By The Honourable Tony Derrick SC
This article is an edited version of a paper presented at the Walyalup (Fremantle) Law Conference on 21 February 2025.
I have been asked by the organisers of today’s conference to do two things. First, speak to you about court etiquette. Second, to share with you my thoughts, based on my pre-retirement experience, as to what judicial officers want from legal practitioners appearing before them.
The two topics are in a sense closely related. I say this because one of the things that judicial officers want and expect from legal practitioners is a knowledge of, and compliance with, the rules of court etiquette. Nonetheless, on reflection I think that there are some matters that I can identify that do not constitute rules of court etiquette but which do fall into the judicial wish list category.
What is court etiquette and why is it important?
Court etiquette, considered from the perspective of a legal practitioner, refers to established rules of behaviour that a practitioner is expected to exhibit towards judicial officers and courts. The rules are for the most part unwritten. I say ‘for the most part’ because the wording of some of the legislated rules of professional conduct that apply to practitioners either state or encompass rules of court etiquette.
There are several reasons why court etiquette is important. Adherence to court etiquette helps maintain respect for the courts and the legal system generally. Courtrooms are places of solemnity, formality and authority, and adherence to court etiquette helps emphasise this fact. Court etiquette helps create an environment where all parties feel heard and respected which is essential to the administration of justice. Adherence to court etiquette contributes to the professional, smooth and efficient conduct of court hearings and litigation generally. Court etiquette imposes standards on practitioners that serve to facilitate them complying with their overriding duty as officers of the Court.
Additional preliminary observations
Before turning to the substance of my talk on court etiquette I make the following additional preliminary observations.
First, it is not my intention to speak about every rule of court etiquette that exists. Rather, my focus will be on those rules that in my experience and in the experience of other judicial officers are most often contravened. I can tell you in this context that I have, in preparing for today, canvassed my former District Court and Supreme Court judicial colleagues for their feedback as to contraventions of court etiquette that they are regularly seeing and that are of concern to them. So you can be confident that most of the rules that I am going to refer to are viewed by the judiciary as important and as being too often contravened.
Second, some of what I am about to say might sound like statements of the obvious. This should not surprise you. Ultimately, most rules of court etiquette are examples of common courtesy and common sense.
Third, some of the rules of court etiquette that I am going to refer to might be viewed as venturing into the sphere of advocacy. Again, this should not surprise you. Courtroom etiquette and advocacy are necessarily closely related, a number of the rules of etiquette being aimed squarely at facilitating good advocacy.
The etiquette rules
1. Correspondence with the court
Do not send correspondence to the court unless it is necessary to do so. It is not necessary for every communication between opposing lawyers to be copied to the court. The court does not need to be, and should not be, informed of the pre-hearing negotiations and discussions occurring between lawyers.
Once agreement on a particular point that may impact on the conduct of the hearing has been arrived at (for example, agreement as to the form in which certain evidence will be led or agreement as to which portions of a visually recorded interview with an accused are inadmissible) it is appropriate and good practice for one of the parties to inform the court. Similarly, if the parties are unable to agree on a substantive admissibility of evidence issue with the result that the judicial officer will be required to rule on the admissibility of the evidence, then it is appropriate and good practice to give the court advance notice of this.
Any correspondence with the court by a party about a case should be copied to the other party. One party should never communicate with the court about a case without copying the communication to the other party.
Correspondence about a case should never be sent to a judge directly. It should be sent to the judge’s associate.
The position is a little more difficult when it comes to sending correspondence to the Magistrates Court. Magistrates in the larger metropolitan courts do not have permanent associates but rather judicial support officers (JSO) who are not permanently allocated to a particular magistrate. Accordingly, if it is not possible to ascertain in advance of a scheduled hearing the identity and contact details of the JSO who will be working with the magistrate, any correspondence about a case should be sent to the court registry with a request that it be forwarded to the magistrate in question.
