Do I need a barrister?
A commonly asked question is: “what is the difference between a solicitor and a barrister”.
The answer is that solicitors tend to do more of the case preparation and have more contact with the client in the early stages of a case. Solicitors settle a large number of cases without a barrister being involved at all.
Barristers can provide advice at an early stage but tend to become involved when the case goes to court. Many barristers are in court every day. They pride themselves on their advocacy skills (public speaking).
Where you have a solicitor
If you have a solicitor, your solicitor will be your guide as to whether you need a barrister. In some cases your solicitor will conduct some hearings at court for you. Sometimes however, solicitors instruct barristers to attend court in a matrimonial case. They do this for the following reasons:
(a) The barrister specializes in appearing at court, negotiating cases and making arguments in front of judges;
(b) Involving a barrister with specific experience of the area of law can give a useful alternative view on what is likely to happen and also what should be done to strengthen the case; and,
(c) Sometimes instructing a barrister to go to court can be more cost effective and time efficient than the solicitor attending themselves. A solicitor who has to attend court all day will charge an hourly rate whereas barristers tend to work for a flat fee for the day. Also solicitors have day to day responsibilities for which they often need to be in the office. Instructing a barrister can allow them to meet their other client’s needs.
As well as going to court barristers provide written advice and advice in the form of having a conference (meeting with client and solicitor). A barrister might be asked to advise on a difficult point of law or on what the appropriate settlement offer is.
Where you don’t have a solicitor
The rules of the barristers’ profession used to be that a client could not instruct a barrister directly without going through a solicitor. That has changed. Clients are now able to instruct barristers directly through the Public Access scheme.
There are advantages and disadvantages to using Direct Access. The advantages are:
(a) You will correspond directly with the person who is actually going to conduct your case in court.
(b) Your costs will be lower and more predictable because barristers tend to charge set fees for specific pieces of work.
The disadvantages of the direct access scheme are:
(a) You will not get the level of service that you would if you instructed a solicitor. A solicitor will deal with all of the correspondence and all of the case preparation for you. This can be a lot of work. For example a solicitor will help you respond to the other side’s questionnaire. They can make applications to the court for you for e.g. the disclosure of further evidence. They will make offers on your behalf and deal with preparation for a trial. They will deal with the instruction of any experts. Barristers are not “geared up” for these things. If you use a barrister under “public access” the administrative burden will fall on you. Because barristers are in court very often, they are not able to be as responsive to you as you might wish. Your solicitor has procedures in place to charge for letters out and responding to your ad-hoc queries, a barrister does not. A barrister must prioritise the case which is in the diary for tomorrow rather than attending to ad-hoc queries which have arisen today.
(b) The disadvantages of not having a solicitor may not become apparent until a final hearing. You may be in the witness box being asked questions about why you have not provided certain bank statements for example. You may say you have tried to attend to that issue and that the statements are somewhere but you don’t have them. This is the sort of thing a solicitor might well have attended to. If there are failures to comply with court orders in a case, the court is unlikely to be forgiving on the basis that you did not have a solicitor.
With all that said I do think there is a role for direct access. In some cases it may be that a case has been fully and properly prepared and someone just wants representation for one of the hearings before the court. On another occasion someone may want advice at the start of a case as to what sort of settlement they should be after.