4/1

Chapter 4

BRIEFING COUNSEL
When to brief? ....................................................................................... 4/1
Choice of counsel .................................................................................. 4/1
Preparing instructions ........................................................................... 4/2
Brief cover ............................................................................................. 4/3
Evaluation of counsel’s advice .............................................................. 4/3
Complaints against counsel .................................................................. 4/3
Counsel’s fees ....................................................................................... 4/3
Signature of pleadings .......................................................................... 4/4
Appendix 4: Brief cover ......................................................................... 4/5

When to brief?
All legal practitioners have right of audience before all courts save the Small Claims
Court. Thus, it is the choice of each legal practitioner as to whether or not he will brief
counsel. The advantages in briefing counsel are that his fee will probably be cheaper
than that of the instructing legal practitioner and generally counsel’s fees are accepted
by the taxing officer without query.
An advocate can bring a dispassionate view to the problem. Often the instructing legal
practitioner has a long-standing relationship with his client and may have difficulty in
expressing an unbiased opinion of the case.
Thirdly, advocates are specialised in advocacy and usually have more experience in
presenting trials than those practitioners who were previously called attorneys. They
are, therefore, particularly useful in complex cases where their skills are of greater
importance.
However, there are only a limited number of advocates and they are extremely busy.
This may mean that there are significant delays in obtaining advice and an advocate
may not have the time to prepare as well as he should do for each case. Thus, it is
probably preferable that in the more routine cases a legal practitioner should not brief
counsel but make the appearance himself.

Choice of counsel
Choose the advocate according to his skill and knowledge of the particular area of law
concerned. An advocate is ethically obliged to accept any brief relating to a court in
which he professes to practice but it is courteous to ask him whether he is prepared to
take the work. He may be too busy to deal with it immediately or it may be in an area
of law with which he does not feel confident.
It is perfectly acceptable to ask an advocate to state his fee before briefing him and to
mark his brief accordingly although this is uncommon. If the advocate does not wish
to do the work for the marked fee he may return the brief.
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If it is intended that an advocate should appear at the hearing, it is wise to brief him at
the outset so that he can draft the pleadings or advise on any affidavits. Advocates
should be briefed in good time. It is unfair to delay in sending the brief and expect the
advocate to do the work urgently. This is particularly important with pre-trial
conferences and with trials.

Preparing instructions
It is extremely important to brief counsel properly. The work done by counsel is less
likely to be satisfactory if the brief instructing him is poor. It is very poor practice to
brief in the manner “Herewith my file — please advise”. In addition, the client is
paying two legal practitioners and is entitled to the benefit of the thoughts of both. A
poor brief means that only one legal practitioner, the advocate, will be considering the
matter. Finally, if the instructing legal practitioner has not considered the matter he
will not be able to evaluate the soundness of the advice given by the advocate.
However, it is also important to remember the cost to the client. The instructing legal
practitioner must not do the advocate’s job for him.
The advocates complain that they receive briefs in which the instructions are
inadequate or poorly thought out and full of irrelevancies. Instructing legal
practitioners should strive to avoid these faults.
Many advocates do not consider it desirable that they should be asked to draw
affidavits. It is probably preferable if the instructing legal practitioner draws the
affidavit and instructs the advocate to settle it.
It is good practice to draw the instructions using numbered paragraphs so as to make
cross reference easy.
Draw instructions to counsel using the following formula:
1. The instructions should be headed in a similar manner to pleadings in a contested
matter. Where there is no contest but advice is sought, the correct heading is as
follows.

“Ex Parte A Smith In re Interpretation of section 98 of the Income Tax

Act”

2. Instruct the advocate on what is to be done. For example, if the declaration is to be

drawn, the first paragraph of the instructions should be as follows.

“Counsel is instructed to draw the declaration on behalf of the plaintiff.”

