Following is a very helpful list of pointers on courtroom practice as written by Judge Dean P. Morzone KC in 2013. This paper was produced not long before his Honour’s appointment to the District Court on 27 October 2014. This list applies to all levels of experience and types of court practice. An example of the range of topics includes no.32 – standing behind the lectern with good posture and not slouching – and no.13 – while you are waiting in court- keep conversations in the back of the courtroom to a bare minimum, only when necessary and at a low volume – being a types of tips that members may never receive elsewhere.
Etiquette is essential for making a good impression. This is especially true for the courtroom advocate and attendees.
Many etiquette mistakes involve mannerisms, tone, talking, dress, presentation, and electronic devices being used in court. Good manners and proper courtroom etiquette may determine whether a judge has a favourable disposition to your case. Courtroom etiquette is also good ethical conduct.
Here are my suggested 50 tips about how to behave in and for the courtroom, including the time before your enter the court, when you are addressing the court, when you are in court otherwise, after court and outside court.
Before Entering
1. Being prepared for your court appearance and preparation is of utmost importance.
- By this, I don’t just mean knowing your facts and law, but you must also prepare for your actual performance. Take time to plan how you will deliver your case and perform your advocacy.
- Poor performance preparation is not only negligent; it is insulting to the court.
- As part of your performance preparation, you should also take account of the judge’s idiosyncrasies and court procedure. Ask your colleagues.
2. Be punctual and arrive on time. Timeliness is a basic courtesy.
- Make sure you arrive well before your hearing time. Have your appearance slips prepared or noted.
- 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.
- And allow flexibility for possible delays in traffic or taking a wrong turn. Arriving early is much better that arriving late, and a late arrival will be seen as being utterly disrespectful.
3. Be ready.
- Know the courtroom and the time your matter is due to be called.
- Be nearby and alert to the call of your case by the court officer or associate. If the hearing before you is in ‘open court’, then sit in the public gallery inside court, ready to move to the bar table when called.
- Have your papers in order, tabbed and readily ascertainable so they can be placed on the bar table quickly, quietly and efficiently.
4. Clean and tidy appearance is appropriate, like for most business and formal occasions.
- Be clean, neat and tidy in your appearance and grooming.
- Expressions of ‘out of the ordinary’ individualism such as outlandish hairstyles, disheveled facial hair, eccentric make up, bizarre piercings and exposed tattoos are less appreciated in the conservative setting of the court.
- Put simply, appropriate grooming will make you look and feel ‘the part’.
5. Dress appropriately with dignity.
- 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 professional — look the part! Wear clothing that would be appropriate for business.
- Barristers may need to be formally robed in certain hearings. Wear them correctly. No hair should be shown at the forehead under wigs. Bibs are worn over the lapels of the bar jacket, jabots are also worn out but the under garment should be neatly tucked in (if not attached to a white shirt). Under garments (pants or skirt) should be dark to match the robes. Robes etc should be pressed. Never wear dirty or stained jabots and bibs. Old and tattered robes do not display wisdom, but rather, a shabby advocate. Ill-fitting robes should be tossed and replaced.
- For applications and solicitors’ attire – While it is not strictly necessary to wear a suit (especially for women), you should always wear a jacket. Colours should be conservative, and generally subdued. Court is not a fashion parade and bright colours and patterns can be distracting for the judge.
- Short sleeve shirts or blouses, stringy or strapless tops, and loose ties are a definite “No No”.
- You should remove your sunglasses and/or hat before entering the court. That is, remove them completely — don’t rest sunglasses on your head as if you’re going to the café.
6. Turn off mobile phones and electronic devices before entering the courtroom.
- At least switch phones and electronic devices them to silent mode.
- Remember vibrations can be audible and annoying, especially when the phone or device is resting on the bar table.
7. You are responsible for advising clients, witnesses, and associates about proper courtroom etiquette and behavior.
8. No eating or chewing
- Gum chewing, lollies (even cough lozenges or mints), medication, food, beverages, or newspapers are NOT allowed.
- If you require a throat soother or medication, seek permission from the judge first.
