Hearsay ... the Journal of the Bar Association of Queensland
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Issue 80 - Sept 2017
What Judges Want Print E-mail

what_judges_want_340-px-Intros.jpgBy the Honourable Judge Morzone QC 

 

In short, judges want to be persuaded to make the ‘right’ decision with ease. That is, without undue delay, complexity, or angst.

To achieve this, advocates must employ the three essential qualities of persuasion:

· ethos (credibility);

· logos (logic); and

· pathos (emotion).

First and foremost however, you must always bear in mind the obvious – persuasion is not entirely controlled by the advocate. Persuasion occurs when an audience assents to what a speaker says. Consequently, persuasive speaking in court requires extra attention to the audience – the judge, the most important unknown quantity, in any court hearing.

THE AUDIENCE – Presiding Judge/Judges

It is important to recognise that the judge is constantly processing what you are saying. Nonverbal reactions are common for any audience listening to a persuasive speech - a furrowed brow, nodding head, or rolling eyes can help you gauge the judge’s comprehension and agreement (or lack thereof) with your submissions. Acknowledging non-verbal reactions can help.

It is critical that you ensure that your judge is listening, and open to being persuaded by your argument. To do so, your court presentation ought be tailored according to the many and varied personality traits of your judge, for example:

  • The turtle - Seems to be paying attention but asks no, or very few, questions, and gives little non-verbal cues. The judge may be completely disengaged or simply quietly attentive. This may be contrasted to the bored judge who also asks no questions, doesn't look at the speaker, doesn't seem to be writing very much down and snores occasionally. Sometimes, a judge has simply had a long tiring day and is having difficulty concentrating. In these cases the aim is to encourage the judge to interact and engage.
  • what_judges_want_emu.jpgThe emu - Asks limited questions, which generally do not seem to be on-point. Writes frantically and seems to be flicking through your bundle of documents at random. The judge might be lost and have difficulty following arguments, particularly if s/he doesn't know the area very well. If you suspect that the judge isn't following your arguments, slow right down and pause frequently to let things sink in. Remember that listening to legal submissions is harder than reading them and bear in mind that the judge may be trying to skim-read the material whilst you talk over his/her head.
  • The rhino - Interrupts frequently with combative criticisms of your case, your client or you, as the advocate. The rhino does a better job of rubbishing your arguments than your opposing advocate does, scolds you at length if you make a mistake and generally comes across as rude, aggressive and abusive. It is important not to take any of his criticisms personally. Stay calm, polite and focused. The worse the judge’s behaviour the more polite, calm and respectful you ought be. When confronted with the rhino, your goal should be to defuse the situation. You may have to alter the order of your submissions to do this. That being said, it is important to ensure you don't let yourself get too sidetracked by dealing with interventions: It is you, the advocate, who must retain control of your submissions. Avoid "with the greatest respect" or lapse into personal indignation. Stick to "in my submission" or “in my respectful submission”.  what_judges_want_bull.jpg
  • The fighting bull – Enters and spars in the arena. Often spends more time talking during your submissions than you do. Asks rambling questions which seem to be designed to encourage you to make particular points, but which are often impossible to make sense of. When appearing before the fighting bull, you may choose to humor their argument, but, when appropriate, you may also have to point out that you have other arguments you’d like to move onto. Just go through your argument. Stay calm and focused. You cannot change or fix this while it’s happening. Be polite.
  • The wolf pack - Very often in appellate courts, you will find that one judge takes the lead in asking questions and it is very easy to find yourself addressing just one judge. Make an effort to make eye contact with each judge separately whilst addressing the court and try to get them all involved.
  • what_judges_want_chameleon.jpgThe chameleon – Can be all of the above at any given time, as and when the circumstances require.

CREDIBILITY OF THE ADVOCATE (Ethos)

Before you can convince the judge to accept anything you say, you must first be accepted as being credible.

  • Does the judge believe you are of good character?
  • Does the judge respect you, or are you tainted by a ‘reputation’?
  • Does the judge believe you are a generally trustworthy source of assistance to the court or does s/he think you are more likely to hinder?

Ethos is about the judge’s perception of you, and this perception can be formed over many months or years, or perhaps over many past appearances. In oral argument to a trial judge, you can enhance your reputation as an advocate. So, I’ll first examine things you can do in the long run to improve your ethos.

