The Perfect Brief

I recently saw a request on social media for barristers to identify conduct of those instructing solicitors that could be improved upon. This struck me as something of a hospital pass, best swerved by prudent counsel aiming to hang onto their practice - but nevertheless it set me thinking.

Let me clear the ground first. We all know the flaws of (some) barristers. They expect Olympian efforts from Liliputian resources, calculate a deadline to the minute rather than the day, and whilst displaying the manners of an Elizabethan courtier to a judge, affect airs and graces that would make a Hollywood movie star blush towards everyone else. And they never seem to read the papers before a conference.

So having acknowledged the flaws of the Bar (which I can assure the reader that I and my colleagues at Garden Court strive to avoid), I feel I have earned the right to suggest how best to brief counsel.

-      Provide a brief. That’s your opportunity to ensure your client benefits from the combination of both professions’ expertise. Time spent by counsel simply getting to the starting block is time not spent thinking about tactics, evidence and drafting. Reading papers without a brief is like assembling a jigsaw puzzle without the box’s cover. No client should pay twice for the legal team to assimilate the key facts.

-      State the nature of the work sought: “Herewith a refusal letter and the representations supporting the underlying application. Counsel is requested to advise on whether the best way forwards is an improved application or a Pre Action Protocol letter.”

-      List the documents provided: doubtless you will be making a list, at least mentally, of the important documents, for your own purposes, so its sensible to share it. Then everyone knows where they are starting from.

-      Brief at the first available opportunity. Many immigration practitioners remark on a culture of last minutism: which means that critical thinking time is lost and that there is no effective opportunity to improve the evidence. That diminishes the merits of success significantly: appeals more often succeed because of advice on improving the available evidence than because of clever legal arguments. Why deny your client the opportunity to benefit from the former?

-      State the time limit (“the decision cover letter is dated ………. and so the last day for appealing is ……….. but we would like our client to approve the draft so our target date is ……….”  Doubtless conscientious counsel will work this out for themselves, but any lawyer who is ever subject to a time limit should calculate it for themselves. Anyone can make a mistake. But hopefully two legal minds won’t both be wrong. And then at least aim to complete the work not later than the day before.

-      Give counsel the key facts.

-      By all means cross reference to existing documents: “the SSHD's summary of the immigration history is correct, see refusal letter of date”.

-      There is no need to repeat the contents of refusal letters or other documents. But it is useful to ensure that the reader’s thinking starts off in the right place. And to give them the benefits of your own professional thinking so far: For example:

“The entry clearance application of the Appellant ………. to join his mother, the Sponsor ……….. (see covering representations for key facts) was refused on ………… (see refusal letter). Essentially because the ECO considered that she had not shown sole responsibility because of the involvement of her family in the Appellant's childcare. We appealed and the appeal is awaiting listing on ……. We think we have a strong case on ……….. but we are a bit worried about ……………”

-      Address issues which are not apparent from the papers: for example that medical evidence was sought but has not proved viable to obtain, that further evidence is awaited but not yet available, that a report or witness statements are drafts rather than finalised. The perfect brief might well be one that contains the most concise summary of the case, cross-referenced to the key documents, and then devotes itself to issues that are not apparent from the case papers.

So, that’s my effort to suggest how best to brief counsel. And that was free of charge! Just think of what else you or your junior colleagues might glean if you sign up for HJT’s course next Friday: The Perfect Caseworker.