IF YOU ARE IN COURT AND NOT SPEAKING TO THE JUDGE: SHUT UP: “RIVAL TRIBES” IN THE COURTROOM NEVER HELP

September 20, 2020 · by · in Advocacy, Conduct

There is one passage in the judgment in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2471 (TCC) that I had to read twice. It is something that emphasises the need to remember that the judge can see and hear everything that is going on in court. Normally the judge only wants to hear the one person who is due to be speaking at the time – it is easy we have turns. When it is some else’s turn you have to be quiet – unless you believe you have good grounds for interrupting and are willing to explain those grounds to the judge.

“RIVAL TRIBES ON EITHER SIDE OF THE COURT”

The judge noted that

    1. The suggestion that I did not appreciate that the evidence relied upon was that of the defendants is wholly untenable. The point was repeatedly made by Mr Hollander during the course of his submissions to which I, at least, was listening attentively.
    2. It is not without irony, in this context, that it was certain members of the claimants’ legal team who, rather than paying attention to what Mr Hollander was saying on the Samarco issue, were running the risk of undermining his attempts to develop his oral arguments by preferring instead to run a persistent, noisy and undignified sideshow with those sitting on the other side of the court. At one stage, the background hubbub became so intrusive that I had to intervene. As the transcript reveals:
“MR JUSTICE TURNER: I think this might be better…for this matter to be determined by counsel and myself, not as between rival tribes on either side of the court. So I would prefer that people remained quiet whilst I’m listening to Mr Hollander’s representations. Thank you”

OTHER OBSERVATIONS

During the COVID pandemic most judges have sensibly relaxed matters on some issued. For instance mobile phones have been allowed to be read, as a means of communication between the advocate and client/instructing solicitor, instead of the traditional handing over of a note and tug on the gown.  However there are other cases where the judge has noted, and made observations, on general conduct in the court room.

 

THE EXASPERATING EXPERT IN THE COURT ROOM

In Hatfield -v- Drax Power Ltd (18/08/2017)*  Her Honour Judge Belcher made comments in relation to an expert’s behaviour in the court room itself. After observing that the expert displayed “breach taking arrogance”, she noted that this did not stop once the witness had ceased giving evidence.

“That arrogance came over in  the  witness   He  plainly felt  he  was  right and everyone  else  was  wrong.  Indeed,  I  made  a  comment  to  that  effect during the  course of  his  evidence. Furthermore,  after  he  had  completed  his  evidence,  he  sat  in  the  well of the court shaking  his  head  from  side to  side,  evidencing  his  disagreement,  and, judging by  his  face,  his  disgust,  with  the  evidence  being  given  by  Mr  Mutch,  the  first of the Defendant experts to be called. I made it clear to Professor Vantsevich that that behaviour  was  unacceptable  and  whilst,   on  the  whole,  he  managed  to  contain  himself, I did catch him on further  occasions  shaking  his  head  at  the  evidence  given. That conduct is wholly discreditable to an expert witness in our courts. I have never  seen it before,  even in  cases where  experts  are poles  apart in their opinions.”

LOOKING AT A WITNESS IN THE COURT ROOM ITSELF

In Miley v Friends Life Ltd [2017] EWHC 2415 (QB) the issue of the claimant’s credibility was central to the case.

    1. “Judges should exercise some caution when seeking to determine the credibility of a witness wholly or mainly on the basis of an assessment of his or her demeanour. Generally speaking, other methods of appraisal, where available, may well tend to be more reliable. Bearing this in mind, however, I am of the view, in this particular case that it was advantageous for me to be able to observe the claimant not only when giving evidence but also when he was sitting in the well of the court watching proceedings.
    2. There were times when he appeared to lose concentration and hold his head in his hands. At other times he was more attentive. His period of inattention did not, however, seem to correspond to particular longueurs in the evidence and this pattern was sustained over the successive days over which the trial took place. I witnessed nothing in his presentation which appeared to contradict his evidence or that of his witnesses concerning the impact which his illness had had on him. Indeed, I would go further and conclude that his behaviour and appearance in court provided at least some level of support for his case.”

BE AWARE – WHAT GOES ON IN THE WHOLE COURT ROOM IS IMPORTANT

All of those present, including the lawyers, should be aware that judicial assessment does not always concentrate solely on the advocates and the witness box.  Wiki How offers some basic guidance on Behaving in Court

“Wait quietly during the hearing until you are directed to speak. Do not have any side conversations or let your attention wander. [7]
  • Sit up straight and pay attention to the proceedings.
  • You won’t know what is going on if you aren’t paying attention.
  • Don’t chew gum, drink, or eat during the hearing.
  • Turn off your cell phone during the proceedings. Most courts have a ban on cell phone use.
  • It is incredibly important that you remain as quiet as possible during the proceedings as most court hearings are electronically recorded.”

BODY LANGUAGE

The Wiki How guide gives advice as to body language

“Be aware of your body language during the hearing. You don’t want to appear disrespectful during the hearing.[8]
  • Don’t roll your eyes or frown in response to others during the hearing.
  • Don’t move your hands and feet during the proceedings. Resist the urge to fidget in your seat.
  • Maintain your attention to the proceedings. Make eye contact with those who are speaking to show you are listening.”

GUIDANCE FROM MARYLAND

I also recommend reading Tips on How to Behave in Court from The People’s Law Library of Maryland.

“While you are waiting in the back of the Court Room

  • Do appear to be paying attention. It is helpful to actually listen and learn about the process (and the judge) before your case.
  • Do try to appear pleasant and interested in the proceedings.
  • Do be polite to courtroom staff – the clerk, the bailiff or others. They work with the judge and will report poor behavior.
  • Don’t read the newspaper, listen to your iPod, work on your laptop, chew gum, use your cell phone or talk to other people while waiting in the back of the courtroom.
  • Don’t make faces or roll your eyes or otherwise show negative reactions to something happening in the court.
  • Don’t ignore or treat non-judge members of the court staff poorly. They are part of the justice system that will decide your case.
  • Don’t act angry or short-tempered with the judge or other side, even if you are upset by your case.”

 

REMEMBER YOU ARE BEING WATCHED AND ASSESSED

The article by Laurel Dietz Reasonable Doubt: Credibility in court and your behaviour  should also be compulsory reading.

“Avoiding erratic or inappropriate behaviour/facial expressions in court

When you’re in a trial, you’re going to be sitting through the opposing party’s case. This means you will be listening to evidence that you believe is not true or is offensive to you. Often the other party’s evidence will cut you to your core and it will be very hard to hear.
The minute you start making facial expressions, sighing, standing up and shouting at the judge or witness, or storming out of the courtroom, you are giving a negative context to the judge in which to assess your evidence. Nobody likes this behaviour during a trial and it will be used against you.
A good rule of thumb is to keep in mind that anytime you enter a courtroom, you are being watched and assessed. Behave in a way that is consistent with the evidence you want to give the court.”

 

DON’T TRY TO ARREST THE JUDGE

In The Amazing and the Downright Absurd Behaviours Seen in the Courtroom!  Quinn & Scattini Lawyers give some examples of bizarre behaviour.

“Just three days ago I was waiting for my matter to get on in the Cleveland Magistrates Court before a magistrate.  Two random people waiting in court stood up, referred to the Magna Carta, tried to dismiss their own friend’s charges and then attempted to arrest the Magistrate for “impersonating a public servant” before they themselves were arrested in the Courtroom.”
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