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Rob Harper SC & Laina Chan How to brief counsel and Why

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There are many myths surrounding the briefing of counsel. See http://www.lawyersweekly.com.au/careers/briefing-counsel-the-myths. This set of slides provides a practical step by step approach to briefing counsel both traditionally and digitally.

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Rob Harper SC & Laina Chan How to brief counsel and Why

  1. 1. mtecc.com.au Briefing Counsel: How to Get More Bang for Your Buck Perth, 9 June 2014 Robert Harper SC & Laina Chan Barrister Barrister and Mediator
  2. 2. mtecc.com.au Introduction • Litigation is complex and expensive. • Efficiency in preparation and presentation is essential: – To contain costs; – To formulate the most effective case presentation. • Client engagement and confidence is best achieved by cost containment and an early coherent strategy. • Early involvement of counsel to advise on strategy, tactics and preparation is critical to achieving the best outcomes. 9/11/2014 2
  3. 3. mtecc.com.au Preparing your Brief: An Overview The aim: 1. Identify desired outcomes and central goals; 2. Knowledge will ensure accurate and timely advice; 3. Ensure that counsel is adequately informed of all salient features of the case, the good, the bad and the ugly. 9/11/2014 3
  4. 4. mtecc.com.au Briefs for Different Purposes • Brief to advise on the commencement of litigation • Briefs on hearing, including hearing by way of interlocutory process such as notice of motion. • Briefs on hearing of trials • Briefs to advise in conference • Briefs to advise generally 9/11/2014 4
  5. 5. mtecc.com.au Form of the Brief There are some standard components for any hard copy brief: 1. Indexes 2. Tabs 3. Labels 4. Spine Labels 9/11/2014 5
  6. 6. mtecc.com.au Purpose: Commencing Litigation Preparing Your Brief: Essential Details • Detailed instructions; • Copies of relevant transactional documents; • Copies of relevant correspondence, emails, file notes. • Early conference to identify issues, goals and way forward. 9/11/2014 6
  7. 7. mtecc.com.au Purpose: Litigation on Foot Preparing Your Brief: Pleadings • Pleadings are the key to any case; • Chronological order should be avoided except within types of pleading • Order of pleadings: – Statement of claim – Defence – Any replies – Cross-claims • Most recent amended pleading comes first 9/11/2014 7
  8. 8. mtecc.com.au Purpose: Litigation on Foot Preparing Your Brief: Orders • The History of the Proceedings • Copies of all court orders previously made • Copies of inter partes correspondence during the proceedings • Relevant documents – client documents, discovered documents, subpoenaed documents 9/11/2014 8
  9. 9. mtecc.com.au Purpose: Litigation on Foot Types of Brief: Interlocutory Process After pleadings and orders, always include: 1. Notice of Motion or other process 2. Affidavits in support 3. Any affidavits in reply from Respondents 4. Any cross motion and affidavit in support 9/11/2014 9
  10. 10. mtecc.com.au Purpose: Litigation on Foot Preparing your Brief: Trial • Evidence; – Lay Evidence • Evidence in Chief • Evidence in Reply – Expert Evidence • Evidence in Chief • Evidence in Reply 9/11/2014 10
  11. 11. mtecc.com.au Preparing your Brief: Trial (cont’d) • Affidavits: Always include Annexures or Exhibits • Organised by party, affidavits aggregated by witness 9/11/2014 11
  12. 12. mtecc.com.au Purpose: Advice on Evidence • Advices on Evidence can be an extremely useful tool for preparing a case for trial; • Pleadings; • Evidence served to date; • Draft evidence; • Chronological bundle of relevant documents. • Place the earliest documents on top. 9/11/2014 12
  13. 13. mtecc.com.au Purpose: General Advice • Pleadings (if available) • Evidence (if available) • Chronological bundle of documents sourced from client/project documents, inter partes correspondence • Inter partes correspondence 9/11/2014 13
  14. 14. mtecc.com.au Purpose: Conference • Agenda • Depends upon where case is at • Pleadings, evidence…. • Share your knowledge 9/11/2014 14
  15. 15. mtecc.com.au Keeping Counsel Informed • Even if counsel is not involved in the Day to day, periodical updates; • Hard Copy or Email or Telephone call or all of the above? 9/11/2014 15
  16. 16. mtecc.com.au Electronic Storage • Remote Server – Using remote servers such as Dropbox or Google Docs, solicitors can share folders with counsel • iPad: GoodReader App – Synchronise your devices with a remote server such as Dropbox 9/11/2014 16
  17. 17. mtecc.com.au How to Prepare an Electronic Brief: 1. Start with Hard Copy Brief 2. Follow all of the above steps 3. Scan and convert to PDF 4. Label each electronic file a. Labels on Electronic Folders should be as informative as possible 5. Load onto Server e.g. Dropbox 6. Share access with counsel 9/11/2014 17
  18. 18. mtecc.com.au The Key to getting more Bang for Your Buck: • Involve counsel early for guidance on preparation and strategy • Ensure counsel is informed of all relevant developments • Ensure counsel is briefed with all relevant documents • Be responsive to counsel’s request for information 9/11/2014 18

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