Mid defence case my Jnr Counsel has become Sen Counsel and cant continue with case.

[Complainer]

What you mentioned though is that the solicitor should have planned for this-that it was an expected and predictable outcome. I'd dispute that it was an 'expected and predictable outcome'- the solicitor could not have known this was about to happen.

I don't know what is involved in 'taking silk', but I presume it doesn't drop out of the sky. Isn't it something that the barrister would have been working towards, and would have some kind of expectation about when it might happen. It's not a total surprise that a JC would move to SC. While the solicitor would have not known for certain, would it be unreasonable for one of the solicitor's questions to a barrister prior to taking a case was 'Will you be taking this case to the end yourself, or is there anything in your current professional or personal plans that would stop you taking this case all the way through'.

But as for planning for it-there's nothing to plan, another barrister will take it over- that's very common and won't prejudice the OP's case in any way.

I disagree. At a minimum, they should plan by communicating with the client. If I was a client that had invested in a barrister, I guess that I'd be feeling both nervous and peeved at the prospect of someone else taking over midway. Would there be any extra briefing fees incurred by bringing someone else into the case?

 

[legallady]

The length of cases vary. The solicitor would have had no idea when it started how long it would go on for. Many many variables are involved. Therefore it's unrealistic for a barrister to be definate that they won't be taking silk before the end of the matter. The only way you'd safeguard against that is by instructing a very jnior barrister from the start but then they might not be experienced enough.

 

[Vanilla]

Will you be taking this case to the end yourself, or is there anything in your current professional or personal plans that would stop you taking this case all the way through'.

By that reasoning we should ask every professional the same question. And by all means, feel free to. I won't, I would consider it rude and intrusive.

I've already said another barrister taking over the case will not prejudice it in the slightest. It happens all the time for various reasons. And no, it does not result in additional fees- there are fees for each stage of a file by a barrister, the new barrister simply picks up where the last one left off. Real cases in the irish courts aren't usually all that complex and any barrister will usually pick up the case from the solicitors brief which contains all the relevant information. You should also realise that most barristers have hundreds of cases ongoing at any given time and that even where one barrister sees a case through from beginning to end, they will only be looking at the brief for the case in the days before the court date or even that morning, depending how busy they are.
It's the solicitor that knows the case inside out, that briefs the barrister and attends on the barrister in court. They ensure nothing is missed out and guide the barrister in that regard.

Most of the time a client will not meet the barrister until the court date and therefore will not have any 'relationship of trust' with them before that date.

 

[Complainer]

The length of cases vary. The solicitor would have had no idea when it started how long it would go on for. Many many variables are involved. Therefore it's unrealistic for a barrister to be definate that they won't be taking silk before the end of the matter. The only way you'd safeguard against that is by instructing a very jnior barrister from the start but then they might not be experienced enough.

Indeed, there are many variables involved, and I'm not talking about absolute guarantees here. I'm taking about risk management, and like any risk management process, you evaluate the likelihood of the risk occurring and impact if it does occur. You build a contingency plan to address the impact.

The contingency plan in this case would include making sure that the client understands the risk up front, and agrees with the approach taken. It's not rocket science - just decent project management principles.

 

[Vanilla]

The contingency plan in this case would include making sure that the client understands the risk up front, and agrees with the approach taken. It's not rocket science - just decent project management principles.

There is no alternative. No barrister will give a guarantee they will see the case through to the end, however junior. That's the system we have.

 

[Complainer]

There is no alternative. No barrister will give a guarantee they will see the case through to the end, however junior. That's the system we have.

Perhaps you missed part of my post, i.e. "I'm not talking about absolute guarantees "

 

[Vanilla]

Perhaps you missed part of my post, i.e. "I'm not talking about absolute guarantees "

No, instead you are talking about risk management, evaluation, impact and contingency plans.

So here you are:

Er, there's a risk the barrister you have never met, who has just drafted this court document ( which could very well have been drafted by any other barrister in the very same manner) will not be the same barrister who you actually meet in court.

How does that suit you? You're not happy about it? Well, it's okay because, frankly even if it were the same barrister he probably wouldnt remember a damn thing about this case until presented with the brief shortly prior to court and another barrister will do just fine.

What's the contigency plan? Er, getting another barrister.

Job done.

 

[Complainer]

No, instead you are talking about risk management, evaluation, impact and contingency plans.

So here you are:

Er, there's a risk the barrister you have never met, who has just drafted this court document ( which could very well have been drafted by any other barrister in the very same manner) will not be the same barrister who you actually meet in court.

How does that suit you? You're not happy about it? Well, it's okay because, frankly even if it were the same barrister he probably wouldnt remember a damn thing about this case until presented with the brief shortly prior to court and another barrister will do just fine.

What's the contigency plan? Er, getting another barrister.

Job done.

OK then - silly old me, and silly old OP, facing into a major stressful occasion with significant associated costs. It seems the OP is just being silly here, and needs to shut up, sit down, tug their forelock and bow to the professionals.