9. Provide an order of witnesses and glossary of terms.
- Give the associate a list of the full names of the witnesses and any technical terms that may be used by (expert) witnesses.
- Spelling out names and terms will disrupt the flow of evidence and may annoy or distract the judge.
10. Be honourable, candid and trustworthy when dealing with your opponent .
- You will rapidly and deservingly gain a poor reputation if you say one thing to your opponent out of court, but do or say something different in court.
- The proper administration of justice depends upon advocates working co-operatively and dependably in the presentation of the case.
- This often involves making agreements about the mode of trial, electing to take or not take a particular point, making factual and legal concessions if instructed to do so.
Entering Court
11. Be silent on entering.
- If there is a hearing in progress, those parties are entitled to have the judge’s full attention without distraction by your bustling entry.
- Besides, the courtroom is likely to be ‘live’ and any remark you make will be digitally recorded.
12. Bow respectfully . If the judge is already in the court when you enter, stop and bow respectfully to the judge from the doorway of the court before proceeding to your seat.
- The bow is by a respectful and measured nod of your head (and shoulders).
- It is neither amusing nor respectful to bow too low and deep or quick and shallow.
13. While you are waiting , you can sit in the public seating area at the back of the courtroom.
- Reduce conversation to the bare minimum, quietly and only when necessary.
- Joking, sniggering, laughing, gesticulating, facial reactions etc must be avoided at all cost. The judge can see and hear you! Go outside the court if you need to talk, etc.
14. Move directly and quickly to the bar table when your case is called and sit at the bar table in order of seniority from right to left.
- Seniority will generally be determined by the advocate’s date of admission, but remember Queen’s Counsel/Senior Counsel are more senior than junior Barristers, who have seniority of Solicitors, who have seniority of clerks and self-represented parties.
- Representatives of the Crown (eg. Director of public prosecutions, the Attorney General or solicitor general) trump all and are entitled to the most senior place at the bar table.
- An independent children’s lawyer and representative will sit in the middle of the bar table and who should try to be equidistant between the parties so it does not look like you are sitting with one or the other. Some ICLs have developed a practice of alternate seats with counsel to sit next to a different party each day.
- Parties and witnesses should not be sitting at the bar table with their legal representatives unless permitted by the court. Of course an unrepresented party should be at the bar table, usually at the junior end.
Addressing the Court
15. The judge is the main focal point. The judge not only represents the ultimate authority in the court, but also the law .
- Rise immediately when the judge enters and leaves the courtroom, remain absolutely silent, with complete attention until the judge take his/her place.
- Too often, practitioners are completing a conversation, or fiddling with books and papers, or moving to the bar table as the judge enters. It is simply disrespectful, and will be noticed.
- Bow to the judge and do not sit down until the judge is seated.
16. Get off to a good start.
- This is the first opportunity to endear yourself to the court, remember the old adage about “first impressions”.
- It takes just a quick glance, maybe three seconds, for the judge to evaluate you, your instructor and your client. In this short time (before even seating), the judge may form an initial opinion about you based on your appearance, your body language, your demeanor, your mannerisms, and how you are dressed.
- These first impression can be nearly impossible to reverse or undo, making the first moments of a court hearing extremely important, for they set the tone for all the hearing that follows.
- Of course, you may already have blown it by the behaviour while you have been waiting in the public gallery.
17. Announce your appearance in a clear and respectfully loud voice, and in accordance with the court protocol.
For example:
- A barrister might say: “May it please the court, my name is [surname] initials [say your initials], of counsel, I appear for the [party] instructed by [instructing solicitor] solicitors.”
- A solicitor might say: “May it please the court, my name is [surname] initials [say your initials], solicitor of [practice name] and I appear for the [party].”
- Avoid familiar introductions like “Good morning Your Honour …”.
18. Be organised at the bar table . Plan the timing to tender and have documents ready for tender. Fumbling advocates look foolish and distract the court from attention to flow of evidence and argument.
19. Address the judge politely and respectfully as “Your Honour”, for example, on “Your Honour ordered that …” .
- Never address the court in second person, ie. “As You said a moment ago …”, instead say: “As your Honour said …”.
