Barristers are briefed early and ditch late
“Late Briefing of Barristers” – that old canard. There is a perception that the under-preparation by Barristers in criminal cases is caused by Solicitors. You can daily go to a mention hearing in the County Court in Melbourne and hear a Barrister explaining away something not having been done because “I have just been briefed by the Solicitors”.
The Judge then, understandably some of the time, feels some level of outrage towards Solicitors.
Let me make one thing clear; THE REASON THE BARRISTER IS BRIEFED LATE IS BECAUSE ANOTHER BARRISTER HAS JUST RETURNED THE BRIEF
We run a busy criminal practise and probably average at least one jury trial running every week. We brief a substantial part of the jury trial work that our clients bring to us. We do have able in-house advocates who run trials. They do not get jammed and hand briefs back. They do not overbook themselves to make sure they have no down-time.
With matters where we brief barristers we start with them preparing the defence responses to the Crown opening and have them attend the directions hearings. We do not attend final directions hearings as Counsel if we are not running the jury trial. That would be wrong and not to our client’s advantage. We would only do that if the briefed Counsel tells us to because they are jammed in something else. So the Barristers always have the brief at least one month and generally more than 6 months prior to a trial.
This morning when I was at a committee meeting with Judges from the Supreme and County Courts a senior Barrister was blaming bad preparation by Barristers on late briefing by Solicitors. That old canard.
As I had been sitting there I had received a text from one of our Solicitors that we had just had a brief returned on a manslaughter charge that is a week away. The Judge then demands to know what we have done to re-brief it and has no hesitation in suggesting that the solicitors have not done their jobs properly and that they are acting in a dilatory way.
Well, to be frank, in the 20 minutes since we found out we have not managed to find someone with suitable experience who has two weeks free in their calendar. To be fair on this occasion the Barrister seemed to have good reasons for withdrawing.
The point is though that immediately the finger is pointed at the solicitors for potentially derailing the trial.
What we find hard to fathom is how the Judges seem to fall for this on so many other occasions. The solicitor has no interest in having problems pre-trial or re-briefing a case at a late stage. It does not help the client. There is no financial benefit.
Do they really not understand what underpins this issue? It is what amounts to a culture of deceit and greed at the Victorian Bar. It starts at the Clerks who tell you barristers are available when they are not and then moves onto the Barristers who clearly double book, or change their mind at the last minute because it is all too hard..
It is not uncommon to go through 2 -3 barristers on a legal aid file. Never because we sack them.
This is not a topic of debate. It would be very easy for the Courts to prove what I am saying by asking these questions;
A) When did you first brief Counsel for the trial?
B) When was the brief returned to you?
We also see a very strange correlation that when our clients have ample private funding for a jury trial they are not ditched? I wonder what underpins that correlation?
As I write this my admin assistant has just come in and a barrister has just sent back a brief for another jury trial starting on next Monday.
I have discussed this with a number of partners of firms who specialize in criminal law. It is a shared experience by the firms who do the bulk of criminal law in this State.
Also that strange correlation about not getting ditched on matters where there is ample funds in store is very common too.
The Victorian Bar really needs to pull its socks up.
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