Appearing in courts and tribunals
Being able to appear as an advocate for any person before any New Zealand court or tribunal is one of the areas of work expressly reserved for New Zealand lawyers. While many lawyers do not appear in courts or tribunals, a recommended starting point for those who do is the book J Bruce Robertson (ed), Introduction to Advocacy, (2nd ed, New Zealand Law Society, Wellington, 2008). Other recommended reading is Advocacy by Anthony Willy and James Rapley (Brookers Ltd, Wellington, 2013) and Courtroom Procedure in New Zealand: A Practitioner's Survival Kit by James O'Donovan (4th ed, CCH NZ Ltd, Auckland, 2012).
Dress worn in the High Court, Court of Appeal and Supreme Court
Formal dress is expected at all time in the higher courts:
- a dark (black, blue or dark grey) suit or skirt;
- white shirt or blouse;
- a tie for men;
- black shoes;
- dark socks or neutral/dark coloured pantyhose/stockings; and
- a gown.
Dress worn in the District Courts
A more individual style of dress is acceptable in the District Courts, but the way you dress should still show respect for the court:
- preferably a dark suit or skirt;
- tie for men;
- covered shoulders for women; and
- gowns for jury trials.
Your overriding and paramount duty is to the court. First and foremost, as a New Zealand lawyer you are an officer of the court. Accordingly, you must never mislead the court.
As an advocate, the respect of Judges is one of the most important things you can attain. If you mislead the Court and this is discovered, that respect is lost and your judgement and submissions from that point will always be questioned.
As an advocate, general rules apply. You must:
- honestly represent the facts;
- provide a full and accurate representation of the law;
- not seek to distort the truth when dealing with a witness;
- not abuse court process;
- fearlessly and honestly represent your client; and
- not act as counsel and witness in the same matter (see Chapter 13 of the Conduct and Client Care Rules).
When in court, good practice includes consideration of how the courtroom operates, knowing how to present yourself professionally, how you interact with the judge and communicating with opposing counsel and witnesses.
While the court is sitting, counsel are expected to show respect for the court process at all times. While the court is in session, counsel should not without permission
- bring coffee, tea or food into the court – water is normally provided;
- have cellphones on;
- engage in text or email communication;
- discuss matters not connected to the case with other counsel;
- engage in any form of electronic search or exchange, unless it relates to the trial; and
- if it is proposed to carry out an electronic search for the purposes of the trial, the court should be advised of this.
Sound presentation skills are important to establish a professional appearance:
- be punctual;
- do not state that you appear “on instructions” – you are the counsel appearing and you are responsible for the file;
- when appearing on any matter stand to announce yourself and explain who you appear for;
- men should introduce themselves by their surname, women are normally addressed in court as “Ms” but should introduce themselves as “Miss” or “Mrs” if that is preferred;
- if there is an appearance on the other side, sit down and allow other counsel to announce themselves;
- when referring to a judgement, provide the name of the case, citation, court and if it is a higher court (Court of Appeal or Supreme Court) mention who delivered the judgement;
- speak clearly, concisely, loudly and in a measured way;
- do not read submissions word for word, but address the court and persuade it of your client’s position;
- know your topic and have enough information at your fingertips to be able to respond to a query made by a judge; and
- do not use colloquial language.
Good court etiquette requires that you address the judge and members of the court appropriately:
- stand when the judge enters or leaves the court, and if the judge bows to counsel, bow back;
- if the court is already sitting, you should bow on entering and leaving;
- address the judge as “Your Honour” or “Sir/Madam”;
- if you have an application to make, make it after all counsel have announced themselves, allow the judge to make a note, and explain what you are there for;
- stand when addressing or being addressed by a judge;
- never interrupt a judge;
- do not start speaking until the judge has invited you to speak;
- if you wish to make an objection, rise and obtain the judge’s attention by saying “If your Honour pleases...”; and
- if you are granted an indulgence, thank the judge for the courtesy shown.
- if the judge has made an order, acknowledge this by standing and saying “As the Court/your Honour pleases...” even if you disagree with it.
Interaction with opposing counsel
- refer to opposing counsel as “my learned friend”;
- if it is necessary to refer to an opposing counsel by name, use “Mr”, “Mrs”, or “Ms” – first names are not appropriate;
- do not interrupt opposing counsel;
- sit when another counsel gets to his or her feet; and
- if you are the on the receiving end of an objection, and hear your opponent catch the judge’s attention, sit down and wait for the submission to be made.
- educate your witness – when a witness goes to the witness box, advise them to approach and walk behind you, not between yourself and the judge;
- do not approach a witness in the witness box without leave of the court; and
- address witnesses with respect, using “Mr”, “Mrs” or “Ms” and their surname as appropriate.
How to address the judiciary
It is important that you know how to address members of the court correctly. By convention, judges of the Supreme Court, Court of Appeal and High Court are referred to as Justice [surname]. Judges in the District Courts are referred to as Judge [surname]. If a judge is referred to without name, the appropriate reference is “the Judge” It is not correct to refer to judges by their full names unless it is necessary as a point of distinction from another judge of the same surname.
When you are in court, don’t speak of judges of the High Court, Court of Appeal or Supreme Court as “Doe J” or “Judge Doe”.
If you meet a member of the judiciary socially, it is usual to address them as “Judge” (as in “pleased to meet you Judge”).
Further information is available in the Law Society's Practice Briefing note "Addressing members of the Judiciary".