- Remain polite to the judge, opposing counsel, and court staff. It is how you are perceived you, not how you think you ought to be perceived, that’s important.
- Stand promptly when speaking to the judge , or when the judge is speaking to you, making or meeting an objection. Of course, sit immediately when your opponent makes an evidentiary objection or is addressing the court.
- 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.
- Direct all submissions and remarks to the bench and not the opposing advocate.
- You should frame any request or question to the judge indirectly. For example:
(a) Being aware of the judge’s preferred time for breaks and luncheon adjournment, you may ask: Is that a convenient time, your Honour?” rather than a direct question “Do you usually stop for lunch about now?”
(b) Directing the judge to a page of the transcript or bundle of documents, you may ask: “Might I invite your Honour to turn to document 45 of the bundle of documents, and then to page 20 of that document?” instead of asking “Now just look at document page 20 in document 45?”
20. Be uncompromisingly ethical in every respect.
- You are an officer of the court first and foremost before being a fearless and zealous advocate. You we are expected to act with competence, diligence and candor when dealing with the court.
- Your conduct towards the court must be exemplary, and there is an expectation of honesty and frankness in all court proceedings.
- You must correct any misleading statement made by you to a court as soon as possible after you become aware that the statement was misleading.
- Read, re-read and know and comply with your ethical guidelines and rules.
- Family lawyers should know and comply with the “Best Practice Guidelines for lawyers doing family Law Work” prepared by the Family Law Council and Family Section of the Law Council of Australia.
21. Remain true to your paramount duty to the court and administration justice.
- The proper administration of justice depends on you to faithfully explaining the relevant law governing the facts of the case to enable the judge to make a decision based on truth and precedent.
- It is professional misconduct to mislead, divert, trick or ‘hoodwink’ the judge with bad law or some ‘red herring’ under the guise of advocating your client’s case. If you are appearing in a directions hearing, don’t provoke or encourage the judge to slip into a merits hearing of the substantive issues.
- Don’t lead the court into error. At the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of: any binding authority; where there is no binding authority any authority decided by an Australian appellate court; and any applicable legislation, known to the advocate and which the advocate has reasonable grounds to believe to be directly in point, against the client’s case.
- Alert the opponent and if necessary inform the court if any express concession made in the course of a trial in civil proceedings by the opponent about evidence, case-law or legislation is contrary to the true position and is believed to have been made by mistake.
22. Practice full and frank disclosure in ex parte or undefended hearings.
- If you are appearing in an ex parte or undefended hearing, you must disclose to the court all factual or legal matters which: (1) are within the your knowledge; (2) are not protected by legal professional privilege; and (3) you have reasonable grounds to believe would support an argument against granting the relief or limiting relief adversely to the client.
- You ought also apply these guidelines when appearing against an unrepresented party.
23. Know and observe proper hearing procedure of the court.
- 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.
- For example, for trial hearings observe the first party will open and adduce evidence in chief, the second party may cross-examine before the first party re-examines the witnesses one by one. Then the procedure is repeated for each party. Final addresses then follow in the order of the court title or in reverse. Know the practice of the judge.
- For applications in a case, for example — the first party addresses, then second party addresses then the first party may reply only on matters of law.
- Take your turn in addressing in accordance with traditional protocol. This is even more important when appearing by telephone.
- You must not divert from this protocol except with leave or invitation of the judge. Don’t bounce to your feet to interrupt your opponent’s address. Sit still and quiet. Your opponent is entitled to make submissions without interruption. You will get your chance to make address with the reciprocal courtesy.
24. Remain respectful and courteous to the judge at all times, even if you feel unfairly victimized or you disagree with the judge’s ruling on an objection or motion.
- 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.
- Don’t continue any argument when the case is over . Once the issue or case has been determined you do not have a right of rebuttal or ‘second bite of the cherry’. Any overtly unaccepting behaviour is not only disrespectful, it may well be contemptuous.
- 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).
25. Present your argument to the judge, but never ever argue with the judge . There is a significant difference.
- Your are there to advance a proposition and develop or argue your point by way of submissions in support of that proposition accurately, concisely and courteously.