If it is necessary to correspond with the court make sure the correspondence is written in appropriately formal and polite terms. Even if correspondence is intended only for the attention of a judge’s associate or a magistrate’s JSO (collectively referred to hereafter as ‘judicial officer’s staff’) it should still be written in appropriately formal terms because everything will go on the court file and will often be seen by the judge or magistrate. Over familiarity and informality in communications with the court must be avoided. So too must communications that are written in overly demanding or less than polite terms.
2. Responding to inquiries from the court
If you receive correspondence from a judicial officer’s staff which requires a response, make sure you respond in a timely way. It is disrespectful to the court to fail to do so. In situations in which you are being asked to provide information or material to the court, but will require time to do so, you should, as a matter of courtesy, acknowledge receipt of the court’s request and indicate when a substantive response to the request will be provided.
3. Early notification of inability to comply with time limits
If the court has made an order specifying a date by which something is to be done, for example, the filing of submissions, and you realise you are not going to be able to comply with the time limit, alert the court to this fact as early as possible and request an extension of time. You will generally find that judges and magistrates understand the pressures practitioners are under and will rarely refuse any reasonable request for an extension.
If the request for an extension can be made by the filing of a minute of consent orders, this is what should occur. However, if time constraints make it difficult to arrange for the preparation and filing of a minute, you should at least send an email to the court advising of your inability to comply with the time limit, requesting an extension, and advising that the opposing party has no objection to the extension being granted. Of course, if the other party has objected to the extension you should inform the court of this fact, and the judicial officer can decide how they want to deal with the matter.
4. Timeliness of attendance at court
You should be at court on time. If you are appearing by audio or audiovisual link, you should be ready for the establishment of the link at the appointed time. Nothing is more likely to irritate a judicial officer from the outset than being kept waiting by counsel.
Being on time does not mean arriving moments before the scheduled start time so you are still in the process of getting yourself organised or pulling on your robes as the judicial officer is coming into court. Rather, arriving ‘on time’ means arriving sufficiently early so you are calmly sitting at the bar table with your thoughts collected before the judicial officer is ready to come into court.
Do not, for example, arrive at court for a 10.30 am hearing at 10.29 am and then request time to confer with your opponent before the start of the hearing. Judges find this particularly irritating. If you need to confer with your opponent prior to a court hearing do so before attending court or, if this is not possible, make sure you arrive at court sufficiently early to enable you to confer to the extent you need to prior to the hearing’s commencement time.
If for some reason – and it ought to be a very good reason – you are running late, do everything you can to inform the judicial officer’s staff of this fact and your explanation for it. Then, when you do appear, make sure you apologise at the earliest opportunity to the court and your opponent for any inconvenience caused.
Some counsel operate under the misapprehension that if they have arrived at court only a few minutes late this is acceptable and an apology is unnecessary. If you are late, even by the smallest of margins, you should apologise. It is discourteous not to do so. Moreover, if you fail to apologise for your tardiness you are likely to find yourself in the embarrassing situation of the judicial officer asking you to provide an explanation for your late arrival and expressing their dissatisfaction with your conduct.
You will generally find, unless you are a serial offender when it comes to timeliness, that if you are only a few minutes late and apologise for your lateness when you first get to your feet, the judicial officer will simply thank you for the apology and move on.
It is not a satisfactory excuse for a late appearance in one court that you were appearing in another court. If you are due to appear in two courts at the same time, something to be avoided if at all possible, then alert the staff of at least one of the judicial officers that you are due to appear before to your predicament and politely request if your appearance time can be changed.
As a general rule, if your timetable clash relates to courts that occupy different positions in the court hierarchy you should first seek to change the scheduled hearing time in the lower court. There may, however, be circumstances in which this general rule will not apply. For example, if your hearing in the superior court is likely to be very brief and your hearing in the lower court is likely to be more substantive, it would be appropriate to explain the situation to the superior court’s judicial officer’s staff and request that your appearance time in that court be changed. It will depend on the circumstances. The point is, if you are due to appear in two courts at the same time make sure you take steps to reorganise your calendar to remove the timetable clash.
