briefing practices and advocacy project · briefing practices and court advocacy to support better...
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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
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