A barrister is a lawyer whose ultimate function is to act as an advocate in court to argue a client’s case. This may be before trial (the "interlocutory" stage of the case), at trial (where witnesses are called and evidence is given) or on appeal (where the reasoning and correctness of the decision of the interlocutory or trial court are challenged). Barristers prepare documents and give advice connected with this advocacy function. A barrister is commonly called "counsel".

Unlike a solicitor, usually a barrister does not have a regular group of clients. The barrister’s work comes from other lawyers. The lawyer rather than the client is responsible for payment of the barrister’s fees. A barrister is an independent lawyer. Barristers work individually and not in firms. However most form communities with other barristers in common "chambers" which have some shared facilities and services. The barrister must be free to accept work from all who request it within the constraints of his or her competence, expertise and experience.

The advocate barrister performs "paper" functions and advocacy functions. The former include preparing opinions, pleadings (the material facts of claim or defence), interrogatories (formal questions seeking to elicit admissions from the opponent) and advice on evidence (how to prepare for trial). Advocacy work might be carried out in chambers (pre-trial ["interlocutory"]) hearings, or before a court of appeal.

Increasingly in Australia, in addition to their experience in court many barristers have acquired advocacy skills through training provided by Law Societies or the Bars of the various States and through the Australian Advocacy Institute.

A litigation solicitor differs from a barrister. He or she prepares cases for hearing. The preparation tasks include speaking with the client, finding and interviewing witnesses, finding other evidence, engaging experts, giving advice, preparing court documents, or forwarding material to a barrister. At times a litigation solicitor might appear in court as an advocate.

In Australia, lawyers are entitled to work as barristers and solicitors. Hence, solicitors can be trial advocates. However a barrister typically joins a Bar (an association of barristers or set of chambers) and undertakes to the State appeal court that he or she will work exclusively as a barrister.

Not all barristers are trial or appeal advocates. Some lawyers present to the public and the legal profession as barristers but they are not trained or experienced advocates. They are effectively freelance legal advisers who distinguish themselves from solicitors only because they obtain their work mainly from other lawyers and practise from a set of chambers with other barristers. They might for example provide commercial advice. In addition some lawyers practise as barristers in chambers who have had a great deal of past experience as litigation solicitors preparing cases for trial but they have had limited advocacy experience.

The material and task request provided to the barrister is called a "brief". A solicitor may have one or more of a number of reasons for choosing to brief (that is, provide a "brief" to) a barrister. The solicitor may be too busy to do the work connected with preparing for, or in, court. More often the barrister is briefed because the solicitor need helps and the barrister has expertise in a particular area or is a specialist advocate.

Immediate thought should be given to engaging a barrister if the client has a dispute that might end up in court at some point in the future. Advocacy is a specialist skill. Hence, the important role of the specialist advocate.

The focal point of litigation is advocacy. Advocacy entails communicating ideas to a court. Communication is best facilitated by keeping ideas clear and simple. Achieving that result requires time to master issues and facts and work preparing evidence that establishes the facts. The relevant material must be summarised, and the summary must be organised. Good advocacy in court is preceded by and requires much preparation work.

The advocacy task begins when the client first seeks advice and not at the much later stage when the matter is listed for hearing in court.

When the client first seeks advice about a dispute the essence of the legal problem should be identified and stated simply. It may be a matter, as it commonly is, involving questions of liability of the client or someone else to pay damages, quantum of damages and prospects of recovery of money from others. At that initial stage the solicitor should consider the need for and choice of barrister.

Advice should be given to the client at the earliest possible stage. It should be given in writing and should deal with the pertinent issues of liability, quantum, recovery from other parties and recommendations as to action to be undertaken by the client and action to be undertaken by the lawyer. The lawyer or client may want a barrister's help at this stage.

In order to give advice properly, evidence should be collected at the earliest possible stage. This will consist of witness statements, documentary material, plans, objects, photographs and any other items of real evidence. A barrister could give some direction.

Of course, witnesses should be located and statements taken. It is important that each witness statement is signed and witnessed. There are various reasons for that requirement. Witnesses can disappear or die, or change a story. A signed statement may be capable of being used at trial. It is also important that the significance and relevance of each document, plan, photograph or item of real evidence is explained by a witness statement.

If it is thought that a matter will warrant the skill of an advocate at trial then the barrister should be briefed at the earliest stage so that the barrister can advise on the nature of the issues, the search for evidence, the prospects of success in the matter, and the desirability for settlement negotiations.

