A barrister is higher level than a solicitor right?
A barrister is not a higher level lawyer. Barristers and solicitors are different types of legal experts. They both specialise in different areas of cases. It is definitely not true that a Barrister is more senior than a Solicitor. In fact, if you think about some high profile divorces such as Princess Diana and Prince Charles or Heather Mills-McCartney and Paul McCartney, it’s their solicitors names which remain in our heads.
Fiona Shackleton, now Baroness Shackleton, represented Princes Charles and Sir Paul in their respective divorces. She’s often referred to as the “Steel Magnolia” because of the way in which she imaginatively puts cases together.
“She has outstanding judgement and flair, and she cuts to the chase,” one fellow lawyer previously remarked.Hello Magazine
The Baroness is also the solicitor to Prince William and Prince Harry.
Usually if someone is looking for family law legal advice, their first port of call would be a family solicitor. We say “usually” as it’s becoming more common for people to compile their own case, instructing a Barrister directly themselves.
If you do not have a solicitor working for you, you can go directly to a barrister yourself if they are a “Public Access” barrister.The Bar Standards Board
Did you think that your solicitor would be with you in court?
For many people, it comes as a shock when the realise that their solicitor, the person they have grown to trust over the many months of case preparation, is not going to be with them in court.
Sometimes a solicitor will represent you in the court-room, so never say never. However barristers are specifically trained to represent their clients in court. They are experts in arguing cases, cross-examining witnesses and advising both the client and their solicitor on specific points of law. You could say that they really get down to the nitty gritty of the case, citing previous cases and authority/precedents.
What is “authority”?
When a solicitor or barrister refers to authority, they are referring to a previous decision in a particular legal case that makes it likely that other similar cases will be decided in the same way. Solicitors and Barristers will always look at previous cases to consider what may happen in your case.
What does a Barrister do?
Firstly, barristers spend a lot of time travelling as they are almost always in court. They could only be spending one day a week “in the office”. Of course, during the Covid-19 pandemic, this didn’t happen as most cases were heard remotely. Every case and day is different. One day could be ensuring a wife gets a fair settlement in a divorce and the next trying to get child contact for grandparents. No case is ever the same, even though there may be similarities.
Barristers are specialists in a particular field and they advise clients and their solicitors on specific aspects of their case. There are barristers who specialise in immigration issues, family law, criminal cases etc and this is because they need to be experts to argue their cases and think on their feet. For example, they could need to argue why a wife should have access to her husbands inheritance as part of the marital finance divorce pot. Making their case could involve citing a precedent, mentioning a similar case and the outcome.
What does a barristers work involve?
A lot of work a barrister does in family court hearings is actually outside the courtroom. The family court really want to see divorcing couples negotiating a fair deal between them, without the need for a final hearing. The reason for this is that not only does it cost a great deal of money for the parties concerned, but if matters can’t be resolved, then it’s up to the Judge to decide the outcome.
If you do end up in court, you will probably find yourself setting up camp somewhere outside the courtroom. Your barrister will flit between you and your ex trying to come to some kind of agreement. In some ways it becomes a mediation scenario.
Don’t expect to see your family court barrister in a wig and robes. These days they rarely dress in this way for a family hearing unless there is something particularly serious happening such as the possibility of sending someone to prison.
How do you instruct a barrister?
Usually a solicitor will instruct a barrister, although there are now “public access” barristers who can be instructed directly by clients who are completing their own litigation work and not engaging with a solicitor. The barrister would go through the case, make recommendations on how to prepare the case for court and go on to represent the client in front of the Judge.
The cost of a barrister will depend on the complexity of the case, the travel time and costs and the amount of work involved. If a barrister is new to a case, they may have a lot of ground-work to cover, such as reading files and understanding the evidence presented before being “court ready”. You could think of it as not dissimilar to an actor learning their lines before going in front of a live audience.
Can you find a barrister without a solicitor?
A solicitor will obtain the cost of a barrister for a client to decide whether or not they wish to go with that particular barrister. It can be quite tricky to instruct a barrister you really have your mind set on when you have been given a court date. Trying to fit matters into everyone’s diary, including your spouse’s can prove difficult and you may have to be flexible and consider several options.
“Counsel” is used to refer to a barrister who is instructed on a particular case. It is customary to use the third person when addressing a barrister instructed on a case: “Counsel is asked to advise” rather than “You are asked to advise”.Wikipedia
You can choose your own barrister, but your solicitor will be familiar with several who they have worked with before. Most people prefer to go with a barrister their solicitor recommends. Your solicitor will know who is best for your case and its particular issues, who they work well with and their success rate and expertise in a particular area. However as you are paying the bill, at the end of the day, it’s your choice.
If you can’t afford a Barrister, you can apply to The Pro Bono Unit “Advocate” Check if you are eligible here
What’s the barristers “cab rank rule”
Barristers spend a great deal of time in court and are self-employed. Because of the cab rank rule they are unable to pick and choose the cases they wish to work on. The rule means that when a case comes along which is their field of expertise they have to take it; when a fare (client) comes along, they have to take that client regardless of whether they like the sound of the case or not.
Do note that this rule does not apply to direct access work. Although barristers are not allowed to discriminate, they can reject a case for no reason at all if its on a direct access basis.
You can reject a case if the fee to be paid isn’t deemed sufficient, or it’s outside your competence. In other words, if you knock on my door (via a solicitor in my case), and ask me to do a privately paid criminal defence brief for £30 per day, I’m well within my rights to (politely) decline your instructions on the basis that (a) I’m not a criminal defence barrister, and (b) I’m not doing it for £30 per day.
That’s important because many barristers in personal injury practice like me are asked, as a matter of course, to accept instructions on behalf of an injured Claimant on a No Win, No Fee basis: If we lose the case, we don’t get paid. We can therefore, legitimately say: I think that you’re going to lose, so I’m not taking your case unless you pay me £X.David Boyle – Barrister
What does a solicitor do?
A solicitor will take your initial instructions when you decide that you want to divorce or separate or any other matter – but here we are talking about divorce. They will complete all the necessary paperwork and ensure that the other party is served. If you are the respondent, they will respond to your spouse directly or via their solicitor if they have one.
Most solicitors are primarily litigators, in other words, they sort out the case and make it “court-ready”. Some solicitors also do their own advocacy; they will act as a barrister and fight your corner in the courtroom too. However, in general, your solicitor will refer your case to a barrister if you need to go to court.
As we have said before, solicitors and barristers are specialists in their field and most tend to stick with what they know best. They feel that there is a boundary between litigation and advocacy.
Litigation – getting all the paperwork in order and preparing the case
Advocacy – standing up in front of the court armed with that paperwork and evidence, and presenting it to the court in the best way possible.
A solicitor deals with all the communication required to put together the best case. They will talk about your objectives, gather evidence, calculate the ideal financial settlement requirements, discuss children’s matters with you and co-ordinate the work of everyone involved which could include professional witnesses such as forensic accountants or valuers.
Litigation is the process of taking legal action