Tips and advice – When should you instruct Counsel and when should you do your own Advocacy?

This month we spoke to Louise Chipchase, our Managing Partner for South West and Wales, to find out her advice about instructing counsel.

  • When should you instruct counsel and when should you do your own advocacy?

Your guiding principle should always be what is in the best interests of the client. Some clients might need the continuity of being represented by one person if they are particularly vulnerable; but you need to also consider your experience level and confidence. If you feel it is appropriate to instruct Counsel, make sure you have a conversation early on with the client about the value of having a barrister on board so that the client understands the importance of their specialist advocacy skills, and that they have more time to prepare and deal with research, or whatever might be relevant in your particular case.

If you don’t feel confident to do the advocacy, consider whether one of your more experienced colleagues might be able to assist, and ensure that you introduce them to your client early on as part of their team. Be aware of the skills of your colleagues and team members and identify if one of your team members might be able to do the advocacy.

  • How should you choose which counsel to instruct?

Ask for recommendations from your colleagues and team, find out about Counsel’s strengths and weaknesses, and their style of delivery and think about whether they will suit your client’s needs. Get to know your client’s particular style, needs and sensitivities. Don’t discount junior Counsel, they’re often great Counsel when new and trying to build their practice at an affordable price point for clients. Challenge the clerks on their experience and practice. Plan ahead and as soon as you know your hearing date, look at availability of Counsel. Think about preparation time, and factor in bank holidays and weekends when delivering briefs. I always ask for feedback from clients about how they felt the hearing went, and what they thought about their barrister so that I can get a feel for where that barrister’s strengths and weaknesses might lie and this helps inform me when I am considering my choice of Counsel for future clients.

  • What should we be aware of in relation to Counsel’s fees?

Be prepared to have an open and honest dialogue with them about your client’s views on costs. Once the fee is agreed make sure you get MOA early. Diarise it for 4 weeks pre-hearing if you can. Be aware of your deemed fee date – and explain this to your client, especially if it might have an impact on settlement negotiations. Always be prompt paying Counsel and diarise to check the fee note has come in from Chambers 2 days after the hearing. It’ll pay dividends with Chambers and Counsel and might help you when your favourite choice of Counsel isn’t available!

  • Should you book a conference before the hearing?

For finance cases you should always consider a pre-FDR conference. It’s difficult to expect a client to meet a barrister for the first time at FDR, they need a safe space 2-3 weeks before the hearing to discuss anything they are concerned about and you need enough time to deal with any action points that arise in the conference.

I would also always book a conference for any evidential hearing or a hearing at which the court is likely to make a substantive decision. It gives Counsel the opportunity to prepare the client for any pitfalls and what to expect by way of outcome so that they have time to digest this before the hearing. Remind the client to make a note of all the questions they have before the conference, and make sure they understand that the conference is their chance to know well before the hearing what the risks are and what the likely outcome is.

I have over 14 years’ experience in Recruitment and Executive Search and lead the Talent Acquisition team at Stowe. I post family law and recruitment content to this blog and help to send out a monthly newsletter to over 1000 family lawyers with the latest news, case updates and family law insights.

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