Advocacy – Some Suggestions

1. Focus of this Paper

1.1 The bar table can be a scary place.

1.2 The writers make no claim to experience or expertise beyond their own failures, and
the occasional successes that have punctuated them from time to time.

1.3 This paper's purpose is to provide practical, introductory suggestions for your next
appearance. It is not so much an 'advocacy' workshop as it is an 'appearance'
workshop – although it is likely that an effective advocate will deploy aspects of the
Court craft to which this paper refers.

1.4 The focus of this paper is the types of Court appearances that solicitors most frequently
encounter such as return of subpoena listings, directions hearings and mentions.

2. General Comments

2.1 Confidence is persuasive.

2.2 More often than not, trepidation about Court appearances has its genesis in a fear of
being asked a question to which the answer is not known. So, the best way to
manufacture confidence is to prepare.

2.3 With this in mind, we've put together a to-do list of issues to attend to, and when to
attend to them. There will be plenty of times when you will not have the luxury to turn
your mind to all of this stuff but hopefully these time frames will work for you as you
develop your practice. Of course, each case and each appearance will have certain
unique issues which will require consideration – this list is not intended to be
exhaustive.

2.4 This paper sets out what issues we think you should have in mind:

(a) the week before the appearance;

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 (b) the day before the appearance;

(c) the morning of the appearance;

(d) during the appearance; and

(e) after the appearance.

2.5 The time frames at (a), (b) and (c) are interchangeable. The amount of notice you have,
your workload, and your own preparation style will inform how you attend to them.

2.6 Each person has their own style and you should embrace your style. No style is more
correct than any other and nothing in this paper should be considered binding.

3. A Week Before the Hearing

3.1 You are doing well if you are thinking about your appearance a week in advance. You
should consider the following:

(a) Is the appearance necessary?

Does your client need to incur the cost of the appearance? Have you proposed
consent orders to your opponent?

(b) Have you advised your client?

Do they understand why the appearance is necessary? Do they know what

might happen? Have you told them whether they need to be present? Have you
disclosed the costs?

(c) Has your client complied with previous Court orders?

If not, are you prepared to offer an explanation? Have you canvassed with your
opponent whether any application in respect of your client's default is to be
made?

(d) Have you received instructions from your client?

Do you have instructions to go ahead with Plan A? What about Plans B and C?

(e) How well do you know the file?

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 Almost 100% of the time: not well enough. Be commercial about how much time
you spend reviewing the file, but make sure you know enough not to embarrass
the client or – more importantly – yourself! Prepare intelligently – familiarise
yourself with the history of the matter, identify the issues that are likely to arise
and think about your client's position with respect to those identified key issues.

Ask "why?" – Why do you want the orders that you want? Why should you be
granted those orders?

(f) How well do you know the law?

Rarely (but not never) you may be required to submit on the law in a directions
hearing in order to achieve your objective. For example, you might seek
directions from the Court that go towards resolving a pleading issue. In that
event, you might need to explain in a little detail why your client considers your
opponent's pleading to be defective. The same might apply if your client seeks
leave to amend a pleading etc.

(g) Do you want to prepare any documents? If so: have you?

Your appearance might be assisted by a chronology, a schedule, a written

outline, short submissions, or any number of other documents. A useful test
when considering this might be: what can I give the Court that will help me get
me the orders I want?

(h) Do you need evidence? Have you got it?

Make sure your deponent's/deponents' evidence is admissible (particularly in

relation to relevance) and concise. This goes twice over if you're affirming or
swearing the affidavit.

4. A Day Before the Hearing

4.1 Hopefully this is not the first time you are preparing for this hearing. Regardless, you
should attend to the following:

(a) Have you drafted the orders you want? Have you sent them to your opponents
to seek their agreement?

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 The Court will want to know precisely what orders you want made. Plus: you
might get lucky and the other side agrees! However, if your opponent agrees,
never assume the Court will make the orders as a matter of course; you may
still be required to justify what is sought.

(b) Check the court list

When are you appearing? Before whom? Where? Do you know how slow the
security staff in that building are? Are you going to make it in time? Are you
appearing online? Find out. Call the Registry if necessary.

(c) Know your list

Are you in the subpoena list, how does this list run? Are you in the directions
list, how does this list run?

(d) Again: how well do you know the file?

