Precedent (Australian Lawyers Alliance)
A ‘YOUTHFUL’ INSIDER’S PERSPECTIVE
By Jason Moffett
Recently, I was involved in what I understand to have been the very first collaborative workshop between ACT Young Lawyers and the ACT Magistrates and Supreme Court about court etiquette. It was an excellent experience. I learnt much and realised I have much to learn. My motivation for doing the workshop was triggered by an experience in the ACT Magistrates Court. While waiting in the public gallery for my case to be called I heard a mobile phone go off. The senior practising solicitor answered it before leaving the courtroom, without bowing on the way out. When asked basic questions by the Registrar, other practitioners responded with ‘this is not my file’ or ‘I don’t have instructions in that matter’. I could not hear the Registrar asking questions of my colleagues at the Bar table due to other colleagues ‘catching up’ about their respective weekends.
These experiences caused me to reflect on court etiquette. Although I am certainly no expert when it comes to such matters given my relative youth, I do have a strong passion for advocacy and sense of belonging to this amazing profession of intelligently capable and driven individuals. What are the links between court etiquette and becoming a better advocate generally?
The purpose of this article is simply to share my recent experiences with respect to coming to the Bar and learning about court etiquette. It is not an exhaustive list of court etiquette, let alone a comprehensive guide. It is a ‘practical paper’, not a scholarly article. Some of the anecdotes come from colleagues; others come directly from my own mistakes, of which there have been many.
BEFORE YOUR APPEARANCE IN COURT
How many of you have been summonsed into your supervisor’s office on any given morning of the week to be advised you are to appear before a registrar or judge in the next 10 or so minutes and are handed a file? It is the first time you have ever laid eyes on this particular file let alone know what it is about. The clock is ticking. You must get to court on time. You ask your supervisor a couple of questions about the file, only to be given little of the crucial details because he or she is otherwise occupied with matters that take greater priority. This is why of course you have been asked to attend court. You are on your own now. What do you do?
The starting point is to know the file and your instructions. Sometimes that is easier said than done, but it should go without saying that as an advocate you will be expected by the Bench to have a sound knowledge of the file and be able to assist the court with any of its enquiries. You must not say (even if it is the case), ‘I don’t have instructions on that matter’ or ‘it’s not my file’. While there is a fine balance between candour to the court and the rules of advocacy, the moment you speak these words you are likely to lose the registrar or judge. This will be to your client’s detriment.
As a starting point, define your objective. If you know what it is you are attending court to achieve, you can subsequently craft your approach and determine the structure of your submissions. For example, your supervisor may instruct you to appear on an application to obtain a default judgment. Don’t just ensure that you have a copy of the application and affidavit to be relied upon on the top of the file – read it! You should know specifically the power under the Court Procedures Rules (or other power) that you will be asking the judicial officer to use to get what you want. Do not assume the Bench knows the operative effect or location of every single rule, as thousands of rules exist. You should move on the application, ‘I move on the originating application (or application in proceeding) and read the affidavit of Danny Crane sworn 17 November 2014’. Structuring your submissions appropriately will assist greatly with the timely running of the Registrar’s busy list and make everyone’s life (including yours) much better.
Clothing and attire are also important. Courts remain a formal and special place and you should dress accordingly. Men, I think, have always had it the easiest with being able to wear a suit and tie. Although women have more options, be mindful of dressing professionally and a jacket is probably mandatory. Both men and women should watch their colours – you are not attending spring carnival races and therefore you should probably adopt more conservative colours (unless, of course, you are eminent Queen’s Counsel!)
Recently there has been a resurgence of facial hair and particularly beards. I vividly remember when I was working as a law clerk in Lismore in the summer of 2005 and attended for work without having shaved. In all honesty I was probably also a little ‘dry’ in the mouth, given the 2-4-1 drinks I had enjoyed the previous night. I thought two days’ growth was trendy and hipster. My supervisor did not agree. I was told to walk in my only (inexpensive, polyester Lowes) suit in 30-degree heat to the nearest supermarket to purchase a razor and be done with my stubble. Never again did I present to work for that supervisor without having had a shave. I was with him for years to come and learnt much from him. In many ways the process taught me an invaluable lesson. The point I make here is to exercise common sense and respect for who it is you appear before and the profession that, on a daily basis, you represent. Facial hair, if worn, needs to be groomed or well-trimmed.
Arrive to court on time. For those of us who practise in the nation’s capital, most law firms are in close proximity to the ACT Magistrates and Supreme Courts. Being on time is fundamental to a busy directions or subpoena list running efficiency and effectively. If running late is for any reason unavoidable, get word to your opponent or the court (from any one of your electronic devices) so he or she may stand the matter over in the list for your arrival. If you are consistently late to court, no favours will be granted and you will develop an unsavoury reputation. This is not something you will want, having recently commenced practice as a lawyer.