- Beware of lapsing into the trap of arguing with the judge. You must not say to the judge: “You are wrong”, or “No, no , no”, as much as you might think it!
- Instead respond with circumspection: “In my respectful submission, Your Honour, the evidence is otherwise”, or “May I hold Your Honour’s attention a little longer as I develop my point, that whilst Smith v Jones remains good law, it is unlikely to assist Your Honour in the circumstances of this case.”
26. Make submissions but don’t talk at, or be rude to, the judge. Not one of us, especially judges, react well to rudeness.
- Forms of rudeness include: used a raised voice or aggressive tone, arrogance in stand, tone and delivery, being inconsiderate, insensitive, deliberately offensive, impolite, obscenity, profanity, violating taboos, and deviance.
- In some cases, an act of rudeness can amount to criminal or contemptuous behaviour.
- Your are not there to forcefully shove your case down the judge’s throat or deliver a forthright rotary style speech or make a positive argument in a debate team, instead the art of advocacy is engagement and persuasion.
- 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.
- Avoid catchphrases like — “I hear what Your Honour are saying” which conveys to the court that you disagree, and you will press on regardless. Or commencing “With respect …” which forewarns that you are about to be disrespectful and insulting to the judge. Judges hate it.
27. Use an appropriate oratory tone, pace and volume .
- The tone and volume of your voice may be received as being disrespectful if you fail to conform to the court convention and etiquette vis-Ã -vis communication with the judge, or witnesses.
- Don’t speak too rapidly . Your speech will become blurred and indistinct at above 200 words per minute.
- Practice in front of a mirror, or record yourself by video or do an audio recording.
- 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’?
- Annotate your notes to prompt you to “slow down” or “speak up”.
- 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.
28. Make submissions not proffer your opinion or comment .
- You may preface a submission with “I submit …” or “It is my submission that …” or “I respectfully submit etc …” but never use “I think …” or “In my view …”.
- There is no royal “we” in court. Unless you are Senior Counsel or Queen’s Counsel, it is inappropriate to say “we” as a reference to your team or firm.
- The court is not interested, and may be insulted, if you purport to impose your personal view rather than make an appropriate submission.
29. Know and be confident using court terminology.
- Improper use of court terminology will expose you as either inexperienced, clumsy or flippant.
- Never seek permission to tender an admissible document saying: “I seek to tender …” rather when you are entitled to tender (subject to objections) then say “I tender… ‘’.
- When referring to a case, you should do so carefully and precisely saying the case name and its citation. Whenever citing cases always refer to the authorized reports where available.
- When referring to a judge in a case, do so respectfully and properly. Reference to “Keane J” should be “Mr Justice Keane”, and “de Jersey CJ” should be referred to as “His Honour the Chief Justice”. Court of Appeal Judges, eg. Holmes JA may be referred to as “Judge of Appeal, Justice Holmes”. Do not say “Keane … J” or “Homes … JA” or “the CJ”, or some short cut like that.
- References to the judges associate should be: “Mister Associate” or “Madam Associate”, or the court Bailiff use “Mr Bailiff” or “Madam Bailiff” and similarly for the court officer (who performs the traditional role of bailiff).
- Forewarn the bailiff and court officer about the preferred declaration of your witness. Know whether your witness prefers an oath or affirmation or some other religious declaration.
- If you wish to have a brief adjournment whilst retaining priority in the list, you may ask for the proceeding to be “Stood down …” to permit the parties to have discussions, do not say, for example, “Stand aside …”.
30. Use good plain English.
- 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.
- 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. Never use an unusual, scientific word or jargon when an ordinary everyday word of phrase will do.
- 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.
- The aim is to be clearly understood, not to appear aristocratically clever or learned.
31. Be yourself, be at ease, but always proper.
- You can set the tone for a calm, polite and credible exchange with the court, which may calm an agitated, or busy judge. This is not a license to be a slouch or slothy advocate. I mean, do not put on a pompous ‘plum in the mouth’ act. You will come across as being arrogant, fake and inexperienced.
