The correct behaviour at court (court etiquette) is usually determined by long-standing practice. Sometimes rules of etiquette are also contained in the practice manuals produced by various divisions of the High Court and bar associations. Many rules of etiquette are also contained in the rules of conduct of the legal profession. This chapter deals with:a)Dressb)Punctualityc)Introductionsd)Modes of addresse)Behaviour in courtf)Witnessesg)Court terminologyh)Perceptions of bias; andi)Humour in courta)DressAppropriate court dress for lawyers is dark coloured suits or dresses (black, dark grey or blue). Ties should be understated-loud ties and cartoon characters on ties may be viewed as improper. Be aware of the smaller details, such as ensuring that shoes are clean and that shirt top collar buttons are fastened. If a rope is required, ensure it is ungreased, of a suitable size and in good repair. Male witnesses should dress in collar and tie, and femalewitnesses should dress smartly and conservatively.b)PunctualityAlways ensure that you are at the court at least 30 minutes before the court’s starting time. Judges and the public expect lawyers to be punctual: repeated lateness without adequate explanations may be treated as contempt of court.c)IntroductionsTrial lawyers should always introduce themselves to the judge who will be presiding in their cases. The term “judge” is used generally to include judges of all courts-Magistrates, High Court, Court of Appeal, Supreme Court. You only need to introduce yourself once– it is not necessary to reintroduce yourself before each subsequent case you may have before the same judge. It may, however, be prudent to reintroduce yourself if you have not appeared before the judge for a long time and he or she may not remember you.d)How to introduce yourself to a judgeThe introduction must be brief and alongthe following lines:“Good morning, Judge. I am Mary Juma,of the firm of Juma and Partners, and I am appearing for the plaintiff in the caseofJohn vs Annetrial which is due to start today.”“Judge” is the mode of address to a HighCourt judge in chambers. In court, counsel should introduce himself as follows e.g.“My” Lord, I am Mary Juma of the firm ofJuma and Partners, and I appear for the plaintif in this case.”Finally, court etiquette requires you to beaccompanied by your opponent when seeing the presiding officer out of court, but this rule does not apply to pre-trial introductions. In the High Court, the practice is to be fully dressed for court when introducing yourself.If you have not previously met your opponent, or any of the court officials (like the stenographer, interpreter, court orderly), you should formally introduce yourself to them as well.e)Modes of addressi.Magistrate’s CourtsIn the Magistrate’s courts, presiding officers are addressed as “Your Honour”during court proceedings and by their normal civil titles. Modes of address such as “Your Worship” and “My Lord” are increasingly being seen as outmoded and unnecessarily pompous, and may, through usage or legislation, bereplaced with a uniform mode of address of “Your Honour” in all courts in the future.ii) High Court, Court of Appeal and Supreme CourtThe presiding officer is addressed as“My Lord” in court, and as ‘judge’ out of court or in chambers. Note, too, that the informal ‘you’ and ‘your’ is replaced by“Your Lordship”- for example. “No, My Lord, I was not aware that Your Lordship has not completed your Lordship’s question.As the term ‘My Lord’ is addressed to theoffice of the High Court judge, it is preferable to address both male and female High Court judges in this way. A female judge may prefer to be addressedas ‘Her Ladyship’or“My Lady”– establish her preference prior to the commencement of the trial by checking with her registrar.f)Behaviour in courti.Entering and leaving the courtroomWhen the judge enters the courtroom, the orderly will shout, “Rise in Court” at which all those present in the courtroom must stand. When the judge reaches thebench, he or she will stand, bow slightly and then sit down. This is the cue everyone in the courtroom to sit as well. When the judge leaves the courtroom, the orderly again announces that everyone should rise – remain standing until the judge is out of the courtroom.Everyone (lawyers, witnesses and members of the public) entering or leaving the courtroom when it is in session should: when leaving, briefly pause at the exit door, turn towards the judge bow slightly, and then exit; and when entering, enter the courtroom, pause, bow slightly towards the judge, and then proceed to you place.Should you wish to deliver a message to one of the trial lawyers while the court is in session, enter the courtroom and quietly sit down next to the lawyer concerned. Then write out a message, leaving the note with the person concerned, and quietly exit. It is distracting to the court and bad mannersto whisper to one of the trial lawyers whilst proceedings are in progress. Alsolimit such interventions to matters that cannot wait until the next adjournment.ii) Do