Barristers of New Zealand – take note! The threat of your former clients suing you for professional negligence will most likely add another dimension to your practice. Now, as you charge up the hill sword in hand to protect your clients’ rights, you will have to make sure that your back is covered. If you do not, you may well face a professional negligence action, have your reputation tarnished or destroyed, and pay dearly for the harm you caused your ex-client and present enemy.

Thank God, after practicing in America for 23 years with this threat, I have never had a claim lodged against me. In this article, I wish to share with you the principle technique that I attribute this good fortune to. After practicing as a Barrister in New Zealand for three years, I am convinced that it might also benefit my colleagues.

One of the surest ways for Barristers to be sued is for their clients to witness an obvious error or omission at trial. The technique I will speak about substantially reduces the chances of this happening.

North American Barristers call the technique a “trial brief”. Essentially, it is a blue print for trial preparation. The trial brief can easily be set up as a template on a computer. It does not require any special software. In its skeletal form, the trial brief simply enumerates general categories that competent practitioners must consider before trial. Reason suggests that the more time they have to meaningfully consider these factors, the more likely they will prevail at trial and on appeal, should there be one.

Properly used, the trial brief focuses practitioners’ attention on these elements early in the case. This is because the trial brief should first be used while drafting the initial pleadings. Thereafter, it is continually updated with new information. It should even be relied upon in preparing closing argument and in drafting appellate submissions.

I have found that using the trial brief greatly enhances practitioners’ confidence at trial. This is because when they start trial, they know their case, and their opponent’s case inside out. They do not have to spend the last few days before trial frantically sorting things out. Rather, they know precisely what they have to do to prove their case and disprove their opponent’s. Equally important, they have prepared for it.

This is not to say though that everything at trial will go as planned. However, having thoroughly prepared the case and with a trial brief at their side during trial, the litigator should have a better chance of handling the challenge than without it.

Another advantage of the trial brief is that it significantly advances the ability to recommend settlement before trial. This is the consequence of having competently analyzed the strengths and weakness of your and your opponents well before trial.

Elements of a Trial Brief

There are no fixed categories that must be included in every trial brief. It’s a matter of personal preference. One might even use different categories depending on the type of the case. Yet, there are some fundamental categories that I suggest you consider. They are as follows:

The Facts of the Case –

Under this heading, I recommend keeping a detailed chronology of the facts. At first, many may not be known. However, as discovery progresses more will be uncovered. Consequently, the chronology must be continually updated as new facts come to light. Usually, if the source of information is a document, I record an entry in the chronology by starting with the date of the document, then, a brief description of the document (letter from X to Y), and a synopsis of the information in it. Facts that are referred to in documents, such as earlier meeting, and facts from witnesses should be recorded by their date. Then write the fact and lastly its source. Computers simplify this task because they allow interlineations. They also permit the data readily available to the client and/or other counsel working on the case. If the initial chronology is sent to the client before the pleadings are finalized, it will not only show that you are “on the ball”, but it also can act as a catalyst for discussion that may lead to the discovery of additional facts.

The Pleadings – Here, the essence of the Statement of Claim and Defense and Affirmative Defenses and Counter or Cross Claims is set forth. The purpose of this section is to help keep attention directed to the issues that lay ahead. It gives the ability, in a few seconds and at any time, to always keep in mind what is relevant to the case and what is not. While you may have drafted part of the pleadings and were obviously familiar with them at the time, memories of their details tend to fade over the months, and in some cases, years.

The Law – The elements of the cause of action and defenses should first be listed under this category. If any statutes, rules or regulations are relevant, set forth only their pertinent provisions – omit the irrelevant language. Then, add applicable rules of law and equitable maximums. Authorities follow each of the above entries. If any problems are anticipated at trial, such as evidential or procedural, include the cases relating to them and what they stand for.

All legal issues you see.

The Theme of both your and your opponent’s cases –

Try in fifty words or less to sum up the “guts” of both your case and your opponent’s.

The merits of your case.

Forget about what you learned in law school, no matter how hard it is. Under this category, put down why your client, in fairness, deserves to win and why your opponent should loose.

The facts you will have to prove, how you intend to do it and how your opponent will try to disprove your facts.

Referring to the elements of law that you need to establish, list each one and the facts (and references) that will support them. Also, jot down how you anticipate your opposition will attempt to disprove the facts you intend to rely upon.

The facts you suspect your opponent will introduce to support the elements of his or her causes of action or defenses.

Referring to the elements of law that your opponent will need to prove, enumerate them and the facts that you believe will be introduced to support them. Then, note down how you will disprove them.

All factual issues you see.

The Witness List.

Here, not only include the names of your witnesses but also the order you intend to call them. Often, the order will change, as the final trial strategy is determined.

A Final Observation

On appeal, Barristers are generally bound by the evidence in the record. If some critical evidence was omitted from it, the appellate litigators’ hands are tied more often than not. By using a “trial brief”, the chances of this are greatly diminished. Good luck with yours.