As with any law firm, there are teams that are primarily ‘front-end’ focused and those that are ‘back-end’ focussed. By that, we mean that some teams are more transactional and others are more litigious.
Each type brings with it its own challenges. For those of us rotating through more litigious teams, one particular challenge we have had to face head-on has been appearing in court.
Now all of us have had a dream about our first appearance in court. We turn up super prepared, early and enthusiastic. The hearing starts, the judge calls for appearances and we completely blank. Nothing. Mute.
Now in our experience, we have discovered that court is not as scary as your subconscious would have you believe. Although first appearances are nerve-racking, we have found them to also be an exciting chance to represent the interests of real clients. We have been fortunate enough to be eased into appearing in courts and would love to share some insights into what we’ve learnt.
What kinds of matters are we involved with?
While we are given the opportunity to test ourselves, as graduates we are not expected to cross-examine witnesses or engage in complex legal arguments with the other side. Instead, senior lawyers give us opportunities to dip our toes in and build our confidence. We have appeared at various directions hearings, subpoena matters and matters by consent in the Local, District and Supreme Court.
Mooting is just the tip of the iceberg
Participating in university moots gave us a taste of what to expect, but it is definitely different from the real thing! Oral submissions play an important role in the judicial system, however, there is a lot more at play in court than the talented orators of legal TV dramas would have you believe. Listing dates, rules of evidence and court protocols are some of the other factors that influence how a matter progresses.
The main difference we have noticed between mooting and court is the intricacy of the court protocols, some of which are not immediately intuitive. Remembering the substance of what you are trying to convey whilst being mindful of protocols can feel like a juggling act when just starting out.
Preparation is key
Chief Justice Murray Gleeson famously observed that:
‘to be a good advocate it is necessary to be a good lawyer. Not all good lawyers are good advocates, but an advocate who hasn’t taken the trouble to master the principles of law relevant to the contest is like an athlete who can develop a dazzling turn of speed in the course of a race but hasn’t taken the trouble to find where the finishing line is located’.1
These words could not be closer to the truth. Judges and registrars will spontaneously ask you questions about your matter and it is your job to assist the court with their queries. We have learned that no matter how prepared you are, there is always a chance that something unexpected will come up. If you are not sure about something – always ask!
It sounds overly simple, but making sure we are clear on what the matter is about and what we are trying to achieve is half the battle against the inevitable nerves. We also make sure to find out whether anyone from the other side will be appearing and whether we need to mention their appearance.
A judging eye falls on those who are late
It is crucial that you are always on time to court appearances. The best tip we can offer is to list your court appearances in your calendar and always make sure to check the online court to see what court and which courtroom you are appearing in. Getting to court 10 minutes early is also helpful as you can observe some of the other matters and see how that judge, registrar or magistrate runs their court.
A strong understanding of court etiquette and procedure allows you to be taken seriously at a junior level. Before appearing, we always make sure to do a quick mental refresher on courtroom etiquette such as bowing to the judge, standing when speaking to the judge or registrar, knowing when to seek leave and remembering to ask to be excused from the table after appearing. Good etiquette means you won’t be caught offside by the dreaded ‘I cannot see you’ from the bench!
1The Hon A.M. Gleeson AC, “Advocacy”, Paper to NSW Bar Association’s Bar Practice Course, November 2001