Transactional versus dispute work
The three most dominant areas in law (commercial law, property law, and wills and estates) virtually have no court attendance requirements. These solicitors engage substantially in transactional work and other non-dispute work (buying and selling, mergers and acquisitions, drafting contracts or wills etc.). It is only in extremely complex and rare cases that these types of transactional matters require a barrister to give advice.
In these circumstances, a barrister is almost like a second opinion. A law firm may not have a specialist for a particular problem, and a solicitor is unlikely to consult with a solicitor from a competing law firm. Instead, it is more common to consult an independent barrister.
When to hire a barrister
The main types of solicitors that will engage barristers are criminal, litigation and family lawyers, and usually only if a trial is likely, if there are complex pleadings or issues, or if there is a lot of money at stake.
In situations such as these, it may be important to have a team of lawyers. Just like O.J. Simpson, or tobacco companies, or the government, or any big business, if the stakes are high enough, you don’t have just one lawyer working on your matter – you have a team. Each individual in that team can usually contribute something meaningful to the process.
Some solicitors excel at research, some at determining strategy, some at statutory or contractual interpretation, some are good in court, and some are not – the list goes on. Just like a doctor might be able to do lots of things (even specialists), there might be benefits in having a team of doctors to solve complex issues (for example, on the TV series House).
There are hundreds of thousands of laws, evidence laws, procedural laws, unwritten laws, judge-made law, legislation, regulations, practice directions and much more. No single lawyer is likely to know even 1% of all of the laws. Because of this, solicitors tend to either be general practitioners (and refer away any complicated work) or they specialise in a particular area, for example, litigation and dispute resolution.
Law is really no different to any other profession requiring complex reasoning skills, and just like every other matter, if complex enough, you may need a team. Usually, you will have a point of contact for your team, like a team leader or manager. That contact is usually a senior solicitor that will delegate work to other members of the team. In simple matters, that might be a more junior solicitor that confers with a senior solicitor from time to time on strategy and advice to reduce costs for the client.
Most law firms offer you sufficient teams for preparing a case by default, clerks (for filing and other non-legal, non-critical tasks – lowest cost), paralegals (usually simple legal matters such as basic research – low cost), a junior solicitor (to handle more critical or complex tasks – medium cost) and a senior solicitor (to handle the most complex or critical tasks and to supervise the matter – high cost). In any matter, there is likely to be a range of simple and complex matters. A barrister may be brought onto the team for a specific reason; maybe there is important cross-examination of witnesses, or maybe there is a highly technical evidence argument, or maybe the senior solicitor wants the barrister to review the court documents for another opinion, or some other reason.
Your solicitor will usually be able to advise you about a barrister that is right for your legal team, and why they are necessary in the circumstances.
Costs of solicitors and barristers
Solicitors and barristers often charge about the same (after adjusting for experience).
Solicitors tend to cost $165 an hour to $800 an hour depending on experience.
Barristers tend to cost $165 an hour to $1,100 an hour depending on experience.
Most solicitors and barristers cost about the same – $250 to $500 an hour depending on experience.
Whilst these costs might scare you, many legal matters experienced by individuals are resolved for a few thousand dollars or less.
Additionally, the court could order that the losing side pays some of the winner’s costs.
What do barristers do?
Barristers usually fall within one of three main categories:
- Those that specialise in appearing in court; these barristers are specialists in evidence law, cross-examining witnesses, and court advocacy;
- Those that act as a consultant, and are usually very specialised in one specific area of law; and
- Those that act as independent mediators in complex cases.
There is nothing stopping a barrister from doing all three (being an advocate, acting as a consultant and practising as a mediator), but many barristers will choose a “primary” category (i.e., will primarily be an advocate, a consultant or a mediator).
Court advocacy barristers will often act in several areas of the law because cross-examining witnesses, court advocacy, much of evidence law, and negotiations remain the same. As such, it is not uncommon for a barrister to practise in criminal law, civil and family law. They will usually be “instructed” by an experienced criminal, civil or family lawyer.
A barrister usually won’t act for a member of the public without the assistance of a solicitor (some exceptions apply, for example, if the barrister is working for free). Further, barristers’ insurance coverage is often quite different to solicitors.
As such, most barristers are briefed by a solicitor. If a barrister was directly briefed by the public, they would essentially be acting as a solicitor and lose their value as a court advocate.
Barristers usually do not give legal advice to clients because this is the role of a solicitor.
What do (dispute) solicitors do?
Solicitors usually specialise in one or two areas of law. A litigation lawyer will, for example:
- Be your point of contact;
- Take a statement of facts from you;
- Review the material in the case;
- Give you advice;
- Draft, file and serve court documents (sometimes a barrister will review these documents);
- Appear at most applications and mentions;
- Negotiate on your behalf; and
- Either: (a) run the trial themselves; or (b) inform a barrister about the salient facts and documents in your case (as well as other things) and assist the barrister during a trial.
Ensuring you get a specialist
In complex matters, it is important to obtain both a solicitor and barrister that specialise in their field. At the time of writing this article there are a total of 988 different Acts of Subordinate Legislation in Queensland – literally hundreds of thousands of pages of law – in addition to centuries of unwritten common law, as well as a voluminous number of commonwealth laws.
No one lawyer could possibly be across every law; it is simply impossible. Gibbs Wright Litigation Lawyers are experienced litigation lawyers, meaning that if you want to sue someone, or you are being sued, we can assist you. We also help businesses in regulatory litigation matters when they are being prosecuted by a government department.
Most civil matters will be resolved before trial. The writer estimates only about 1-3% of civil matters go to trial. This is because matters are often undefended or settle.
