(A continuation of my previous article entitled, “Little Mistakes Lawyers Make in Courts and How to Avoid Them”)
Previously, we considered some little mistakes lawyers make in court and how to avoid them and these mistakes included the use of the word “You” while addressing a Judge(s), the use of the words “with all due respect” while announcing appearance in courts, and the practice of moving motions in terms. Having treated the above outlined headings, I did promise to continue the discourse in a subsequent edition. Today, we shall further consider the following little mistakes lawyers must not do in courts to wit:
Sitting down while Addressing the Court or while being Addressed by the Court
It is not just a minor mistake for a lawyer to be sitting down while addressing the court or while being addressed by the court but also very unethical, as it is a sign that such Counsel has no respect for the court. Under the Rules of Professional Conduct for Legal Practitioners, a lawyer must at all times treat the court with utmost dignity and respect. If respect for the court is thrown into the wind by lawyers that appear before it, who else will be expected to respect the court?
Judges are humans and they have kits and kins. They have classmates, fellow Church members or Muslim faithfuls. They have in-laws and they also have friends. Most times, due to these realities, some lawyers tend to get overfamiliarized with a Judge (s) to such extent that the traditions guiding the Bar-Bench relationship (which inter alia, is founded on respect for the court), is thrown overboard. No matter the level of affinity between a lawyer and a judge, such affinity is “stayed” the moment his case is called in the court.
In other words, once a lawyer’s case is called in the court, both the lawyer and the judge (s) must lose memories of their out-of-court affinity or relationship in order to ensure that the sanctity and dignity of the Courts are not compromised. To this extent, all lawyers must accord to the court every single respect it deserves.
One of such respects is that a lawyer must remain standing on his feet while being addressed by the court or while he (the lawyer) addresses the court. In no instance except with the permission of the court on ground of ill health or for other just cause, should a lawyer be sitting down while addressing the court or while being addressed by the court. If a lawyer is being addressed by the court alone, such lawyer must stand on his feet until the court directs otherwise.
There are times when the court may address two or more Counsel appearing in a case before it at the same time. In such instance, all the Counsel being addressed by the court must be on their feet unless and until the court directs otherwise. Most times, if the Court’s address (which may be in the form of observation, advice or admonition) would take a long time or if the address is an informal one, the Court would normally ask a/the Counsel standing to sit down while the address is going on. Permitting a Counsel or the Counsel (if more than one) to sit down while being addressed by the court in this wise, is one of the ways in which the Bench reciprocates the respect being accorded it by the Bar.
Using the words, ‘Do you understand?” or similar Expressions while Addressing the Court.
I have seen times without number in courts where lawyers while addressing the court will use words like “Do You understand?”, “You understand?”, “right/alright?”, “do you get?”, “You get my point?”, etc. These expressions in the form of questions are not expected to proceed from the mouth of a lawyer worthy of his call to the court. The court is not a beer parlour or a Big Brother Naija House where careless words can be used in conveying one’s thought. In the same vein, the relationship between lawyers and judges is not like that of BB.Naija Housemates so as to allow them employ informal expressions such as those stated above. A court of law is an hallowed temple of justice. It is a place for serious judicial deliberations and there is therefore, no room for frivolities. Thus, any lawyer who employs “mechanic shop” expressions while addressing the court is not worthy to be known and called a legal practitioner. Such a lawyer or lawyers must be reprimanded or corrected by the judge(s) in the open court so as to ensure that our courts are not literally converted into a Big Brother Naija House!
Talking back at the Court or Talking at the same time when a Judge is Talking
It is very wrong for a Counsel to talk back at the court no matter how provoked the Lawyer might be, either by the comment or conduct of a judge(s) before whom he appears or by his fellow Counsel, Litigant(s) or witness(es) before the court. Similarly, it is also wrong for a Counsel to be talking while a judge is addressing him or her. The proper thing to do when being addressed by a judge is for the Counsel to listen attentively until the judge ends his comment, admonition, advise or observation, after which the Counsel can then proceed to express himself on the views expressed by the court in a very respectful manner. There is a common saying that when everybody is talking at the same time, no one is talking! A good listener hardly makes mistakes.
An Advocate worthy of his call must learn to be a good listener, not just to his clients while taking their briefs but also to the courts while conducting his case before them. It is common to see lawyers in courts obviously arguing with a judge on certain issues relating to the case in which the lawyers appear. The duty of a lawyer is to present his case while the court is to adjudicate on the case as presented by the parties and their lawyers before the court. I am not oblivious of the fact that some judges especially in the lower courts easily descend into the arena most times due to compromise.
Such judges are very impatient to hear or listen to a lawyer(s) whose submissions appear to be an obstacle to their already compromised position in the matter before them. Situations like this can be very annoying because no matter how brilliant a lawyer tries to conduct his case in the court of a compromised judge(s), the lawyer’s effort would always be rendered futile as a result of the unnecessary interjections and complaints from the Judge (s). Most times, many lawyers in circumstances like this, lose grip of their emotions and anger, and banters between the lawyer(s) and the judge(s) would simply take over the place of court decorum!
