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The effective selection and deployment of external legal services is becoming an increasingly important skill for in-house lawyers. At the same time, the growth of competition in a liberalised market is making it harder to maintain an understanding the variety of options available.
One such option is the Bar, however in-house lawyers often seem to find themselves unsure about how to go about engaging a barrister. To help shed some light on this, here are some FAQs:
1. How can I instruct a barrister through "Direct Access"?
There is no such thing as "Direct Access". There are no barriers at all to in-house lawyers instructing barristers directly provided the in-house lawyer is actually a qualified lawyer (or the instructions have the authority of such a lawyer from within the organisation). Indeed, because of the bar’s simpler regulatory regime, the engagement process is much quicker and simpler than for solicitors.
2. When should I consider using a barrister?
a) Barristers are ideal advisers during the early stages of a potential dispute. They can apply courtroom insight to come up with a "roadmap" for a piece of litigation, starting from the endgame and working backwards. This approach often brings out key questions at an early stage, before embarking on a potentially long and costly dispute. This can either facilitate early settlement or, if the dispute proceeds, set it off on the correct path from day one with a view to being in the strongest possible position at trial.
b) On non-contentious matters, barristers are generally more useful for breaking things than creating them. For example, a solicitor is generally better able to draft a new joint venture agreement or set of T&Cs. However, their advocacy-based approach means barristers are excellent people to review drafts and identify weaknesses, either in relation to specific risks or concerns or generally.
3. Should I always go to a barrister for litigation?
No. Barristers are independent self-employed practitioners who focus on advice, drafting and advocacy. They are
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