Again: in all likelihood not well enough. Are there any recent bits of
correspondence or developments you need to be on top of? Do you have copies
of any correspondence upon which you may wish to rely? For example, if you
need to apply for an adjournment occasioned by late correspondence received
from your opponent, have you got copies of that correspondence to hand up if
necessary to justify your application?

(e) Again: how well do you know the law?

Again: not well enough. There's a reason even the most experienced advocates
take copies of the UCPR and the commentary to Court. If your matter relates to
a particular decision or a piece of legislation, print off a copy for yourself (of the
legislation applicable at the relevant time), a copy for the Court, and a copy for
your opponent – NB. If you intend to tender a document in Court, you must have
a copy for your opponent.

Remember: you want to be on top of the substantive law of the case and the
procedural law relating to your appearance.

This includes practice notes – knowledge of the relevant notes can often be
difference between an impressed and an unimpressed judicial officer. Read up.

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(f) What are you trying to achieve?

Have a think about what the hearing is about. An adjournment? A timetable?

Getting some documents? Setting something aside? Be prepared to answer the
question: "what do you want?" If you are clear about what you want, your
submissions will likely be more coherent and persuasive.

(g) Best / worst outcomes

What orders leave you covered in glory? What outcome covers you in the
opposite? What is the "middle ground" position that you might have to lead the
Court to if your principal position is not accepted? This does not mean that you
should start with an unrealistic position in order to slide back to a more realistic
one. It is generally more persuasive to ask for what you want and not more.
Trickery rarely works and will be seen through.

(h) Be prepared for the "hospital pass"

Your first appearance might be when your beleaguered partner or senior

associate sends you running off to Court with only a minute's notice. Protect
yourself from the impact of a hospital pass – and impress your grateful senior
practitioner – by being aware of what Court matters are coming up in your
practice group and having knowledge of what you might be required to do.
Develop a reputation for scoring tries from hospital passes.

If you receive instructions at late notice, persist with obtaining full and complete
instructions. YOU are appearing before the Judge or Registrar. It is YOUR
reputation at stake. YOUR ethical obligations are in play. Ask the relevant and
necessary questions so that you are comfortable. Submitting in Court that "you
were instructed to ask for XXX" will be met with disdain.

You are not a mere mouthpiece for your client or anyone else for that matter.
You are all undoubtedly aware of your obligations to the Court as practitioners.
Bear that in mind and ask the necessary questions before you go to Court.
Proper representation is a requirement of the Court. For example, see the Court
Procedures Rules.

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 (i) Evidence or other documents

Remember the thought you had last week that an affidavit or schedule might be
handy? Yeah… Go draft it and get it sworn if you haven't already. Now. Then
consider whether you need to urgently provide it to the other side, before the
hearing/appearance if possible.

(j) Learn about your judicial officer

Does the person you're appearing before have a reputation? Things they like,
dislike; do regularly or rarely? Ask your colleagues or go check their recent
decisions. A little knowledge on this point can go a long way. Don't forget, the
bar table is a scary place but those folk on the bench are human beings too.

5. The Morning of the Hearing

5.1 It’s the big day, make sure you are ready for it by considering:

(a) Yet again: how well do you know the file?

Yet again: in all likelihood not well enough. Fix that, if you get a chance.

(b) Yet again: how well do you know the law?

Yet again: not well enough. Read up again, if you can. Especially any practice
notes.

(c) Source of power

An extension of the above suggestion to get to know the law is: make sure the
judicial officer you're appearing before has the power to do what you want (and
if she or he doesn't, figure out what you're going to do about that).

(d) Bow

Bow when you enter. Bow when you leave. Respect the Court's authority; that
authority is the reason you're there!

(e) Write your name on the court list on (or beside) the bar table

This alerts the Court to your presence and will assist you in finding and meeting
with your opponent when she or he arrives. During appearances which are

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 transcribed by a Court reporter, recording your name is essential for that
purpose.

(f) Arrive early and observe

Get a feel for how a judicial officer deals with matters and get yourself "oriented"
in the Court. This will help deal with nerves and so improve your advocacy.
Much better than a last minute rush to the bar table.

