Courting disaster and how to avoid it

Some easy tips can help turn a court appearance from fearsome to exhilarating for any young lawyer. Court appearances can be daunting for those with no prior advocacy experience. Preparation is the key to making the most of the occasion, helping you feel more at home in what will hopefully become increasingly familiar surroundings.

Before going to court

Review the file before your appearance and familiarise yourself with the parties, issues in dispute, purpose of your appearance and the history of the matter. If you cannot establish a clear understanding of the file and its history, approach the lawyer who has assigned the appearance to you to discuss your questions. Contact your client and finalise your instructions. If they are required to attend court, agree on a place and time to meet. On the day, ensure that you are appropriately dressed and equipped with the client's file, stationery, relevant legislation, identification (if you are required to go into court cells), your business card and mobile phone - but ensure that it is off or on silent in court.

The day before your appearance

Access the court's online matter listing and make a note of the time, courtroom, courtroom location and the presiding judicial member. Court lists are ordinarily available after 4:3Opm the previous day. If you cannot find your matter then contact the relevant registry, listing associate or coordinator.

There is generally a physical list available in the respective courts on boards or digital displays in the foyer, near the registry or the coordinators' offices.

Arrive early

Arrive at least 15 minutes before your matter is listed to commence. This will give you time to get through the court scanners, discuss any outstanding issues with the other side, mentally prepare and settle nerves. If you are running late, contact the court to request that your matter be stood down until your estimated time of arrival.

Entering your appearance

Before your matter is called, you must fill out an appearance sheet or inform the relevant court coordinator, associate or clerk who you are and who you represent. This information is kept on the court record.

Where appearance forms are provided, they are generally kept inside the courtroom on a visible table or ledge. If you are unable to locate any appearance sheets, you should speak with the associate or clerk.

Liaising with your opposing lawyer

Before your matter is called, seek out and introduce yourself to your opposing lawyer. Estimate with him or her how long your matter is likely to take, so you can advise the judicial member if asked.

If the matter is going to be adjourned, or will progress to the next stage in the court process, discuss with your opposing lawyer a suitable date for the next hearing, and liaise with the associate, clerk or coordinator to book it in.

Announcing your appearance

Each matter is called when an associate or clerk announces the matter by name and/or number in the list. Upon hearing the announcement, approach one end of the bar table facing the judicial member and say:
            

'If Your Honour pleases/if the Court pleases, l appear for the [plaintiff/defendant] in this matter.'
 

If you are representing the plaintiff or applicant, you would generally announce your appearance first; if you are representing the defendant, respondent or accused, announce your appearance after your opposing lawyer. If it is a matter where your client's appearance is required then you should indicate to the court the whereabouts of your client by gesturing to them, or describing them.

Seeking leave to appear as a trainee solicitor

If you are a legal trainee, you may not appear before a court or tribunal without leave of that court or tribunal.[1]

If you are asked to appear in a matter, the best practice is to contact the relevant associate or clerk in advance to indicate that you will be seeking leave to appear, and the reasons for doing so. The associate or clerk can usually provide you with an indication as to whether that application will be successful.

When the matter is called on in the court or tribunal, make your application for leave verbally, along the lines of:
            

'Your Honour I seek leave to appear on behalf of the [plaintiff/defendant]. I am a trainee solicitor employed by [firm/community legal centre/department]. I am familiar with this matter and my client consents to my appearance in lieu of my colleague who is unavailable.'
 

Keep in mind that there is no limit on the judicial member's discretion to refuse to grant leave and that they are entitled to 'demand that full technical assistance be provided for the court in its task of administering justice according to law'.[2]

Generally, the higher the court and the more complex the matter, the less likely it is that leave will be granted. Leave is usually only granted for simple administrative hearings. If leave is refused, stand the matter down until a qualified lawyer can attend in your place.

Questions from the bench

Inevitably, the judicial member will ask you a question that you will not be able to answer. If you do not know the answer, do not guess or say: 'I don't know'. You should ask to have the matter stood down by saying:
            

'Your Honour, I do not have instructions in relation to that point. If your Honour is willing to stand the matter down for a short time, I will seek instructions.'
 

You should then call the client or a colleague for instructions. If the question can be answered quickly, by asking your client (if present in court), your instructor or the opposing lawyer, you may simply ask:
    

'Your Honour, may I confer with my [client/instructor/friend] for a moment?' 

After your appearance

At the end of your appearance, a determination will be made by the judicial member. This is known as an order. Be sure to write down the decision made - and the reasons for that decision - so that you can report it back to your supervising solicitor arid then to the client.

Depending on the jurisdiction you are appearing in, you may be able to request a copy of the orders of the judicial member on the spot, or that the orders be sent to you. Request forms for authenticated orders are generally available with appearance sheets, from the associate or clerk, or online.

It is always worth reviewing these orders as soon as possible, so you can communicate any error to your opposing lawyer and to the associate or clerk.

Consolidate any notes you have made during the appearance with any other notes and report back to your supervising solicitor and then to the client.

Transcripts

You should ask your supervising solicitor whether a transcript of your appearance is required. Depending on the court you are appearing in and the type of matter you are appearing in, the court may already have arranged transcript services that can be made available to you.

In circumstances where you do need to arrange a transcript, contact the court and ask for their preferred supplier and contact them to arrange for a transcript of the matter.

Conclusion

We trust that when you are next called upon to do a court appearance, you will be equipped to undertake your appearance with confidence. Enjoy the experience. 

Authored by Rena Solomonidis, Cornwall Stodart; Jacqui Caust, Lewenberg & Lewenberg Solicitors; and Stephanie Rennie, Office of Public Prosecutions.
 

This article first appeared in the Law Institute of Victoria's Young Lawyers Journal Issue 1 2011, and has been reproduced with the permission of the Law Institute of Victoria.

[1] s2.2.2(e)(f) Legal Profession Act 2004 (Vic).

[2] Hubbard Association of Scientologists International v Anderson and Just [1974] VR 340 at 341.