A lawyer must understand that his calling or profession requires patience and forbearance. He must not be quick to anger especially in the open courts. There are many ways to kill a rat. What matters is that the rat should actually be killed. Thus, where it is very obvious that a judge has some elements of bias in the case he is handling or where it appears that a judge has personal dislike or hatred for a Counsel before his court, such Counsel can apply for the judge to recuse himself from the matter and to have his case reassigned to another judge for proper adjudication. This is the appropriate thing to do instead of engaging in banters with a judge (s) in the open court.
Pointing at the Court with a Finger or Clinched Fist while Making Submissions
Whereas the court room is not a cinema house where movies are premiered, some lawyers appear to forget this fact, thereby making them to exhibit dramatic conducts when handling their matters in court. In a bid to drive home their points, some lawyers make radical gesticulations towards the Judge (s) presiding over their matters. While gesticulations are part of human ways of expression, a lawyer worthy of his call must ensure that he does not carry it to the extreme by gesticulating menacingly towards or before the court.
A lawyer conducting his case in court must not turn himself into a “boxer” or a “bully” of a sort all in the bid of impressing his client(s) or the gallery through gesticulations. A lawyer must restrain himself from pointing at the court with his finger(s) or clinched fist!
Stepping out of the Bar while Conducting a Case or Facing the Gallery while Addressing the Court
This unethical conduct is very common in our courts. Severally, I have seen lawyers while conducting their cases in courts, step out of the Bar and advance towards the direction of the witness in the Witness Box as if they are in a boxing ring! This is not just highly unprofessional but also very demeaning.
A lawyer must not descend so low to the level of seemingly engaging himself in a physical combat with a witness all because he wants to impress his client(s) or the gallery, or because he is not getting the preferred answers expected from the witness, or because the witness in the Box is the lawyer’s enemy or a friend to his enemy!
A lawyer must live above his emotions and sentiments while handling cases in courts. The Bar is not just a place where lawyers stay to conduct their cases, it is also that section of the court setting which confers immunity and dignity on lawyers in the course of Court’s proceedings. When a lawyer while conducting his case in court steps out of the Bar, such lawyer invariably relinquishes all the rights and privileges accorded to a lawyer in the Bar and consequently assumes the status of the unlearned people in the gallery.
Most times, some judges would tell the erring lawyer that the court can no longer see or hear him, having stepped out of the Bar! While some would be guided by this statement to return to their standing position in the Bar, some others would continue to make the same mistake many times before they finish their matter. Such lawyers can best be described as “mobile/floating” Counsel – they cannot stand in the Bar alone to conduct their cases. The Bar is too small to accommodate them. They prefer stepping out of the Bar, coming back and then, going out again!
Similar to this is the case of lawyers who like playing to the gallery. Lawyers who engage in this unwholesome practice hardly make any single submission without turning their face to the gallery in expectation of a “nod” or “thumbs up” from his client(s) in particular and the gallery in general. It is an ignoble practice that should be discouraged. A good Advocate does not need to impress the gallery; his good practice and sound submissions would speak for him even without him facing the gallery for once! In fact, when a lawyer does well in court, the clients of other lawyers in the court as well as other people in the gallery, would struggle to catch a glimpse of his face for future briefs or consultation on legal matters. A good product markets itself and a bad one cannot sell no matter the wordings in which its advertisement is beautifully couched!
Offering Unsolicited Advice to a Fellow Counsel Conducting his Case or making Jest of a fellow Counsel over the Manner in which he is Conducting his Case in Court
With all due respect, some lawyers are busybodies. There are lawyers who don’t allow their colleagues to handle or conduct their matters in their own way or choice, and they do this by unnecessary interjections, offering unsolicited advice or making sideline jests of their fellow Counsel conducting his case. Lawyers who engage in this unethical behaviour assume to know it all. They condemn and make mockery of every question asked by a fellow Counsel during cross examination and sometimes, suggest their own questions (which most times, are frivolous and irrelevant) to the Counsel. In this process, the Counsel in the receiving end of this unsolicited “assistance” end up becoming destabilized. Some may be afraid to ask further questions in order to avoid condemnation or mockery while some others would adopt the questions suggested to them by the busybody lawyer(s).
Regrettably, most times, it turns out to be that what the lawyer was doing or the question(s) he was to ask, is the proper thing or the right question(s) and the ones suggested to him are the wrong ones! The highest victims of this unsolicited assistance are the new wigs. Unsolicited advice and suggestions come from every corner of the Bar when new wigs are conducting their cases in court, and this always end up confusing the new wigs on how to go about conducting their cases. I’m not saying that a Counsel cannot offer useful advice or hints to his fellow Counsel or junior – after all there is solidarity in the Bar! But, this should not be taken too far to the extent of becoming a distraction to a fellow Counsel or constituting nuisance to the Court.
Two or more Counsel Standing at the same time in a bid to Address the Court or two or more Counsel Addressing the Court at the same Time
It is improper for two or more lawyers to be on their feet addressing the Court at the same time. Decorum is an indispensable aspect of judicial proceedings. Without decorum the court will be a replica of “Agbero” Park! The proper thing is that when one lawyer is on his feet addressing the court, the other(s) sit down until he is done. And if the other Counsel stands to object to the address or submission of the Counsel, the Counsel on his feet is expected to sit down so as to allow the other Counsel express his objection.
