John Toohey Chambers

Preparation of Brief

A brief is an authority and instruction provided by a solicitor to counsel to undertake specified work.  

A well prepared brief will normally contain the following:

1. Index

The index should be the first page of the brief. The index should describe all documents and enclosures under appropriate headings and in chronological order.

2. Instructions to Counsel (Areas of Practice)

The instructing solicitor should select a barrister who practices in that area of law and is available to accept the brief.

Counsel may be briefed to draw or settle pleadings etc, give oral or written advice and to appear at trial.

Generally, where counsel is being sent a brief requesting advice, the instructing solicitor should formulate the questions counsel is being asked to consider. It is not uncommon to also ask counsel to advise on any other relevant matter arising out of the brief.

The memorandum from the instructing solicitor should include all the relevant facts and information which would enable counsel to understand the issue at hand. The facts should be logically and concisely recorded.

Where Counsel is briefed to draw or settle pleadings and/or appear at Trial, the instructing solicitor should also advise counsel of the evidence available to support the client's claim and whether facts and assertions can be verified in other ways.

The solicitor's instructions should refer to the relevant case law and any unusual points of law, with particular reference to the facts of the matter. If the instructing solicitor has concerns about any aspect of the case, these should also be outlined to counsel.

Other matters which should be included in a brief, if relevant, are:

  • the issues in dispute between the parties;
  • the state of any settlement negotiations;
  • the hearing date; and
  • the need for a conference with counsel.

3. Documents

Relevant documents to be annexed to the brief may include:

  • Copies of material documents;
  • Court documents including:
      Formal pleadings; Affidavit of documents; Copies of interrogatories and answers; Any other affidavits; Orders of the court;
  • Copies of relevant correspondence;
  • Proofs of evidence of witnesses;
  • Any opinions of counsel obtained earlier.

If it is necessary to include voluminous documents in a brief, it is usual practice for the brief to be included in an lever arch file, and the various sections of the brief to be divided by separating tabs for easy reference.

4. Cover or Backsheet

A cover sheet should contain;

  1. The heading;
  2. Counsel's task;
  3. Counsel's name;
  4. Counsel's fee;
  5. Solicitor's reference; and
  6. Date of delivery.
The Heading

If proceedings have commenced the backsheet should be titled with the court heading and the name of the proceeding (i.e. the names of the parties). Where there are no current proceedings, the backsheet may be headed with the name of the Act (e.g. In the matter of the ..Act 19..) pursuant to which advice is being sought.

Counsel's Task (Areas of Practice)

Each task which the barrister is briefed to do should be noted. Where counsel is briefed to appear the following additional information should be provided:

  • The party on whose behalf counsel will be appearing;
  • The court; and
  • The time of the conference/appearance/hearing.
Counsel's Name (Counsel)

The name of Counsel being briefed should be stated.


It is the solicitor's responsibility to negotiate a fee with counsel, and this negotiation should occur at the time the brief is offered to counsel. It is good practice for the solicitor to mark the negotiated fee on the backsheet of the brief.

Solicitor's reference

The following details should be provided:

  • Firm's name;
  • Address;
  • Email address;
  • Telephone number;
  • Facsimile;
  • Instructing solicitor's name; and
  • File reference.
Date of Delivery

The date the barrister is briefed should be typed on the cover or backsheet.

Urgent Matters

If counsel's advice is urgently required, it is good practice to include on the cover or backsheet words to the effect "URGENT- MUST BE COMPLETED BY..."

When to Deliver

A brief should be delivered to counsel in a timely manner so that the barrister has sufficient time to become familiar with the matter and to research the relevant legal issues.

Clients may be disadvantaged if counsel is briefed at the very last moment. However, if a brief is urgent, it should be marked as such and counsel advised.

Reviewing Counsel's Advice

The instructing solicitor should always review counsel's work and ensure that counsel has performed the requested task. Furthermore, the instructing solicitor should also note any matters which counsel has indicated require attention and whether any action needs to be taken in response to counsel's advice.

The instructing solicitor should also consider providing the client with a copy of counsel's advice, under cover of an explanatory letter.