Any suggestion that the professionals need to communicate better for their clients, or indeed advocate for their clients when dealing with other professionals is clearly not something that could be considered by our exalted legal eagles.

Clients could choose to make agreement to continue with a case (regardless of any promotion to SC) a condition of taking the brief in the first place.

 

[Eamonn T]

Perhaps the solicitor would have had no way of knowing the barrister would not see the case through but im certain the barrister must have known he wouldnt be seeing it through. He should have advised of this before accepting the case. I wouldnt be to happy about it either or paying him. Court dates clashing is certainly not the fault of the OP who pays the bills. And when cases are passed from 1 solicitor to another and then from 1 barrister to another and so on, surely, the case is not getting the attention it demands.

 

[McCrack]

OK then - silly old me, and silly old OP, facing into a major stressful occasion with significant associated costs. It seems the OP is just being silly here, and needs to shut up, sit down, tug their forelock and bow to the professionals.

Any suggestion that the professionals need to communicate better for their clients, or indeed advocate for their clients when dealing with other professionals is clearly not something that could be considered by our exalted legal eagles.

Clients could choose to make agreement to continue with a case (regardless of any promotion to SC) a condition of taking the brief in the first place.

Your tone is a little off-putting to say the least.

You have raised sensible queries and a couple of posters have explained you the reality of how litigation is practised and also explained that a client is not going to be prejudiced by a change in Counsel for whatever reason he/she cannot continue the Brief and yet you simply retort with defensive rhetoric that's just pure nonsense.

Give it up.

 

[Brendan Burgess]

Your tone is a little off-putting to say the least.

You have raised sensible queries and a couple of posters have explained you the reality of how litigation is practised and also explained that a client is not going to be prejudiced by a change in Counsel for whatever reason he/she cannot continue the Brief and yet you simply retort with defensive rhetoric that's just pure nonsense.

Give it up.

Hi McCrack

I don't agree with you. Many people are critical of the way the legal system operates in Ireland. Saying "That's just the way we do it" and stop criticizing us in not the answer.

Any idea what the motto of the King's Inns means?

Nolumus Mutari

 

[huskerdu]

This thread has turned into a spat about the way barristers operate in Ireland which isn't helping the OP.

To summarise

It is normal practice for a new SC to drop their JC cases
It will not predjudice the case, as it happens all the time and barristers are used to picking up cases in this way
It will not cost the OP anything

BTW, I agree with Brendan. Lots of us do not agree with how barristers work in Ireland, and a huge amount of the massive barristers fees in this country are paid by us via our insurance costs / taxes so we are entitled to complain.

 

[Grizzly]

I was involved in a group action case running for circa 10 years and during that time we had 3 changes of senior council. Each time the new senior council would turn up having obviously only read the brief the night before and effectively bluff his way through the meeting. The junior council was practically on his kness kissing the "great ones" This post will be deleted if not edited to remove bad language during each of these sessions.
We spent wasted hours and costs going over old ground at each meeting. Sometimes we would be told the same stuff over and over, the guy couldn't even remember that he had discussed this before.
All along the legal team were working toward an out of court settlement when they considered that they had amassed enough in costs for themselves.

 

[Complainer]

Your tone is a little off-putting to say the least.

You have raised sensible queries and a couple of posters have explained you the reality of how litigation is practised and also explained that a client is not going to be prejudiced by a change in Counsel for whatever reason he/she cannot continue the Brief and yet you simply retort with defensive rhetoric that's just pure nonsense.

Give it up.

Fair point about my tone (though you are letting me drag you down to my level at the end of your post).

It seems that the best answer we're getting from the legal eagles is 'We always do it that way' - very dissapointing as Brendan points out. At a bare minimum, there should be a learning here around managing expectations. If solicitors are unwilling or unable to get better engagement from barristers for their clients, they should do a better job at managing the expectations of their clients. The OP is seriously concerned about their case, and this concern is entirely avoidable.

It is normal practice for a new SC to drop their JC cases
It will not predjudice the case, as it happens all the time and barristers are used to picking up cases in this way
It will not cost the OP anything

The only reason that this is 'normal practice' is because the clients (who are footing the bill) aren't asking or insisting on other practices.

I know that if I'm ever engaging a barrister, I'm going to make damn sure that they will be around for the duration of my case.

 

[McCrack]

Hi McCrack

I don't agree with you. Many people are critical of the way the legal system operates in Ireland. Saying "That's just the way we do it" and stop criticizing us in not the answer.

Any idea what the motto of the King's Inns means?

Nolumus Mutari

I googled it "We shall not be changed". In any event I'm not a barrister, I come from the other side of the coin.

I have not said to anybody just accept the way things are, things will and do change. To a person not in the legal profession there is a perception of stalemate and that nothing changes. The law is constantly changing and evolving, practice is also constantly changing and becoming increasingly regulated but this is not obvious to a non-lawyer.

