Perhaps partly as a result of the generally dry reputation of the legal profession, it is a common misunderstanding that all lawyers have similar jobs. In reality, the term “lawyer” is a very broad category that encompasses a wide variety of more specific specialties and functions. Different areas of law require extreme levels of specialization and niche, esoteric knowledge of the minutiae of the law, and the various rulings that comprise the body of precedent in a given field. Those minutiae might seem insignificant to the uninitiated, but anyone who has had closer dealings with the law – especially lawyers themselves – will protest that the reality of the law is precisely in the details.
In Australia, lawyers generally fall into two categories. The majority of lawyers are solicitors, lawyers whose primary function is to understand the law and help their clients do the same. Solicitors advise their clients to help them navigate the delicate intricacies and complexities of the law, normally by advising them of what they can or can’t do according to the law, helping them write contracts and other legal documentation, and dealing with other lawyers or representatives of other entities that they need to deal with on their behalf to ensure clear communication and compliance with all laws and contracts.
Solicitors often specialize deeply in a specific field of law. The law is often very complex, and no one solicitor could understand the whole of the legal system and all laws passed within it, so they usually choose a specific field to become more informed on in order to develop a niche within the industry and gain more credibility in their knowledge in that specific field. Common specialties for solicitors include criminal law, family law, tax law, construction law, or corporate law.
Barristers might be what most people think of when they think of a lawyer – a trial lawyer arguing a criminal case while dressed in black robes and a white wig. Barristers are lawyers whose primary function is to manage litigation. They help mediate legal actions, including cases that go to trial and disputes that need to be resolved between two or more parties.
Barristers are often engaged by solicitors when they believe that a case may go to court or require some other form of mediation with outside parties. The barrister will aid the solicitor in preparing court documents, advising the client on legal proceedings, and building the case for trial. These aspects specific to conflict resolution are areas that barristers are intimately familiar with which solicitors are normally not exposed to. Barristers are very skilled at determining the strengths and weaknesses of an argument as it is to be presented in court. They can use their knowledge of case law to form an argument that might be more persuasive to a jury or a judge based on past rulings and the manner in which different laws are normally interpreted in court scenarios and mediation. A good barrister should be able to tell a solicitor or their client whether or not their case is worth actioning in court because they are often familiar with the outcomes of many similar cases.
Whereas solicitors might be quite familiar with the law as written, barristers are often more educated as to the precedents that have been set by case law and have a deeper understanding of the procedures and potential outcomes of litigation and conflict resolution. They also have a deep understanding of alternative conflict resolution techniques. A barrister can help arrange mediations like settlements, modifications to contracts, or other forms of compensation that are handled outside of court. These forms of mediation often reduce the amount of time needed to resolve a dispute and can help prevent either or both participants in a dispute from incurring substantial losses and fees that come along with pursuing a case in court.
Like solicitors, barristers come in different varieties. Again, like solicitors, barristers tend to specialize in a specific field of law, but specifically in the practice of advocating and resolving conflicts within that field. Barristers often have extensive and specific knowledge of the outcomes of cases within their fields and will know which precedents as set by case law will apply to each individual case that they take on. Given the nature of their work and familiarity with court settings, many barristers specialize in fields that tend to require frequent mediation or prosecution, including criminal law, equity and trusts, employment law, and commercial law.
Both solicitors and barristers play important roles in the Australian court system, but their functions are clearly distinct. Everyone will likely need to work with a solicitor at some point in their life, but most people might hope they never need to engage a barrister because that means something has really gone wrong!