Good Character

Let’s start with an easy one. Be honourable, candid and trustworthy with your opponent. Do not say one thing and do another. Work co-operatively and dependably. Alert your opponent of mistaken concessions about evidence or law. Correct false statement as soon as possible. Make no side-bar remarks or informal objections. The positive effect you have on you colleagues will build reputation and earn respect, and will become known to your judge. This is even more prevalent in regional centres.

Do not attack your opponent. This is a waste of time, erodes your credibility and undercuts your professionalism. We all feel the need to attack from time to time, especially in rebuttal. Such attacks close down persuasion. Remember the old saying: “If you don’t have the facts or law on your side, then attack your opponent.” If you attack your opponent, the judge may conclude that you don’t have the facts or the law to support your position.

People generally, and especially judges, do not react well to rudeness. Forms of rudeness include: Using a raised voice or aggressive tone, arrogance in stance, tone and delivery, being inconsiderate, insensitive, deliberately offensive, impolite, obscene, sarcastic profane, or deviant and violating taboos.

As a general rule, when communicating with the court an advocate must not communicate in the opponent’s absence concerning any matter of substance in connection with current proceedings.

Where your opponent has consented beforehand to you communicating with the court, for example, when providing sentencing materials, you may do so after first notifying your opponent of the intended communication, obtaining their consent and confirming such consent in the body of the communication. You should also copy the correspondence to your opponent. When corresponding with the court ex parte, an advocate should not raise any matter in connection with current proceedings extraneous to those matters specifically notified, contemplated and consented to by both advocate and opponent. It is important to remember that the ‘court’ includes the registry, judges’ associates, and judge. Expect that improper or discourteous conduct will come to the attention of the judge, and stain your ethos.

Respect and Reputation

Act honestly, fairly, skilfully and with competence and diligence. Your conduct towards the court must be exemplary. Never deceive or knowingly or recklessly mislead. Correct any misleading statement made to the court as soon as possible after becoming aware.

As with most business and formal occasions, a clean and tidy appearance is appropriate. Your should not lose sight of the fact that Court proceedings are formal occasions. Excepting for the robe, you should dress as the judge dresses. You are holding yourself out as an organised, prepared and professional cog in our legal system – look the part! Wear clothing that would be appropriate for business. Old and tattered robes do not display wisdom, but rather, a shabby advocate.

Stand with good posture behind the lectern. Never rest a knee or foot on the chair, never drape yourself over the lectern and keep your hands out of your pockets. Use hand gestures only where appropriate and keep them to a minimum. Stand still, do not leave the bar table, and never approach a witness, judge or opponent without permission (eg. to hand a document in the absence of a court officer). Lose the theatrics.

When sitting in court, sit up straight with good posture. Do not slouch, rock or lounge at the bar table. There is nothing persuasive about looking like the disinterested, lazy and recalcitrant kid in the school room.

Know your brief and applicable law (including leading cases). Plan the timing to tender and have documents ready for tender. Fumbling advocates look foolish and distract the court from the flow of evidence and argument. Poor performance preparation is not only negligent; it is insulting to the court.

Timeliness is a basic courtesy. Make sure you arrive well before your hearing time. If you apprehend you are likely to be late, then get a message to the judge’s associate and your opponent. The judge is not interested in your "good excuse" for running late. Plan to arrive 15 minutes early. A late arrival will be seen as being utterly disrespectful.

Your introduction is probably the single best opportunity for you to establish your ethos with this judge on this day. For this reason, you should always write your own introduction. Don’t wing it. Highlight the essential facts that establish your trustworthiness, similarity, authority, and reputation. Beware that you don’t overdo it. Long introductions are boring, or worse, irritating.

Do not interrupt or speak over others while they are talking, especially the judge. This is even more important when appearing by telephone when advocates often lapse into informality. As mentioned above, court proceedings are formal occasions. Direct all submissions and remarks to the bench and not the opposing advocate.

Efficiency of the court hearing depends upon simple and clear rules about orderly procedure. These may vary in different jurisdictions and depending upon the nature of the hearing. Take your turn in addressing in accordance with traditional protocol. Once your turn has finished you do not have a right of rebuttal or ‘second bite of the cherry’. Don’t continue any argument when the case is over.

This is even more important when appearing by telephone. My preference is for all parties’ representatives to attend in person, or by town agent solicitor and/or counsel. Telephone appearances ought be used sparingly, for example where there is to be an order by consent of the parties or delivery of a judgment (not involving any substantive submissions). Generally speaking, I will only be more inclined to grant leave to appear by phone if:

  • All other parties know of and consent to the request to appear by telephone;
  • There are no issues of law or fact, or any likelihood that the judge will be required to exercise discretion, requiring substantive oral or written submissions;
  • The matter is not likely to take more than ten minutes.

