In-house counsel driving change in direct barrister briefings

By Emma Ryan|06 August 2019

In-house lawyers are increasingly playing a more assertive role in the traditional process of selection and briefing of barristers by law firms, according to the NSW Bar Association.

According to the NSW Bar Association, in-house counsel has become a “crucial participant” in the evolving market for legal services, and is “increasing driving change by briefing barristers directly at an early stage in the dispute resolution process”.

“More and more, increasingly sophisticated in-house lawyers, often with several years of experience in private practice themselves, recognise that barristers can bring real insight and value for money to the table as commercial disputes emerge and develop,” said Robert Carey of 7 Wentworth Selborne.

“Numerous publications have noted steady growth in the practice of direct briefing by in-house counsel over the past four to five years. But as more intractable disputes develop over time, this change in practice has not necessarily come at the expense of more traditional relationships between law firms and the barristers that they regularly instruct.”

In response to the change, the NSW Bar Association has just rolled out a “Direct Briefing Toolkit” on its website, which aims to assist in-house counsel in further developing their relationships with barristers.

The toolkit is primarily, but not exclusively, intended to assist in-house lawyers to put together a brief to counsel, Mr Carey explained.

“The toolkit includes: a guide to preparing ‘observations’, to assist in-house lawyers to identify the issues that they want counsel to focus on and the particular questions they want answered; a sample index, to assist with determining what documents and information to include in the brief; guides on preparing useful tools such as chronologies of events that set out key dates, both in relation to the dispute and the conduct of proceedings – these tools can be used to bring your barrister up to speed with the detail of a dispute quickly and cost-effectively; and a checklist to guide the instructor through the process and to help make sure that nothing is overlooked or forgotten,” he said.

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“‘Electronic briefing’ is also becoming increasingly popular as advances in technology make the ‘paperless’ brief a practical reality in a much broader range of cases than previously. Most barristers are happy to accept, and in some cases prefer, paperless briefs (especially where the alternative involves a large volume of heavy folders spread throughout their rooms, leaving limited space for work and conferences with clients).

“Options for electronic briefing vary. Preparation of an electronic brief can now be as simple as copying relevant documents to a USB stick or uploading them to a secure file sharing site, but many larger commercial clients and law firms prefer to use their own file sharing systems. Most barristers can today accommodate a full range of these options.

“The toolkit also includes some general guidance about the preparation of electronic briefs and how this can be done where there is a large volume of material to include in the brief. As is the case with a traditional hard copy brief, a barrister’s clerk is often the person best placed to advise about the advantages, practicalities and pitfalls of briefing electronically.”

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In-house counsel driving change in direct barrister briefings
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