As a general rule, the brief that is delivered to counsel should contain the following:

  1. A briefing note to the barrister. These are termed ‘Instructions’ or ‘Observations to Counsel’. It is a covering document that sets out the issues – both factual and legal – that the brief entails as well as the basic information about the brief. A good set of instructions does the following:
    1. At the outset, identifies:
      1. the precise tasks that the barrister is to undertake; and
      2. any deadlines that the barrister will need to work towards. It is especially important to highlight any approaching deadlines that the court has imposed by way of directions or orders, any limitation period that is due to expire and any forthcoming court or mediation date;
    2. Identifies the parties to any dispute and all potential witnesses;
    3. Identifies the legal issues that the instructor has identified;
    4. Describes the broader commercial context of the dispute so that the barrister can ensure that the case is managed in the way that best furthers the client’s commercial strategies;
    5. Summarizes the facts;
    6. Summarizes any legal research that has been undertaken;
    7. It also identifies with precision the topics or issues for that advice. The greater the precision in instructions, the narrower the focus of the advice and the lesser the costs that the barrister will charge. If counsel is briefed to provide an advice, identifies whether the advice sought is an advice. 
      1. on evidence;
      2. on prospects of success;
      3. on a specific legal issue; or
      4. about how best to resolve a dispute.
    8. Identifies the contact details for the solicitor or solicitors within the firm who have primary carriage of the matter and who are the primary contact point for the barrister;
    9. Identifies any other barrister who has also been briefed;
    10. Indicates if and when the solicitor would like to hold a conference with the client and the barrister to discuss the matter.
  1. All of the documents that are relevant to the dispute or the advice and none of the documents that are irrelevant. For example, if the brief is a brief to appear at a trial, the brief should include:
    1. all of the pleadings of all of the parties. If an amendment to a pleading indicates a change to a party’s case, it may be useful to brief the barrister with the superseded versions of the party’s pleading;
    2. any directions that the court has made in the management of the proceeding;
    3. any expert reports that have been obtained by any party, or any letters of instruction to an expert that the solicitor has already drafted;
    4. the settled or draft affidavits or witness statements;
    5. the documents that the parties have discovered, preferably in chronological order and with an indication as to which party discovered the document. Ideally, the brief will not include multiple copies of a document;
    6. relevant correspondence that has passed between the parties’ solicitors;
    7. copies of any ASIC searches for any company, or a title search for any property, that is mentioned in the pleading or that is otherwise relevant to the proceeding.

3. A brief is best arranged in sections. Within each section, it is useful for each document to have a separate tab. Immediately behind the instructions to counsel, it is useful to include a table of contents that identifies each document in the brief.