Briefing Practices

and Advocacy

Project

Executive Summary

The purpose of this project is to strengthen briefing practices and court advocacy to support better outcomes for legally aided family law clients. To achieve this, it is important to understand what the current practices are, what is working well and what could be done better or differently.

When determining standards for briefing practices and court advocacy, examining the work of barristers in isolation cannot provide an accurate picture of what occurs in practice. Briefing practices and court advocacy span the life of a family law file and includes work undertaken by our practice partner lawyers and barristers.

Victoria Legal Aid’s (VLA) consultation as part of the Briefing Practices and Advocacy (BPA) project commenced in October 2016,

through various mediums including an online survey, and targeted face-to-face consultations between March and May 2017 at various VLA offices across Victoria.

These consultations involved obtaining valuable insight around the issues facing family law practitioners and specifically relating to briefing and court advocacy, from a cross-section of the family law community, with representatives from the section 29A Family Law and Independent Children’s Lawyers (ICL) panels, Community Legal Centre (CLC) Lawyers, VLA staff lawyers, barristers and the judiciary taking part.

A total of 63 people participated in the face-to-face consultations and 122 responses were received through our online survey.

Executive Summary

The consultation highlighted common

issues in four main areas:

1. Briefing a barrister in circuit courts;

2. Finding an appropriate barrister to

brief;

3. Content of briefs to barristers; and

4. Fees in legally aided family law

matters (outside scope of the BPA

project).

After careful consideration of all the

feedback obtained throughout the

consultation and the overall objective of

the BPA project, VLA will implement the

following actions:

Action 1 Introduce a Working with VLA

(Family Law) induction for members of the

Victorian Bar who practice in family law.

Action 2 Expand access to VLA’s education

and professional development programs that

target working with our priority clients to our

practice partners.

Action 3 Increase the ability to identify VLA’s

practice partner barristers who do legally

aided family law work.

Action 4 Create a Family Law Community of

Practice group.

Action 5 Increase exposure and networking

opportunities between VLA’s practice partner

lawyers and barristers who do legally aided

family law work.

Project

purpose and

objective

To strengthen briefing practices and court advocacy for legally aided family law clients.

The objectives are:

• Strengthen VLA’s relationships with practice partner lawyers and barristers through supporting them to do legally aided family law matters;

• Identify good briefing practices and opportunities for improvement by examining what practitioners are currently doing; and

• Support and encourage practice partner lawyers to brief appropriate barristers through matching their knowledge and skillset (including soft skills) to the legal needs and capabilities of legally aided family law clients.

What is

considered

briefing

practices and

court

advocacy?

Victoria Legal Aid defines briefing

practices and court advocacy in

family law to incorporate the

practice and process of a lawyer

assessing a client’s case and

considering what the most

appropriate representation is. This

can be through the lawyer

appearing in court themselves, or

briefing a suitably experienced

barrister to represent their client.

It is an important process involving

forensic judgement, assessment of

individual client needs (legal and

non-legal), as well as finding and

engaging an appropriate barrister.

Family Law Legal Aid Services Review 2015

The Family Law Legal Aid Services Review

(the review) identified the following

generally held views:

• Legally aided work is of a good quality

and there are some excellent advocacy

work; and

• Concerns were articulated about the

standard of some of this work.

There was a recurring theme in stakeholder

feedback about the quality of advocacy

provided by some barristers at trial stage.

In response to stakeholder feedback, VLA

decided to establish a list of preferred

barristers as part of Action 13 of the

review. The proposed list sought to ensure greater accountability around briefing practices; and that experienced counsel represent legal aid clients in family matters.

In the early stages of implementation of the list, VLA discovered:

1. Feedback received as part of the review around quality was generic and did not disclose the nature and extent of the quality concerns; and

2. Our stakeholders were not supportive of establishing a list.

VLA decided that in these circumstances it would be an ineffective use of resources to pursue implementation of a list.

Family Law Legal Aid Services Review 2015

VLA decided that we needed to work

closely with our stakeholders to have a

clearer understanding of briefing practices

in family law and any related briefing and

court advocacy issues from the perspective

of the judiciary, solicitors, barristers and

clerks.

VLA decided to commence consultations to

achieve this.

ConsultationsOctober 2016 to May 2017

Face-to-face and online

Invitations to

participate

sent to a

cross-section

of the legal

community

Consultation with practice partners

commenced in October 2016, with

targeted face-to-face consultations

between March and May 2017 at

various VLA offices across Victoria.