not wander or walk about in courtThe general rule is that a lawyer appearing in a trial should not move away from his position without the permission of the court. Do not walk around when asking the witness questions or making submissions. In a criminal case when the defence lawyer wishes to speak to his client (the accused who is standing in the dock), the defence lawyer will have to request the court’s permission: e.g. “My Lord, May I approach the accused for instructions on that point?”Note that if a longer discussion is required, it is more appropriate to request the court for a short adjournment. This means that the judge will leave the courtroom, and be recalled by the court orderly once the consultation has been completed.ii) Always stand when addressing and when being addressed by the judgeWhen the judge speaks to you as a trial lawyer appearing in the matters before him, you should immediately stand. When the judge is addressing your opponent, you must sit. For example, if you are busy cross-examining an opposition witness, and your opponent stands up to object, you must immediately sit. This indicates to the judge – whose attention has been focused on you – that your opponent is standing, and the judge will then focus on your opponent to hear the basis of his objection.Only if the judge is addressing both you and your opponent simultaneously (for example, discussing a possible postponement date), should you both be standing at the same time.You are required to stand when indicating your acceptance of a court ruling: for example, when the judge completes the delivery of the judgment, both you and your opponent should stand up to indicate your acceptance of the decision by saying:“As the court pleases/most obliged.”iii) Get the judge’s permission before moving on to the next stage of the trialAfter each stage of a trial, or after an intervention by the judge, first get his permission before continuing.For example: during plea proceedings in a criminal trial after the accused has pleaded not guilty, you will inform the court what the basis of the accused’s defence is.Magistrate (to accused): how do you plead?Accused: not guilty, your worshipDefence counsel: Your Honour, I confirmthat the accused’s plea is in accordance with my instructions. May I proceed?[Only continue once the magistrate assents.]Another example: While you are cross-examining a witness, the magistrate intervenes by asking a question. If it is a short intervention (one or two questions), you may remain standing until the magistrate gives you an indication to continue:Magistrate: [Having completed his questioning of the witness]Yes, Mr. Juma, you may continue.Defence counsel: As the court pleases. Now, Mr Musa, you said…..g)WitnessesWhen being questioned during examination-in-chief or cross-examination, witnesses must look at the lawyer putting the question, and then look at the judge when answering the question. Should the witness not be trained to do so, the judge is likely to become irritated by being treated like an interested observer to a conversation between the lawyer and the witness.Witnesses yet to be called must wait outside the courtroom (with the exception of certain expert witness who may be required to hear that evidence for the purposes of their later testimony).h)Court terminologyTrial lawyers must become familiar with a number of important words and phrases used in court proceedings:i)“I submit …”During argument at the close of the trial, or argument on specificissues that arise during the trial (for example, following an objection), trial lawyers make submissions to the court on the correct approach, thus: “My Lord, Isubmit that the court should find…” Do not use: “I think”, “I aver”; “I consider”; “I am of the opinion”; “I declare”.ii)“As the court pleases”This is a stock response phrase indicating the acceptance of decisions by the court, or is used where counsel wishes to indicate that he has completed a submission. Do not use phrases like “aspleases the court”; “the court pleases”; OK. ‘My Lord”; “Alright” or “I’m finished, ‘My Lord”.Direct questions from the bench, should however, be answered with a simple “yes” or “no”.e.g.Judge: Were the papers served on the defendant personally?Counsel: Yes, “My Lord.”iii)“If the court will bear with me”This is a phrase used to request the court to be patient for a little while as you find a misplaced note or authority. It is meant to indicate a short delay (a minute or twoat most). Do not use: “My Lord, just hold on a second” or “Give me a moment to find my note, My Lord”. If the delay is likely to be longer than a minute or two, rather request a short adjournment.”iv)“With respect”/ “With great respect”/ “With the greatest respect”:A submission preceded by the term “with respect” indicates in advance to the judge that you do not agree with the viewstated by him on the issue being discussed. Should the debate become more heated, and your disagreement with the judge’s position stronger then, you may show your intensified disagreement by prefacing