A situation of two or more Counsel standing to address the court at the same time most times arises where one Counsel attempts to shut out his fellow Counsel from expressing himself by way of objection. Some senior lawyers are reputedly known for cowing down junior lawyers. Most of them can hardly allow junior lawyers object to their submissions and neither would they allow them to make their submissions without needless interjections. Such overbearing lawyers are credited with one common cliché: “Am on my feet!” Of course, you should be on your feet when standing and not on your head! How can you as a lawyer refuse to allow your fellow Counsel express his views before the court on the strange altar of you being “on your feet”? Which feet by the way?
Unfortunately, some Judges out of respect or due to lack of confidence in manning their courts would most times tell the objecting lawyer (most times, a junior Counsel) to respect the (senior) Counsel by sitting down so that they can hear the domineering Counsel that is on his feet! This, in my humble opinion is not correct. We must call evil by its name and never canonize Satan as Saint!
A lawyer who does not allow his fellow Counsel to address the court or to object to his submissions all in the name of being on his feet, should not be given audience by the Court. He must be made to know that no matter how strong his feet might be, it cannot dislodge the right of his fellow Counsel to conduct the case of his client (s) to the best of his ability.
All parties before the court have equal rights to be heard by the court and same to their Counsel. I’m not oblivious of the fact that some lawyers can be very mischievous by standing up intermittently to raise unnecessary objections and counter objections with the sole aim of destabilizing the Counsel on the other side. In situations like this, the lawyer on the receiving end may end up utilizing the expression “I’m on my feet” in order to check the excesses of the subtle lawyer! Whatever be the case, court decorum cannot be sacrificed on the altar of craftiness. A Judge must be alive to draw the lines so as to ensure that absolute decorum is observed in his court. Never should the court condone the wrong practice of two or more Counsel standing on their feet to address it at the same time!
Pluralization of the word “Counsel” through the addition of letter “s”
Many lawyers and even judges/Magistrates are guilty of this blunder. There is a misconception that the plural of Counsel is “Counsels”. That is not correct. The plural of Counsel is still Counsel, just the same way the plural of sheep is sheep! One can add letter “s” to the word “lawyer” to get its plural form “lawyers” but such is not applicable to the word “Counsel”. Thus, even if one is referring to millions of lawyers, Counsel remains Counsel and not “Counsels”.
Another blunder related to the forgoing is the pronunciation of the word “Counsel” by some lawyers and judges in the same way the word “Council” is being pronounced. In other words, instead of ending the pronunciation of the word “Counsel” with the sound of “sel”, many lawyers end the pronunciation of the word with the sound “cil”, thereby making the word Counsel look like having the same pronouncement as “Council”. Let it be reinstated here that the words “Counsel” and “Council” do not have the same pronunciation the same way that that they do not have the same spelling and meaning! Furthermore, whereas letter “s” can be added to the word Council to have its plural form as “Councils”, the same cannot be done with respect to the word Counsel. Counsel remains Counsel both in its singular and plural forms!
Improper Order of Names and Initials when Announcing Appearance in Court
As elementary as this might look, many lawyers goof in courts as to the proper order of placing their names and initials while announcing appearance in courts. Without much ado, the proper order of announcing appearance in Court is in the following manner: (a) First name and middle name (if any) all in initials and (b) Surname in full. There are lawyers who have only two names – first name and surname; no middle name. In such situation, two options are available to such lawyers: They can announce their two names in full without using any initial at all. Alternatively, they can use initial for the first name and then, announce the second name (i.e. surname) in full. For clarity, we shall consider a few examples below;
My first name is Solomon
My middle name is Onunoja
And my surname is Akobe
If I am to announce my appearance in court, the proper order of doing so is: May it please this Honourable Court, S. O. Akobe, for the Prosecution. It will be very improper for me to say, Akobe S.O. for the Prosecution or S. Akobe Onunoja for the Prosecution! The right formula we should not forgot is: First name first + Middle name (if any) (Both in initials) + Surname in full! And this is how we got the proper order of S. O. Akobe, for the Prosecution. Assuming I’m using only two names (i.e. first name and surname), I could announce my appearance in any of the two ways bellow:
May it please the Court, Solomon Akobe for the Prosecution or
May it please the Court, S. Akobe for the Prosecution!
All these little mistakes or blunders identified above are replete in our courts and lawyers must do their best to live above them. Perfection cannot be attained in the absence of conscious efforts to right the wrongs. It is even more far off to attain perfection if one is not aware that he is not at his best yet. Ignorance of being imperfect in what one does is the highest barrier to attaining perfection in it. But, perfection is possible and it is attainable! It is my earnest desire and hope that this article will help both the new wigs and the old ones to overcome these little mistakes in Courts and to attain perfection in legal practice. So help us God!
– S.O. Akobe, Esq., formerly with N.O.O. Oke (SAN)& Co. Ibadan, Southwest Nigeria.