Working with Counsel

Please note this content was originally published in the Family Law Journal. October 2020 edition, best practice section.

You know those moments in life when you see or hear something really worthwhile, really valuable - like the fabled cherry on top of the cake?

That, for me, is what the working relationship between solicitor and counsel is all about.

It’s when two plus two equals five; when the combined talents of solicitor and barrister coalesce to be more than the sum of their parts.

I appreciate that we may have a fused profession and may not be having this conversation within say twenty years, given the speed of developments in the way that we practise law. Perhaps there will always be a specialist branch of trial lawyers, who undertake most of the advocacy, or whose degree of specialism justifies them being consulted from time to time. Or maybe by then Artificial Intelligence will have taken over altogether.

But, for now, how best, and why, can solicitors work together with barristers for the best interests of our clients?

1. Cost

One of the principle concerns of a client will be how much legal services will cost her/him.

So the responsible solicitor will always have in mind the comparative cost of delivering aspects of legal service via counsel as opposed to via the solicitor’s firm. Even for the most complex piece of work, the vast majority of barristers will provide, via their clerks, a fixed fee quotation for a piece of work. They may have previously advised on that very issue and so have the law at their fingertips, more literally than ever, since it is it likely to be just a few keyboard taps away stored in their cloud.

Let’s take an example. 

A client has a knotty question about enforcement/variability in England and Wales of a foreign maintenance order during the Brexit transitional period. Are you going to answer it; ask your assistant to do it; or ask a specialist barrister to answer it. 

Having costed it all out, I recently chose a barrister to do that, and have since then recommended that barrister to many people.

I recommend that barrister for the accuracy and learning of the advice; and for the modest cost of the work.

Nice fruition of the aphorism that one hears that it’s not what you know, it’s who you know.

2. Knowing who you are working with

When you’re working with a barrister, you’re part of a team. Team members simply have to get on with each other. Otherwise tensions show and things can fall apart.

For that reason, I learned never to work with a QC who I thought was unnecessarily aggressive in debating with me the terms of a consent order!

Just as the working relationship within the legal team is important, so is the interaction between counsel and client. Many solicitors have a stable of barristers, selecting the counsel that will be best in terms not only of legal knowledge, but also their style and personality.

To test some of the ideas in this article, I asked experienced barrister and private fdr judge Niki Langridge of 36 Family Law to comment on some of my ideas. Here’s what she said.

“I think the ‘conference table manner’ of a barrister is of vital importance in this area of law, where we are dealing with people often at their most anxious and distressed. Delivering sometimes unwelcome advice, with clarity, confidence and compassion is something I think we all aspire to achieve. Solicitors have months and sometimes years to build up a relationship of trust with a client. We sometimes only have a few hours around the conference table.”

So, get to know the barristers you want to work with.

Keep close relations with specialist family barristers’ chambers; keep an eye on which barristers are writing good articles and challenging status quos.

Keep especially friendly with the barristers’ clerks, who know how their barristers are getting on, what kind of work they are doing, how busy they are, and how well they’re likely to get on with you or your clients. Time spent with a friend who is a barristers’ clerk over lunch is time very well spent.

You’ll probably want to retain your chosen counsel right at the beginning of a case for a new client whose matter looks as if it might be complex. Even if you do not have anything for them to deal with at the outset, ensure that they are formally retained for conflict checking purposes within their chambers, and to ensure that they do not engage in any informal discussions about the case with a fellow member of chambers who has been retained for another party.

3. Advice on tricky areas of law

I’ve already referred to the ability of a good barrister to bring home the bacon when there are really technical matters at issue.

There is no particular reason why barristers should be any better at researching matters than solicitors, especially now that we have every legal resource imaginable available on our laptops at the click of a button.

But it is my experience that barristers are just that little bit more adept than solicitors, at the moment, at producing convincing opinions on really difficult matters.

For example, I’ve had recent cases where we’ve had to consider which country had jurisdiction in relation to divorce cases, where competing petitions had been filed in two EU countries. Sometimes an awful lot of money can hang upon which country does have priority and which system of law will apply to the distribution of assets and income.

The answers in each case have revolved around minute analysis of European jurisprudence and going back to first principles. We would have been adrift without a paddle if we had not received the strong advice of QCs in each case.

Even in less complex cases, a barrister should always add to the skills and experience of the legal team for the client, whether it be tactical, in terms of preparation and negotiation, or even just the reassurance of a second opinion confirming the advice the client has already received.  

4. Changing the law

Someone very wise once said that there is no such thing as precedent.

Just occasionally we need to challenge the way in which the law has been interpreted, and we want or need to strike out in a new direction.

Invariably it is the imagination, genius and backbone of barristers which enable such change in the law.

For example, getting a court to respect a prenup which had been properly negotiated by autonomous individuals well advised (Radmacher 2010, overturning decades/centuries of contrary authority).