Once a ruling or order has been made it should be accepted respectfully and graciously. It is rude and discourteous to vocalise or act out some form of discontent, anger or disagreement with the ruling, for example – swearing or remarking under your breath, banging the bar table, packing up loudly, or shoving the chair. Facial expressions and body language must be kept in check.

If the judge makes an accidental slip or obvious omission in the process of giving reasons - you may only and politely draw the court’s attention to a slip or error in the decision (to avoid the need to apply the slip rule).

Trustworthy

Being prepared for your court appearance is of utmost importance. By this, I don’t just mean merely knowing your facts and law, but you must also prepare for your actual performance. Take time to identify a case theory and plan how you will deliver your case and advocate your position accordingly.

Do not colour, embellish or invent additional facts, and ensure that your enunciation of the law is supported by authority.

Put away the shotgun. Be trusted to focus on the real issues in dispute – there are rarely more than three, and often less! If you argue in a way that challenges everything, you have less credibility than if you give ground and concede, particularly on collateral matters. Unnecessary argument and submissions on all issues is likely to dilute the strength of your arguments in respect of the real issues in dispute. It diminishes credibility to argue uphill against the obvious. Giving ground and, where appropriate, making concessions can enhance your credibility. You will need to make your own argument about which precedent, if any, should be followed, and why. Akin to judicial reasoning, your arguments will be based on an analysis of precedent. Take heed of the way judges write their decisions to refine this skill.

You may need to defer responding to thorny or complex questions to a later time. It’s okay to defer the question saying: “I’d like to give the complete answer after proper consideration, may I return to that point later in my submissions?” It’s okay to do that, but only if you do follow up! If you fail to do so, you may be seen as untrustworthy. Even if your submissions were great, they might be diminished.

EMOTIONAL CONNECTION TO THE AUDIENCE (Pathos)

Pathos is the quality that appeals to the emotions of the judge. Judges are human after all.

      • Does your portrayal of your client’s plight evoke sincere feelings of … sympathy? … empathy? … compassion?
      • Do your words and actions reflect the emotion sought to be evoked?
      • Does your characterisation of the case evoke a sense of justice?

Every judge is human. Most humans share many emotional triggers. As a result, emotional connection can be created in many ways in order to link an aspect of your primary argument with an emotional response of justice. Some paths are more effective and more commonly used to connect emotionally than others.

Even though we are all human, not all judges are emotionally hard wired. You must analyse your judge. Is s/he old or young? Technical or non-technical? Male or female? Parent? Liberal or conservative? You must tailor your approach according to your judge’s unique idiosyncrasies using words, analogies and metaphors, stories, humor, visuals and delivery techniques. Watch, listen, ask around – know your judge!

Sincerity counts

Persuasion is a product of both heart and head. Judges listen more carefully to lawyers who are perceived to believe in what they are saying. It’s human nature to pay more attention to people who are sincere in making some point than to someone who does not show enough personal interest. Sincerity a powerful tool of persuasion, provided it is not overdone. Show sincerity and enthusiasm for what you are arguing.

You will be surprised at the number of lawyers who read their arguments. Eye contact is essential for persuasion and for holding attention. If you can’t look someone in the eye, you can’t convince that person. The corollary to this rule is simple: Do not read your argument. If you need notes, use an outline. Argument without notes is the most persuasive style.

Choose words which add emotional emphasis. Some words are emotionally neutral, while some are emotionally charged. One way to do this is to concentrate on concrete, vivid, sensory words. When you use sensory words, your audience feels emotions they have associated with those words. For example, when you mention “the touch of your father’s flannel shirt” or “the aroma of your grandmother’s kitchen”, you’ve done more than just mention fabric and smells. You have evoked emotions which, depending on your audience, probably include loving memories of childhood.

Exercise discretion to select the words which complement the emotional tone you envisage will appeal to your particular judge. No need to be theatrical. The judge is not interested in an academy winning acting performance that may (but usually doesn’t) impress a client or a jury.

Humour is closely related to storytelling, because you usually arrive at humour through stories. Nonetheless, humor merits special mention. Appropriate humour in an argument evokes emotions such as joy and surprise, and often triggers secondary emotions such as calmness and friendship. If your judge is properly amused, the atmosphere is conducive to effective listening to you and they are attentive. However, very few cases would benefit from humour. Use it well and sparingly.

