Barrister or solicitor – who should you go to?

Nick Isaac, barrister at Tanfield Chambers, on when to use a barrister and when to use a solicitor

 

You may have heard that members of the public can now go directly to a barrister for specialist advice, or for representation in court. But how does that actually work, and why might it work for you? 

Traditionally, solicitors have acted as middlemen between barristers and the public – the solicitor identifies which legal practice area a problem falls into, then referrs the client to a barrister if the problem requires specialist knowledge, or representation in court. Whilst this system does work well, it also tends to be expensive. 

Although there is considerable overlap between the work barristers and solicitors each do, it is generally the case that barristers are more specialist within the law – think consultant rather than GP – and are more experienced and comfortable representing a client in court. 

The internet has allowed much better access to general legal knowledge. Internet searches can provide quite detailed and sophisticated legal knowledge in seconds; knowledge which, only 20 years ago, it would have been very difficult and time-consuming to discover. 

Consequently, the public is now often more than capable of identifying the nature or at least the broad area of a legal problem. And if you can identify the area of law involved, it is much easier to identify a suitable barrister to advise or represent you. 

There are three situations in which it is a particularly good idea to go to a barrister direct:  

  • Where you are simply seeking legal advice in relation to a particular problem – How does the law apply in this situation? Am I likely to win if I take this case to court? Can the law assist me to resolve this situation?
  • Where you need to prepare the paperwork necessary for issuing or defending a claim; and
  • Where you are already involved in court proceedings, and need someone to represent you at trial, or another hearing. 

In other situations, it can make much more sense to use solicitors. If you become involved in court proceedings, the court imposes timetables upon the parties by which various steps have to be taken; interim applications may be made at any time; a considerable volume of correspondence will undoubtedly be produced. Solicitors are well equipped to deal with all of these matters; indeed once they have "gone on the record” at the court, all correspondence from the court or the other party will go direct to them, and you, the client, will be insulated from the work and stress which these things involve. 

Barristers are not as well-equipped to deal with the day-to-day demands of litigation, and most direct access barristers are not authorised to go on the record at the court, so they cannot provide you with the same level of insulation from the stresses of litigation, nor the same level of general support. 

Having said that, it is becoming increasingly common for litigants to act on their own, primarily for reasons of economy, but to instruct barristers to carry out specific tasks in the litigation, and to advise on practice and procedure on an ad hoc basis, usually on the basis that the barrister will provide representation at the final hearing if and when it might happen. 

So, why should you instruct a direct access barrister?  

  • Going to a direct access barrister is often cheaper than going to a solicitor. Barristers’ hourly rates are often less than solicitors with a similar level of experience, and you are not paying for two different lawyers to read the same documents.
  • You can control costs more easily. Barristers are very used to giving quotes for individual items of work – an opinion, a pleading, or a court hearing – so you can usually be sure what costs your are letting yourself in for before each piece of work is done.
  • Barristers are specialists. If you know what area of law your case concerns, you can instruct a barrister with knowledge and experience of that particular area of law to advise you.
  • Drafting pleadings – claim forms, Defences and so on – which explain your case in a formal way to the court, is something which is difficult even for many solicitors to do competently. It is one of a barrister’s specialist skills, and enables the judge hearing a case to understand the fundamental points of a case quickly and easily. Instructing a barrister to draft these formal documents will always assist the presentation of your case to the court.
  • Advocacy – actually presenting and arguing a case in court – is a very specialist skill. The chances of your case being successful increase significantly if a barrister presents it, particularly if it is not clear-cut.

Nick Isaac is a barrister specialising in property litigation at Tanfield Chambers