5. Dress
If you are appearing in a superior court hearing which requires you to wear robes make sure you are properly robed. You are putting yourself forward as an organised well-prepared professional. Therefore, you should look like one. Failure to wear court attire properly tends to mark you out as a person unfamiliar with the court process – an impression you should want to avoid conveying to your client. In addition, failure to wear court attire properly is a sign of disrespect to the court.
In the case of males a collared shirt, buttoned up at the neck, should be worn under the bar jacket. Correspondingly formal attire should be worn by female practitioners under their bar jacket. Do not wear a T-Shirt under the bar jacket.
A jabot should be clean and worn so that only the bands appear outside the open collar of the bar jacket. The white backing must be underneath the bar jacket.
Do not wear your robe so it hangs halfway down your back and so you are always tugging and pulling it back up over your shoulders every time you stand up to speak. It is not a good look.
Where it is not necessary to wear robes appropriately formal clothing should be worn. While it is not strictly necessary for practitioners (male and female) to wear a suit, a jacket should be worn. Male practitioners should always wear a tie.
These rules apply equally to instructing solicitors. It is not acceptable for instructing solicitors to sit at the second bar table without wearing a jacket and, in the case of male practitioners, without wearing a tie.
Make sure you inform your client of the need to dress neatly.
6. Announcing appearance
If, on entering the court, the judicial officer looks at you and states, ‘Yes Mr or Ms [surname]’ the usual appropriate response is, ‘May it please Your Honour, I appear for’ or ‘May it please the Court, I appear for’ (or if you are appearing as a prosecutor in the superior courts, ‘May it please Your Honour, I represent the State’). Do not respond by saying, ‘May it please Your Honour, my name is’. If the judicial officer has already acknowledged you by name, telling them your name shows you are not listening properly. It also makes you look a little silly.
If the judicial officer, in inviting you to announce your appearance, does not refer to you by name, something that should rarely occur in the superior courts but may occur more often in the Magistrates Court due to the nature of that court’s lists, it is appropriate to respond by saying, ‘May it please your Honour, I am Mr/Ms [insert surname] and I appear for’ or ‘May it please the Court, I am Mr/Ms [insert surname] and I appear for’. It is also perfectly acceptable, in these circumstances, to provide your name by stating ‘my name is [insert surname]’.
You should not announce your appearance by saying, ‘Good morning Your Honour’. There might be some judicial officers who do not find being wished ‘good morning’ particularly objectionable, although so far as I am aware there are no judges of the superior courts in this State who would condone such a practice. In any event, it is simply an inappropriate thing to do. A court appearance is not a social occasion. If you do make the mistake of wishing a judge ‘good morning’ you can be confident you will not receive a similar salutation.
7. Courtesy to judicial officer
You should always behave in a polite and respectful manner towards the judicial officer. This does not mean you cannot argue your case firmly. You can and sometimes must. However, and no matter how unfairly you feel as though you are being treated, court etiquette dictates that you must remain polite and respectful.
Do not cut across or interrupt a judicial officer while they are speaking. If you are appearing by audio or audiovisual link, given that you do not have visual cues and there is sometimes a delay, you need to be particularly careful to avoid speaking over the judicial officer.
At the other end of the spectrum, but equally disrespectful, is to ignore a judicial officer’s intervention. If, for example, a judicial officer stops you asking a question or asks you to put a question in a different way, do not just ignore the intervention and press on without acknowledging the judicial officer. You should at least acknowledge the intervention by looking at the judicial officer and saying, ‘Yes, your Honour’ or ‘May it please Your Honour’.
Once the judicial officer makes a ruling you must accept the ruling graciously and respectfully. It is discourteous to vocalise or demonstrate your dissatisfaction with the ruling by, for example, deliberately dropping your documents on the bar table or slumping down in your chair.
