Why do entrepreneurs and, for that matter, experienced solicitors, patent and trade mark attorneys and other professionals regard the opinion of counsel so highly? After all their education and in large measure their training are usually very similar and their libraries contain the same law reports, statutes and text books.
There are two answers to that question. One is that barristers are free to concentrate on the law because their job is to advise, draft and go to court whereas solicitors have to manage their clients’ affairs. The other is that barristers are ideally placed to forecast how legal issues that have never been considered by the courts before will be decided. That is what those who invest heavily in technologies that raise those new issues really want to know. Such issues will be decided by judges who are still recruited overwhelmingly from the Bar. Having argued before (and in many cases when they were still at the Bar against) those judges barristers get to know them and understand how they think. They can therefore analyse the case in the way that the judge would analyse it and, more often than not, anticipate the judgment.
Such insight is useful for business as well as litigation. Having a shrewd idea of whether a patent will be granted for a new invention and, if granted, whether that patent will survive a validity challenge will influence the way a business will seek to protect and exploit its technology. Similarly, knowing whether a joint venture or distribution agreement will be exempted from the Chapter 1 prohibitions of the Competition Act 1998 or art 101 (1) of the Treaty on the Functioning of the European Union will affect investment decisions on research and development and marketing.
It is because barristers have the latest case or legislation in mind that they are instructed to draft contracts, terms and conditions, licences and other instruments for use in business as well as statements of case and witness statements for use in litigation, arbitration and administrative tribunals. Law firms tend to distinguish between litigation and non-contentious work possibly because contentious and non-contentious work are managed differently and require different skills and perhaps different mindsets. Barristers do not: they think only in terms of legal issues and how best they may be solved.
Barristers give their advice orally or in writing. A client can book a meeting with a barrister known as “a conference” or arrange to speak to him or her by telephone or video link if he or she wants to discuss an issue generally or explore different aspects of it in detail. If the client needs advice in writing he or she can ask for an “opinion” on a point of law or an “advice” on a course of action.
For more information on the drafting and advisory work that we do for businesses, see the Business Transactions page of this website. For information on our advice and drafting services for litigation, arbitration and alternative dispute resolution, see the page on Dispute Resolution. You can also find out How to Instruct Us, how we work out Fees and Request an Estimate for a particular task. You can also see the industries we have helped and perhaps read some case histories on the Clients page. If you have any further questions contact Jill Hayfield or call her on 0800 862 0055 or her mobile 07976 355664.