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Laurence C. Kennedy, Advocate

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Instructing Counsel - FAQ

What are the benefits of instructing counsel?

Advocates are highly specialist court practitioners. Our work consists of presenting cases in court, preparing cases for court and advising on the likely outcome if a case was to proceed to court. Counsel tends to be instructed in more complex or high value cases. Consequently we are able to focus our attention on a relatively small number of cases at any one time. Given our business structure, we are lucky enough to be spared many of the distractions and interruptions associated with operating from a busy solicitorsí office.

The training programme undertaken by aspiring advocates is recognised as one of the best in the world. It includes ten weeks of intensive workshop based skills training. This is followed by around nine months of full time devilling allowing the specialist skills and expertise of the bar to be passed down through the generations.

Counsel carry out their research in Advocatesí Library, which is widely regarded as the finest working law library in the UK. The value of this resource cannot be overstated. The outcome of a case can turn on finding a particular passage in a textbook or case report. Our library holds around 250,000 volumes and has every conceivable relevant textbook. It is open to us 24 hours a day and 365 days a year.

Finally, instructions tend to be transmitted to counsel via an instructing solicitor. We do not maintain day to day contact with the client, and our advice is not therefore influenced unduly by the clientís expectations or demands. The distance from the client allows us to give wholly impartial advice from a largely independent perspective.

How do I identify a suitable advocate to instruct?

There are more than 450 advocates in practice at the Scottish bar. All are individual practitioners with their own strengths and weaknesses. While advocates group together for administrative purposes in stables or "chambers", it is the characteristics of the individual advocate which are of importance.

The best way to select an advocate for the first time is through personal recommendation from others with experience of working with the advocate in question. All advocates are skilled in identifying and researching legal issues, and are able to deploy these skills in any case in which they are instructed. Selecting an advocate simply because they have written an article, or because they have appeared in a similar case in the past, is therefore a fairly weak basis for selection. That tells you nothing about the personal attributes of the advocate in question, their approach to the tactics of litigation, their court skills or their ability to build up a relationship of trust with the client and instructing agent. These attributes can only really be identified by instructing the advocate in question or through personal recommendation.

In the absence of a personal recommendation, the alternative is to make contact with one or more of the Advocatesí Clerks who will recommend someone according to your stated requirements. Think carefully about your requirements before speaking to the clerk. Many agents simply ask for someone with experience in a particular area of law, without giving much attention to the personal attributes required for the particular case or the particular client.

When contacting an Advocates Clerk please be aware that some clerks are happy to compile a list of suitable advocates from all relevant stables rather than just from their own. My own stable, Ampersand, adopts this policy. Some clerks, however, will encourage you to instruct only an advocate from their own set. When instructing senior counsel, they may also encourage you only to select a junior from the same stable. However it is always a matter for the instructing agent, and client, to decide who to instruct in any given case.

Why should I instruct counsel to conduct a court action?

Instructing counsel for a particular case adds an extra layer of expertise to your legal team.

Counsel will work closely with the instructing solicitor throughout the case, particularly in the days and weeks preceding any court hearing. Counselís role will be to study the legal issues in the case, prepare the legal arguments, analyse the available evidence, and direct the further investigations necessary to bolster the strength of the case. Counselís role will be strongly focussed on the preparation of the arguments and presentation of the case in court.

Once counsel is instructed, the role of the instructing solicitor will become more focused on managing the case through the various court procedures, communicating with the clients, experts and witnesses, and overseeing the further investigations and preparations required. This type of case management can be very time consuming, particularly in the build up to a proof.

The division of labour between counsel and instructing solicitor is of enormous value. It allows each professional to focus exclusively on their own role, and allows the party presenting the case (counsel) to do so without the numerous distractions associated with the case management.

While counselís focus must be on preparation and presentation of the case, most advocates are sensitive to the desirability of resolving a dispute out-with court where possible. Legal disputes are driven, not by legal issues, but by the personalities of those involved. Often it is possible to cut through the legal issues and identify what is truly motivating the parties to litigate. Finding out what is motivating the opponent is often a useful first step in achieving a negotiated settlement. However, very often a compromise settlement only becomes appealing to the parties when the case is fully prepared and their minds are focussed by the risks associated with an imminent court hearing.

Why should I instruct an opinion of counsel?

Even if counsel is not to be instructed in the conduct of a court action, there may be benefit in obtaining an opinion of counsel, or arranging a consultation with counsel (see below) during the course of a dispute. In this way a client is able to draw on the specialist knowledge and resources of the bar while limiting the extra cost involved.

An opinion of counsel may be particularly useful when there is uncertainty about the legal principles to be applied to a particular dispute. The opinion should identify the key issues arising, and express a view on how these fall to be resolved. It should provide direct answers to any legal questions posed in the initiating instructions.

It is important, however, to be aware of the limitations of an opinion prepared on the basis of papers alone. The view expressed is only as reliable as the facts upon which it is based, some of which will almost inevitably have to be assumed. Further, some areas of law remain fairly ill-defined, making it impossible to predict with certainty how the law might ultimately fall to be interpreted and applied.

In light of the uncertainties, an opinion should not be seen as providing the answer to a particular legal question. Instead it should be understood to represent the conclusion which, according to the knowledge, experience, research and analysis of counsel, is the one most likely to be reached by the court. However once this limitation is recognised, an opinion can provide a valuable point of reference for the instructing solicitor to assist them in the further conduct of any ensuing litigation.

Why should I instruct a consultation with counsel?

As with an opinion, instructing a consultation with counsel allows a client to draw on the specialist knowledge and resources of the bar while limiting the extra cost involved. In my experience there are often real advantages in instructing a consultation rather than an opinion.

Meeting a client at consultation allows counsel to gain a much clearer appreciation of the case than can ever be conveyed on paper. Gaps in the information contained in the papers can be filled. The client can be questioned and their version of events can be tested and assessed as necessary. Details can be obtained of what evidence is likely to be available to support, or undermine, the clientís position.

Because an opinion of counsel is directed towards providing direct answers to the questions posed, it sometimes conveys an artificial level of certainty to the client. It is tempting for the client to think that the opinion contains the answer when that is rarely the case. At consultation the wider range of possible outcomes can be discussed. The client's underlying objective can be identified, as this is rarely apparent from the papers. The client's attitude to risk can be established. Any alternatives to litigation can be considered and discussed.

In light of all the information gleaned at consultation, a more rounded view can be expressed on the prospects of success allowing the client to make a more informed and balanced decision on how to proceed.