- If you are feeling aggressive, uncomfortable and on edge, this can make the judge ill at ease and that’s a sure way to create the wrong impression and draw an adverse reaction.
- If you are prepared, calm and confident, the judge will most likely reflect your behaviour (subject to the merits of your case and behaviour of your client).
32. Stand with good posture behind the lectern.
- Never rest a knee or foot on the chair, and never drape yourself over the lectern. Use minimal and appropriate hand gestures. And keep your hands out of pockets.
- Stand still, do not leave the bar table, and never approach a witness or the judge without permission (eg. to hand a document in the absence of a court officer).
- Lose the theatrics.
33. Cross examine fairly, effectively and properly.
- Cross examination is a natural and learned art. Read and work on self improvement with different techniques.
- It is not coercive or bullying. The most effective cross examination techniques are often surgical and calm.
- Know your obligations as a cross examiner, eg. the rule in Browne v Dunn. You can put your case to a witness without using the tired lazy phrase “I put to you …”.
- Know when to STOP … and sit down, resist asking the one question too many. Leave the point for submissions.
34. Be familiar with court technology required .
- Check the DVD player is working and ready in consultation with the court officer and judge’s associate.
- If you are calling telephone or video evidence, ensure the court officer knows the contact details and the mode of affirmation.
- At the other end, ensure the witness is ready with an operational telephone or video link, and form of affirmation, or a bible.
In Court
35. Observe courteous and orderly behavior.
- The judge has a bird’s eye view of the court, and can see and hear mostly everything happening in the courtroom.
- You should yourself, and you should admonish clients and witnesses to, never show any overt reaction to anything said or done in the courtroom. Facial expressions and body language must be kept in check.
- A witness is entitled to be sworn to give evidence in absolute silence.
- Likewise, the delivery of judgment or taking of a verdict, commands absolute silence. Do not move about or leave the courtroom when judgment is being delivered or reasons are given.
- Nodding or shaking your head, talking to others, reading, or otherwise distracting yourself or others is a grave discourtesy.
- If a witness is lying through his teeth, you will get your opportunity to present the truth later.
36. Sit up straight with good posture.
- Do not slouch, rock or lounge at the bar table.
- There is nothing impressive about looking like the disinterested, lazy and recalcitrant kid in the school room.
37. Make no side-bar remarks or informal objections.
- When your opponent is addressing the court, when s/he has the floor, s/he is entitled to be fully and fairly heard. No side remarks, do not interrupt, and do not object unnecessarily.
- Give your opponent the respect and courtesy that you wish to be accorded.
- Avoid disparaging remarks and acrimony toward counsel and discourage ill will between the litigants. Counsel must abstain from unnecessary references to opposing counsel, especially peculiarities.
- Once you’re in the arena play by the rules, do not ‘play the man instead of the ball’.
38. Move papers and take notes quietly .
- It is acceptable to take notes when another is talking. But be judicious with your notes, you do not need to record every word like a transcription service and become noisy and exasperated attempting to do so.
- Further, noisy paper flipping and movement of books etc at the bar table is discourteous and will display an affront to the judge, witness and your opponent. It is rude.
39. Remain in attendance until excused .
- The bar table must never be left unoccupied during the hearing of a court list.
- You should remain at the bar table until excused by the judge, or until the next matter is called, or until the court adjourns.
40. Don’t pass notes, whisper or sleeve tug on counsel.
- Work this out in advance. It distracts the examiner. It distracts the judge. It gives the appearance that you lack confidence in the examiner.
41. Stand promptly when making an evidentiary objection.
- This will draw the court’s attention to you, prompts your opponent to sit, and alert the witness to stop.
- But do not take objections unless it really matters. In particular, objections to written evidence can be reduced to writing and discussed with your opponent.
42. Never ever pack up before the case is finished, especially during the judge’s final words, ruling or ex tempore decision.
- Give the judge the respectful attention deserving of the office.
- There is plenty of time to pack up your books and papers after the case is finished. But then, do so quickly, quietly and efficiently so the next matter can proceed without undue delay and noise.
After Court
43. Never speak openly disparagingly of a judge. We have all been disappointed, or felt angry and victimized when landed with an unfavourable judgment or ruling.
