Advocacy tips from Above. Everything you wanted to ask a Judge but are too afraid to ask.

This week a triumvirate of willing judges addressed members of the Bar on the topic of Everything You Wanted To Ask a Judge But Are Too Afraid To Ask.  It was an excellent opportunity to glean a variety of judges’ perspectives on the habits and techniques of advocates appearing before them and to reflect on ways to better assist the Court and our clients.

It was particularly useful to barristers and solicitors who appear in Court, as well as to instructing solicitors.

The Bench

The distinguished “Bench” comprised:

  • The Hon Justice Ward (Chief Judge in Equity in New South Wales Supreme Court)
  • The Hon Justice Lee (Federal Court of Australia)
  • Judge Wass SC (District Court of New South Wales)

The questions

What are the top 10 factors where counsel and advocates can improve their court craft?

  1. Fully understand court procedure for different jurisdictions and different lists.
  2. Know when to get to the point!  Particularly in busy duty lists, giving the “history of the world” is not suitable.  Instead, from the outset, directly inform the judge about the nature of the application, and the orders sought.
  3. Give accurate time estimates (not wildly inaccurate ones)!
  4. Do not “tug” at senior counsel’s robes or interrupt senior counsel. It is highly distracting.
  5. Say less.  That is, less is more.  The fear of not saying something drives some counsel to say far too much, including irrelevant material.
  6. Go to court armed with a sense of what actually needs to be achieved.
  7. Be supremely organised.  Structure the submissions.  Have a system.  Apply rigour. And, give this structure to the judge.  There is a certain number of issues in a case.  And the judge has to write a judgment on those issues.  It is helpful to clearly identify the issues into their constituent parts.  This requires structure!
  8. Only make the necessary evidentiary objections, and, try to narrow the area of dispute you’re the opponent.  Do not make unnecessary objections to evidence that do not count.
  9. Focus on the main issues. At all times.
  10. Shorten cross examination. A lot of cross examination could be done in half the time.

Is it ok to not answer a question asked by a judge? 

This question caused an animated flurry.  For Justice Lee, he could not think of “anything more annoying than not getting an answer”. Similarly, Justice Ward stated that if you do not answer a question posed by a judge, “you might reinforce the very reason that the judge asked the question.”  By contrast, Judge Wass noted that in criminal trials, there may be the rare occasion where the counsel is entitled not to give an answer, but even these examples are few and far between.

Some more helpful answers:

  • It is not persuasive to “defer” a question asked of a judge.  For example, stating, “Your Honour, if I can get to that point later” and so on.  it might reinforce that you do not have a suitable answer.  It is not a good look.
  • Give a direct answer.  If you need to explain it further, for example, give context, do so. But answer the judge then and there and do not vacillate.
  • Ultimately, you may not mislead the Court.  Therefore, if you do not know the answer, you should not guess the answer. Be candid.   A lack of candour is a reputation piece that is not undone quickly.

What about the situation where the judge refers to a case authority and counsel does not know the case?  What should you do? 

This situation might be the stuff of nightmares. But, the worst thing to do in this situation is to “guess” your way through.   You could end up in a mine field.  Similarly, you should not “pretend” that you know.

If you do not know the authority, even if it is some obscure 16th century authority, it is best to say you are not familiar with the authority, or, you have not fully appreciated its contents.   You can also ask the judge to provide an opportunity to address it at a later stage. That is, to “put in a piece of paper”.  That is, by way of short written submission at a later stage once the authority can be read and considered in the fullness of time if circumstances permit.

In many cases, when a judge refers to a legal authority, it may be because it is a tricky area of the law where there is no final answer.  It is far better to say you do not know than to give an answer you regret.  The judge will be content with your candour and that you will endeavour to give a considered answer.

Is it appropriate for junior counsel to seek feedback from judges about their court appearances?

This question elicited some nervous laughter from the Bench and audience alike.  The judicial responses were peppered with humour.  They included:

  • “Goodness me…” <insert: blush>
  • “You would be mad to ask for informal feedback”
  • “You would either get an unreliable answer or… you will be devastated”
  • “Ask away, it might be fun
  • “The best you will get is an uncomfortable silence”.

Moral of the story. It is best to not ask.

On a more serious note, it was suggested that seeking “feedback” from judges is inappropriate.   Judges need to maintain a healthy distance from members of the profession.  It is not appropriate for them to give informal feedback to practitioners about advocacy technique.  It is preferable to seek feedback from colleagues or clients.

How can junior counsel and advocates improve?

  • Speak to barristers with more experience.
  • Watch duty lists and application lists.

How to know when submissions should…end? 

Justice Ward noted that once you have exhausted the points, do not repeat them.  “Hyperbole is unhelpful”.   For example, saying, “it is indisputable that…x, z, z etc”, will only encourage the judge to question the proposition.  Similarly, do not ask rhetorical questions.  The risk is that the judge will start to think of the alternatives.

Being repetitious is not the same as saying the same thing in a couple of different ways.  It is perfectly ok to change the way you are explaining something.   If you sense that the judge has not appreciated your submissions, it is legitimate to rephrase it.  Generally, if you are being repetitive, the judge will indicate that they have understood your point and you should move on to the next.

In what situations or applications do junior counsel most frequently appear?

Junior counsel most often appear in duty list matters, urgent matters and interlocutory hearings.   In the District Court, junior counsel appear in all stages of the litigation. By contrast, in the Federal Court, junior counsel are most usually led by senior counsel in fully contested hearings.

How do I know what to wear?  Robes? Wigs?  Etc? 

  • Read the practice note! Period!
  • If you are in doubt, call the Judge’s Associate.  But, it is annoying for the Associate to get daily inquiries of this nature.  Only do this when it is genuinely unclear.
  • When in doubt, over dress!

Is there something that comes to mind that advocates should be doing to build their practice and be successful in court? 

  • There is only one chance to make a first impression.  Try to make a good first impression.  Perhaps spend longer than the task warrants in respect of appearing before a particular judge for the first time.  It otherwise takes a long time to recover from a sloppy first appearance.

What is the bench’s view to the use of electronic devices at the bar table?

  • Increasingly, more practitioners are using devices such as iPads in Court.  Providing it is not a distraction, there is no problem to using technology and devices in Court.

Final tip.

  • Get on your feet as soon as you can.  Try to get as much experience in as many courts as possible.

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