Practice partners from the section

29A Family Law and ICL panels, CLC

lawyers, VLA staff lawyers,

barristers, and Family and Federal

Circuit Court judges were invited

to attend and participate.

Where appropriate and to reduce

consultation fatigue, coordinated

sessions were held with the

Guideline Redraft and Quality Tools

Project.

A total of 63 people

participated in the face-to-

face consultations.

15(23.8%)

25(39.7%)

15(23.8%)

8(12.7%)

FACE-TO-FACE CONSULTATIONS

CLC lawyers VLA staff lawyers Private practitioners Judges

A total of 122 responses

were received through our

online survey.

1(0.8%)

66 (54.1%)

52(42.6%)

3(2.5%)

ONLINE SURVEY

VLA Chambers Barristers Private Practitioners Judges

What we wanted to know

Current briefing practices and court advocacy:

• examples of good and/or poor practices

• opportunities for improvement

• expectations of minimum standards

• attributes of best practice

• issues or gaps in practice

How practice partner lawyers develop

relationships with members of the Victorian Bar

and what they consider when briefing

What we found from the consultation

SOLICITORS BARRISTERS

Generally reluctant to brief barristers they do not

know or have seen advocating for a client in court.

The majority who accept legally aided family law

briefs value social justice.

Personal experience as well as feedback from

colleagues play a role in briefing decisions.

Some barristers will not continue to accept a legally

aided family law brief where instructors have

provided poorly prepared affidavits.

Want more briefing choices. Most find VLA cases interesting and challenging.

Would like easily accessible information about a

barrister’s specific skills and experiences and

whether they accept legal aid work (including circuit

matters).

One factor preventing barristers from accepting or

continuing to accept legally aided family law briefs

is receiving the brief the night before the court

hearing.

Have concerns with briefing new/junior barristers

where they are unsure about their experience and

ability to work with VLA’s priority clients.

A majority who accept legally aided family law work

believe that the law and courts should be accessible

to the community.

Want to preserve the solicitor-barrister relationships

that have been built over time and are wary of

initiatives that would interfere with this.

Some will not continue to accept a legally aided

family law brief where instructors have provided

insufficient documentation.

What we found from the consultation(outside scope of the BPA project)

VLA Practice Standards are not referred to or utilized as often as they

could be by practice partner lawyers.

There is general dissatisfaction with VLA’s current fee structure in

family law. Most practice partner lawyers and barristers consider that

the financial return does not reflect the amount of time and effort

required, especially when VLA’s clients have complex needs and

generally require more support. Practice partner lawyers and barristers

often do unpaid work as part of a legal aid matter.

The VLA family law guidelines are difficult to understand.^

^ Redrafted family law guidelines were implemented on 3 July 2017

ISSUES

IDENTIFIEDThe consultation highlighted

issues in four main areas

Briefing a

barrister in

circuit courts

There is a small pool of experienced barristers

who appear in circuit matters.

Responsible succession planning requires an

expansion of this pool.

1

ACTIONS 1, 3 & 5

Briefing a

barrister in

circuit courts

1

ACTIONS 1, 3, 4 & 5

Benefits of an established pool of

senior barristers

Access to experienced barristers.

Access to barristers experienced in

representing clients in circuit

courts.

Senior barristers possess knowledge

and skills to resolve matters

effectively and efficiently, thereby

reducing litigation costs.

Senior barristers possess good in-

court advocacy skills.

Instructors are familiar with their

work.

Challenges with briefing a barrister in

circuit courts

It is not economical for a barrister

to travel to a circuit court for only

one brief.

The time barristers apply to a legal

aid matter may be compromised by

the number of briefs held by them.

A small pool of barristers to brief

may be insufficient where demand

increases.

It is difficult to know which other

barristers may be willing to accept

briefs for circuit courts.

Finding an

appropriate

barrister to brief

Practice partner lawyers work to build

relationships of trust and understanding with

barristers over time. When a lawyer is newly

admitted or commence work at a new office,

they generally seek advice from another

colleague or senior lawyer about whom to brief.

Difficulties arise when there is no-one to seek

advice from.

2

ACTIONS 1, 2, 3, 4 & 5

Finding an

appropriate

barrister to brief

Practice partner lawyers would like to see

Victorian Bar profiles with more detail and which

highlight:

• Whether the barrister is willing to do legally aided

family law work;

• Whether the barrister is willing to travel to circuit

courts;

• The barrister’s skills and experience in family law

matters; and

• The barrister’s skills and ability to communicate

effectively with VLA’s priority clients, particularly

new/junior barristers who may not have accepted

a legally aided family law brief in the past.

