide which paper documents not already scanned in should be.        

For subsequent Opinions during litigation provide all relevant documents and information, not just the latest information, but highlight new information/documents

Because a barrister providing a further written Opinion some months after the initial Opinion will not remember all the details of the case, you need to make available to the barrister all the relevant documents identified not just any new documents which have come to light since the last Opinion. The best way to do this is to, at the outset, load the documents to Bundledocs and provide the barrister with read access. You can then add further documents to Bundledocs when they become available so that when the time comes to ask the barrister to provide a further Opinion, all the relevant documents, both old and new, are in the bundle. Although the barrister will need to read both old and new documents, it is useful for the new documents to be identified.

If there are a lot of documents in the case, so that you started off with a conference at which documents were turned up in response to questions from the barrister (rather than the barrister reading every available document), you may need, when asking the barrister for a further Opinion, to not only load to Bundledocs new relevant documents which come to light but also perhaps some documents available from the beginning but not highlighted before. For example, if, at the initial conference in answer to a question from the barrister, you identified an email as the first time a subject was mentioned in an email, and you have since discovered that there is also an earlier email mentioning the subject, you should add this to Bundledocs and point this out to the barrister when requesting a further Opinion.      

In addition to making available all the relevant documents, you need to provide the barrister with information - what you remember about the circumstances giving rise to the dispute. The best way to do this is in a Word document so that if you have remembered any new details since you last asked for an Opinion you can add them in (using a new colour to indicate what is new information). Remember that the barrister will not be trawling back through past emails checking for pieces of information you may have mentioned in the past so you need to ensure that everything is in the Word document that you provide the barrister with when asking for a further Opinion.

Answer any queries quickly         

Because barristers work on the basis of absorbing and considering a large amount of information which cannot be held in mind indefinitely, barristers generally work on the principle that once they start work reading as part of the work of providing an Opinion, they will carry on and produce the written Opinion in a relatively short time based on what has been identified to them. If documents and/or information are incomplete, the barrister will have to work within that limitation providing the best advice they can on what there is. But although that is and must be the general principle, if there appears to be some key piece of information which is missed out which the client might to be able to provide, a barrister may query this with the client whilst working on the Opinion and, if the query is answered quickly, the barrister can take the information into account in the Opinion. So if you receive a query from the barrister when working on an Opinion, it is important to reply quickly (but fully). If you are unable to reply quickly and only provide the information just after the Opinion has been completed, if the information makes no difference to the conclusion in the Opinion the barrister will undoubtedly tell you this without charging extra, but if the information puts things in a different light, so that the barrister would have to spend significant extra time considering it then the barrister is likely to charge a further fee if you want a further supplementary Opinion taking account of the newly provided information. So responding efficiently to any queries during that relatively short window of time when the barrister is actually doing the work can help save money.

After the Initial Opinion, plan the best time to ask for a further Opinion

During the course of the case, there are key points at which it is to be expected that further information/documents will emerge as follows:

  • At close of pleadings - when the last pleading documents has been served and both sides have set out their cases with legal particulars
  • At the conclusion of Disclosure of Documents - when each side has provided the other with copies of its relevant documents
  • Upon exchange of witness statements - when the other side's detailed witness evidence is then known
Generally it is best to ask for a further Opinion at each of the above stages.

In addition to the above stages, where it is to be expected that significant new information may well become available, there may be other times when you feel that you would like further advice. For example you may have just found a document which you could not previously find, or you may have just remembered some detail about the circumstances which gave rise to the dispute, or it may just be that some question has occurred to you which you would like a barrister to answer. From the point of view of saving fees it is preferable if you can wait until one of the above stages, when advice will be needed anyway, and then pay for an Opinion which covers everything, unless you feel you need advice earlier than that and cannot wait until the next stage. Some examples where you might feel you cannot wait are:
  • You have remembered some detail which means that your pleadings, as they currently stand, are not completely factually accurate.
  • You have found a document which significantly helps, or alternatively may cause significant problems for, your case.
  • The other side has made a realistic offer to settle that you want advice about.
  • Something has happened on the ground - such as your opponent entering disputed land and demolishing a wall 

When asking for a further Opinion, consider whether there are any specific questions you want to ask

When asking a barrister to write an Opinion - e.g. because you have reached one of the stages above - think about whether you have any specific questions you want to ask at the same time. Much of the cost of the Opinion results from the fact that the barrister has to read through many relevant documents anyway so asking a couple of extra questions is unlikely to increase the fee by very much in percentage terms.


How will I know whether or not some new information which has come to me is something the barrister needs to advise on sooner rather than later?

