The fundamental difference, from a non-lawyer's perspective, is that barristers have undergone formal training in forensic advocacy where solicitors have not.
Training in forensic advocacy
That training in forensic advocacy that barristers have undergone consists of 3 parts, known in New South Wales as reading requirements:
- study, tested by examinations known as the Bar Exams
- being taught advanced advocacy, mediation, and other barrister skills by instructors, at a course known as the Bar Practice Course
- practising under supervision of an experienced barrister for at least 12 months, known as reading with a Tutor.
There are 3 Bar Exams covering the following topics: the law of evidence, the practice and procedure of Courts & Tribunals, and professional ethics. In order to pass the exams, a candidate must attain a mark of 75% in each of the 3 examinations. Preparation and study to successfully pass typically takes 12 months, and longer if one or more of the exams is failed the first time around. These exams are typically some of the hardest formal exams that any lawyer will face in their career. Passing all 3 examinations is a pre-requisite to enrolling into the Bar Practice Course. More information is available here.
The Bar Practice Course is a very intensive, 4 week, full-time (and then some!) series of lectures, workshops, court practice sessions and informal discussions with instructors comprised of judges, magistrates, senior counsel, experienced barristers and some professionals from disciplines other than the law. The course culminates in a simulated trial in a real Court, usually before a sitting (real) judge, with actors playing eye witnesses and professionals from disciplines other than the law (e.g. accountants) playing themselves, observed by senior counsel who assess each candidate's performance to ensure that they reach a satisfactory standard. More information is available here.
Reading with a Tutor lasts at least 12 months, and during that time, the candidate is issued with a conditional practising certificate (like a provisional driver's licence) and is a barrister known as a Reader (the former title Pupil is no longer to be used, but sometimes overheard!). The Reader's supervisor is a barrister known as a Tutor (the former title Master is no longer to be used, but sometimes overheard too!). Readers are required to successfully pass various performance requirements such as attending lectures, completing simulated professional exercises, and participating in a special range of criminal and non-criminal work. Readers often accompany their Tutors, and participate in aspects of their Tutor's work, so as to allow Tutors to assess and improve a Reader's skills to ensure that they reach a satisfactory standard. Readers will also do their own professional work, which is periodically reviewed by Tutors to assess and improve a Reader's skills. Tutors are required to certify, after a minimum of 12 months, whether the reader is qualified to practise as a barrister without restriction. To become a Tutor itself has certain requirements, primarily revolving around experience and ethical practice, the most surprising of which is that senior counsel (QCs and SCs) may not be Tutors. More information is available here.
While solicitors are allowed to do barristers’ work, barristers are only allowed to do some types of solicitors’ work. Surely then, a solicitor is a one stop shop for all your legal needs?
Even though solicitors are allowed to do barristers’ work, they usually don’t. Why? Due to the simple fact that solving legal problems is a complex and time consuming exercise that involves different skills for different problems. In the same way that your family doctor knows many things about medicine, he or she doesn’t operate on you when you need surgery, or scans you when you need an X-Ray, but sends you to other doctors who do surgery all the time, or X-Ray patients all the time. Solicitors are a first stop shop for your legal problems, in the same way as your family doctor is your first stop for medical problems. Like with doctors, some legal problems are easily fixed, while other problems need specialist attention.
Barristers generally have to deal with fewer clients at any one time than a solicitor. The typical solicitor will see many clients in any one day. It is difficult and expensive to combine appearances before Courts and Tribunals (barristers’ work) while providing professional legal services to a large number of clients. Also, solicitors provide services that barrister’s do not. It is even harder to combine barrister’s work with other types of legal work. It is often quicker and cheaper for clients when barristers to do barristers’ work, and solicitors to do other legal work.
Most barristers’ work concerns litigation. What does a solicitor do during litigation? A solicitor usually takes the first information from the client, assesses the case, and selects a barrister with appropriate skills and experience in the area of law involved. The solicitor then prepares a summary of important documents and background information, known as a brief. This goes to the barrister with a request for the barrister to do something – usually appear in Court, or to provide advice about appearing in Court. After a barrister has been briefed (i.e. he has received a brief), the solicitor attends to the collection and collation of any further evidence that has to be obtained, communicates with the lawyers acting for other parties, and is responsible for the final preparation of all Court documents. Often a barrister and solicitor will work side by side – for example, a solicitor may write a first draft of a witness statement, the barrister may then edit it (for example, so that it complies with the law of evidence), and the solicitor may then format the statement into the way a Court prefers and delivers the final version to the Court.
Sometimes this can look like double-handling, and sometimes it is! However, most of the time, despite how it looks, a barrister and solicitor are doing different work in the same way that 2 pilots flying a fighter jet are doing different work most of the time: when the aerial dogfight starts, the barrister takes the controls of the plane and fires the weapons, but the solicitor is watching the fuel gauge, scanning the radar for enemy fighters, making sure that the weapons don't run out of ammunition and the passengers are strapped into their seats!