2

ACTIONS 1, 2, 3, 4 & 5

Content of

briefs to

barristers

It is generally accepted that early preparation coupled with early briefing leads to better outcomes for clients.

Some difficulties with achieving better outcomes for clients are:

• Barristers returning a brief shortly before the hearing date (including the day before the hearing). The instructor is then required to brief another barrister on an urgent basis;

• Instructors briefing a barrister, or providing the written brief, the day before a hearing;*

• Briefs containing inadequate documentation; and

• Briefs with poorly written affidavits.

3

ACTIONS 1 & 4

* It is unclear from the consultation whether late briefing by a practice partner

lawyer is due to the challenges of obtaining client instructions, the brief being

returned by a barrister at the last minute, challenges around securing legal aid

funding, or other issues.

Content of

briefs to

barristers

Victoria Legal Aid has already implemented some measures to mitigate and/or reduce some of the issues identified:

Action 12 of the review states that “Victoria Legal Aid Practice Standards for section 29A panels will be amended to clearly state the preparation requirements of family lawyers for mediations and trials, and we will use the existing audit process to monitor compliance”; and

On 1 November 2017, VLA introduced new Family Law trial practice tools (e.g. case strategy plan, counsel memo template and index of documents), and checklists (e.g. litigation preparation) for practitioners undertaking legally aided family law matters.

3

ACTIONS 1 & 4

Fees in legally

aided family

law matters

Practice partner lawyers have expressed some confusion around the family law guidelines and fees which have led to billing errors.

There is general dissatisfaction with VLA’s current fee structure in family law, with most practice partner lawyers and barristers believing that the financial return does not reflect the amount of time and effort required, especially when VLA’s clients have complex needs and generally require more support.

Practice partner lawyers and barristers often do unpaid work on legally aided matters.

Matters and issues that are outside the scope of the BPA project will be communicated

to the relevant areas within VLA.

4

Outside scope

of BPA project

ISSUES

SNAPSHOT

VLA’s fee structure does not appropriately remunerate lawyers or barristers for their work.

Outside scope of BPA project

Fees

Insufficient details on some Victorian Bar profiles.

New/junior barristers - do they have the skills and experience to work with VLA’s priority clients?

Finding an appropriate

barrister

Returning a brief/ briefing barristers at short notice.

Briefs with inadequate documentation/ poorly drafted affidavits.

Content of briefs

to barristers

Small pool of barristers to brief.

Not economical for one barrister to travel to a circuit court for one brief.

Time spent on a legal aid matter may be compromised by the total number of briefs held.

Who else is willing to be briefed in circuit courts?

Briefing in circuit

courts

ACTIONS FOR

IMPLEMENTATIONWe are committing to

implementing five actions

VLA employs a mixed-model of service delivery with private practitioners, CLC lawyers, barristers and VLA staff lawyers working together to service the legal needs of the community.

Our model operates on the premise that the client has ultimate choice in representation. Practice partner lawyers operate independently, employing forensic judgement and assessing individual client needs before finding and engaging an appropriately skilled barrister to brief.

VLA’s role is to support this process, connecting clients who need legal assistance with our experienced practice partner lawyers; and connecting our practice partner lawyers with skilled barristers.

A sustainable mixed-model of service delivery that responds to current community needs requires VLA to:

• continually attract quality practice partner lawyers and barristers with the breadth of skills and passion to do legally aided family law work; and

• do its part to retain and engage the pool of quality practice partner barristers to brief in legally aided family law matters.

VLA is committed to do this by implementing actions that address common issues as well as support the experience of practice partner lawyers and barristers, from the initial stages of deciding who to brief, and when to provide briefs, to ongoing educational and professional development needs for our practice partners.

Mixed-model of service delivery

development needs for our practice

partners.

In contrast to what was identified as part

of the review, consultations throughout the

BPA project did not disclose specific

concerns about the quality of legal

representation. Therefore, VLA has decided

not to implement a list of preferred

barristers.

The actions in this paper continue to

support the objectives of Action 13 of the

review while aligning better with feedback

from the consultation about issues and

concerns with current briefing practices

and court advocacy in family law.

Mixed-model of service delivery

Introduce a

Working with VLA

(Family Law)

induction for

members of the

Victorian Bar

who practice in

family law

Purpose

To foster a relationship of support and collaboration with barristers and the Victorian Bar.