The OP raised a query and other posters jumped on saying it's unacceptable for a BL to drop a case when taking silk and everything else. Other knowledgeble posters explained the practicalities of the professon and litigation practise and explained how a client is not going to be prejudiced. My issue was not questioning but when explained especially to Complainer he/she continues with the cynical attitude.

 

[McCrack]

Fair point about my tone (though you are letting me drag you down to my level at the end of your post).

It seems that the best answer we're getting from the legal eagles is 'We always do it that way' - very dissapointing as Brendan points out. At a bare minimum, there should be a learning here around managing expectations. If solicitors are unwilling or unable to get better engagement from barristers for their clients, they should do a better job at managing the expectations of their clients. The OP is seriously concerned about their case, and this concern is entirely avoidable.


The only reason that this is 'normal practice' is because the clients (who are footing the bill) aren't asking or insisting on other practices.

I know that if I'm ever engaging a barrister, I'm going to make damn sure that they will be around for the duration of my case.

With respect you are incorrect in your assertions.

The best answer you and the OP have gotten is from the likes of Vanilla who has explained very accurately the realities of this issue. Where you are getting this cynical "We always do it this way" is beyond me. Things are done for a reason and are done a certain way because it is the right way practised over many many years. Solicitors manage their clients expectations all the time. Its a necessity of the job. Clients most of the time are unrealistic in their expectations.

I appreciate the OP is concerned about their case to to say it's avoidable is wrong, it's about as avoidable as getting ran over walking on a footpath.

You don't engage Barristers, solicitors do.

 

[Complainer]

The best answer you and the OP have gotten is from the likes of Vanilla who has explained very accurately the realities of this issue. Where you are getting this cynical "We always do it this way" is beyond me. Things are done for a reason and are done a certain way because it is the right way practised over many many years. Solicitors manage their clients expectations all the time. Its a necessity of the job. Clients most of the time are unrealistic in their expectations.

So remind me - what is the reason why barristers routinely drop clients when they move from JC to SC? It would be great to have an answer from the client's perspective, not from the industry insider's perspective.

I appreciate the OP is concerned about their case to to say it's avoidable is wrong, it's about as avoidable as getting ran over walking on a footpath.

This is factually untrue. The number of people who get run over walking on a footpath is tiny. The number of barristers who move from JC to SC each year is significant. The number of cases dropped by those barristers is even more significant.

You don't engage Barristers, solicitors do.

Indeed, technically correct. But I pay the bill - and I'll set out the conditions by which my solicitor will engage them.

 

[Brendan Burgess]

I have to say I find it very hard to understand how a case would not be weakened by a change of barristers mid course. I have seen cases where the barrister working on it pulled out at the last minute and the replacement was not up to speed.

But, I suppose, I have also seen cases where the barrister on the case for a long time, was not up to speed either.

I am not sure that all barristers fully appreciate the stress felt by litigants. If I was happy with my barrister I would not want them to change. If they have another case on the day, that is unavoidable, but otherwise, they should make every effort to see the case through.

 

[McCrack]

So remind me - what is the reason why barristers routinely drop clients when they move from JC to SC? It would be great to have an answer from the client's perspective, not from the industry insider's perspective.


This is factually untrue. The number of people who get run over walking on a footpath is tiny. The number of barristers who move from JC to SC each year is significant. The number of cases dropped by those barristers is even more significant.



Indeed, technically correct. But I pay the bill - and I'll set out the conditions by which my solicitor will engage them.

The main reason is that an Senior Counsel practises the majority in the Superior Courts (High Court and Supreme Court) A Senior Counsel is also going to command higher fees than the Junior Counsel who will practise in the Circuit Court (like the OP case) and does not warrant Senior Counsel fees and indeed the Defendants will not pay Senior Counsel fees for a Circuit Court matter.

Believe it or not (I'm sure you won't by the way) the numbers of BL that take silk each year are tiny. It's very competitive and difficult to become a Senior Counsel.

The client does not set out the conditions of a Brief so no you will not tell your solicitor on what terms he/she will instruct Counsel. You will also only pay legal fees if you are an unsuccessful party or costs awarded against you.

 

[McCrack]

I have to say I find it very hard to understand how a case would not be weakened by a change of barristers mid course. I have seen cases where the barrister working on it pulled out at the last minute and the replacement was not up to speed.

But, I suppose, I have also seen cases where the barrister on the case for a long time, was not up to speed either.

I am not sure that all barristers fully appreciate the stress felt by litigants. If I was happy with my barrister I would not want them to change. If they have another case on the day, that is unavoidable, but otherwise, they should make every effort to see the case through.

Brendan please remember Counsel are at the job years and will have dealt with 100's cases before, they do it day and day. Most litigation cases are not overly complex. A Barrister with at least a few years experience can pick up a Brief, read it, consult with the solicitor and run the matter competently.