- Your courtesy and demeanor must be maintained even when the hearing has finished and the judge has departed. You may still be recorded in the courtroom, and on short circuit security cameras in the court precincts. Besides, court staff, security officers and other practitioners are watching you.
- There is no excuse, or reason, for being unduly critical of the judge. This is particularly important when the criticism amounts to a personal attack on a judge or is founded on your subjective perception and a serious lack of understanding about the role of the judge. This includes giving a presentation of your opinionated critique of a judge or conduct of a case at a legal conference.
- Such criticism is not only unfair to judges personally, but can improperly undermine public confidence in the justice system.
- Take a moment to analyse how your advocacy and presentation of the case may have produced a more favourable outcome. More often than not, no matter what your subjective aspirations for your client, you are only as good as your brief.
- Of course, it is sometimes appropriate and encouraged that you report to the appropriate authorities or senior colleagues if you are concerned about judicial bullying or misconduct.
44. Never criticize or purport to “correct” your opponent’s skills or conduct of their case.
- Criticism or remarks about your opponent’s advocacy style or conduct are rarely welcomed, particularly if your opponent has lost the case, and the instructor and client are within hearing distance. It may be interpreted as bullying. It is not your place to “correct” some skill of your opponent that you think should be improved or done differently.
- If you have appropriate seniority, or your opponent is your pupil, then it may be appropriate to lend support, counsel and give assistance. Sometimes friendship and professional camaraderie may permit some sort of debrief, but usually when it is sought.
45. Know how to manage your conflicting diary obligations when allocating further hearing dates for part heard matters.
- The court is not obliged, although will try its best, to work around other commitments of practitioners.
- The court will recognised that there is an inherent unfairness if the court imposes a date for a continuation of a part heard matter which eliminates the continuation of competent and cost effective presentation of a client’s case.
- If the judge inquires of availability then you ought fully inform the court, politely and deferentially, about legitimate diary commitments, including pre-existing court matters, and the type of matter (part heard trials, civil, criminal, trials, interim hearings etc), and any period of absenteeism that is impracticable to change, for example: Childbirth, surgical procedures, and overseas holidays.
- Criminal trials involving serious criminal offences require special consideration. A practitioner is obliged to retain the brief unless:
1. the practitioner believes on reasonable grounds that — the circumstances are exceptional and compelling; and there is enough time for another practitioner to take over the case properly before the hearing; or
2. the criminal client has consented after the practitioner has clearly and fully informed the criminal client of the circumstances in which the practitioner wishes to return the brief.
- Social occasions, personal convenience, witness conferences, conferences and holidays are generally not sufficient to resist the allocation of a part heard trial date.
- The hierarchy of priority of court commitments can be simply stated :
1. If the judge has not yet imposed a date for the continuation of the part heard trial, then all other court commitments and absenteeism have priority.
2. In any event, a pre-existing part heard trial will have priority over a later one. You must tell the court if this applies to you.
3. If the judge imposes a date for the continuation of the part heard trial, then you must make all necessary arrangements to be available at the next hearing date
Except – You will be obliged to seek excusal from the proceeding if you are committed to a pre-existing part heard trial, or a criminal trial for a serious offence (see above) on the same date as the imposed date.
Outside Court
46. Know how to address the judge outside court.
- Outside court you should address a judge as “Judge”, the Chief Justice as “Chief Justice” and a Chief Judge as “Chief Judge”, unless expressly permitted otherwise, for example, personal or friendly contact in the absence of other practitioners.
- In any event, you should avoid direct and personal contact with the judge if you are involved in a proceeding that is part heard or otherwise reserved for decision by that judge.
47. Never communicate about a case with the judge or court .
- Never communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings (eg. voluntarily delivering written submissions to the associate, or engaging in correspondence) unless:
(a) The court has first communicated with you in such a way as to require you to respond to the court; or
(b) The opponent has consented beforehand to you dealing with the court in a specific manner notified to the opponent by you.
- And you must promptly tell an opponent what passes between you and a court in any such communication.
