I have had the immense good fortune to work as a bench clerk for numerous Magistrates hearing thousands of cases across the summary jurisdictions in my state. I have seen outstanding advocacy and roaring submissions delivered with passion and grace, as well as profusely sweating, mumbling, fidgeting, woefully unprepared counsel. I have, albeit rarely, seen a self-represented litigant act with more skill and panache than a senior member of the Bar. There is an art to advocacy.
Preparing your case, knowing the law and the precedents you’ll rely upon is important, but it isn’t the whole picture. Here are some things I have learned from 12+ years of bench clerking…
1. Remember that someone is always watching you wherever you are in the building and word quickly gets around. It should not surprise you to know that the clerk in your court does discuss you with the Magistrate/Judge before they enter the court. Make sure that you leave a favourable impression, which leads me to tip #2.
2. Use your manners. With EVERYONE. Mind your Ps and Qs with court staff, police, other lawyers and most of all your clients.
3. Get there early so you can have time to speak to opposing counsel to try for a last minute resolution. The court is always grateful for such attempts even when fruitless.
4. Introduce yourself to opposing counsel. Write their name on your note pad so you don’t forget it. Make small talk. You are not enemies.
5. Keep your client in the loop. Some lawyers pass notes and some prefer to wait for the adjournment to discuss the events of the hearing. Talk to your client in language they understand, and do what you can to show your client that you “get” them and where they are coming from. I have noticed over the years that a well-informed client seems to be a much more settled client.
6. Know your audience. Do not swagger in to a Children’s Court protection application hearing acting like you are walking in to the High Court. Some courts are more formal than others, so tailor your advocacy style to suit the forum.
7. It is never a good idea to use the phrase, “I demand that Your Honour…” Just don’t.
8. Be on time and be prepared. If you are listed for 10am, be ready at 10am. It is never a good start to a case when you need to ask the bench for more time. Again, first impressions really do count.
9. Before you start examination or cross-examination, offer the witness a glass of water. It makes you look considerate and puts them at ease.
10. Don’t ask the clerk what kind of mood the Magistrate is in. They will not tell you.
11. If you are new to a jurisdiction, get to know the forms. Go to the Registry to discuss the most commonly used forms, but do so in the afternoon. The mornings are taken up with getting each courtroom ready for the day.
12. Don’t be afraid to ask the bench clerk for their opinion. They have sat through thousands of hours of hearings and although they must and will remain neutral, they may be able to give you feedback on more practical things, such as where witnesses can wait, whether they think you will be out of there by lunchtime or 4pm, and how to best display exhibits.
13. If you plan to tender something on paper, make sure that you have enough copies for everyone at the bar table, the witness, and the Magistrate, and ensure that the clerk gets the original.
14. If you have lengthy reports to tender, provide copies ahead of time to your learned friends and to the court so that all parties have an opportunity to read those reports outside of the time set aside for the hearing of the case.
15. If you need a projector/dvd player/cd player to play or show your exhibit, let the court know at least a week before the hearing date. It will ensure that the facilities are available to you and prevent needless adjournments.
16. Regardless of the case, believe in your submissions. The court can tell when it’s half hearted and when you are just going through the motions. Give your client a passionate and engaged advocacy.
17. In all of your submissions, start by outlining what you are seeking. The court will be grateful for the “signpost” and it will give your submissions more relevance. Do not wait for the court to ask, “Yes, but what do you want?”
18. Speak slowly and clearly. The Judge/Magistrate is taking notes, as are your learned friends at the bar table. Make sure the witness understands your question.
19. Be honest with the court about your case and timeframes. If you have 35 witnesses, don’t round it down. If the case runs over and the Judge/Magistrate needs to find time in a very busy diary to finish the case, they will not think highly of you.
20. And now for the last-minute basics:
Turn your phone to silent
Face the bench and bow from the waist whenever you enter or leave a sitting courtroom.
Do not move a muscle when a witness is being sworn in. If the oath is interrupted by anything at all, the clerk must start the swearing in all over again.
Have the phone numbers of all of your witnesses in your phone/iPad.
Stand when addressing the court, unless it is the rule of that particular court to remain seated during submissions.
If you find yourself with some free time on your hands, spend it at your local court and watch a few different cases to see the different advocacy styles.
When it comes time to prepare for your own court appearances, don’t forget to work hard, be polite, talk to your clients, and be nice to the Bench Clerk!
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