Kinetic advice and strategic Opinions

In considering the question of how often to ask for advice, it is important to distinguish between "kinetic" advice and a written Opinion. 

If you have engaged a barrister to draft a letter for you to send to someone, such as a court or other tribunal, or to the person or organisation you are in dispute with, you will want to contact the barrister again when you receive a response (or, indeed if you receive any communication, whether that communication is specifically a response to something you have sent or not) to ask the barrister whether they can advise you what to do next. And you will want to ask the barrister what to do if you have not had a response within, say, 14 days.

Often a letter will be concerned with some specific procedural point - whether the tribunal should extend a deadline, whether a party should have permission to amend a statement of case already file, etc. and a barrister will be able to provide such "kinetic" advice on how to respond, without the barrister having to reconsider all the details of the entire case, so that the costs of that advice are modest, and therefore the fee charged for the advice/drafting is likely to be modest. Indeed drafting some responses in a chain of correspondence may take so little time that the barrister thinks it disproportionate to send a Client Care Letter quoting a fee and simply advises/drafts a short response free of charge. 

Such kinetic advice is different from strategic advice in the form of a written Opinion where, in order to provide proper advice, a barrister needs to consider in the round how some new information or document affects the whole case, and will need to charge a significant fee. It is normal for a barrister to plan to provide a written Opinion at certain key stages in the litigation process anyway - e.g. at the statements of case ("pleadings") stage, at the "disclosure of documents" stage, and at the "exchange of witness statements" stage - but if further written Opinions need to be provided at additional points, that will incur significant additional cost.      

Introduction: how barristers work

Most litigants only have to deal with one legal dispute 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 might be dealing, at any one time, with several disputes which have resulted in proceedings in court or other tribunal proceedings, but for most individuals (and many smaller businesses) the current case is the only case they have to deal with. In this event 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, two years, that your case takes to come to a final hearing, 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 a final hearing will spend days preparing by reading the documents in the Hearing Bundle so that they can effectively question witnesses at the hearing and address arguments to the judge, but, after the hearing has finished, the barrister will soon 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 the documents and information provided before writing the Opinion. If you ask the same barrister, some time later, to provide a further Opinion after reading further documents, the barrister will not have remembered all the details and so will have to re-read documents provided earlier. It may not take the barrister quite as long to do this as they did first time round because they have their previous Opinion to remind them of the context and key points in the case, but still it will take them rather longer than if you had provided further documents and asked for the further strategic advice just after receiving the previous 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 strategic advice, it can help to keep the total money spent on fees for advice under control. Give some thought to making sure that, as far as possible, all the questions you want answered about your case are raised when asking the barrister for a written Opinion. You need to read the Opinion at the time 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 written Opinion. If you do decide to ask and pay for an Opinion which will include an answer your query you should, as well as posing the particular question which occurs to you, also think about whether there are other questions about your case which you would like to be answered at the same time. But before you decide to pay for an extra Opinion consider whether you really need your query answered now. Could it wait until the next key stage when an Opinion would normally be provided anyway?

When to seek an "extra" Opinion

During the course of a case proceeding in a court or other tribunal, or some other formal process (such as an application to the Land Registry), you will be asking your barrister to draft the documents and responses, and provide comprehensive strategic advice in the form of a written Opinion, at each key stage of the process, such as the stage where Statements of Case have to be submitted, the stage where each side exchanges the relevant documents in its possession, and the stage at which witness statements are exchanged in preparation for the final hearing.

But at other times you may wonder whether, because of something which has happened, or something you have become aware of, you need further advice of a strategic nature sooner rather than later even though you are not at a key stage. 

You might happen to be asking the barrister anyway whether they can advise you in a more limited way - such as on an appropriate response when you receive a reply to a letter you sent out which the barrister drafted - but such "kinetic" advice would not automatically mean that the barrister would be providing the kind of comprehensive strategic Opinion which is usual at a key stage, and you you may wonder whether, because of what has happened, or what you have become aware of, you actually need to ask for more comprehensive strategic Opinion, at the same time as seeking the more limited kinetic advice you were going to seek anyway.

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 the next stage, when advice will be needed anyway, and then pay for an Opinion which covers everything, unless you feel you need strategic 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 Statement of Case which has been submitted to a tribunal (or an equivalent document submitted to some other official body) is 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.

• There has been some significant development on the ground - such as your opponent entering disputed land and demolishing a wall 

When asking for a further Opinion, ensure that the barrister has the relevant documents and information, not just the latest information

A barrister providing a further written Opinion some months after the initial Opinion will need to have before them all the identified relevant documents, not just new documents which have come to light since the last Opinion. The previous Opinion will have identified the documents the Opinion was based on (often  by means of a ZIP file of documents accompanying the Opinion) but that will typically be a sub-set of all the documents you had in your possession when the Opinion was provided (typically a sub-set of documents identified by you and the barrister together at a conference just before the Opinion was provided) and so you need to consider whether any other documents, not previously considered important, might, in the light of developments, be important after all and need to be provided to the barrister when asking for a quote for a further Opinion. A barrister won't be trawling back through past emails looking for extra documents so if, for example, you sent document X to the barrister before you had the conference with them at which you identified the sub-set of documents - which did not include document X - to be considered in the previous Opinion, that does not mean that the barrister will consider document X when writing a further Opinion - you need to specifically highlight document X if you now think it relevant. You could quote the filename of document X and the date and  time of the email it was attached to when previously sent, months ago, but it is nearly always easier (for both you and the barrister) to simply send document X again (mentioning that you have had it for some time but it was not previously though relevant) , together with any new relevant documents, when asking for 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. If you have previously provided this information in a Word document you can add in any new details which you have remembered since you last asked for an Opinion 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 to the barrister with when asking for a further Opinion.