your submission by saying “with great respect, Your Lordship”. Should you reach a stage in your interaction with thecourt where you consider the court’s position to be utterly without foundation, you may indicate your disagreement by prefacing your response: “with the greatest respect…” Thus, the greater the professed respect, the less the actual respect for the court’s point of view.Note, that however strong your disagreement with the court, your submissions must remain courteous and restrained in tone, volume and content, (Remember, you have a need to retain the sympathy of the court).v) “I am indebted to the court”, this is the traditional method of saying ‘Thank you’ in court proceedings, and still is in widespread use. E.g.Judge: Ms John, I will give you a short adjournment to take instructions on that point.Counsel: Thank you, My Lord. (Or: I am indebted to the court).vi)“My instructions are…”:Often your client may insist you make an application to, or request of the court that is ill-advised or it may be that a version you are instructed to put a witness is manifestly absurd. In most cases, you will have a duty to comply with your client’s wishes. If you are challenged (usually in an incredulous tones by the judge, your response that those were your instructions is sufficientto indicate that you are merely carrying out you legal duty, and are not necessarily convinced about the legal or tactical soundness of your submissions.)vii)“I withdraw the question” or “correction”:Often counsel will put a question to a witness (either in examination-in-chief or cross-examination), and then decide to changeor modify the question. The correct method to do so is:Counsel: Now, Mrs John, when you first saw the bruise makers on…. (stops, then says: Your Lordship, I withdraw the question) –then starts again: Mrs. John what date was it that you saw the bruise marks on your son for the first time?A shorthand method of achieving the same effect is to insert the word ‘correction’ after the phrase you want discarded.Counsel: Now, Mrs. John, when you firstsaw the bruise marks on –correction, Your Lordship –Mrs John, what date was it that you saw the bruises on your son for the first time?viii)“My learned friend”.The correct method of referring to your opponent in all courts is “my learned friend” (never sarcastically qualify the ‘learned’ with, for example, ‘my alleged learned friend’ – such behaviour is unprofessional). It is also preferable to refer to your opponent by name: “Mr. John has submitted that…..” (This may be safer route given the sensitivity of certain members of the Bar at being addressed as ‘my learned friend’ by attorney and prosecutors).ix)References to judges not before court: Refer to other judges as in the formal written references: ‘His Lordship’, Mr. Justice Paul, in his judgment…” When addressing the court, avoid referring to other judges as “Your brother, Paul” – this reference is only used by judges themselves when referring to other judges.x)Postponements; adjournments; remands; standing-down:The term postponement is used when a case or matter that has not yet commenced is postponed to a later date.Once a matter has commenced, you have proceedings and proceedings are always adjourned. (Adjournments can be any length of time, from a few minutes to weeks or even months. During court hours, the morning tea-break is referred to as the ‘short’ adjournment, whilst the lunch-break is referred to as the “long adjournment”).A remand refers to the postponement to another date while the accused is in custody on a criminal charge, as in; “Your Lordship, I ask that the accused beremanded in custody to the 3rdof June for trial.”Only a witness can stand down (that is, literally step down from the witness box). Matters or proceedings cannot stand-down –they can only be postponed or adjourned.xi)Perception of bias‘Justice must not only be done, but also be seen done.’This adaption of the quoted dictum fromthe old English case ofR v SussexJusticesholds true for all aspects of the trial. For example, the client you are defending on a criminal charge may not understand your undue familiarity with the prosecutor (who may be an ex-colleague and good friend). Maintain a professional reserve in your dealings with your court opponents, lest your client interpret your later behaviour during the trial (like a concession properly made) as having been influenced by your friendship with the opponent. For the same reason , if the judge in your matter is a friend or close acquaintance , do not refer to him by hisfirst name in the presence of your opponent , nor should you discuss socialmatters when seeing in chambers in the company of your opponent.xii) Humour in courtTrial lawyers should, as a rule, avoid attempts at humour during the trial. Thisis especially true for criminal trials, where attempts at humour may be construed as trivializing a serious matter. Leave attempts at humour to the judge. Sometimes, however, a wry comment may not be inappropriat
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