A ‘barrister’ is an independent specialist advocate and advisor in law. Their highly competitive training, together with their specialist knowledge and experience, can make a substantial difference to the outcome of a case.
A barrister is best known for their advocacy before the Courts but it is true to say that their strength lies in Dispute Resolution, both judicial (before Courts or tribunals) and non-judicial (through negotiation, mediation or arbitration).
A barrister has the training and experience to anticipate the range of likely outcomes and to work with the solicitor and their client to choose the most appropriate path, so it is helpful to involve a barrister at the outset.
A barrister’s advice at this time can help to clarify the management of the entire dispute resolution process and empower clients to make informed decisions. Early advice can often save clients the cost and worry of an unnecessary trial.
A limited number of senior barristers receive 'silk' - becoming Queen's Counsel or Senior Counsel - as a mark of outstanding ability. Both types are collectively known as “senior counsel.”
Senior counsel are barristers of seniority and eminence. The designation of senior counsel provides a public identification of barristers whose standing and achievements justify an expectation that they can provide outstanding services as advocates and advisers, to the good of the administration of justice.
Before a barrister is appointed (made) senior counsel, he or she must possess a high degree of skill and learning, integrity and honesty, independence, diligence and experience.
They are normally instructed in very serious or complex cases. Most senior judges once practised as QCs or SCs.
Senior counsel are also colloquially known as “silks.” This is because their robes include a gown made of silk – junior counsel wear gowns made of cotton.
The only difference between a QC and SC is the name. Up to and including 1992, senior counsel in New South Wales were known as Queen's Counsel. From 1993 and onwards, senior counsel in New South Wales were known as Senior Counsel (note the capital letters). Some States and Territories still use the title Queens Counsel.
Because of a barrister’s intimate knowledge of the Courts, their specialisation in advocacy and litigation and their ability to quickly identify the crucial points of a case, barristers are also valued for their advice and opinion work and they are often called upon to assist in this regard as soon as a dispute is indicated.
If the case does proceed to trial, a barrister can provide effective representation and advocacy, with:
Alternative Dispute (ADR) is the general term for the various ways in which disputes can be resolved without (or as an alternative to) litigation.
Litigation is a costly solution and the varying forms of ADR offer a way to either resolve the dispute through legally binding determination by a convener (such as in Commercial or Family Law Arbitration, or in Expert Determination) or to try mediation in an attempt to come to a mutual agreement to resolve the dispute without determination by a third party.
A growing number of barristers specialise in arbitration and alternative dispute resolution.
Increasingly, Australian barristers have expertise in domestic and international commercial arbitrations with many approved as arbitrators with national and international bodies. Other forms of ADR include mediation, expert determination and hybrid dispute resolution processes.
Search for an ADR Specialist through the Find a Barrister page.
The usual route to a barrister is through a solicitor. Solicitors have good working relationships with barristers and are likely to be able to identify the most suitable barrister to deal with your case. Assuming that the barrister identified is available and that there are no conflicts of interest, they are under a duty to take on your case (under the 'cab rank' rule).
Increasingly however, the public can access a barrister directly should they have an enquiry.
Click here to Find A Barrister.