Starter's orders part 4

One pupil once got into trouble for losing a case. However this was losing a case with a difference.

One thing solicitors are never supposed to do is send original documents to a barrister (subject to an exception I will outline later). There are lots of sound reasons for this. The first is that the solicitors are in charge of the documents. They have procedures for storage, retention and retrieval of original documents. When a client gives an original document to his or her solicitor, this is done on the basis that the solicitor will have procedures in place to take good care of that document. Original documents may well be irreplaceable and hence need to be properly looked after.

What the solicitor will do is make copies of the relevant documents so that instructions are complete. The only time ordinarily the solicitor will hand over originals is where inspection of the originals is necessary (for example an expert might require an original for handwriting analysis, the actual appearance of an original might be important for the barrister to see because of something that is not easily replicated by a photocopy). However whenever this extraordinary course occurs, there will normally be notification that the document is coming, and a safe means of providing it. You would not just stick something like that in the post.

Moreover a barrister's papers are organised on the basis that they are not holding original documents. Since barristers are not in the business of receiving original documents from clients, there is no need for them to have the same storage procedures as solicitors. Therefore providing originals to barristers, save for a specific and necessary reason as referred to previously, is wholly wrong.

Providing originals involves another difficulty if the solicitor is providing the originals rather than copies, because that probably means that the solicitor has not bothered to have the documents copied in the first place. (If the solicitor had copies, why not provide those to the barrister instead?). This has a number of serious consequences. Firstly if the originals are lost, that is it. You can no longer get copies of them, unless someone already has copies which the solicitor is able to borrow and copy (hopefully without losing them!) or for some reason there was more than one original (where for example there were duplicate original documents one for each side). Secondly, any barrister will often want to discuss matters with their instructing solicitor before producing final pleadings (the documents stating your case which go to court) or an advice (telling the client whether their case is good or whether it is rubbish or whether it is somewhere in between). If a barrister telephones the solicitor to discuss the content of documents, how can the solicitor sensibly respond without any copies of the relevant documents? Solicitors are instructed by clients on the basis that they will be at some level in control of the case, and you cannot be in control of something when you lack all relevant documents. Moreover the solicitor will not know when it is suddenly going to be necessary to do something on the case for which you would need documents. Let us say that you send papers to a barrister in London. The barrister goes off to Birmingham to be another case. Whilst the barrister is doing the case there are some urgent advices that the barrister will work on, including the one where the original documents are sent. The barrister takes the papers. Then there is suddenly an urgent application by the other side in the case in London, or for some reason the client needs urgent advice. The solicitors not have any papers so as to be able to respond to it. The barrister is somewhere else, with the papers not easily accessible. The barrister may be in court, the papers at the hotel, they may now need to get these papers to a different barrister, and all these problems stem from the solicitor not keeping copy documents. Even more ludicrous is the way some solicitors send not only original documents but their entire file. That means they've kept nothing to tell them what the case is about.

You can probably see which way all this is going, but next week will see how it impacted upon one hapless pupil.