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 put 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. Below are some tips to help you.


Provide all relevant documents and information at the outset

When you first ask a barrister to provide a written Opinion, generally you should make available all the relevant documents and information as a barrister's Opinion is only as good as the factual information it is based on. 


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 - e.g. as PDFs in a Google Drive folder with each PDF name commencing with the document date in yyyy-mm-dd format so that the documents appear in chronological order, 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 Google Drive 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 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 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 a folder on cloud storage (Caselines if litigation is underway or perhaps Google Drive in the early stages) and provide the barrister with read access. You can then add further documents to the folder on cloud storage when they become available so that when the time comes to ask the barrister to provide a further Opinion, the folder contains all the relevant documents both old and new. Although the barrister will need to re-read old documents, it is helpful if you can identify which documents are new - in the case of Google Drive the date each document was loaded is displayed so it may be possible to identify the new documents as all documents loaded after a certain date; in the case of Caselines, documents in each section are allocated index numbers so the higher numbers should represent documents added later.

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 identify new documents not made available before but also to highlight 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 point this out 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 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, will 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 then 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 both sides have set out their cases with legal particulars
  • After Disclosure of Documents - when each side provides the other with copies of its documents
  • After you have received a report which you have commissioned from an expert witness and/or a report from an expert witness commissioned by the the other side (if this applies)
  • After exchange of witness statements - when the other side's detailed witness evidence is known
Generally it is best to ask for a further Opinion at each of the above stages unless, as occasionally happens, nothing new or unexpected has emerged (for example if the other side's documents, when provided, are all copies of ones you already have).

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. Examples where you might feel you cannot wait are as follows

  • 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.


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.


Advice about procedure

If you have questions about general court/tribunal procedure such as whether formal documents can be validly served and/or filed by email, then this will often be something you can ask your barrister to advise about at any time - there is not likely to be a saving in fees by waiting until one of the key points before asking because it is a general question not specific to the finer details of your case. However if there is any deadline by which you need such advice do ask your barrister in good time before that deadline as they may be engaged with other work and not be able to answer immediately.
        

Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.

This page was lasted updated in February 2017          Disclaimer