Maybe you have slides with photographs; maybe you have a prop. Either way, a concrete visual element opens many more emotional pathways than abstract words alone. For example: Showing a small sample of the images creates a far stronger emotional impact than saying that “the category of the child pornography images is 5”

Model the Emotion with Your Delivery Techniques

The emotional effectiveness of any argument often depends greatly on your delivery. Great delivery magnifies emotions; poor delivery nullifies them. Your words spoken or photographs tendered may induce emotion, but the effect is multiplied when combined with tone, expression and pace. Vocal delivery is one clear clue to how you feel about what you are saying. Your tone, volume, pace and other vocal qualities should mirror the emotions appropriate to any given case. Your body language is another cue to convey emotion.

Evoke a Sense of Justice

Make your judge curious. When your judge feels some emotion, s/he will be motivated to act to restore justice. How do you know the judge is curious? S/he pays attention, takes selected notes, engages with the advocate and follows along.

LOGICAL ARGUMENT (Logos)

Logos is synonymous with a logical argument.

      • Does your argument make sense? … Or, do you require the judge to make an extreme leap of faith? How easy is it for the judge to connect the dots?
      • Does the judge understand you? Or only absorb part of your argument?
      • Is your argument based on facts proved by evidence, sound legal principles and supported by authority?
      • Does your argument (and supporting evidence, principles and authority) lead to the desired outcome that you seek?

If your audience does not understand you, they cannot be persuaded by you. To be an effective communicator, you’ve first got to be a clear communicator. To be a clear communicator, you must use words, phrases, examples, and visuals that are understandable, and you’ve got to deliver them at a pace that the audience can absorb.

Oral argument to a trial judge offers an essential, but sometimes overlooked or minimised advocacy opportunity. Too often, this opportunity is not effectively used. Too frequently, advocates rely exclusively on their written submissions. Too little attention is given to oral argument.

Make sense

In Australia we are trilingual. We speak slang, formal English (taught in schools), and the Queen’s English. You should communicate with the court using formal English. The aim is to be clearly understood, not to appear aristocratically clever or learned.

Educate yourself in written and oral communication in plain English. Never use a long word where a short one will do. Never use a complex and long-winded sentence structure when simplicity makes the point. Speak clearly. Speak in clear, plain English. Never use an unusual, scientific word or jargon when an ordinary everyday word or phrase will do. Strong, single-syllable words are more persuasive than words with technical or multiple meanings.

Avoid prolixity in written submissions. There is no need to reproduce quotations from documentary evidence, transcripts and judgments. An accurate reference to the source will suffice. Use headings, sub-headings, page and paragraph numbers and good grammar.

Understanding

The tone and volume of your voice may be perceived as being disrespectful if you fail to conform to the court convention and etiquette vis-à-vis communication with the judge, or witnesses.

Speed kills. The faster you talk, the tougher your argument is to understand. You can’t argue too slowly - only too fast. Your speech will become blurred and indistinct at above 200 words per minute. It is important for the judge to be able to follow what you are saying. Remember, you know in advance what you are going to say; the judge doesn’t. Annotate your notes to prompt you to “slow down” or “speak up”.

Pause and repeat . Appropriate pauses and repetition can emphasize key points and help persuade. This has to be focused on the key points and cannot be overdone. Used sparingly, this is an effective persuasive technique.

Self review your oratory skills , for example: Are you too soft and quiet, or too loud? Are you talking too quickly? Or frustratingly slow? Or in a dull and boring monotone? Are you too melodic (you are not in an opera)? Or do you have appropriate fluctuation? Do you pause enough and at the right places? Are you pronouncing words correctly and clearly? Are you too ‘whingy whiny’? Practice in front of a mirror, or record yourself by video or do an audio recording

No judge likes being told what to do or think about the case, but judges are receptive to being guided about how to think about the case.

Less is better . Abraham Lincoln said it best: “I never heard a bad short speech.” Brevity is essential to persuasion. One of the single greatest advocacy mistakes is that lawyers say too much and either lose the attention of the judge or talk themselves out of persuasion. You will always want to say more but should discipline yourself to say less. Many advocates snatch defeat from the jaws of victory by talking too much.