To expose junior barristers and barristers who have not considered doing legal aid work to working with VLA, our values and what it means to support the work that we do and the clients we represent.

Interim outcome

Increase the number of barristers who are willing to do legally aided family law work to ensure sustainability of in-court representation;

Provide the most disadvantaged and vulnerable people access to a variety of barristers; and

Provide lawyers with sufficient choice so they can brief barristers with the requisite experience, legal knowledge and the relevant soft skills that complement the individual client’s circumstances.

An induction session will be held by 31 March 2018. Ongoing sessions to be provided and supported by VLA’s Family Law program.

ISSUES 1, 2 & 3

ACTION 1

Expand access to

VLA’s education

and professional

development

programs that

target working

with our priority

clients to our

practice partners

Purpose

To support the professional development of our practice partner lawyers and barristers who do legally aided family law work.

Interim outcome

VLA’s practice partner lawyers and barristers have access to VLA’s resources that will assist with developing their soft skills and working with our priority clients; and

Practice partner lawyers and barristers provide services in ways that are responsive to the needs of our clients. For example provide services in a culturally appropriate way to Aboriginal and Torres Strait Islander clients and clients from culturally and linguistically diverse (CALD) backgrounds.

Identification of the relevant development programs VLA can offer and initial discussions with appropriate departments within VLA about expanding our resources to our practice partners to be completed by 31 March 2018. Ongoing support for implementation will be provided by VLA’s Family Law program. ISSUE 2

ACTION 2

Actions 7 and 14 of the FLLASR

complements Action 2:

• Action 7 “ Victoria Legal Aid, in

consultation with private practitioners

and community legal centres, will

develop and deliver training to family

lawyers on related areas of law, so that

they can better assist clients and

provide appropriate advice and

referrals”; and

• Action 14 “ Victoria Legal Aid will

review existing training on cultural

awareness, disability and mental health

issues and adapt or develop new

training to be delivered to lawyers

doing legal aid work.”

ISSUE 2

ACTION 2

Increase the

ability to

identify VLA’s

practice partner

barristers who do

legally aided

family law work

Purpose

To support practice partner lawyers to brief

barristers with whom they are not familiar by

identifying barristers with requisite skills and

experiences relevant to client circumstances.

Interim outcome

VLA’s practice partner lawyers can

efficiently and effectively make a

decision on who to brief; and

VLA’s practice partner lawyers can quickly

identify which barristers have experience

working with VLA’s priority clients; are

willing to travel to circuit courts; and any

other beneficial or relevant skills.

Development of a logo for use by our

practice partners, including initial logo pack

distribution, to be completed by 31 March

2018. Further work under this action to be

supported by VLA’s Family Law program. ISSUES 1 & 2

ACTION 3

Create a

Family Law

Community of

Practice group

Purpose

To establish an ongoing community of

practice to identify common issues with

practising in family law; recommend options

for change; and provide feedback about the

implemented actions under the review.

Interim outcome

Proactively discuss strengthening quality

in legally aided family law matters by

identifying emerging issues

VLA continues to strengthen our

relationships with the legal community

Members can provide feedback about

implemented actions from the review

Development of a terms of reference and

formation of the group to be completed by

31 March 2018. Future meetings will be

coordinated and managed by VLA’s Family

Law program.ISSUES 1, 2 & 3

ACTION 4

Increase

exposure and

networking

opportunities

between VLA’s

practice partner

lawyers and

barristers

Purpose

To raise the profile of practice partner

lawyers and barristers who do legally aided

family law work and to expand the briefing

circle for practice partner lawyers.

Interim outcome

VLA’s practice partner lawyers and

barristers are aware of who does legally

aided family law work; and

VLA’s practice partner lawyers are aware

of and get to know barristers, outside of

their current briefing circle, who do

legally aided family law work.

A plan for implementation will be developed

by 31 March 2018. Ongoing support for

implementation will be provided by VLA’s

Family Law program.

ISSUES 1 & 2

ACTION 5

Next stepsVictoria Legal Aid has

commenced implementation of

the five actions.

Action 1

Introduce Working with VLA (Family Law) induction

Action 2

Expand VLA’s resources to practice partners

Action 3

Increase ability to identify VLA’s practice partner barristers who do family law work

Action 4

Create a Family Law Community of Practice group

Action 5

Increase exposure and networking opportunities between VLA’s practice partners lawyers and barristers

post

31 March 2018

Represents implementation progress

VLA’s

Family Law Program

to provide ongoing

support

and management