How Often Should I ask a Barrister for Advice?

At various points before and during 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 you.

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 eBundle so that they can effectively question witnesses at the hearing and address arguments to the judge, but, a month after the hearing has finished, 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 the documents and information provided 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 first time round because they have their previous Opinion to remind them 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, it can help to keep the total money spent on fees for advice under control. If you have experience of engaging a firm of solicitors (i.e. if, in the past, you have consulted solicitors about some other legal dispute) bear in mind that using and communicating with solicitors is different from with a barrister. Traditionally solicitors not only dealt with strictly 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 solicitors 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 (which the solicitor had previously arranged to be provided by a barrister) to see if that answers the question, but it is easier to just email 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 the next key stage of any litigation or other formal process is reached. So engaging a barrister direct requires some thought to make sure that, as far as possible, all the questions you want answered are raised when you ask the barrister for a written Opinion. You need to 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 written Opinion.

The initial Opinion - after a conference

In some cases there are not many documents and a barrister will be able to read them all before writing their Opinion. But in most cases it would not be realistic - because of the time and cost - for the barrister to read through everything in detail from beginning to end. Often the most efficient approach is to make the documents available in a manageable form, and for you to meet the barrister for a conference and answer their questions, going through selected documents. Because you are likely to be very familiar with most of the documents (particularly 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 (to be provided shortly after the conference) 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 to scan them in because you are not sure whether they are relevant or not. You can scan in the 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.        

When to seek a further Opinion

During the course of a case proceeding in a 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/or advise you at each stage of the process, such as the stage where Statements of Case have to be submitted, the stage where each side discloses the relevant documents in its possession, and the stage at which witness statements are exchanged in preparation for the final hearing.

In addition to each stage of a formal process, there may be other times between stages 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 the next stage, 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 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 (even if you are sure it does not affect things significantly you might still, if an order for disclosure of documents has previously been made by a tribunal need to disclose it promptly to the other side if it is relevant and not privileged, but you may not need immediate advice about it if it is relatively insignificant).

• 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 provide all relevant documents and information, not just the latest information, but highlight new information/documents

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 set of documents to be considered needs to be clear when asking for a quote for a further Opinion. This does not necessarily mean that you need to literally send all relevant documents previously sent all over again because each previous Opinion will have identified the documents the Opinion was based on (perhaps by means of a ZIP file of documents accompanying the Opinion or perhaps by simply listing the documents at the beginning of the Opinion) and you can refer to the set of documents previously considered and then only need send copies of any additional documents. 

If, as is usually the case, 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 through every available document), you may need, when asking the barrister for a further Opinion, to not only provide relevant documents which have newly 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 a particular 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 would include this in the set of documents to be considered by the barrister and specifically point it out when requesting a further Opinion. Equally it is possible that developments may mean that a few of the documents previously identified are no longer relevant     

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 advise 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. 

• 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 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. 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". 

There are pros and some cons of having a lawyer who works 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 an enquiry has all the information previously provided in your case file. But in practice - and this is the downside - a solicitor new to your case, who is fielding your latest enquiry, 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" as an 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 from you so they need a common case file to record all contact with you, including notes of any 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 an email from you from time to time. If they are providing a service which responds promptly to any contact from you then it would be frustrating for you if  not only dealing with a different person every time but nobody you spoke to knew, or had any way of knowing, what you 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 money. How does a barrister 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 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 in the form of formal written Opinions and written Advices (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. In addition a document management system will typically be used to retain documents definitely identified as relevant as they come to light, so some documents will already be identified and readily available from either of those two sources. Any other necessary documents and information which needs to be considered when the next piece of work is done will be provided by the client at the time.

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 or already available in the document management system), together with the information required, at the time when a quote for the next piece of work is to be given. 

This inevitably means that the client is sometimes asked for some items of documentation/information more than once during the lifetime of the case (e.g. they may be asked to provide again a document previously sent but not identified at the time as a key document on which the initial Opinion was based and therefore not retained with the Opinion, or they may be asked questions which may have already been answered in previous emails) 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 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 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 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 advise (and condense the information you may have provided over a period so that that can be included when sending the Brief to Counsel). 

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 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 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 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 money. 

Disclaimer

This information page is designed to be used only by direct 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 will not be applicable to every case: it is intended to be used only in conjunction with more 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 December 2024          Disclaimer