6.10.3.2 Contents of the brief

One thing a brief should not be is brief. A solicitor should not trust to the fact that a barrister is already familiar with the case from having drafted the statement of case or given advice in connection with it. A good brief should set out in coherent, chronological order a discussion of all relevant issues of fact, evidence and law, and supply copies of all necessary documents including proofs of evidence, computations of special damages, the statement of case, procedural orders, accounts of negotiations with the opponents and so on.

If a skeleton argument has been required, the papers should have been sent to counsel well in advance of the trial to enable him to draft the skeleton argument for filing at court and service on the opponent. In that case, counsel will already have all the papers and need only be updated by a so-called 'back page brief perhaps indicating to him any last-minute telephone negotiations before trial, since he will already have all the other documents.

Counsel should be given a copy of the court bundle so as to correspond with the bundle which the judge will have for ease of cross-reference in opening speech, cross-examination, or argument.

The brief should deal with any relevant issues of law, including the solicitor's own views about any given matter. This may be a considerable help to counsel and it is far better for the client to have two independent minds brought to bear on legal problems in this way rather than the solicitor feeling that he must inevitably defer to counsel's greater abilities in research and legal knowledge.

6.10.4. Where the counsel of choice is unavailable.

If the counsel of one's choice, who has been involved in the case hitherto, is unavailable, perhaps because he is involved in an overrunning case elsewhere, then the solicitor should insist on a counsel of comparable seniority from the same chambers; and if no such counsel is available, he should go to other chambers. Clerks are usually very reluctant to let a brief go 'out of chambers' and will devise all manner of imaginative arguments about why somebody far junior to the counsel of first choice is competent to deal with it, but unless a solicitor has independent knowledge of the competence of the suggested substitute, he should not hesitate to take the brief elsewhere.

6.10.5. Counsel's fee.

When the brief is delivered no fee will be marked on it initially but counsel's clerk will assess what he considers the 'weight' of it to be, and may well discuss it with the barrister concerned. Barristers increasingly take an interest in the amount of their fees and are less inclined to leave every such matter to their clerks. The fee suggested will be based on a variety of factors, including the apparent importance of the case, length of trial, amount involved, seniority and popularity of the barrister concerned, and greed. After some negotiation, it is usually possible to agree on a fee but if it is not then the solicitor must ask for the brief to be returned.

The brief fee is for the work involved in preparing the case and for the first day in court, and that is why in principle the brief fee becomes payable immediately because counsel may immediately start doing substantial research on it even though the trial does not commence for some weeks. It is also necessary to agree a so-called 'refresher' fee, i.e., a fee for the second day in court and subsequent days. This fee is typically only a fraction of the brief fee itself. In a publicly funded case there is no need to agree a fee. Counsel's clerk will in due course put forward a fee note in the sum he suggests, which will be considered at assessment of costs by the district judge.