Litigation: The Role of a Barrister

Over the next couple of blogs I propose to deal with the role barristers can play in the legal system.

Criminal Law
The role of the barrister in criminal law matters is reasonably well known and understood.

Advice On Giving and / or Calling Evidence
Once full and proper written instructions have been taken from the Accused by the solicitor, the Accused is entitled to be properly advised in respect of giving and / or calling evidence at the trial.  That advice invariably comes from a barrister and the Court of Appeal has said that advice should include a discussion of the importance of:

• The relative strength of the Crown case;
• The impact upon that case from the course of the cross-examination;
• Making a sworn denial before the jury;
• Whether there was some unanswerable problem that the Accused would have confronted in giving evidence;
• Earlier versions given by the Accused which might be difficult to reconcile with the current evidence of the Accused;
• How the Accused would conduct himself as a witness;
• The likely impression of the Accused upon the jury, if he gave evidence;
• Any possible relevance of his not giving evidence at trial to determination of an appeal against conviction;
• A potential advantage in the case of being last to address the jury.

It is also very proper to record the advice given in a complete fashion. (See R -v- ND [2004] 2 QdR 307; [2003] QCA 505)

Having had those discussions with the accused, the barrister is then in a position to advise the accused the prospects of success at trial and what might occur if the matter was compromised by way of a plea of guilty.

The accused is then in a position to make a fully informed decision as to how the matter ought proceed, either at trial or by way of plea of guilty and sentence.

Civil Litigation
Whilst civil law trials are different to criminal law trials in many respects, there are also many similarities.  The focus of criminal law trials is on the accused and all of the disclosure is expected to have occurred well before the matter comes to trial. Civil trials see the focus more evenly spread across the witnesses and a failure to disclose evidence may not be a reason to delay or adjourn the trial.

Bearing in mind the standard of proof in a civil trial is on the balance of probabilities, as opposed to beyond reasonable doubt in a criminal trial, let us look at how the aforementioned list of obligations and entitlements in a criminal law trial might apply in a civil trial.

The civil law Client would be entitled to be advised as to:

• The strengths and weaknesses of his own case;
• The relative strength of the case of any and all opponents, to the extent that that information is available;
• The impact upon both cases from the course of the cross-examination;
• Each witness making a sworn statement before the Judge or jury, as the case may be;
• Whether there was some unanswerable problem that the witness might confront in giving evidence;
• Earlier versions given by the witness which might be difficult to reconcile with the current evidence of the witness;
• How the Client would conduct himself as a witness;
• How any other witness might conduct himself as a witness;
• The likely impression of the Client upon the Judge or Jury, if he gave evidence;
• Any possible relevance of the Client not giving evidence at trial to determination of an appeal against liability or damages, as the case may be;
• A potential advantage in the case of being last to address the Judge or Jury; nowhere near as significant in a civil trial.
• All the forms of mediation and alternative dispute resolution available in respect of the case.

Conclusion
In my submission the obligation to advise a Client in respect of a civil trial is very similar to the obligation the Court has identified in respect of criminal trials. Accordingly comparable preparation for that civil trial can be expected to be required of the legal representatives.

This would then enable the Client to make an informed decision as to the merits of the case sought to be run and what the Client might wish to do in respect of that case.

It would also enable optimum discussion about the extent to which mediation is appropriate in the case and what the Client may stand to gain or lose by compromising the matter.

What obligations do you see that fall to a barrister when it comes to advising a client before a trial?