COURTESY, THE ADVOCATE AND THE LAWYER: TEN THINGS TO THINK ABOUT TO HELP YOUR CLIENTS (AND YOURSELVES)
A tweet from a barrister, this afternoon complained, in essence about the “pointless aggression” of an opponent. It has gathered lots of support. One thing that judges, from around the world, are universally keen on is courtesy. This gives me a chance to look at some of the advice that has been set out on this blog over the years.
1. CANADA: MANNERS AND ETIQUETTE ARE THE MEASURE OF OUR CIVILISATION
In his talk to the Ontario Bar Association Mr Justice Joseph W Quinn was very keen on courtesy.
“I recall one senior trial counsel who scowled and pouted every time I ruled against him. It was the strangest sight.Was he expecting me to say: “Counsel, I see that you are upset with my ruling. I am very sorry. I will reverse myself immediately.”
“Lord Moulton, a great English jurist, stated that the quality and height of our civilization will be measured against manners and etiquette. The same, I think, is true of our legal system”
2. AS AN ADVOCATE – CREDIBILITY IS ALL YOU HAVE
Sidney Butcher in the ABA publication “Views from the Bench: Tips for Young Lawyers on How to Make a Good Impression.” The Honorable Lynne Stewart, a District Court Judge and the Honourable Julie Robinson a Federal Court Judge give guidance to young lawyers.
“Let your argument speak for you. Do not seek to embarrass opposing counsel or go in for the “kill.” Consider letting opposing counsel know of a case that clearly supports your position prior to presentation in court. Alternatively, ask to approach the judge with opposing counsel and talk off the record. It saves time and strengthens your credibility with the judge.”
3. BE AWARE OF WELL PADDED VANITY
The Hon Justice Pat Keane (in the Journal of the Bar Association of Queensland) was wary of agressive posturing and the way in which advocates as described by a PR machine:
“the Bar’s most frightening barrister” – “revered as a formidable cross-examiner”, who “scares everyone rigid because he’s so aggressive and dominant”. He is, the PR machine guarantees, “a first rate gunslinger” who is “never afraid to take on the weakest cases” and “often turns the opposition’s spines to jelly”.
Imagine allowing people to publish this sort of rubbish about you to the world. Much worse, however, would be if you actually believed it to be true: because you might actually see your cases as being all about you, and your relationship to the headlines. That will become manifest in your dealings with your opponents and the Bench.”
4. THREATENING YOUR OPPONENT WITH A PROCTOLOGY EXAMINATION AND MAKING FACES AT THE JUDGE MAY WELL BE COUNTERPRODUCTIVE
Back to the United States here, in the Southern District of New York, looking at the judgment of District Judge Chin in the extraordinary case of Revson -v- Cinque & Cinque in 1999 (PC. 70 F, Supp 2D 415) where the judge had grounds to comment on the behaviour of the advocates.
“Hardball is bad advocacy.”… (“Incivility is counterproductive. Lawyers should be civil in litigation not only because it is the right way to practice law which it is but also because lawyers hurt their clients and themselves by being mean-spirited, nasty, rude, and generally uncooperative with their adversaries and the court.”);… (“Experienced counsel know that the lawyer who maintains a professional style is the more effective advocate.”).”
5. MAXIMISING YOUR IMPACT AS AN ADVOCATE: REPUTATION IS ALL
The advice given by Fleur Kingham, President of the Land Court of Queensland.
“How you behave towards your colleagues in Court reveals much about your ethics and your professionalism. So too does the tone of your correspondence. The self-serving letter is rarely tactful and the motivation usually apparent. If your tone is discourteous and inflammatory, that will tend to reflect on you, not the person to whom it is addressed”
6. MANNERS MAKETH THE ADVOCATE
This was a few from a Bench Clerk in New Zealand, 20 points after spending 12 years watching advocates in action.
” Remember that someone is always watching you wherever you are in the building and word quickly gets around. It should not surprise you to know that the clerk in your court does discuss you with the Magistrate/Judge before they enter the court. Make sure that you leave a favourable impression, which leads me to tip #2.”
” Use your manners. With EVERYONE. Mind your Ps and Qs with court staff, police, other lawyers and most of all your clients.”
7. IT IS NOT JUST ADVOCATES: YOUR LETTERS SPEAK FOR YOU AND ABOUT YOU
HHJ Melissa Clarke in ATB Sales Ltd v Rich Energy Ltd & Anor  EWHC 1207 (IPEC).