Or for example, persuading the Supreme Court to change the definition of habitual residence, using the ingenious metaphor of a seesaw as a guide to how far all the factors swing the balance towards proven residence in a different country (re B, 2015).

It’s quite humbling to note that some of the most influential family law cases have involved barristers, and indeed solicitors, who are acting pro bono and not getting paid.

5. Knowing what the judges are thinking

One of my favourite reasons for getting a barrister involved in a case is that generally barristers have a sixth sense. They know what judges are thinking, or how judges are likely to think.

Indeed, the barrister whom you instruct may even be a deputy judge, and so well used to carrying out a judicial function.

One of the first and best lessons that I learned as a solicitor was from a barrister. She taught me that the court has to see you getting closer and closer to compromise, or at least to a reasonable position, as you approach a court hearing.

I recently worked in a really difficult case with a senior barrister who sits as a deputy judge. I had a very clear idea that we would succeed in our application, and it was massively helpful to me and the client that our barrister not only agreed a strategy but also improved it. At every stage of the negotiation she reminded us what a judge would expect us to do and what concessions a judge would expect us to make. I sent draft letters to her which she would invariably improve.

It was a real crutch and comfort to the client and to me to have the help of this barrister as we negotiated the terms of the consent order which gave us everything that the client wanted.

It was the barrister’s familiarity with the court process and with how judges think that made all the difference here. Quite simply, she not only appeared in court rooms more than I did, she also could tune in better to have judges firm views and deal with cases.

6. Sending papers to Counsel

Find out how your barrister wishes to receive papers.

Many barristers will now want or expect the papers to be sent online, rather than by hard copy. There has been talk for some time of courts moving away from hard copy documents. The pandemic effectively achieved it overnight.

As Niki Langridge comments, “I have not received any hard copy papers during lockdown. I have swapped my highlighters and post-it notes for an Apple Pencil. I expect most barristers will not want to return to the back-breaking days when they carried papers in a suitcase or had a clerk ‘trolley’ their papers to and from court.”

The employment lawyers in my firm instruct counsel by sending them emails nowadays, rather than sending them formal “instructions to counsel” bound with pink tape.

Do barristers really need to see copies of all of the attendance notes? Surely not. But some meetings with clients are important. Often you will know when you have had one of those meetings when the client has given key instructions. Perhaps put a mark or a code on those attendance notes as they are made so if papers ever do go to counsel, whoever prepares the papers will be able to sift out the important attendance notes to include. 

Take care not to waste a barrister’s time considering a myriad of different emails in an email chain, all copied on different pieces of paper. I know barristers who are driven round the bend by them.

Show that you know the case. Don’t just ask a barrister to provide general advice, ask pointed questions about themes in a case. 

For example, if you’re dealing with a spousal maintenance case and one of the issues is whether the maintenance should last for a specific term without the ability to extend it, tell counsel what you think and why you think it. Explain where in the spectrum of decided cases you think your client lies. Make your barrister really think and let them know what you need them to concentrate upon when considering the papers and delivering the advice to the client.

The Instructions to Counsel are also the place to highlight what really matters for the client. It is also helpful to let the barrister know if the client is unhappy about any advice they have already been given.

“Sometimes the papers just do not tell the full story, or the client’s priorities may not be apparent. Whilst usually I can work it out, I always really appreciate it when a solicitor sets these points out clearly within the Instructions or Brief,” comments Ms Langridge.

7. Challenging the barrister’s opinion

Solicitors aren’t cyphers, we’ve got brains of our own, and we should not just parrot exactly what counsel tell us to do.

After all, we are likely to know our clients a lot better than the barristers ever will.

For example, if a barrister recommends that you put forward a negotiating figure 10% higher than we actually think the client will achieve, simply because the other party is bound to push back, you won’t necessarily do that. The client may know very well that her spouse will be particularly upset to be messed around in a negotiation, and so your client may prefer to go straight to the heart of a proper offer. As a solicitor, you’re likely to be more privy to your client’s thinking and philosophy than the barrister. Make the barrister aware if you think they need to modify their advice in the particular circumstances of the case. If you have the right barrister they will appreciate your input and, as in any good team, you will hopefully reach a consensus as to the way forward.

8. Enjoy

Above all, as a solicitor, enjoy the experience of working with barristers.

Learn from them, because you’re bound to do that.

Challenge them.

Laugh with them when it’s appropriate to do so; how else can we get through life as a family lawyer?

Work well and harmoniously with your Counsel. As Charles Darwin remarked, "it is the long history of humankind (and animal kind, too) that those who learned to collaborate... most effectively have prevailed."

The writer thanks and pays tribute to barrister Niki Langridge of 36 Family Law for her comments on this piece.

If you require further information about anything covered in this briefing, please contact Simon Bruce, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2020