Our resident deputy district judge columnist identifies conduct issues in court.
There are some obvious but surprisingly common issues that can easily be remedied with the appliance of common sense and courtesy.
Advocates can be aggressive or defensive in their positions, especially when there is a failure to see the bigger picture or an inability to see the case from any perspective other than their own. Of course, they have to do their best for the client, but courtesy costs nothing and finding common ground with the opponent should always be considered.
If faced with a litigant in person (LIP), I expect an advocate to be polite, to clarify their role and what they are seeking that day, whilst making clear they act for the opponent and so cannot advise them.
Some advocates do not speak to an LIP before the hearing and that is wasteful – they could be discussing and exploring settlement options. I am always surprised when opposing advocates have said little or nothing to each other outside court. That may be the exception and they can’t be forced to agree, of course, but there should always be an attempt at agreement and clarification of their positions that day. Often, advocates come into court with an update for me which the opponent is hearing for the first time.
Some irritants of mine in court:
It is important to be succinct; focus on what is relevant and do not treat an interlocutory hearing as a mini-trial. For instance, if you attend an FDA (first directions appointment) that is not progressing to an FDR (financial dispute resolution) hearing that day, it is a directions hearing only, but advocates sometimes expect to make a lengthy argument as if it is an FDR. It is a different, much shorter hearing, that allows insufficient time for the court to deal with the matter in that way, nor is it necessary, for making directions. There is risk of the hearing exceeding time, which then affects the rest of the list. I often have to cut advocates off or remind them of the purpose of the hearing and time allocated.
Think about why you are in court that day and the time you have, and what needs to be written or said in that context. Less is definitely more, in these circumstances.
There is nothing worse than legal reps arriving late, knowing little about the case, not having relevant paperwork and worse still, using the lame excuse of it being someone else’s case. This is of no interest to the court – for that hearing, it is their case - they must take responsibility for it and make sure they are familiar with it. I never cease to be amazed at how often this happens. It is a dereliction of duty, a waste of the court’s and parties’ time, and an insult to the client.
Parties turn up with representatives who they may have met for the first time that day. Often clients sit with their representatives looking like rabbits in headlights, and I wonder how many leave court fully understanding what happened and why.
With LIPs, and in all judgments, I explain procedure and reasons for decisions, but during a busy day in court when parties have representation, it is their responsibility to advise and explain decisions and next steps to their clients. There is often little opportunity for judges to speak directly to parties and obviously the court cannot advise.
I wonder how well a losing representative explains the outcome to their client, and how much of it is clouded to excuse an unwelcome judgment, or to avoid ownership of errors or lack of preparation which might have had an impact on the outcome. I have encountered parties who had representation but for whatever reason, then become LIPs, and their interpretation of what happened historically can be worryingly inaccurate. That doesn’t mean they were ill-advised – it could be a misunderstanding or them being in denial – but lawyers have a responsibility to advise their clients clearly and frankly. Taking time to do this before the hearing and afterwards is important.
An obvious annoyance is mobile phones in court. There may be occasions when there is no objection to their use, eg in an emergency, a last minute development or to retrieve a vital piece of evidence, but I would still expect permission to be requested. In one case, a party was using his mobile during his wife’s evidence at their ancillary relief trial. His counsel observed this, but did nothing. I had to ask the husband what was more important than the trial at this time, that prevented him hearing the evidence, had interrupted proceedings and was so discourteous. He even seemed irritated that I told him to switch it off. All of this might have been avoided had counsel made court etiquette clear to him in advance.
During another case, an advocate’s mobile rang more than once during a hearing. Each time he apologised, but on the third occasion I had to insist he turn it off. I assumed he had done so after the first incident, then the second, but no.