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A guide to Lawyering-Up

A guide to Lawyering-Up

By Ilenna Copley

Having been raised in a family of lawyers, with a father who was a respected Queen’s Counsel and had an utter dedication to, and love of, The Law, from an early age the standards of excellence required to be a high calibre lawyer were instilled in me. 

                                 

I was the beneficiary of outstanding mentoring during my two years as an Associate to a brilliant senior Supreme Court Justice and while working under two exceptional partners at a top tier law firm, one of whom is now a Federal Court Justice.

 

I remain dismayed at the vulnerable position in which many people find themselves when circumstances require them to seek the assistance of a lawyer.  Particularly in recent years after leaving the profession, people have sought my guidance after being led down expensive paths with little apparent progress in their matters.

 

So, in the spirit of Dear Molly, I thought it may be beneficial over coming weeks to jot down a few general points to bear in mind when it’s time to lawyer-up.  The points are not the be-all and end-all and are not legal advice, but hopefully provide some useful general guidance.

 

The Importance of an Excellent First Brief

Like the importance of dressing in the best knickers, remember to set a high standard at the foundation stage and properly brief your lawyer. 

 

1. Initial Folder 

Mindful legal assistance may need to be sought urgently at times, ordinarily, before meeting with your lawyer for the first substantial discussion it is sensible to prepare a neat folder, with tabs. 

 

The process of putting together the folder will also clarify your own thoughts and the issues.  The discipline in clearly articulating your position and the advice you are seeking will also set a standard for the swift efficiency you expect of the lawyer.

 

2. Chronology 

Behind the first tab should sit the chronology.  Ordinarily, one of the first steps a lawyer undertakes is to prepare a chronology of facts and circumstances, at least the start of one, to be supplemented as a matter proceeds.  Understandably, to properly advise, a lawyer needs to know the facts.  That process will be greatly assisted and, importantly, costs are likely to be saved, if you prepare an informative chronology for your lawyer.  The detail and length will depend on the complexity of the matter. 

 

Ideally, you may wish to use a simple table structure, perhaps in landscape format, with four columns – Date, Event(s), Documents and Notes. Cross-referencing to the documents will also be highly beneficial if the matter proceeds to litigation, as it will be useful for counsel/barristers preparing their submissions and argument.  Again, costs will be saved by you, rather than them, undertaking the often time-consuming task.

 

If you come across a point of which you were not aware, it is also worth making a note of that fact in the Notes column, which may be important to reflect you were not aware of certain matters during the relevant time.  Often a state of mind at a particularly point is important.

 

The relevant documents referred to in the chronology should be placed in chronological order, behind subsequent tabs.  One document per tab.  Important documents, such as contracts, may be several tabs in, so flag them – blue for important and red for really important.  It’s simple, yet effective.

 

3. The Nutshell 

For your beautiful briefs, it is only appropriate for there to be an accompanying nutshell.

 

Once you’ve collated the documents and prepared the chronology, it is best to prepare a nutshell summary, that is to be placed on the top of the documents, as the first page to be seen when the folder is opened.  It’s best not to slip it into the front exterior cover where it may be seen by anyone, particularly if a delinquent subsequently carries the folder down the street, in an elevator or on a plane, uncovered.  Over the years it has been informative to read documents held and worked on by people looking important in those places.

 

The nutshell may state at the top, for example:

  • “Advice is sought on a strategy to achieve (insert commercial outcome sought)”
  •  “In relation to the contract between Company A and Company B, dated X, regarding (summarise subject / nature of contract):
    • what course do you recommend Company A should take to protect its position in the context of (insert circumstances)?; and
    • what course do you recommend I should take, as a director of Company A, to protect my position in the context of (insert circumstances)?

(In relation to that latter example, it may be necessary for you to be separately represented from the company, depending upon the circumstances.)

 

Below that primary statement a simple overview may set out for the matter:

WHO

  • Who is involved? You and any other parties, ideally with full legal names. 

WHAT

  • What has happened? The circumstances, in summary form. 

WHEN

  • When did events occur?
  • When are future events expected to occur?
  • The relevant time period and, importantly, any upcoming dates or deadlines. 