FAQ

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

Examples where you might feel you cannot wait include:

• You have remembered some detail which means that your Statement of Case is 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 may feel able to 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 if an order for disclosure of documents have been previously made by the  tribunal and the date for disclosure has already passed (and if the photo is not privileged). 

• You have remembered some factual detail which does not affect the overall sequence of key events and does not mean that your Statement of Case  is inaccurate

I don't think I need further advice now and I think it can wait until the next stage in proceedings when I will be asking the barrister to provide a written Opinion 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"?    

No. Don't do that. Instead you could, for example, 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 generally keep a "case file", that is to say an organised file containing everything ever sent in by the client. 

There are pros and some cons of having a lawyer who works from a case file. In theory, and 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 an enquiry has all the information previously provided in your case file. But in practice - and this is the downside - a solicitor new to a case, who is fielding the latest enquiry, cannot realistically read the whole case file. Consequently they may pick up information which is incorrect. For example the firm might have sent out a letter summarising some details and asking for the client's confirmation and the client 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 in fact essential for a solicitors' firm to keep a "case file" as an organisational memory. There may be a nominated individual solicitor in the firm as the 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 the case and/or may need to respond to emails from the client, so they need a common case file to record all contact, including notes of any telephone conversations, and all information provided, so that it is available to whoever in the firm is working on the case/dealing with emails from time to time. If they are providing a service which responds promptly to any contact from the client then it would be frustrating for the client if they were not only dealing with a different person every time, but nobody they spoke to knew, or had any way of knowing, what the client had just said to their colleague the day before. 

A barrister, on the other hand has a way of working which means that they do not use a case file, which saves considerable time and therefore fees. How does a barrister avoid the need for a case file? Firstly a barrister is an individual, doing all their work personally, so a barrister does not need an artificial "organisational memory" for the short term - they have their actual memory. What about the longer term? Here the barrister relies on the way work is broken down into distinct packages. Unlike solicitors who generally provide legal advice in the form of numerous letters, emails, and perhaps on the phone, a barrister will provide legal advice (other than "kinetic" advice) in the form of a limited number of formal written Opinions and written Advices (an "Advice" is like an Opinion but shorter an deals with some partial aspect of the case - it is "in depth" for what it deals with but not the entire case). Legal advice may be given at a face to face conference but the key points are likely to also be in an  Opinion or Advice written just before or just after, and those formal written Opinions and written 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. 

Secondly, a general case file (i.e. a file containing everything ever sent in by the client) is not needed by the barrister to store documents and information. When a barrister is providing a quotation for the next piece of work, they will, of course, need to have the documents and information necessary to do the task being quoted for, but previous Opinions will have identified the key documents the Opinion was based on, and the barrister will usually have kept electronic copies of those key documents with each Opinion. Any other necessary documents and information which need to be considered when the next piece of work is done will be provided by the client, at the time the client asks for a quote for that further piece of work.

This means that there is no need for the barrister to build up a general case file containing  every document and every piece of information ever sent in by the client. In effect it is the client who has all the documents and information which would have been in a case file and the barrister simply asks the client for any further documents (i.e. any further documents not kept with a previous Opinion), together with the information required, at the time when a quote for the next piece of work is requested. 

This inevitably means 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 general case file and not having to trawl through previous emails looking for information.                         

I would rather not have to work out whether or not to wait for a suitable point before asking for the answer to something that has occurred to me. I would rather simply fire off an email.  

In that case you need to engage a firm of solicitors. The solicitors will be happy to field all your enquiries whenever you wish and the solicitors will work out for you when a barrister needs to be engaged to provide a written Opinion (and condense the information you may have provided over a period so that that can be included when sending the "Instructions" to a barrister for a written Opinion). This will cost more in the end but some people prefer it nonetheless.

Being able to fire off an email to a firm of solicitors at any time (rather than having to marshal your thoughts at each significant stage, when it is natural for a further written Opinion to be provided by a barrister, so that the Opinion can cover all the questions you wish to ask) sounds a useful facility but it is not necessarily as useful as it sounds. If you think about it, it is obvious that even the solicitor who you usually deal with (let alone any solicitor who has to stand in to answer an email) cannot keep all the details of all the many cases they are dealing with in their mind all the time, and for reasons of efficiency and cost-effectiveness they are not going to want to spend a long time reading the case file every time they receive an isolated email query, so there is inevitably a tendency for answers to isolated email queries to become fairly broad-brush standard responses. Or when pressed a solicitor may say “well in this sort of case it is often X but sometimes it will be Y and, at the appropriate time we will seek the barrister's opinion on that…”.

In fact there is no realistic alternative to a lawyer – whether barrister or solicitor - doing work in discrete units from time to time with each unit being of sufficient substance to justify first taking time to properly refresh their memory of the case. A solicitor answering isolated email queries from the client between substantial units of work can provide a feeling of reassurance for the client but the actual information imparted in response to each isolated query is likely either to be generic (such as an answer to "how soon is the court likely to fix the the next hearing, given current backlogs?") or, if it is case-specific, it may often be simply a repetition, in fairly general terms, of advice previously provided. It saves you having to look back for previous advice, but that is all.

How can I keep the costs of advice down?

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

When asking a barrister for a written Opinion at a key stage in the process, or for some other reason, think about whether you have any additional 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 not likely to increase the fee that much.

Answer any queries promptly

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 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 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 they are working on an Opinion, it is important to reply quickly (but in adequate detail). 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 may well tell you this, if you ask, 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, in conjunction with the other information, then the barrister is likely to quote 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 fees. 

Disclaimer

The information above is necessarily of a general nature and will not be applicable to every case: it is intended to be used in conjunction with more specific advice to the individual client about the individual case. Contact me for advice about your case.

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