Taking instructions

Barristers depend on solicitors for instructions, yet their understanding of why solicitors choose them is often limited. Given the threats faced by barristers, this lack of understanding is difficult to defend. Barristers need to know the reasons behind the decision to instruct.

Exploring the reasons solicitors give for instructing barristers suggests that they are not always the obvious ones. Barristers think solicitors will be impressed by a successful track record, or strong advocacy skills. However, our research indicates that solicitors do not necessarily put these attributes at the top of their list.

Instead, they place a surprising weight on whether it is easy to get on with a barrister. They do not want a remote figure whom they feel nervous about telephoning. Many solicitors prefer barristers who will go for a drink with the solicitor after the court hearing.

Another important factor in the choice of barristers is whether they can give a straightforward answer to questions like: "Has my client acted legally – yes or no?" While they realise the complexity of the law, solicitors believe they are paying the barrister to make sense of it and to have answers.

Solicitors need to be able to justify the barrister's fee to their clients. Barristers may feel that fees are an issue which can safely be delegated to clerks, but it is a critical aspect from the solicitor's point of view. We found examples of barristers losing work they might happily have taken because the clerk quoted too high a fee.

Solicitors' requirements of a barrister often appear deceptively simple. "Is he available if I try telephoning him?" The requirement may appear simple, but failing to respond to calls irritates solicitors intensely and can lead to loss of work.

Barristers must recognise that all these requirements matter. If individual barristers or sets cannot satisfy them, solicitors can go elsewhere. There are increasing numbers of solicitor-advocates, whose background may make them more responsive to solicitors' requirements.

Even if one barrister or set of barristers does not meet solicitors' demands, there will be other barristers who are prepared to take them on board.

In spite of the threats, barristers who are currently busy may feel little pressure to change. However, even these need to know why solicitors choose them. The solicitors instructing them may not be making a positive choice for themselves or their clients. Instead, they may be using the devil they know.

Solicitors are cautious in their choice of barristers. They are often in court only a few times a year. They therefore have very few opportunities to see barristers in action. With limited personal experience of barristers, they will return time and time again to those they know.

Even if solicitors consult their colleagues in the same firm when choosing a barrister, the cumulative experience on which they can draw may be limited. The result is that the firm ends up returning regularly to a short list of barristers.

Solicitors' caution should in theory ensure a steady flow of work for barristers who have existing links with solicitors. However, there is no excuse for complacency. The flow of instructions can dry up. Solicitors drop barristers if fees become too steep or if a barrister blunders. The solicitors' own clients can go elsewhere.

The risk of losing business is magnified for barristers who are dependent on just one or two firms of solicitors. It is much better for instructions to come from a good spread of solicitors.

So what must barristers do to transform their relationships with solicitors?

First, barristers must make it easier for solicitors to make an informed choice when selecting a barrister to instruct. This means letting solicitors know about their skills.

The set to which a barrister belongs has a role here, although it is not always exploited. As members of a set, barristers can pool resources and distribute information.

In spite of the fears of some barristers, publicity about their services does not frighten off solicitors. On the contrary, given the paucity of information about barristers, some solicitors welcome publicity material.

The publicity can take several forms. Mailshots are of value, as long as they provide useful information about the set and its members. Regular newsletters ensure that the message remains fresh and give sets the chance to tell solicitors about new members. Seminars give barristers the opportunity to demonstrate their knowledge of particular areas of the law.

There is another way in which membership of a set can generate work for barristers. If instructing solicitors can rely on a consistent standard of service from all members of the set, they will use different members for different types of work.

In the past, the readiness of solicitors to use other members of a particular set was limited. The clerk's recommendation was often treated with caution.

However, if sets work on their internal training and quality controls, and if solicitors can see that this is reflected in the standard of the work they carry out, then membership of a particular set will be seen as a guarantee of quality. When a solicitor says: "I know that if I go there I won't get a dud" the set has achieved this objective.

Solicitors must feel confident that they can reach barristers when they need them.

Ensuring the availability of barristers is a particular challenge, given that they are often in court. However, if barristers and clerks work together effectively, it is possible to give solicitors the service they need.

Technology can also be used to help here. How many barristers' sets have exploited the potential of e-mail and voice mail?

Fee levels matter to solicitors. Their concerns about charges reflect their clients' concerns. A typical comment was: "I will pay the right price for the job, but some chambers are rip-off merchants."

Barristers need to understand what solicitors consider a reasonable fee. There is nothing wrong with charging premium fees, but they have to be justified to the client.

If fees are too high, solicitors will go elsewhere. The worst thing a clerk can do – in the eyes of the barrister who employs him – is to quote a fee for the barrister's service, then have the solicitor say 'thanks very much' and use someone else. In such situations, it is better for clerks to negotiate with the solicitor, within a framework agreed with the barrister.

All the ideas put forward here – improving internal training and quality control, ensuring that barristers are easily contacted, establishing the right price for barristers' services – flow from an understanding of what solicitors think of the service they get from barristers. There is no substitute for understanding what solicitors think about you and your set.

This understanding can be gained by surveying solicitors and any other professionals who provide instructions. The survey should cover both solicitors who provide regular instructions and those who do not. Even among those who do not instruct a set regularly there may be potential for work.

Our experience of carrying out this type of survey for barristers is that solicitors are pleased to be asked their views. Many buyers of services nowadays have been surveyed so often and so comprehensively that they no longer respond to surveys. This is not the case, so far, with solicitors and barristers.

Armed with a thorough knowledge of what solicitors are looking for, barristers can start to work out what they have to do to meet solicitors' needs and ensure a continued stream of profitable work. If they are not to lose out, they need to understand why solicitors instruct them. Only with this understanding can they hope to develop the strategies needed to ensure continued success.

Mark Green is a senior consultant with accountants and management consultants BDO Stoy Hayward.