Counsel Brief: Instructions and Financial Evidence
Prepare a counsel brief that defines the work and exposes the evidence. Organise instructions, disputed financial facts, source records and later updates.
- Published
- Updated
A counsel brief gives a barrister a defined legal task, the instructions needed to perform it and the supporting evidence. State the questions you need answered and connect each disputed financial proposition to its source records.
For Australian solicitors and government or in-house lawyers, the brief remains a continuing instruction. A useful delivery record shows what counsel accepted, which documents counsel received and who will resolve any missing information.
Agree Counsel’s Task and Instruction
Agree the work with counsel before sending the document set. Identify the client and the person authorised to instruct on its behalf. Distinguish the instructing entity from an individual officer, related company or affected beneficiary.
Record whether you need advice, drafting or an appearance. Specify the required result, such as advice on a proposed claim’s legal basis or a settled pleading. Give counsel enough party information for a conflict check before transmitting the substantive file.
Confirm expertise and availability with counsel or the clerk. Agree the work’s priority, delivery deadline and fee basis, including preparation, conferences, appearance work and cancellation terms where relevant. Keep the engagement terms with the instruction record.
The NSW Bar Association’s direct-briefing guide recommends discussing availability, cost and the brief’s contents before delivery. Its observations guidance also connects the client’s objectives to the barrister’s task and timing.
Check the conduct rules applying in your jurisdiction. Queensland Law Society’s rules for client relations address proper client instructions, confidentiality and conflicts. Record the authority to instruct and the basis for sharing the material with counsel.
Counsel supplies the agreed legal work. The instructing solicitor retains responsibility for obtaining instructions and considering the advice in the matter. The Legal Practitioners’ Liability Committee’s guidance explains why briefing counsel does not remove the solicitor’s independent judgement.
For an institutional brief, establish any applicable approval, procurement or panel requirements before engagement. Commonwealth engagements also require consideration of the Legal Services Directions and counsel-engagement guidance. An ordinary private retainer and a government engagement can have different approval requirements.
Write Observations That Explain the Matter
Give counsel the client’s problem and the decisions requiring legal advice. A file extract does not explain why a document affects the requested advice.
Arrange the observations so counsel can find the instruction before reading the underlying records.
- Identify the client’s objective and the precise work requested. State any limit on authority, such as obtaining advice before deciding whether to commence proceedings.
- Summarise the material chronology and current procedural position. Identify existing orders and the deadline affecting counsel’s work.
- Set out each question separately. Explain which decision the answer will support and identify any alternatives the client genuinely needs considered.
- Distinguish agreed facts, client assertions and disputed propositions. Give document references for evidence supporting or contradicting each material proposition.
- Identify adverse evidence, assumptions and incomplete instructions. Assign outstanding factual questions to the lawyer who will resolve them.
For example, ask whether identified communications support the pleaded basis for repayment. Explain the competing characterisation of the payment and cite the communications. The instruction gives counsel a legal question connected to evidence, without treating your preferred factual account as established.
Organise the Documents and Financial Propositions
Provide an index that takes counsel from a question to the relevant document and page. Use controlled copies of records, keeping originals in their proper custody.
Agree the delivery format with counsel. Group the documents around their function in the instruction, with current pleadings and orders readily identifiable. Include relevant contracts or other instruments, witness material and expert reports. Keep superseded versions clearly marked where their history matters.
For financial evidence, the analysis schedule explains the proposition while the original statement page supplies the recorded transaction. Retain both references. Show whether a description comes from the bank record, a client’s explanation or the analyst’s classification.
A debit establishes that the recorded amount leaves an account. Its purpose can require agreements, correspondence or witness evidence. An analyst’s factual finding and an instructed expert opinion also answer different questions. Identify the author and scope of each document so counsel can assess its use.
A Fictional Disputed Transfer
Assume a company alleges that a director transfers $35,000 without authority. Its fictional statement, Operating-account.pdf, page 4, shows the following entries.
| Entry | Amount | Running balance |
|---|---|---|
| Opening balance | $82,000 | $82,000 |
| Transfer carrying reference “Director loan” | Debit $35,000 | $47,000 |
| Customer receipt | Credit $12,000 | $59,000 |
The closing balance reconciles because $82,000 minus $35,000 plus $12,000 equals $59,000. That arithmetic supports the transaction schedule. It does not establish that the director receives the money or lacks repayment rights.
Write the observations around the disputed proposition.
| Instruction element | Fictional content |
|---|---|
| Client’s assertion | The transfer is an unauthorised withdrawal for the director’s benefit |
| Source reference | Schedule item T-07, linked to Operating-account.pdf, page 4 |
| Contrary explanation | The director says the payment repays an earlier advance to the company |
| Supporting material to consider | The earlier credit, loan ledger, approval records and correspondence |
| Missing fact | The supplied statement does not identify the receiving account holder |
| Question for counsel | Which legal basis supports repayment on these records and which further evidence is needed to assess the competing loan explanation? |
Incorrect instruction: describe the reference “Director loan” as proof of an unauthorised benefit. Correct instruction: identify the debit, disclose the repayment explanation and ask counsel to assess the legal consequences on the evidence.
FinTrace can perform the statement-analysis work for this part of a brief on a per-matter basis. Its searchable ledger and findings report connect findings to the source PDF filename and page. That gives the instructing lawyer direct access to the statement evidence when framing counsel’s questions.
Select the records needed for the particular instruction. A wider brief of evidence has its own compilation task. A private instruction to counsel also remains distinct from court book preparation for a court-facing bundle.
Deliver the Brief and Resolve Initial Questions
Deliver the brief only after checking the intended recipient and the material that recipient can access. Confirm the address or sharing identity independently of an unexpected forwarding request.
Use these delivery checks before recording the brief as sent.
- Confirm that the index matches every supplied file and attachment.
- Open the files and check readability, page references and any passwords or permissions.
- Restrict access to the agreed recipients and confirm the confidentiality arrangements required for the matter.
- Retain the exact version sent, including observations, schedules and supporting documents.
- Obtain confirmation that counsel receives the complete set and accepts the task and timing.
A successful upload does not confirm receipt of readable material. Ask counsel to identify any missing file or unclear instruction promptly, then record the response.
Keep a clarification list with the question, responsible lawyer and due time. Assign a missing client instruction to the lawyer taking instructions. Assign a missing source document or specialist question to the person obtaining it. Tell counsel when the answer affects an assumption in the brief.
Keep Instructions and Advice Aligned
Send a supplementary instruction when a development changes the facts or the work counsel must perform. Give the supplement its issue date and version, identify what changes and mark any superseded material.
A new statement page can change the financial proposition without changing the legal question. For example, a receiving-account record might identify a different payee. State how that alters the earlier assertion and ask whether counsel needs to revise the analysis.
Confirm receipt of material developments. An urgent message needs acknowledgement and a revised delivery arrangement if the original timetable no longer works. Keep the continuing instruction history beside the version originally sent.
When counsel returns the work, compare it with each instructed question and the document version used. Read assumptions and qualifications against the file. Obtain clarification where the advice leaves a question unanswered or relies on a fact that has changed.
Allocate the resulting actions and deadlines to named lawyers. A later trial preparation plan can take the hearing work forward. Close the advice instruction only when the returned work addresses the accepted task and its remaining actions have owners.
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