ATTENDING AND APPEARING IN COURT
If there is a judicial officer on the Bench it is appropriate to bow. For years I understood the bow to be specifically directed to the judicial officer, but I have recently been made aware that the bow is in fact directed to the Coat of Arms located behind the judicial officer. There is no strict protocol about the bow, as I understand it. While you do not want to obtain an Oscar nomination for the most dramatic performance, it should be noticeable. Recently I forgot to bow when leaving a court, because I was rushing between courts, and was embarrassed to be reminded on the next occasion before the same judicial officer of my omission. This is something that should not occur irrespective of one’s measure of experience, so remember to bow when entering and leaving the court when a judicial officer is on the Bench.
Mobile phones should be switched off or turned to silent. If there is a ‘hard and fast’ rule that no mobile phone should be switched on during court, follow that rule. I regularly breach the former but not the latter. Much will depend upon the court in which you are appearing. Certain country-based courts and judicial officers who preside over such courts may have different rules and procedures foreign to you. It pays dividends to arrive a little earlier for such lists to observe (hopefully correct) conduct of your colleagues before you are required to enter an appearance.
Noise levels when discussing matters with your client or opponent are particularly important. If you regularly appear in the ACT Magistrates and Supreme Courts, you would have become accustomed to the terrible acoustics in some of the courtrooms. The public gallery is not the appropriate time or place for you to catch up with your colleague about the events of the weekend. If you have matters to discuss with your colleagues, whether or not they are related to your imminent appearance, such conversations should take place before entering the court. You do not want to be the person who is singled out by the Registrar because they can hear your voice over the person who is appearing on a matter presently before the court.
Has seniority been forgotten? The tradition and starting position is that members of the Bar are senior to practising solicitors, irrespective of the number of years since they were admitted to practice. If you are less senior to a colleague in the profession, invite that person to sit at the Bar table before the judicial officer enters the court. I think this should occur even in circumstances when your matter is first on the list. If you are in doubt, it is safest to assume (borrowing the words from someone far wiser then me) ‘that you are the most junior member sitting at the table’.
We all know that some court lists are not strictly followed: often a judicial officer calls for short matters or matters to which consent orders are to be handed up. I recently observed a very senior member of the Bar appear in the applications list before a Registrar of the court, waiting for his matter to be called. Fundamentally, in my view, for what it’s worth, the Registrar should have asked Senior Counsel why he was occupying the Bar table and, in particular, the matter on which he wished to enter an appearance. But the Registrar did not, and Senior Counsel waited patiently (although I suspect reluctantly) for approximately 40 minutes to have his matter transferred to go before a magistrate for want of jurisdiction. May I respectfully suggest that the rules of seniority should be observed by all stakeholders within our special and privileged community.
The Bar table should never be left empty in any circumstances. I have witnessed the most experienced practitioner either leave the Bar table without specifically obtaining leave from the court to do so or simply leave before the next matter is called. In some circumstances, the judicial officer presiding over the matter may give you permission to leave the Bar table because they have other matters to attend (for example, closed court in the absence of parties or representatives). This situation will be exceptional and should not be expected. Recently admitted practitioners do not, I suggest, have practices which precluded them from remaining at the Bar table for only a couple of minutes until the next matter is called or the court is adjourned. Patience is often a virtue.
Advocacy is an art and even the most senior of practitioners would tell you that they are still mastering it. Indeed, the concept of ‘practising’ law or medicine assumes that they can never be conquered but are necessarily a pursuit of perfection. Advocacy is the art of persuasiveness and preparation is a critical ingredient. A well-prepared practitioner delivers argument effectively and confidently. Confidence and arrogance are different, of course, and the line should never be crossed. In delivering your submissions, be confident and, if you are prepared, you should be persuasive.
When you are on your feet making persuasive arguments it is important for your opponent to remember to remain seated. If your opponent objects or stands, you sit down. This should be common practice but, unfortunately (at least in my observation), it is rarely followed. The purpose behind the rule is that only one person at any one time should be addressing the court. If your objection is in the course of your opponent adducing evidence from a witness, say ‘I object’. There should be no theatricality akin to Hollywood law movies or television legal dramas: make your objection and wait to be asked for the reason or reasons you have objected. Recently, I was appearing in a Sydney list when my much more refined and experienced opponent continued to stand notwithstanding my objection. I patiently waited for my opponent to sit down and when he did not her Honour respectfully reminded him of this rule of etiquette.
Those of us who are recently admitted to practice are unlikely to be appearing in hearings and adducing evidence unless of course we have been admitted to the Bar. The way in which we are, or have been, cutting our teeth is in the directions/subpoenas list or may be on the odd application, if we have been lucky. The same rule to objecting about evidence applies here: if you object to something your opponent has said, say so. However, while your opponent is making their submissions, it is better to make a note of what you do not think the court should accept and why and wait until it is your turn to make submissions. This ensures a better ‘flow’ for submissions and will assist the court in making a decision. Either way, the two of you should not be standing up and going ‘head to head’: this is a poor look professionally and will often confuse or make it difficult for the judicial officer to follow the argument or submissions.