“I do not believe I should let that pass without comment. I do not consider that there are any circumstances in which one solicitor in the course of his professional duties should accuse another in writing of making imbecilic requests. That language is far removed from the professional courtesy which solicitors are expected to show each other and those they deal with. If a trainee solicitor sent the letter, as the reference suggests, the fact that it was sent in this form suggests a failure by the supervising solicitor properly to supervise.”
8.DISCOURTEOUS LETTERS CAN COST YOU…
In the Excalibur Ventures case  EWHC 4278(Comm) Lord Justice Christopher Clarke observed.
I have been spared sight of much of the 5,000 pages of inter solicitor correspondence. It is apparent to me, however, from what I have seen that some of the correspondence from Clifford Chance has been voluminous and interminable, in some circumstances highly aggressive and in others unacceptable in content. These have included ill-founded allegations of criminal conduct in the form of insider dealing, misleading the market and misleading the public about the relationship between Gulf and Texas. Whilst interminable and heavy-handed correspondence is becoming a perverse feature in some commercial litigation, it is not in any way to be accepted as a norm and parties whose solicitors engage in it should not be surprised if, in a case such as this, they end up paying the costs on an indemnity scale.”
9. BE CAREFUL WHAT YOU WRITE: THE SUPREME COURT MAY READ IT ONE DAY (AND IT MAY END UP ON A BLOG SOMEWHERE…)
It is interesting to look at aspects of the judgment in Times -v- Flood  UKSC 33 that did not made the headlines.
” Secondly, the correspondence. Although we were taken to the correspondence in a little detail by counsel on behalf of each party, it is unnecessary to consider it in any detail. As is not uncommon in such correspondence, there were passages emanating from each side, which, at any rate with the benefit of hindsight, would have been better omitted. More importantly, I can see nothing in that correspondence which assists TNL’s challenge to the Judge’s award of costs. I accept that some people might characterise the attitude revealed by Mr Flood in that correspondence as intransigent, but I consider that description would be unkind. TNL were adopting a very tough attitude in the correspondence; some people might use a more critical adjective.
71. Thus, as in the open negotiations alluded to in paras 16 and 17 above, TNL was making it very clear in the correspondence that it was maintaining its plea of justification and would be taking steps to find witnesses to support that case. TNL’s plea of justification would have involved showing that there were grounds to justify a police investigation, and it was a plea which was of course eventually abandoned after TNL lost on meaning. In addition, TNL suggested that Mr Flood would be likely to be financially ruined by the costs if he proceeded with his claim and lost, whereas TNL could easily take such a risk if it lost; the Judge not unfairly described TNL’s approach as involving “unsubtle threats” (para 20). It is fair to emphasise that nothing said on behalf of TNL in the correspondence was improper, but, if the correspondence is to be relied on in relation to the issue of costs, in my view, and in agreement with the Judge (who described TNL’s approach as involving a “die-hard attitude”: para 20), it was undoubtedly TNL’s negotiating stance far more than that of Mr Flood which prevented the claim from being settled. On any view, it is impossible to suggest that it assists TNL’s case on costs. Indeed, in my view the Judge was entitled to regard TNL’s attitude in the open discussions and in the correspondence as a reason which militated against departing from the prima facie position, namely an unqualified costs order in favour of Mr Flood.”
10. FOLLOW KRISTIN’S ADVICE
Kristin Heimark sent me a copy of her post on LegalWeek “Taking out the heat – key points to avoid in legal letter writing.” With Kristin’s permission (indeed with her blessing) I summarise the main points below. (This is no substitute for reading her original article though).
“Do not accuse people of crimes. It only winds them up.”
“Don’t threaten people. It only makes them want to call your bluff”.
“Don’t use multiple Fonts. AND DON’T USE BLOCK CAPS” (sic).
“THIS CLAIM IS FRIVOLOUS, VEXATIOUS AND WHOLLY MISCONCEIVED!!!!” doesn’t scare anyone.
“There is nothing more tedious than reading an exchange of ‘handbags at dawn’ correspondence that doesn’t take the case anywhere. The judge will want to shoot both of you.”
Don’t fall in love with the word “disingenuous”
“You can stand your ground and be dispassionate at the same time.”
Some of the best advice she was given “Take the heat out of the correspondence. The court will not be impressed.”