May it please the Court: Staying on the right side of the Judge

Barbara Relph*

“The way to a judge’s heart is not up the judge’s nose.” - comment from former District Court Judge. At the Bar asked former judges Sir Terence Arnold KC, Hon. Karen Clark KC, and former Chief Employment Judge Graeme Colgan, what “got up their noses” when they were on the bench.

With the command to stand at the beginning of a criminal trial or civil hearing, retired High Court Justice Hon. Karen Clark KC recalls having a sense of compassion for those in the courtroom. ‟It is a high stakes environment, unfamiliar to many and people are often stressed, sometimes overwhelmed.”

Once a case is before the court, the role of counsel is to persuade the judge to counsel’s view of the merits. Unfortunately a misstep at an early stage can lead to frustration for both counsel and judge. Some of the most common mistakes include failing to follow court orders or directions, late delivery of material to the court, incorrectly estimating time, raising disputes which have no apparent value to the parties and of course misleading the court. All of these cause downstream delays for the judge with the potential to delay resolution of a dispute.

Put yourself in the judge's seat and ask what you would like counsel to provide; how can you make the judge's life easier?

There are many other ways to frustrate the system, and the judge. Failing to follow court orders or directions, late delivery of material to the court, intentionally misleading the court, incorrectly estimating time, or raising disputes which have no apparent value to the parties. All of these cause downstream delays for the judge with the potential to delay resolution of a dispute.

Procedure best practice

Former Solicitor General of New Zealand and recently retired Supreme Court Justice Sir Terence Arnold KC had sage advice, particularly for young practitioners, aimed at reducing frustrations. “Put yourself in the judge’s seat and ask what you would like counsel to provide; how can you make the judge’s life easier? ” This is quite a different mindset from ‘how can I win this case’, but the outcome is the same.

From long experience, Sir Terence says, “Have a very clear sense of the theory of the case and what the outcome should be. With that in mind you become a better advocate because you always have that understanding and direction in mind.” So, clarity of mind about what you are trying to achieve is number one.

The second way to make a judge’s life easier is by excellence in preparation of case materials. Although casebooks are increasingly electronic, often bound folders are presented to court without being checked for copying or pagination errors. The electronic casebook is a step forward but doesn’t avoid counsel failing to footnote cross-references or oversupplying case references. When preparing your casebook, think of the judge sifting through it at 10pm, unable to find the evidence referred to but not referenced.

Third must be well honed advocacy skills. “When a statutory provision is pretty fundamental to the resolution of the dispute, it is surprising how often counsel don’t take you to the provision.” While facts are important, how counsel think a provision applies in the specific case is usually more so.

Sir Terence’s final piece of advice to young counsel is to be very aware of the reputation they are establishing as counsel, not just with judges but within the litigation community. “If you have a reputation as a person who prepares thoroughly and carefully, approaches submissions in a thoughtful way, has a clear sense of the theory of the case, and engages with the court in the questioning process, you will be known as a good litigator which will help your career, and will also help with nerves or unexpected shocks in court.” The converse is also true.

Karen Clark agrees. During admission ceremonies she often emphasised to the newly admitted lawyers that in addition to their experience and legal skills, their reputation had the potential to become an important asset. “An advocate who is known for their preparedness, general competence and tendency to facilitate the steps towards trial, is valuable not only to their client’s interests but to the whole adjudicative process.”

Having spent 28 years on the Employment Court bench – 12 as Chief Judge of that Court – Graeme Colgan also has a few pieces of practical advice for counsel:

1. Let your witness prepare their own brief, in their own words. Guide and edit, but let it remain your witness’s ‘voice’.

2. Be assertive and run your case as you wish, without reference to the judge about what they may want to hear or receive in evidence.

3. Don’t be too hasty to interrupt your witness – it sends the message that counsel wishes to have their own account heard, not the witness’s version.

4. Giving a witness “an open mic” risks losing control of your case, so don’t ask a witness at the end of their evidence in chief if there’s anything else they want to tell the court.

5. When cross-examining a witness, don’t argue with them.

6. If a judge tells you they don’t want to hear from you on a particular matter, take the hint.

7. Not every submission is of equal strength, so using discretion and emphasising key points demonstrates your confidence in your case.

8. When a judge tests your argument, just answer the question! Don’t concede the judge’s hypothesis too readily.

9. Interrupting or talking over the judge is a big no no; be patient, you will get your turn. That’s how the system works.

10. Only cite one or two relevant, recent and authoritative cases, not an electronic printout of 20.

Conduct

No less important than procedural conduct are the rules of conduct in court which should be well drilled into any counsel. But have these long-standing rules been undermined? Courtesy to the court and respect for the judge should be a given, and while it seems most counsel adhere to that principle, some fail to do so. Colgan’s point 9 was the one he found most annoying, and one which almost caused him to adjourn and walk out of court on one or two occasions.

Clark too recalls frustration with interruptions that at times bordered on unprofessional and overbearing conduct. It should not be necessary for a judge to have to say to counsel that, “If counsel does not wait to hear the question, they will not know what they are being asked.”

Beyond courtroom etiquette however, Karen Clark highlights the importance of counsel knowing their case and keeping the pleadings in mind. Judges hear cases with an eye on the issues for ultimate determination. Those issues will be raised by the pleadings, the architecture or framework of the case. “It enhances the hearing if counsel keep the pleadings in mind as they advance their points and argue their case. Critically also, counsel should be able to clearly articulate the outcome their client seeks, the form of relief sought and should be clear as to whether the court has jurisdiction to grant that relief.”

It is in the interests of counsel and their clients to follow rules of both court procedure and court conduct. You will build a reputation as a good advocate and become known by judges as reliable. As a junior your best way of learning court craft is to watch and work with experienced practitioners who have reputations for excellent advocacy.

Sir Terence Arnold KC

Now at Thorndon Chambers in Wellington, Sir Terence Arnold KC joined the independent bar in 1994 and was appointed a King’s Counsel in 1997. He served as SolicitorGeneral of New Zealand between 2000 and 2006, before being made a judge of the High Court and Court of Appeal in 2006. Sir Terence was elevated to the Supreme Court in 2013. Following his retirement, together with Sir Geoffrey Palmer KC, he was appointed to head the 2018 Inquiry into Operation Burnham in Afghanistan. In December 2022 Sir Terence was appointed to the Cook Islands Court of Appeal.

Hon. Karen Clark KC

Hon. Karen Clark KC was Deputy Solicitor-General (Public Law) for four years before she joined the independent bar in 2007. She was appointed King’s Counsel in 2007 and appointed to the High Court in 2015. On retirement from the bench in 2021, Karen returned to the bar and to Thorndon Chambers, where her practice focuses on determinative dispute resolution in the arbitration context.

Hon. Graeme Colgan

At just 35 years of age Graeme Colgan was appointed a Judge of what is now the Employment Court of New Zealand in 1989. In 2005 he became the Chief Judge of that Court. He retired from office in 2017 after 28 years on the bench, and practices employment law dispute resolution from chambers in Auckland.

Barbara Relph

* Barbara Relph is a freelance writer and proof-reader –barbararelph.com