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Saturday, February 24, 2024

Advocacy for New Lawyers – Your First Time on your Feet

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It’s going to happen – at some point in your legal career you’re going to have to come out from behind your desk, stand up, and speak to a Judge.

It’s awesome.

But it’s terrifying.

Advocacy for Beginners
There there – it’ll be OK

For many lawyers, their first Court appearance is a combination of exhilaration, terror, over-preparation and anti-climax.

After all – it’s usually a fairly low key event (an adjournment, a consent order or the like).

For some, they’ve already had experience instructing counsel at a hearing and so they have a feel for the environment and the procedure. But nothing quite prepares you for the first time you open your mouth.

Will you fluff your words? Will you get the formalities right? Will something go horribly wrong?

Let’s take a look at some basic preparations and delivery skills that might help you get through that first nerve-wracking experience.

A Note: because of the international flavour of my readers, this article is focused on general skills not on Australian litigation procedure. It may be that some things go a bit differently in other jurisdictions, and if that’s the case for you please help us all out by commenting with any differences you think are relevant.

First – Find out What the Heck’s Going On

I’m going to assume here that you’re probably not running a trial as your first ever Court appearance.  Most likely it’s going to be something a little more straightforward.

Of course your inclination is going to be to over-prepare. You’ll want to read everything 16 times to make sure that silly mistakes come in.  That’s perfectly fine, provided you have the time to do it and your employer doesn’t mind.

But if you have to make a choice, then here’s what I’d be focusing on:

  1. Who is your client and which party are they (Plaintiff, Defendant etc)?
  2. What are the basics of the dispute – what do each of the protagonists want and why?
  3. What are you there for in this particular hearing – are you asking for something, agreeing to something, opposing something – and what is it?
  4. Where does the Court’s power to do what you want come from?
  5. What should the Court do what you want?

At first glance this sounds like a lot of work. But let’s take a common example of consent directions. Your internal thinking might look like this:

I act for Mrs Smith, the plaintiff in a debt claim against Mr Jones, the defendant. This is the first return date of the matter, and the parties have agreed on some directions that they would like the Court to make for the conduct of the matter. The power to make the orders comes from the Court Rules. The timetables have been agreed having regard to the size and complexity of the matter and the parties’ capacity.

See – not too bad in that example, right? Often (not always), that amount of preparation will get you enough background knowledge to be getting on with.

Next – Prepare your Documents

This is going to vary wildly.

Probably the documents which kicked off the whole hearing have already been filed, unless you’ve been passed an “urgent” curveball.

Sometimes you won’t need to prepare any documents at all – either because it’s been done for you already or it’s simply not needed.

If in doubt, check the relevant Court rules and see what’s expected – do that.

Commonly, you might need:

  • an affidavit – perhaps showing the latest correspondence or the consent of the parties;
  • a list of material on which you rely;
  • draft orders for the Court;
  • a speaking note;
  • written submissions.

If you’re not sure what you’re doing or how to prepare a needed document, find someone who can give you an example or a guide.

Obviously documents you prepare should follow some good drafting procedures.

Check the Procedure

What, exactly, will you have to do?

If you’ve actually never stepped inside a Courtroom before your first appearance, then you won’t necessarily understand the unspoken etiquette, the procedures and the order of events.

Because these kinds of things don’t always find their way into the Court rules, you’ve got two viable choices:

  1. go to a hearing similar to yours to watch beforehand, if you can;
  2. ask someone who knows.

For example, in the Supreme Court in Queensland generally applications follow this basic set of events:

  1. The senior Justice on the day calls each matter on the Court list in order (a “callover”);
  2. Each party gives an estimate of time to the Court and, sometimes, a brief (15 second) summary of what the matter’s about, whether there’s consent between the parties, or critical matters;
  3. The Justice then decides what order the matters will be heard in, and tells the Courtroom;
  4. The parties’ matters are then called in that order;
  5. When your matter is called, each party announces their appearance (name, firm, party) and hands up their material;
  6. The Court may read the material or ask for submissions;
  7. The parties are heard in turn;
  8. The Court makes a decision about what it will do next.

However, your jurisdiction might do things completely differently – so learn the local sequence of events.

Prepare What You’ll Say

[clickToTweet tweet=”If the Court asks you a question – listen to it, and think before you answer. ” quote=”If the Court asks you a question – listen to it, and think before you answer. “]

In case you haven’t noticed, we’ve only just now come to actually speaking. That is the nature of advocacy – you do a lot of preparation, and the event itself is often much shorter.

In this case, everything you’ll have to say (other than questions to address) will be instructed by what you’ve prepared earlier.

Remember – what you’re going to say is not necessarily just a repetition of your written submissions. Perhaps you might just rely on them, hit the highlights or something in between.

However, you need to be prepared for the fact that the Court might not want to read your submissions on the spot and you’ll need to give it the gist of your client’s arguments.

This is one of those areas where I suggest you bite the bullet and actually practice, out aloud, saying what you’re going to say.

Your Honour, my name is Hargreaves, initial C. I am a solicitor with [name of firm] and I appear for the Plaintiff in the matter, who is the Applicant today.

It might seem silly, embarrassing or corny to do this: get over it.

When you’re thrown into the alien environment of a Courtroom, you can’t assume that it will be as easy to say simple things as you thought (at least – not when you haven’t done it before).

Generally a speaking note is an outline only.  By now you should know your client’s case, the material and your legal principles well – you don’t need to write everything out word for word.  What you need though, is something you can refer to so that you don’t miss important points, forget case citations, or can reference your material easily.

On the Day

OK so now you’re well prepared and the day has come.

Prior to the hearing, here’s what I suggest:

  1. Eat. The last thing you need is to get the shakes because you’ve got low blood sugar
  2. Pack. Having a list of what you need to take can be handy, but isn’t mandatory unless you’re the kind of person who needs one.
  3. Have one more copy of every document than you think you’ll need.
  4. Get there 15 minutes early. Any earlier and you’re wasting time, but don’t cut your arrival fine. Sit inside the Courtroom if you can, and get used to who is there and what’s going on.

When your time comes, ensure you get your paperwork in order. Things where you can reach them, copies for the Court as needed and your speaking note front and center.

Take your time when you speak. If the Judge isn’t listening – be prepared to pause briefly until he or she looks up at you.

If the Court asks you a question – listen to it, and think before you answer. Don’t um and ah, but don’t be afraid to take a few seconds to consider how to phrase your answer (perhaps not 10 minutes though).

If doubt, keep your hands behind your back – that way you can wring them together rather than fidgeting with your paperwork, and the Judge can’t see you doing it.

Speak to your note. Accept interruptions and deal with them. Then sit down and be quiet.

Afterwards and Beyond

How’d you go?

What would you do differently next time? What do you have to work on? What did you learn?

Do you have any tips for young advocates that you’d like to share? Let us know in the comments!

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