Most young lawyers at some point have probably done some kind of training in basic oral advocacy.
There they learned most of the polite/formal ways to announce their appearance, make submissions, hand up documents and the like.
What doesn’t seem to get much of a look in though, is the relatively recent* expectation that certain communications with the Court are going to be by email correspondence.
*meaning 15 years old or so, though I can’t remember the exact timing.
Probably every young lawyer knows that a degree of formality is necessary, if only by virtue of the fact that “formal” is almost the only style in the toolkit of most young lawyers.
But what do you actually say? What should you avoid saying?
Our Case Study in What Not to Do
We’ll start with a little case study to help the “why should I care” component of this article sink in. That said, the practical guidance below doesn’t stem entirely from this example.
Our poor law clerk in this matter wrote to the Judge’s Associate on 17 October 2023 saying:
Dear Associate,
We refer to the abovementioned proceedings listed for 2 November 2023 before Judge Given.
We attach signed short minutes of order shared with the Court concurrently.
The Applicant and First Respondent’s solicitors have consented to the Orders and have been copied into this email.
Please have the Directions hearing relisted in accordance with the Orders.
Kind regards
You might or might not immediately see a few issues with this email.
We’ll talk about Her Honour’s concerns with this email in a minute, but first let’s be clear: the law clerk was not off on a flight of fancy. That email had been both settled by a senior lawyer and approved by the other party before sending (apparently nobody on this particular matter had the same kind of concerns with the word “abovementioned” as I do).
Her Honour Judge Given promptly indicated to the parties that she wanted them all to appear before the Court, in part to explain “on what basis, and by which authority, the Court could be directed by a law clerk to make orders and relist proceedings“.
Naturally everyone promptly engaged counsel, because it was quite obvious her Honour was unimpressed. In short terms that was because:
- that an email requesting the Court make orders came from a law clerk ;
- the tone of the email was overly familiar, including the use of “kind regards” to sign off;
- the context of the email was following non-compliance with previous orders, for which no explanation was provided; and
- the phrasing of the email indicating an expectation that the Court will simply rubber stamp the orders on request.
You can read the entire reasons here.
It’s Everywhere
Emails just like the one above get sent to Associates every day of the week by practitioners around the country.
I will give a shoutout here to our colleagues in Melbourne, who recent experience suggests have developed one of the most casual approaches to communicating with the Court that I have ever seen, though I can hope that perhaps I’ve just had a small and non-representative sample size.
I, too, have personal experience of a tongue-lashing from the bench in relation to an email communication. One Federal Court Judge decided I had over-reached, required everyone to appear in Court and threatened me with a personal costs order if the suggestion made in my (fairly polite) email was incorrect. (In case you’re wondering, my position was vindicated). This was obviously embarrassing, concerning, and one of the rare occasions where I have lost a little sleep as a result of work-related matters.
So with those things in mind, I’m fairly sympathetic to the young law clerk and the firm involved. The email in question is hardly egregious in the overall scheme of things, but it does cross a few lines as we’re about to see.
It also seems that perhaps Her Honour had simply had a gutful of this kind of thing, and this particular email was the straw that broke the camel’s back:
[These reasons are] necessary to address an apparent deterioration in the standard of conduct before the Court, which should not be allowed to endure.
Regrettably the Court is, with increasing frequency, receiving correspondence from parties in the nature and terms of the October email.
So, let’s get practical and take a look at how to write to the Court by email.
The Basic Rules of Emailing the Court
You can, and probably should, read the relevant ethics guides for both your region and for the specific Court in question (many Courts have specific practitioner guidelines about email communications).
In big picture terms, any email to the Court should:
- be appropriately formal;
- include all other parties on the communication (though the practice of saying expressly that the other parties “have been copied on this email” seems redundant and silly to me);
- not contain submissions, unless they have been invited by the Court;
- be sent only after the other parties have had an appropriate opportunity to review and agree with the contents, unless responding specifically to an enquiry by the Court on behalf of only your client.
This sounds simple, but sometimes isn’t.
Treat it Like You’re There
The problem with email is that lawyers are a bunch of keyboard warriors who write in ways that we would never, ever, speak.
Since we’ve all done a little bit of advocacy training, then a simple litmus test is this: if you were standing in front of the Judge, suited up and ready to make submissions, would you be happy to say the contents of the email aloud having regard to what you know about the expectations of the Court?
If yes – you’re probably at least on the right track (noting the comments about submissions below…).
If no – rewrite.