Do not repeat your outline . It can be dangerous to assume that a judge has both read and understood your outline. Don’t assume that the judge understands your outline. Remember, every judge has a heavy list, many responsibilities and limited opportunity to study your brief. For oral argument you have the court’s immediate attention. Reshape your outline for emphasis during argument.

Ask if the judge has questions . This can be an effective way to start an argument, particularly if the judge does not volunteer any concerns or questions. This approach sends the strong message that you really do care about what the judge is thinking rather than what you want the judge to think. Once you learn the judge’s concern, focus your argument on those concerns (without forsaking your other important submissions). If a judge asks, you’d better answer directly. Dodging a judge’s question kills persuasion. If you defer a judge’s question to a later point in your submissions, it is absolutely vital to ensure you come back and answer it.

WRITTEN SUBMISSIONS

The purpose of written submissions is to save court time and to assist the judge.

If the submissions are lengthy, include a table of contents at the outset so that the judge can follow the structure of your submissions. Each page, and paragraph should be numbered, and use tabs if appropriate.

Use correct English, well set-out and arranged in a way that will make them as comprehensible, and as persuasive, as possible. Any spelling or grammatical errors will distract the judge from the substance of your submissions, and make the Court lose confidence in you.

Use headings to guide the Court.

If a case has been reported in an authorised report, make sure that the citation is to the authorised report (e.g. do not cite the ALJR if the case has already been reported in the CLRs; do not cite the unreported version, if the case has been reported in the Qd R).

Written submissions (whether an outline or longer) must be comprehensive and persuasively coherent with the same logic drummed into law students:

  • Introduction;
  • Evidence relied upon;
  • Factual background;
  • Real issues in dispute;
  • Relevant legal principles supported by authority;
  • Apply the law to the facts;
  • Conclusion.

Use a short introduction to focus the judge and forecast the key issues. A persuasive outline of argument must focus on the key points and concentrate on only that which is necessary. The sharper or more narrow the focus, usually the more persuasive. Focus helps the judge absorb and understand what you want.

Identify the relevant evidence in a clear an accurate way. Court filed documents, should be identified by the court document number, the nature of the document and filing date. Confusion when referring to documents will only detract from your submissions, and ultimately your case. References to the evidence, example exhibits or transcripts of testimony must be accurate so that the judge can find them with ease. Sometimes an agreed bundle is helpful as a working copy for the judge. But, BEWARE – do not suffocate the judge’s open and pliable mindset with irrelevant and voluminous paper.

Provide a factual background. Do not transcribe the facts! Do not colour, embellish or invent additional facts! Determinative factual disputes are surprisingly rare. However, where there is conflicting evidence on a critical point, clearly identify the disparity and tie the probable finding with objective fact.

The judge is only interested in the real issues in dispute. Proper concession helps persuade. Concede whatever points are obvious to focus on the real issues in dispute.

Only elucidate the relevant legal principles in its most authoritative manifestation. It is not an exam dissertation to demonstrate the length and breadth of your research. The judge is only interested in the law and those elements which aptly assist to materially resolve the real matters in dispute. If necessary, state the range of possible meanings or interpretations of the ambiguous provision or common law principle. Argue for and against each meaning, including a discussion of the relevant authorities, and evaluate these argument to distil the correct legal principle.

All common law, unless really trite, ought be supported by the most authoritative and functional versions of the relevant authorities (see Supreme Court Practice Direction 16 of 2013). Remember the doctrine of precedent? Cast aside cases which merely rephrase, illustrate or apply those principles or propositions sourced from a higher order authority. An unreported judgment should not usually be cited unless it contains a statement of legal principle, or a material application of principle, which is not found in reported authority. Cite cases and legislation properly, and always use authorised reports where available.

Once the scene is set, your persuasive prowess must come to the fore as you apply the law, element by element, to each set of facts and assess whether each is satisfied. If you argue in a way that challenges everything, you have less credibility than if you give ground and concede, particularly on collateral matters. It diminishes credibility to argue uphill against the obvious. Giving ground can enhance your credibility. You will need to make your own argument about which precedent, if any, should be followed, and why. Akin to judicial reasoning, your arguments will be based on an analysis of precedent. Take head of the way judges write their decisions to refine this skill.

Finally, state your conclusion for each issue and then one for each cause of action overall, if required, and provide a form of order to the judge.

Judge Dean P. Morzone QC [1]



[1] District Court of Queensland, Cairns. Paper originally presented in Cairns as part of the Judicial CPD program (with Henry J and Harrison DCJ), 25 February 2015 .


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