Barristers in Court

Instructions & Fees

A barrister must hold himself out as willing to appear in court on behalf of and give advice and other services to any client.  He is bound to accept instructions in the field in which he professes at a proper professional fee.

In special circumstances, he may be justified in refusing papers. Papers delivered to a barrister remain the client’s property.

The client is not obliged to retain senior counsel in any case.  The instructing solicitor may advise him strongly in this regard or not.

A barrister is not obliged to accept instructions or a brief without having agreed on the fee, having a reasonable opportunity to consider the fee in light of the nature and extent of the work.

Where a barrister elects not to accept a brief due to the inadequacy of the fee, he must promptly inform the instructing solicitor.  A barrister may not accept fees on the basis of payment by a percentage or proportion of the award.

Where no fees have been agreed in advance, the barrister is entitled to a proper and reasonable fee having regard to the nature and extent of the work undertaken.  He is not bound to reduce his fee with reference to the outcome of the matter.

A barrister does not enter a contract with a client or solicitor.  He cannot sue for his fees.  The solicitor will have a contract with the client and is entitled to recover the relevant cost.  The solicitor has an ethical duty, which will be enforced by the Law Society to pay the barrister’s fee.

Role

Counsel are almost invariably briefed in the higher courts.  They will be briefed in most circuit court cases; they play the principal role is an advocate.  They elicit evidence from their clients and cross-examines their opponent’s witnesses.

The barrister’s work may be divided into advocacy or court work and paperwork, including advisory work and preparation for the trial.  The primary and best-known function is advocacy. However, all legal proceedings require the extensive drafting of the pleadings, settling of documents, advising on clues.

The barrister advises on the law and presents the case and witnesses in the best possible light. A barrister must promote and protect his client’s interest by all proper and lawful means.

He must do so without regard to his own interests.  These principles are reflected in the Code of Conduct of the Bar of Ireland.

Brief

The solicitor generally brief the barrister or counsel with witness statements, details of the facts of the case, documents and narrative.  The barrister’s role is to optimise, mobilise the evidence and optimise the case from his clients, perspective.  The counsel’s strategy is contained in the advice and proof.

A brief will generally consist of a structured, tabulated and indexed document containing pleadings in the case, i.e.

• the summons, defence and equivalent document.
• important documents,
• statements of witnesses taken by the solicitor,
• maps, drawings and documents, relevant correspondence,
• a summary of the case,
• instruction to the barrister and counsel’s advice and proof.

Retainer

A retainer is an engagement by the barrister to provide a service to the client.  There must be provision for payment of a fee.  On acceptance of a retainer, barristers pledge to accept a brief.  He must not accept a brief from a party with an adverse interest in the matter.

Matters relating to the retainer may not be adjudicated in court.  They may be determined by the General Counsel of the Bar.

A barrister must not exercise discretion as to the party for whom he pleads in court in which he practises.  He is meant to act for parties by whom he is retained so long as required.  A barrister should not accept a brief against a former client if he knows anything which may be prejudicial in later litigation from the earlier retainer.

Barristers’ retainers are regulated by the rules of the Bar Council. See the other sections in relation to the Code of Conduct and the ethical and disciplinary rules of the Bar Council.

Pleadings and Opening

Pleadings are statements of the facts on which the claim for legal relief is based. Pleadings are usually drafted by Junior Counsel.  Senior Counsel may be involved in settling proceedings.  In exceptional cases, the cost of the second Counsel may be permitted.

In a civil case with a judge and jury, the first step is for  Counsel for the plaintiff to open the pleadings by stating the issues of fact concisely.

Generally, leading counsel for the side that commences, generally  the plaintiff, opens.  Counsel states the facts of the case, the substance of the evidence and its effect in proving the case.  He may remark on points of law involved.

Counsel may refer to facts in his opening of which the court takes judicial note. Counsel may not give his own personal opinion or mention facts that require proof but are not intended to be proved or which are irrelevant.

Counsel should not mention the amount of general damages sought by the client.  Generally, the fact that money is paid into court may not be mentioned.

In an action for damages for personal injury, the fact that the defendant is insured must not be disclosed to a jury. If this occurs, the jury may be discharged.  Similarly, in a case heard by the judge, the fact of a lodgement should not be mentioned.

Examining Witnesses

After opening, witnesses are called on behalf of the plaintiff.  Witnesses are called and examined orally.  They are then cross-examined and re-examined. Cross-examination is intended to test the truth of the evidence and the veracity of the witness.

Objections may be made by a counsel to questions asked.  If a witness objects to a question or to the production of  a document, counsel does not argue on his behalf. A claim for the privilege against self-incrimination must be raised by the witness and not counsel.

If a point of law is raised, counsel for each side may be heard.  The counsel for the side which raises the point has a right to reply.  If in replying he raises new cases, counsel on the opposite side may make observations on those cases.

Opposing Counsel

When all the evidence has been given, the party’s case is closed, counsel for the other side may submit that there is no case to answer.  The judge may rule on the submission.  He may refuse to rule unless the counsel concerned indicates he does not intend to call evidence.  If his submission fails, the right to call evidence is not lost, and evidence may be called.

If counsel for the party who does not begin states his case but gives no evidence, counsel for the party who begins may make observations on the case stated.  If the counsel for the party who does not begin opens facts for which he does not offer evidence, a judge may allow a reply to the counsel for the other side.

Where counsel for a party who does not begin indicates the intent to call witnesses, then at the close of his opponent’s case, he opens his own case, comments on evidence that has been given, states the effect of the evidence that he proposes to adduce.

Witnesses are examined, cross-examined and re-examined.  He sums up his evidence. Counsel for the other side, then replies generally on the whole case.

Multiple Parties

Co-plaintiffs must be represented by the same counsel and may not divide their case.  Co-defendants may be represented by different counsel.  The judge decides how many counsel are to be heard.

Where the defendants’ interests are the same, the court will not allow more than one cross-examination or more than one address for the jury.  Defendant’s witnesses are examined in the same manner as if the defence was joint.  Different counsel may be heard for each defendant on a legal objection.

Where several defendants are represented by different counsel and have different interests, counsel for each defendant are allowed to cross-examine witnesses on the other side and address the jury.  The judge has discretion as to what order defendants have to cross-examine witnesses and address the jury.

If a defendant calls witnesses and another who is separately represented does not, counsel for the defendants who do not call may address the jury after the concluding speech for the plaintiff. If the evidence on behalf of one defendant is adverse to the interests of another, counsel for the defendant who does not call witnesses may be allowed to address the jury after the evidence has been heard.

Where witnesses are called by two defendants for different counsel, only one examination in chief is allowed.  Where defendants are separately represented, counsel for one co-defendant may cross-examine witnesses of the other co-defendant or co-defendants where they are more opposed in interest than to the plaintiff. Permission may be given for each defendant to open and prove their cases separately and to cross-examine the others’ witnesses.

Judgment

After the plaintiff’s reply, the judge sums up the evidence for the jury if there is a jury.  He directs them on the points of law.

Counsel may request the judge to put specific questions to the jury.  Unless they are raised on the record, refusal to put them to the jury is not a misdirection.

Counsel on each side should take notes on the substance of summing up and the judgement for the purpose of informing the court in the event of the appeal. They can endorse on their briefs the effect of the verdict judgement and order of the court.