Just Assume Every Recipient is a Judge
I think it’s unwise to make any real distinction in tone when writing to the Court.
Whether it’s an Associate, Registrar, Listing Registrar, Corporations Manager, Deputy Registrar, Senior Registrar, Judicial Registrar or someone else entirely – just treat it all like you’re writing to a Judge.
It’s just safer that way.
Don’t Use Names
You are writing to the office, not to the person. This means you use titles, not names.
Dear Registrar.
Dear Associate.
NOT Dear Sally, Dear John, Gidday Steve-o.
Again – this doesn’t pass the “would you do it in Court” test, so just don’t do it.
Don’t Make Submissions
Unless you have been specifically invited to argue a point by email (which is not very common), then don’t.
Sometimes, of course, the Court will require you to provide your party’s submissions the day before the hearing, and you will probably do that by email. That’s not what I’m talking about.
I’m talking about getting into argy bargy with the other party on any matter of substance, by email, without invitation.
If you’re trying to persuade the Court of something so that it will take a particular action, then that is fairly likely in the “submissions” category.
Emailing the Court isn’t some kind of defacto hearing. If you need the matter listed for an argument to occur, then make that happen through an appropriate method.
Ask, Don’t Expect
Even the most consenty of consent orders on the most benign topic imaginable still require the Court to endorse them.
To endorse them, the Court needs to be happy with them.
Sure, the parties agreeing to the orders is helpful and might make things a bit smoother, but if the Judge doesn’t like your plan then your signed consent means squat.
This, probably, is where are friend from above really crossed the line. Even though it was polite, the undertone of the request was “we have agreed so just tick it off thanks”.
Whatever you might agree always needs to be sent across with an indication that it is agreed and being provided for the Court’s consideration.
Should you say “Kind Regards” to the Court?
This came up in the decision we discuss above.
Her Honour’s reasons say that that ending an email to the Court with “kind regards” was problematic because it “falls foul of the obligation to avoid informality”.
No authority was cited for this proposition.
I personally found this statement confusing for a two main reasons.
First, a substantial proportion of the emails I have received from the Court in recent history have ended with “kind regards”. And while the Court certainly has the prerogative to use a form of address outwards that is not appropriate inwards, it creates an immediate issue: if I respond with just “regards” rather than “kind regards” will that be considered rude or disrespectful to the person in question? But if I can’t say “kind regards” because that’s too informal.
Second, “kind regards” is a common, fairly banal, signoff for emails that is regularly applied automatically rather than by design. It is often used in emails between practitioners as a civil ending to an email communication in both transactional and contentious matters. For those reasons, in my mind it’s hard to see how its use indicates any sign of informality when compared to the other available options. If you were to rank all available signoffs, “kind regards” is probably on the more formal end of the spectrum than many others.
That said, her Honour expressed the view fairly firmly, has now embodied it in published reasons for decision and I expect it is a view shared by other Judicial Officers.
So if you want to stay on the cautious side of things, then I guess you might decide to avoid “kind regards”.
Unfortunately her Honour did not indicate what signoff would be appropriate, and accordingly I am too scared to recommend one.
An Example Email to the Court
I almost didn’t put this section into the article, because the last thing anyone needs is to use an email example they found on the internet only to find it doesn’t do the trick.
So let’s be clear: I take absolutely no responsibility whatsoever if you send an email using this kind of language and it goes wrong. It is entirely up to you and your supervising lawyers to ensure that any communication leaving your office is appropriate having regard to the requirements of your jurisdiction.
With that big fat disclaimer in place, here’s a simple communication adopting the kinds of principles we discuss above. Here we are submitting consent orders to the Court and trying to get out of turning up for directions if at all possible.
Dear Associate
We act for the Plaintiff in these proceedings, Name of Company Pty Ltd.
The matter is listed before his Honour for directions on Monday, 111 Octember 2096.
We attach draft directions for the conduct of the matter that, subject to his Honour’s views, have been agreed between the parties.
We would be grateful for an indication of whether his Honour would be prepared to make those orders on the papers, and if so whether his Honour still requires any appearance by the parties on Monday.
Regards,
Think Before you Send (or Consent)
Just remember, you’ll be tagged just as much as the sender if an inappropriate email goes to the Court with your approval.
So, even if you’re in a hurry, take these principles and any others you can think of, and carefully consider whether anything you’re sending to the Court passes all of the practical and ethical tests that need to be applied.
Because as we all know – the “Chris would like to recall this email” button doesn’t actually work.