3. Counsel should then be advised in numbered paragraphs of the documents which

are annexed to the instructions. If there are only a few documents, the list can be
included in the paragraph but if there are voluminous documents then it is better to
prepare an index. Ensure that the documents are annexed in the same order as listed
in the index and are properly identified by numbers.
4. Then list the full facts as known to you. Where facts are supported by documents,
reference should be made to the index number of each relevant document. This is
to ensure that the advocate does not waste time looking for the documents.
5. Let counsel have your comments on the facts and the applicable law. In complex
Briefing counsel 4/3

matters, it is ideal for the instructing legal practitioner to have done some research
on the law before briefing counsel and, if this has been done, counsel should be
referred to the appropriate texts and cases. It may also be useful where the
instructing legal practitioner has specialised knowledge of the area of law in
question if he advises counsel on his interpretation of the applicable law.
6. Then state what the client wants with a draft of the pleading or order if that is
applicable. In this section of the brief, the advocate should be advised of the
client’s approach to the problem, that is, his desire to settle or to bring the matter to
court without delay.
7. Finally, it is courteous for the legal practitioner to offer to make himself available
to the advocate for discussion of the case should the advocate consider it necessary.

Brief cover
Every brief to counsel must have a brief cover on which is noted the names of the
parties, the date, the instruction, ie to draw the plea, the name of the advocate and the
instructing firm. The brief should be bound with ribbon. By convention the brief cover
is typed or printed on an A4 page which is folded in half lengthways but this is not
necessary. A sample of the brief cover is set out in Appendix 4.
Where the brief is very large it is wise to file the papers in a secure file to avoid any of
them getting lost.

Evaluation of counsel’s advice

When the brief is returned by the advocate, the instructing legal practitioner should
analyse counsel’s pleadings and advice to ensure that he agrees with them and that the
pleadings, in particular, accord with the instructions received by the instructing legal
practitioner. If there is a problem, he should contact the advocate to discuss his
concerns and the advocate will probably seek an opportunity to reconsider the matter
if the concerns seem justified. There is no rule regarding the cost of the additional
work but it seems fair that if the mistake is due to poor instructions, the advocate may
charge an additional fee but if he has misunderstood his instructions no additional fee
should be charged.

Complaints against counsel

If a practitioner has a complaint against an advocate and is unable to achieve
satisfaction from the advocate himself, he may refer his complaint either informally or
formally to the Bar Council. The Bar Council is the controlling body of Chambers and
though it has no statutory power it controls the activities of the advocates who are
members of Chambers. The Bar Council has ethical rules and the advocates are
obliged to comply with the rules.

Counsel’s fees
The Bar Council has a prescribed minimum tariff and all advocates are obliged to
charge the minimum fees but they are at liberty to increase their fees beyond the
minimum tariff. The taxing officer may rule that a fee is too high while a practitioner
who considers that an excessive fee has been charged may take the matter up with the
Bar Council. An advocate may not change his fee without the consent of the Bar
Council.
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Once an advocate is briefed for a trial he is entitled to a first-day fee even if the trial is
cancelled unless the cancellation occurs sufficiently before the trial for him to obtain
other work. There is increasing flexibility in this rule with the advent of the continuous
roll system.
Any legal practitioner who briefs counsel is liable to pay his fees and ethically should
not wait until he receives payment from his client.

Signature of pleadings
A practitioner may change the advocate’s draft of pleadings but it is courteous and
possibly wise to discuss the change with him. Any pleadings drafted by counsel must
be signed by him before they are issued. The draft prepared by counsel should be sent
to Chambers together with the final copies so that the advocate may check the
pleadings against his draft. Generally speaking, they are also signed by a legal
practitioner of the instructing firm.
Briefing counsel 4/5

APPENDIX 4: BRIEF COVER

y
€
fold here Right-hand
to make a edge of A4
IN THE HIGH COURT OF ZIMBABWE Case No HC ... sheet
cover
HELD AT HARARE

In the matter between

ABC Plaintiff
and
XYZ Defendant

Date:

Brief: Counsel is briefed to advise the Plaintiff on his

prospects of success and draw the declaration.

To: Advocate

Fee:

EFG
Instructing legal practitioners
1 Msasa Street
Harare
Ref: ...
4/6 The Civil Practice Handbook