The dangers of muttering

When the Judge I was in front of complained of the time the case was taking, one of my opponents made the mistake of muttering words to the effect that it was the Judge who was delaying things through constant interruptions.

"Please don't mutter. I can hear you perfectly clearly", said the Judge which rather begs the question why she was asking the mutterer not to do so.

It reminded me of an occasion a number of years ago when I said in a stage whisper to a court clerk that I hoped the Judge was not going to miss his lunch and the Judge thought I was making a cheap jibe about the time HE was taking. A red face and swift apology from me followed.

What to call a Judge (2)

In my last post, I was exploring the ways in which we address Judges. Be relieved that unlike in the Chancery and Queen's Bench Divisions, there are no Masters of the Family Division. They are addressed as "Master". It is a curious term. It carries with it contrary notions of aggrandisement (as in the old-fashioned but still legally current master-servant relationship) and diminution: monarchs have been known to address their subjects thus. The term is also still properly used as a prefix to address a letter to a (male) child: I still recall the excitement of receiving such letters.

But what happens when, as has happened in recent years, a woman has been appointed to the position? Master Fontaine has just been elevated to Senior Master but I appeared before her when she was newly appointed. Knowing I had to open the case, I asked my much more senior opponent how I should address her. He didn't appear to know: "Master, Madam?", he mused. So when we went into court I simply raised it as a preliminary issue.

"I wonder how I should be addressing the court", I said at the outset.

I felt a little as must have the MP speaking in the House of Commons when he suddenly realised that Betty Boothroyd had taken the Chair for the first time as Deputy Speaker. She was, of course, the first woman to fill that role. Her tart response to his fumbling enquiry was: "Call me Madam".

Master Fontaine, on the other hand, addressed my rather gauche enquiry with reassuring pragmatism: "Just call me whatever you feel comfortable calling me". I decided that "Mistress" would be impertinent.... So I simply continued the practice I was used to in that particular room and called her "Master". What will happen, I wonder, when the first female Master of the Rolls is appointed?

More on this topic later.

What to call a Judge

Our constitution is a patchwork of law and custom: and that is reflected in the way we address our Judges. If a justice system were being set up from scratch, the powers that be might have tried to be consistent.

So if you are in front of a bench of magistrates, you address the magistrate chairing the bench as "Sir" or "Madam". Some lawyers address them as "Your Worships" although a magistrate is not strictly entitled to be so-called unless that magistrate happens also to be a Mayor.

District Judges, likewise, are addressed as "Sir" or "Madam". I once read somewhere that "Madam" could be shortened to "Ma'am" (to rhyme with ham) on the basis that what is good enough for the Queen is good enough for one of her judicial representatives.

I have never discovered a satisfactory way of referring to District Judges in the accusative. "Has Sir read the papers?" sounds awful. But custom says that one is not supposed to address the court as "you". Nor, incidentally, should one ask a direct question of the court. "I wonder whether Sir has read the papers" sounds equally bad, not least because its directness has not entirely been lost. it might embarrass the Judge who has NOT had such an opportunity. I tend to cheat on such occasions by saying something like "I wonder whether the court has had an opportunity to consider the contents of the mother's statement dated x". A little long-winded but better form.

And how often should we use the form of address, whatever it may be? A question I am often asked by clients. In the first criminal trial I ever saw, a police officer (no doubt very used to giving evidence) answered with "Your Honour" at the end of every answer. "Yes, Your Honour", "No, Your Honour". It sounded rehearsed. My advice to clients tends to be: use the form of address as often as an intelligent sixth former would use it in addressing the Headmaster.

I will consider the way we address other kinds of Judge in a later post.

Beware of lawyer hiding papers in file.

I can and do bore for England and Wales on the topic of well ordered briefs.

If your opponent has a lever arch file and notebook and nothing else, you can be pretty confident that that lawyer will be master of his brief.

There are two possibilities. Either the solicitors instructing the barrister have sent the papers beautifully prepared, thus maximising the prospects of the barrister being able to focus on the difficult parts of the case.

Or the solicitors (and barrister's predecessors) have NOT done their job properly and sent the papers in a mess. The barrister who spends time sorting and filing them, however full of irritation at having to do so, is a barrister who by the end will know their contents well.

It's not enough simply to have MOST of the papers in the file and some loose. That is simply the sign of someone who has not updated the file with the new material.

In court, the barrister with the papers in a lever arch file will be able to find any obscure document the Judge is looking for, while the less well organised opponent is frantically scrabbling among the papers to try to find it.

And the chances of dropping papers and looking foolish while you're engaged in shuttle diplomacy between client and opponent are much reduced...

Dull stuff perhaps: but of such things are victories made.

Knowing when to shut up

What, I wonder, are the expectations of clients about to meet "counsel" for the first time?

I suspect that the main, pretty obvious, expectation is that the barrister will be someone who will SPEAK on the client's behalf in court.

One of the first things I do, therefore, is to let my client know that it is not just knowing when to speak; it is knowing when not to speak. "A good barrister knows when to shut up" is a line that many of my clients have heard.

Promoting a client's case fearlessly means being prepared to say what may be embarrassing, provocative or even destructive. It means being prepared to persuade a Judge to do the opposite of what the Judge has indicated he is highly likely to do.

But the word "fearlessly", in my view, does not merely refer to fear of the judge or the other side. It also refers to fear of the client. And it is sometimes tempting to say something in court to please the client but which will not actually help them to pursue their objectives.

So I make it my business to warn the client in advance that I will speak if I think it is necessary to advance their case. But I will not automatically rebut any adverse comment made against them. Here I am fond of using the term "keeping powder dry".

Provided that I've explained this to the client before going in, the chances are that I won't have a client who leaves court wondering what on earth the point of having a barrister was!

Secret codes

Mr Foster has made his application attractively and persuasively."

"Mr Foster has said all that can possibly be said on behalf of his client".

"He has been most ably represented by Mr Foster who has been politely determined on his behalf."

These, and similar, remarks made during any judgment are a guaranteed heart-sinker for any barrister. You know that you've lost if the remarks refer to the quality of your representation. Presumably Judges think that the unsuccessful client is more likely to believe that they have received a fair hearing...and less likely to think "If only my barrister had said such-and-such, I might have won."

But what do clients think? Does it raise their expectations unfairly?

By contrast, the magical words "I needn't trouble you, Mr Foster" when it would otherwise be your turn to address the Judge signal that you've won - and that it was something of a pushover.