(g) Meet with your opponent

In most cases, there is no harm in telling your opponent what you are going to
say and why. Particularly in the type of appearances you will be making on a
regular basis, the hard work is often done before Court, rather than when in
front of the judicial officer. A quick appearance is a good appearance. Try to
elicit from your opponent what they are going to say and why. Note areas of
agreement and disagreement. Impress the Court by highlighting agreed points
and demonstrating your command of the real issues in dispute. This is more
than desirable; the Court considers this to be a requirement. Avoid ventilating
petty disputes or disagreements in front of the judicial officer – it is unbecoming.
Focus on the real issues.

(h) Bring your phone, but keep it on silent

Make sure you've got your partner's number, or your client's number, or the
number of whoever you might need to call. But don't let the Court hear it if they're
ringing you!

(i) Bring your diary

Know what dates work for you, and your client, and why. Be prepared to accept
or reject certain dates. Be prepared to give reasons. If counsel has been briefed
and will be required to attend the next listing, have his or her dates available. If
your client will be required, have his or her dates available. Consider your
partner's availability.

6. At the Bar Table

6.1 Your time is now, don’t forget

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(a) Be where you should be

Applicant (or if no applicant, the plaintiff) on the judge's right. Respondent (or if
no respondent, the defendant) on the judge's left.

(b) Announce yourself

May it please the Court, my name is Smith and I appear for X

(c) Stand up, now sit down, now stand again

Stand when you're addressing the bench. Stand when the bench is addressing
you or is considering material you have handed up. Otherwise sit.

If your opponent interrupts you, sit down. That will draw attention to his or her
discourtesy. Do not attempt to compete.

If there is a lectern, use it. Generally, it positions you in the best position at the
bar table and positions you appropriately for the microphones. It gives you
somewhere to place your notes and somewhere to place your hands. It will
generally prevent you from awkwardly putting your hands behind your back,
fidgeting or placing your hands in your pockets.

(d) Be slow and accurate

Less is more and more is less. The Judicial Officer does not care what your
client had for breakfast 6 months ago, only what the last orders were and what
and why you are seeking orders now.

(e) Hand up documents

If you have consent orders or emails, hand them up before you make your
submissions. Props are great for calming the nerves and making your
appearance easier.

(f) State facts and make submissions

Advance your best argument(s). There is often no need for a shopping list of
available arguments. Say what you need to win, and no more. You don't need
to flog a dead horse.

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 Avoid verballing or browbeating your opponent. It achieves nothing. Don't take
petty points. Only respond if it is absolutely necessary in your client's interests.

The Court does not care what you "think". The Court does not care what your
opinion is. You make “submissions”.

(g) Read and react to the judicial officer

Generally, judicial officers are clear with their body language. Which facts led
her Honour to look over at you when your opponent was speaking? Why did
she seem so disinterested when you raised your costs application?

(h) Your "friend"?

Your opponent is your friend, or your learned friend, at least for as long as you're
at the bar table.

(i) Don’t be afraid of what you don’t know

If you don’t know the answer to a question say “I don’t know”. You will be
surprised at how often it is not your fault that you do not know something.

(j) "Good morning", "thank you" etc

Never. A pet peeve for many practitioners. You are not friends with the Court
(even if you know the judicial officer socially or professionally). And a Court
order is not a favour or blessing for which you give thanks. "May it please the
Court" is the appropriate response.

(k) What about costs?

Did you mop the floor with your opponent? Then why not seek costs. Did you
go down in flames? Be prepared to resist a costs application, as well as turning
to alternatives such as costs in the cause, costs being reserved, each party
bearing his/her/its own etc.

(l) Don’t be afraid to stand a matter down

If you are struggling, never be afraid to ask to stand the matter down in the list.
Once the matter is stood down, you can call a senior practitioner and they can

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 guide you as to what you should say and do. It will work wonders and is always
a valuable lifeline.

(m) Don’t ever make an undertaking

You are expected to comply with any undertaking that you make to the Court.
A more unscrupulous practitioner could demand that you make an undertaking
that your client will make payment of a fee, for example. Do not bow to this
pressure and if you do seek instructions any undertaking will be an undertaking
made by your client and not by you nor your firm.

(n) Don't leave the bar table unattended

Even though your matter has been dealt with, don't leave the bar table until the
there is an appearance in the next matter, or you are excused. This is a courtesy
to the Court, and will not go unnoticed. It's especially valuable if you regularly
appear before a certain judicial officer and you want to maintain your already
excellent reputation.