Common sense will very often be your guide. Examples where you might feel you cannot wait include:

  • You have remembered some detail which means that your pleadings, as they currently stand, are not completely factually accurate.
  • You have found a document which significantly helps, or alternatively may cause problems for, your case.
  • The other side has made a realistic offer to settle that you want advice about.
  • Something has happened on the ground - such as your opponent entering disputed land and demolishing a wall 

Examples where you probably should wait might include:

  • You have found a photo which confirms what other photos already considered by the barrister in the last Opinion also show (and the photo was taken at roughly the same time as the other photos).
    • Note: although you probably don't need to ask for advice immediately in this situation you need to consider whether you are obliged to immediately disclose the photo to the other side. 
  • You have remembered some factual detail which does not affect the overall picture and does not mean that your pleadings are inaccurate

I don't think I need advice now and I think it can wait until the next stage in proceedings when I will be asking the barrister to advise anyway, but shall I send the information/documents to the barrister now, while I think about it, so that the barrister has them "on file" ready for when, later on, I ask the barrister to advise further?    

No. Don't do that. Put them in a folder on your computer named e.g. THINGS I NEED TO TELL THE BARRISTER WHEN I ASK THEM TO QUOTE FOR THE NEXT PIECE OF WORK.

Unlike solicitors, barristers do not keep a "case file". 

There are other pros and some cons of working from a case file. At its best it should mean that you never have to provide the same information more than once as whoever is working on your case/dealing with your phone call has the information in your case file. But in practice - and this is the downside - a solicitor new to your case, who is fielding your phone call, cannot realistically read the whole case file. So you may find that they pick up information which is incorrect. For example you might have received a letter from the firm summarising some details and asking for your confirmation and you may have written back correcting a few details but the solicitor "standing in" may be working from the first letter with some wrong details as they cannot read everything in the file.

But, whatever the other pros and cons, it is essential for a solicitors' firm to keep a "case file", which - even these days - is generally a paper file, as a kind of organisational memory. You may have a nominated individual solicitor in the firm as your main contact point but they won't always (or even usually) be doing all the work - several solicitors and other fee earners will at various times be doing work on your case and/or may need to respond to emails/phone calls from you so they need a common case file to record all contact with you, including notes of telephone conversations, and all information provided by you, so that it is available to whoever in the firm is working on your case/dealing with the phone call from time to time. If they are providing a service which responds promptly to any email or phone query from you then you would get frustrated if you were not only dealing with a different person every time you rang but nobody you spoke to knew, or had any way of knowing, what you had just said to their colleague. 

Barristers generally have a way of working which means they do not use a case file which saves considerable time. How do barristers avoid the need for a case file? Firstly a barrister is an individual so they do not need an artificial "organisational memory" for the short term - they have their own memory. What about the longer term? Here the barrister relies of the way work is broken down into distinct packages. Unlike solicitors who generally provide legal advice in the form of numerous letters, emails, and on the phone, barristers generally provide legal advice as formal written Opinions and Advices (legal advice may be given at a face to face conference but the key points are likely to also be in a written Opinion or written Advice) and those formal Opinions and Advices, which are relatively few in number, serve a dual function of not only providing the client with advice but also enabling the barrister to refresh their memory of the case. 

When a barrister is providing a quotation for the next piece of work, they will need to be provided with the documents and information necessary to do that task. This may not mean (and in the later stages generally will not mean) the client literally sending all relevant documents again because, in the early stages before litigation, previous Opinions will have listed the documents the Opinion was based on (which the barrister will have kept electronic copies of with the Opinion) and, once litigation is on foot, a document management system such as Bundledocs will be used to retain the relevant documents as they come to light, but, nevertheless, the client is providing/identifying, at the time a quotation is given, the documents which need to be considered when the particular piece of work is done. This means that there is no need for the barrister to build up a case file containing documents which, from time to time the client may find it convenient to send. In effect it is the client who has the case file and the barrister simply asks the client for documents and information at the time when a quote for the next piece of work is to be given. This could mean that the client is sometimes asked for some items of documentation/information more than once during the lifetime of the case but this is generally a small price to pay for the increased efficiency and lower fees consequent on the barrister not having to maintain a case file.                         

I would rather not have to work out whether or not to wait for a suitable point before asking a barrister for further advice. I find it easier to simply fire off an email every time something occurs to me  

In that case you need to engage a solicitor. The solicitor will be happy to field all your enquiries and talk to you on the phone whenever you wish and the solicitor will work out for you when instructions need to be sent to the barrister for advice (and condense the information you may have provided over a period to include when sending Instructions to Counsel to Advise). But bear in mind that using a solicitor may well double your costs overall.



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