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Sometimes during the course of commercial disputes, the parties to the dispute may be unable to resolve matters themselves, even with the structured involvement of a lawyer. Suppose you subsequently decide to commence legal proceedings in court to resolve the dispute. In that case, a barrister may then become your best spokesperson in court. This article will explain the important role of a barrister and when you might need to consult one.

Briefing Your Lawyer

Seeking advice from a lawyer empowers you to have a better roadmap of your rights and options. Your lawyer will assess your ideal outcome and legal position and assist you to reality test the possible options for resolving the dispute. Based on the initial advice of your lawyer, you may be in a position to resolve the dispute yourself. This is after a lawyer helps arm you with a deeper understanding of your options. However, this often depends on the attitude of the other party to your dispute. Alternatively, you may choose to continue to engage your lawyer. You may work with them to:

  • discuss a strategy towards a settlement that will be agreed upon by all parties; or
  • otherwise progress the dispute. 

During the course of working with your lawyer, your lawyer remains the best spokesperson for you. They will be responsible for:

  • providing you ongoing advice and recommendations;
  • communicating all details with you;
  • collecting your evidence;
  • corresponding with the lawyers acting for other parties; and 
  • preparing, serving and filing all necessary and relevant documents in the court or tribunal.

Particularly if you are in the middle of a lengthy dispute, it might be time to consult a barrister for advice. A lawyer may recommend that you engage a barrister for a number of reasons, including the type of dispute and the complexity of the issues to be dealt with.

Briefing the Barrister

Your lawyer will brief your barrister on your behalf, based on the instructions and evidence received from you. Your lawyer may brief a barrister with information on:

  • the background;
  • relevant materials and documents; and
  • the specific legal questions (if any) for which the barrister’s advice is sought.

Barristers are independent from your lawyer and charge separately for their services. However, briefing a barrister to assist with your dispute can have an impact in helping you to keep your overall legal spend lower. Parties generally seek the services of barristers when questions of law are particularly complex or there are higher amounts of money at stake. However, in some cases, the earlier a barrister is briefed, the more likely you are to avoid footing the bill for any additional time and expense the barrister requires to get ‘up to speed’ on the historical facts of the matter. 

As your matter progresses, it is common to work with both your lawyer and barrister to devise a strategy and progress your matter. You may find your barrister assisting with:

  • drafting your evidence (for review by your lawyer); 
  • meditations or settlement conferences as your legal representative;
  • reviewing final courtbooks and paperwork;
  • preparing for the hearing; and
  • appearing in court as your legal representative at the hearing of your matter.

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What is the Role of the Barrister?

The barrister, sometimes referred to as ‘counsel,’ undertakes a further course of advocacy than your standard specialist lawyer, and their advice is often sought in complex legal matters. Their role can be viewed in a similar way to seeking expert medical advice after you have first consulted a general practitioner who has assessed that your concerns would benefit from a referral to a suitable specialist. As is the case with an expert medical professional, barristers also have their own distinct specialisations. For example: 

  • tax law;
  • commercial law;
  • equity; and
  • appellate jurisdictions. 

The barrister referred to you by your lawyer will therefore be better positioned to provide dispute resolution services for your particular dispute of either: 

  • judicial pathway – the barrister will assist with advocacy before a court or tribunal; or
  • non-judicial pathway – assist with negotiation, mediation or arbitration.

Alternative Dispute Resolution

Engaging a barrister does not mean you must commence legal proceedings or that this step is best for you. The reverse is also true, as in some cases, it can also be beneficial to seek advice from a barrister before commencing legal proceedings.

Occasionally, a barrister will advise against going to trial. This may save you unnecessary time and expense where the foreseeable reward is unlikely to measure up to your ideal outcome. In many instances, alternative dispute resolution (ADR) is often more effective in preserving relationships and helping you to achieve a resolution. In fact, barristers have a professional duty to inform their clients or instructing lawyers about any ADR alternatives to litigation that are reasonably available. This allows you to make an informed decision.

Key Takeaways

Although it is an additional expense to seek advice from barristers, they do provide an objective and independent view of your case. Additionally, they can assist with efficiently managing the entire dispute resolution process for you and your lawyer. The barrister’s role is distinct from the role of your lawyer, as they have specialist skills in arguing matters in court and can be an extremely valuable asset. In some cases, their expertise can help you to devise a strategy that may avoid judicial processes altogether if alternative dispute resolution processes are likely to help you achieve a more favourable outcome than the traditional court process.

If you require assistance with your dispute, contact LegalVision’s disputes and litigation lawyers on 1300 544 755 or fill out the form on this page. 

Frequently Asked Questions 

What is the role of a barrister?

A barrister undertakes a further course of advocacy than your standard specialist lawyer. Their advice is often sought in complex legal matters, similar to how you may seek expert medical advice.

What is alternative dispute resolution (ADR)?

ADR refers to resolving a dispute or issues between parties through an impartial third party. Further, it aims to offer an alternative to simply proceeding through court.

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