Just as advocacy is an art, even the most senior members of the profession experience different levels of anxiety or nerves before attending court throughout the course of their careers. Do not hide behind your nerves – learn to vanquish them! If you are petrified of being in court, use your nerves to confine your arguments and the structure of your submissions and you will be in court for less time. Importantly, if you do tend to get nervous in court, try to think before you speak and speak clearly and slowly. In applications, most judicial officers will take notes of your arguments: if you speak too quickly, you may not allow them to contemporaneously record your winning arguments!
If you think court staff and, in particular, judges’ associates and those who work closely with judicial officers do not discuss your appearance and conduct in and out of court, you are living in fantasyland. Lawyers love gossip and members of the court staff are no exception. It will pay dividends to your capacity to adequately represent your clients and your reputation generally if you are courteous to court staff. They, like you, work in exciting and often stressful and difficult environments, and under considerable time pressures. It will not serve you in the least to be rude to court staff, irrespective of their role or responsibility in the court’s hierarchical structure. Treat all members of the legal profession in a respectful and courteous manner and in the way in which you would like to be treated yourself and you are likely to be remembered for all the right reasons. At the end of the day, you do not need to see colleagues socially but it is inevitable you will come up against them in future cases.
AFTER OR OUTSIDE COURT
One of the best ways I think to improve your court advocacy and understanding of etiquette is to attend court but also workshops similar to the one recently run by the ACT Young Lawyers. I hope that other similar programs may exist but, when I started out in practice, there was nothing like the present program for newly admitted practitioners by ACT Young Lawyers. Like most of us, I have picked up my knowledge of court etiquette by asking questions of fellow practitioners and observing the ‘practice’ in court. I have also learnt etiquette by making mistakes, but that is the least preferable way of refining one’s skills as an advocate.
One of any number of ‘traps’ that young players can get into is being aggressive to fellow practitioners outside of court. This usually takes place over the telephone or in correspondence. We all naturally and admirably want to succeed and obtain the best outcome for our clients, but this should never be at the expense of good manners and respect for others. Recently I was briefed in a case on an application where a solicitor needed to annex to an affidavit a series of letters prepared in the case. Some of those letters sent, by any assessment, were overly aggressive, rude, and getting close to abhorrent. On reading the affidavit, the judicial officer presiding over the matter singled out the practitioner and offered him a timely reminder that what we say in letters can ultimately make their way into evidence.
Do not rubbish the judicial officer or your opponent regardless how incorrect the decision may have been or how inadequate their performance was in your eyes. If your client is aggrieved by the decision, you may be able to appeal it. If your opponent’s performance is not meeting the standard you may be kind enough to offer some ideas or suggestions or simply understand that he or she may not be as experienced in advocacy as you. What you do not want to happen is what I witnessed appearing only a few weeks ago. A relatively experienced practitioner and well-known partner in a local firm took a judgment from the magistrate. Following his Honour handing down a decision, he needed to adjourn briefly for business not related to the conduct of the court. The experienced practitioner had other matters in court that day and proceeded to talk at the Bar table in an insalubrious way about the magistrate. Little did this practitioner know that the microphone was still recording and his unkind words were referred to the magistrate directly. When the magistrate returned from the short adjournment he asked the practitioner in no uncertain terms to explain his conduct. There was not much by way of explanation that could be offered in such a situation.
The purpose of this article was to share experiences of some of the lessons I have learnt and mistakes I have made in order to demonstrate the significance of court etiquette and of our responsibility in the profession, but also so you do not make the same mistakes as me. I urge you to read in this area and, most importantly, practise what are sometimes probably very traditional concepts of good manners. Ultimately I believe this will lead to a better profession for many years to come.
Jason Moffett is a barrister at Blackburn Chambers, ACT. PHONE: (02) 6247 5040 EMAIL: email@example.com.
 There are any number of useful resources available if it is a scholarly article you seek. See, for example, Young, ‘Court etiquette’, (2002) 76 Australian Law Journal 303; Ross, ‘Lawyers behaviour in court and court’, (2006) 30 Criminal Law Journal 170; Gaffrey, ‘Borrowed manners: court etiquette and the modern lawyer’, (2012) 86 Australian Law Journal 842; Lucev, ‘Advocacy – some essential tips for beginners’, (2013) 2 JCIVLP 12; Refshauge, ‘Court etiquette and procedures’, paper presented to the Law Society of the Australian Capital Territory, 19 March 2013.
 Young, ‘Court etiquette’, (2002) 76 Australian Law Journal 303.