48. Never ever knowingly make a false statement to an opponent in relation to the case (including its compromise).
- Take all necessary steps to correct any false statement as soon as possible after you become aware that the statement was false.
- A failure to be completely candid and honourable in your dealings with your colleagues will harm your reputation and haunt you for your entire career.
49. Communicate with your opponent properly .
- Aggressive communication is a form of bullying, clearly inappropriate and unprofessional conduct. Ultimatums may be interpreted as extortion. Retain your professional objectively and focus on the real issues and their resolution.
- Avoid protracted, unnecessary and inflammatory exchanges. There is little need for adjectives in correspondence (eg. Our client is insulted and astounded about your client’s appalling conduct”.
- Communication, especially written correspondence, should be measured, based on instructions and clearly conveyed on behalf of your client (it is not your case). You are not your client’s megaphone and much of what a client wishes to bark about is inappropriate to communicate. Remember, your communication may be used as evidence in the proceedings to prove your client’s prior inconsistent or unreasonable conduct, or in relation to an issue for costs orders.
50. Avoid publicly discussing your client’s case, part heard cases and interim hearings (subject to final hearing and determination).
- These matters are not public fodder or open to discussion at legal conferences.
- You tread a very dangerous tight rope risking breaching your client’s confidentiality, being improperly critical of judges and/or fellow practitioners, and misrepresenting facts (albeit by giving your subjective perception of the case and its management).
- Such events are not only unfair to those involved, including your client, witness, judges and opponents, but can improperly undermine public confidence in the justice system.
50 Basic Rules of How to Behave in and for the Courtroom.
Before Entering
1. Good performance preparation is essential.
2. Be punctual and arrive on time.
3. Be ready.
4. Clean and tidy appearance and good grooming.
5. Dress appropriately with dignity.
6. Turn off mobiles and electronic devices.
7. You are responsible for advising clients, witnesses, and associates about courtroom etiquette.
8. No eating or chewing.
9. Provide an order of witnesses and glossary of terms.
10. Be honourable, candid and trustworthy when dealing with your opponent.
Entering Court
11. Be silent on entering.
12. Bow respectfully.
13. While you are waiting, sit and be quiet.
14. Move directly and quickly to bar table when called & sit at the bar table in order of seniority.
Addressing The Court
15. The judge is the main focal point.
16. Get off to a good start.
17. Announce your appearance in a clear and respectfully loud voice, in accordance with court protocol.
18. Be organised at the bar table.
19. Address the judge politely and respectfully and remain polite to the judge, opposing counsel and court staff.
20. Be uncompromisingly ethical and exemplary in every respect with competence, diligence and candor.
21. Remain true to your paramount duty to the court and administration justice.
22. Practice full and frank disclosure in ex parte or undefended hearings.
23. Observe and know the hearing procedure.
24. Remain respectful and courteous to the judge at all times including rulings.
25. Present your argument but never argue with the judge.
26. Make submissions but don’t talk at, or be rude to, the judge.
27. Use an appropriate oratory tone, pace and volume.
28. Make submissions not opinion or comment.
29. Know and be confident using court terminology.
30. Use good plain English.
31. Be yourself, be at ease, but always proper.
32. Stand with good posture behind the lectern.
33. Cross examine appropriately, not coercive or bullying & know your obligations.
34. Be familiar with court technology required.
In Court
35. Observe courteous and orderly behaviour.
36. Sit up straight with good posture.
37. Make no side-bar remarks or informal objections.
38. Move papers and take notes quietly.
39. Remain in attendance until excused.
40. Don’t pass notes, ear whisper or sleeve tug on the advocate.
41. Stand promptly when making an objection.
42. Never ever pack up before the case is finished.
After Court
43. Never speak openly disparagingly of the judge.
44. Never criticize or purport to “correct” your opponent’s skills or conduct of their case.
45. Know how to manage conflicting diary obligations.
Outside Court
46. Know how to address the judge outside court.
47. Never communicate about a case with the judge or court.
48. Never ever knowingly make a false statement to an opponent.
49. Communicate with your opponent properly.
50. Avoid publicly discussing your client’s case, part heard cases and interim hearings.