WHERE

  • Where did the events occur?
  • Where are future events expected to occur?
  • Locations of events, which may be relevant to jurisdiction. For example, a contract may have been signed in Queensland, but is to be performed in New South Wales and may nominate the law of Queensland or NSW may govern the contract. 

WHY

  • Why are you seeking advice now? The reason the advice is now being sought, for example, there is imminent action being threatened or a deadline is looming.  

HOW

  • There is an array of “hows”, depending upon the circumstances, including: How has any threatened action been foreshadowed to occur?

 

4. Touching Base 

Having prepared the Nutshell, Chronology and Folder of Documents, you’ll be well-placed to pick up the phone to a lawyer for an initial call.  (Again, urgent matters may not provide the luxury of time to prepare a comprehensive brief, but it is best to cobble together one as best possible in the available time, even if it is just the relevant documents as a starting point.)

 

During the first call, it will be important for the lawyer to clear any conflicts of interest, to ensure she or he and the firm is not precluded from acting on your behalf.  Accordingly, at first, you may wish to identify yourself (if you’re not already known to the lawyer) and say you’re calling about (the matter along the lines as you’ve expressed it at the top of your Nutshell). 

 

You will need to identify the parties involved, including the other side, if there is one.  The lawyer should then swiftly undertake conflict checks and call you back to inform you if the lawyer’s firm is clear to act or if there is a conflict. 

 

While conflict checking is an administrative step, undertaking it at the outset can save immense costs and wasted time that may otherwise occur if the check is not undertaken, you engage the lawyer, yet the matter has to stop once a conflict is revealed and you have to find another lawyer.

 

It’s best not to reveal details of a matter beyond the parties’ names, until a conflict check is cleared.

 

5. First Meaningful Conversation 

Assuming the conflicts position is clear, during the second phone conversation (ideally within the hour), you can use the Nutshell to outline the matter. 

 

Ask the lawyer if the matter seems to be within his or her field of experience.  If it is, you may wish to make a time to meet with them to discuss the matter more fulsomely, in a few days.  In the meantime, send the brief to them so they can read it and your first meeting in person can be more informative and productive.  If they have not read the brief by the time of your meeting, you may wish to consider whether that is indicative of their standard of professionalism and whether you wish to continue with them.

 

If there is a conflict, you may wish to ask the lawyer to recommend another lawyer, though you may also be well-placed to make your own independent enquiries.  The Law Societies of each Australian State may also provide guidance on lawyers with suitable experience in the area relevant to your matter and you can telephone them for assistance.

 

6. Conclusion

Legal matters are often complex, yet the best lawyers will be skilled at presenting advice, strategies and recommendations in a clear and easily digestible form.  Preparing and presenting a clear and ordered brief at the outset will be a useful starting point from which your lawyer can inform herself or himself of the nature of the matter and start the substantive conversation with you to identify any other issues and advise accordingly.

 

It is your matter, so take control, engage and do not underestimate the importance of setting a strong discipline and high standards from the start of your matter through your initial folder brief.

Ilenna Copley

ILENNA has worked for 16 years as a lawyer and senior business advisor, including 12 years in the Commercial Advisory and Dispute Resolution group of a top tier Australian law firm, including several years  as Special Counsel.

Through her firm Silver Rock Business Advisory www.silverrock.com.au, in recent years as ILENNA has delighted in creating and implementing enterprise strategies to beneficially impact people and their businesses, many in life-changing ways. 

In 2014 ILENNA organised the Forum on the Economic Empowerment of Women, held shortly prior to G20 and B20.  Speakers from leading international organisations addressed the themes Education, Maternal Health, Preventing Violence Against Women, Encouraging Entrepreneurship, Providing Access to Capital and Creating Opportunities in the Corporate Sector. 

In 2016, ILENNA cofounded Mother Africa Foundation Australia www.motherafrica.org.au, that is dedicated to establishing and supporting initiatives focused on maternal health and the economic empowerment of women.  She has led the development of Mother Africa’s social enterprises, Babes’ Blessing wine range and Dad Bags / Lad Bags, with a third social enterprise under development.

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