If counsel is briefed only after a matter has been entered for trial (this is the point where a lawyer certifies that the matter is ready to be allocated hearing dates), then this may be too late for optimum resolution of the matter. Evidence may not have been collected or it may no longer exist. Witnesses may have disappeared or died. Memories of witnesses who can be found may have faded. Documents may have been lost or destroyed. Real evidence may no longer exist.

Before the matter is entered for trial all relevant documents should have been obtained and all relevant witnesses should have been located and proofed. Further, written advice should have been given to the client on liability and quantum and the desirability of negotiations for settlement. Advice on evidence should have been given well before a matter is entered for trial.

In the course of litigation it will become necessary for pleadings to be drafted, interrogatories to be drafted, advice on evidence to be prepared. The lawyer or client may wish to brief a barrister to perform these tasks or to provide advice connected with these documents.

A number of hearings (chambers appearances or pre-trial hearings) will occur before trial and it might be appropriate to brief counsel. This may be so where a matter is of sufficient difficulty or importance to the client to warrant using an advocate who has appropriate experience and skill.

This is the stage of the litigation process usually associated with use of a barrister. However a barrister should have been engaged, and a trial brief commenced, at a much earlier point in time. By trial stage a full brief should be in existence with exhibits ready for tender. A barrister can give advice about the form the trial brief should take and what must be done to control the use and organisation of documents and evidence during the trial.

It is important that the client knows that the solicitor is going to brief a barrister and has expressly agree to that course. The issue should be discussed with the client and the solicitor should obtain a general authority to brief or specific instructions to brief on a specific matter. The basis upon which the barrister will charge should be discussed and agreed.

There is no set formula for briefing a barrister, but the ease or difficulty of the barrister's task will depend on the quality, form and content of the brief. The quality of the brief may affect the quality of the product that the solicitor receives back from the barrister and the time taken for the barrister to complete the task.

The solicitor should give the barrister a summary of the facts from which the problem emerges, a concise statement of the problem and a statement of what the barrister is being asked to do. Observations on the law may be helpful.

To the fullest extent possible a brief in a matter that might end up at trial should provide relevant factual material and documentary material and reference to any cases or statutory provisions that the solicitor considers to be relevant. Where there is doubt about relevance, material should be provided rather than omitted. It is much easier for a barrister to ignore material than to begin reading a brief only to discover that material that should be there is missing. If material is missing the barrister must ask for further information or documents. This is time wasting and inefficient and may create unnecessary delay in the progress of the case.

In any case that might go to court, whether a barrister has been briefed or not, at the earliest possible stage the solicitor should prepare a brief. The brief should be kept separate from the correspondence and court documents on the solicitor’s file. The brief should include documents that identify the issues in dispute, documents and items that are relevant to prove or disprove the issues in dispute and likely to be used at trial, and the court documents or correspondence that might be used at trial or in settlement negotiations.

These are the documents and items that form the basis for advice and recommendations to the client.

The brief should be organised in a rational way, usually according to the expected order of use of the documents to tell the relevant story at trial. The brief should be kept under ongoing review.

Usually it is helpful to start by reviewing the categories of documents and preparing a brief index. An example of a brief index is at the end of this web page. These are the documents the lawyer will need to review in order to provide updated or progress advice to clients.

Advice should be given at periodic stages relating to the progress of enquiries or litigation, issues of liability, quantum and settlement, and recommendations for further action. The brief should provide for "post opinion" documents. When an update opinion is required the task of review may then be limited to earlier letters or documents of advice and the newer "post opinion" documents. The makes review and the provision of advice more time efficient and less costly for the client.

Never supply black and white photocopies of photographs. Supply the originals or good colour copies.

1 Instructions to counsel

2 Pleadings or Papers for the Judge

3 Trial documents (Submissions, chronologies, statements of issues)

4 Notice of Offer to Settle

5 Insurance indemnity documents (eg Insurance contract documents including proposal, policy wording, policy schedule, any endorsement & any placing slip, underwriting documents, broker's documents, claim form)

6 Witness Statements

7 Answers to Interrogatories

8 Liability documents

9 Quantum documents

10 Expert's Reports

11 Investigator's Reports – indemnity

12 Investigator's Reports – quantum

13 Other (discovered) documents

14 Legal authorities

15 Solicitor’s opinions

16 Counsel's opinions

17 Post-opinion documents

18 Correspondence with Insured

19 Correspondence with opposing solicitors