7. Online Court

7.1 Online Court is a tricky beast as you lose a lot of the aura of a Court room and it is easy
to trip up. If you are in online Court, consider:

(a) Am I using my phone or my computer?

Hugh prefers to use his phone so that he can set up his ring light and has access
to his computer in the event of an emergency. Using your computer is more
traditional and likely preferable for your first few appearances.

(b) Have I installed the correct software?

Make sure you have given Zoom or Webex a practice run before your
appearance, last minute updates are a nightmare.

(c) Does the Court have to hand the documents I am referring to?

If you wish to refer to consent orders, they need to be emailed to the Judicial
Officer’s Associate at least 1 hour before you are heard.

(d) Is my background okay?

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 Blur your background if you have moving objects in the background. The writers
prefer the authenticity of a real background without distractions as it can be
endearing to an audience.

(e) Is the camera looking up my nose?

No-one wants to spend a hearing looking into your nostrils, make sure your
camera is appropriately positioned.

(f) Is my lighting okay?

Make sure you are not appear as a ghost or a ghoul in a dungeon.

(g) Am I muted and is my camera off?

Always, always, be muted and have your camera off when your matter is not
active.

(h) Don’t forget you are in Court!

Even if you are wearing boardshorts. You are in Court, often with a large and
silent audience and must always remember this. Don’t take recordings or
photos, online Court is treated the same as “real” Court in this regarding and it
can be a silly way to find yourself in contempt.

8. After the Hearing

8.1 There is still work to do before you pat yourself on the back:

(a) File note

If you have dictation software on your phone, use it as you walk back from Court.
Make sure you have a record of your great performance!

(b) Check Court records for orders made

Do the orders the Court has recorded align with what you wrote down? Have
there been any errors you need to apply to correct?

(c) Report to the client

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 The client's why you appeared in the first place! Let them know promptly how
well it went. And if things didn't go as planned, you can ask your partner's help
to craft your report diplomatically. Try to be thorough. Help the client understand
what you said, what the other side said, and the approach the Court took.

Make a practice of "same day" reporting of appearances, unless there is some

reason not to.

(d) Diarise any dates

You fought for that timetable, now make sure you keep to it! Put those dates in
everyone's calendar.

9. Be Yourself

9.1 There's nothing less convincing than an inauthentic advocate. While you might be
tempted to go into "lawyer mode" at the bar table, don't ignore the persuasive power of
being genuine. Simple submissions in plain English.

9.2 Within reason, embrace your own style of advocacy. Naturally quiet advocates needn't
shout to be successful. Naturally demonstrative advocates needn't jam their hands in
their pockets to appear measured and reasonable.

9.3 That said:

(a) If you're someone who says "um" a lot, stop. Now. Convert those "ums" into
mere silence. The silence will make you look in control and will make you feel
more comfortable in your surroundings ("I'm silent and everyone is hanging on
tenterhooks to hear what I say next!"), even if it's not true. That apparent comfort
gives the illusion of that most persuasive trait: confidence; and

(b) If you're naturally verbose, prune those submissions before they leave your
mouth.

(c) Use your best argument, not every argument. Save the adverbs for Friday night
drinks.

(d) Don't forget your own personal preparation. Wear that favourite tie. Buy yourself
a piccolo latte beforehand (and dispose of the cup before you get to the bar
table). Stare at yourself in the mirror the night before. Blast rowdy rap music in

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 your headphones as you head in to Court. Slowly and methodically rearrange
your notes on the lectern like that barrister who appeared two matters ago did.
Whatever you need!

10. Closing Thoughts

10.1 Advocacy is a daunting task. Advocacy has been a daunting task to all those great
advocates you see.

10.2 Those intimidating suits behind you in Court, at the bar table, at the bench, or in the office
kitchen, have all been where you've been (or if they haven't, then you're one step ahead!)
and they know what those nerves are like. If you need a little support, ask for it. The
empathy you find might surprise you.

10.3 Remember: if it all goes wrong, discuss it with your colleagues. We've all been there.
Hopefully this paper will help you "go there" less than we had to in order to write it.

10.4 Now go and serve some justice!

Hugh Smith

James d’Apice

6 October 2022

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