Avoid telling a judicial officer, ‘I hear what your Honour is saying’. It implies that you understand the point but do not want to deal with it, or that you hear what is said but you are not properly listening.
8. Courtesy to judicial officer’s staff
You should always be polite to the judicial officer’s staff and all other court staff (be rude at your peril – such behaviour tends to come to the attention of the judicial officer).
9. Courtesy to opposing counsel
Opposing counsel is not your enemy. They are your opponent. There is no excuse for behaving rudely to opposing counsel no matter how irritating and objectionable you find their behaviour. If you behave rudely you will demean yourself and lose the respect of the court.
Refrain from making uncharitable noises such as sighing, muttering criticisms under your breath, feigning shock or upset, vigorously shaking your head, rolling your eyes, or laughing in response to anything said or done by opposing counsel.
From my observations some counsel in criminal jury trials seem to think this type of behaviour goes over well before a jury. I can tell you from watching the reactions of jurors over many years that it does not. Jurors perceive the behaviour for what it is – rude and an attempt to impress them.
Do not engage in sniping or slanging matches with opposing counsel. This is not only disrespectful to your opponent, it is also disrespectful to the court. If your opponent engages in such behaviour do not be tempted to lower yourself to their level.
Ordinarily, you should not interrupt your opponent while they are making a submission or addressing the court. There may be very rare occasions when it is necessary to do so but in almost all instances the appropriate course of action is to wait until you are given the opportunity to respond.
You should exercise extreme caution before interrupting your opponent’s address to a jury. It will be an extremely rare situation in which any such interruption is warranted. A misstatement of fact or evidence by your opponent will not warrant any interruption because this is something you can raise during a break or at the conclusion of the address in the absence of the jury.
If you do decide to take the extraordinary step of interrupting your opponent’s address to a jury you should stand, wait until the judge notices you and invites you to speak, apologise for interrupting, and ask if you can raise a matter in the absence of the jury.
Some counsel, while their opponent is addressing the judicial officer or a jury, or examining a witness, have a tendency to talk continuously to their co-counsel or to flick through papers loudly without any regard for their opponent. This conduct should not be engaged in. Unless you are willing to whisper in your co-counsel’s ear you should write a note.
10. References to opposing counsel
If your opponent is a legal practitioner you should initially refer to them as ‘My learned friend’. Once that term has been used, ‘My friend’ is sufficient.
If your opponent is King’s Counsel or Senior Counsel, you should refer to them as ‘Learned Counsel’ (because appointment as King’s Counsel or Senior Counsel recognises them as Counsel learned in the law).
11. References to presiding judicial officer
In court you should never refer to the presiding judicial officer in the second person. It is improper to do so. You should always refer to a judicial officer in the third person. For example, ‘Your Honour will recall the evidence of’ not ‘You will recall the evidence of’ and ‘I invite your Honour’s attention to page 124 of the transcript’ not ‘Would you look at page 124 of the transcript’.
Referring to the judicial officer in the less familiar third person evinces respect for the bench and emphasises the impartiality of the bench.
You should not refer to a judicial officer as ‘Sir’, ‘Ma’am’ or ‘Madam’.
12. Use of ‘we submit’
It is not appropriate to use the words ‘we submit’ if you are appearing by yourself. You should not use ‘we’ as a reference to yourself and your client or the party you are representing. It is only appropriate to use ‘we’ when you are appearing with one or more other lawyers. For example, if Senior Counsel is appearing with junior counsel, it is appropriate, although not necessary, for counsel addressing the court to say, ‘We submit’.
13. To stand or not to stand
If you are being addressed by the judicial officer, or if you are addressing the judicial officer, you must stand. It is very discourteous to the court to fail to do so, even if the exchange between you and the judicial officer is brief.
A necessary corollary to the above rule is that when you are not speaking or being spoken to you should sit down.
If you are objecting to a question asked by your opponent you must stand. If your opponent objects to a question asked by you, you should sit while the objection is made and stand when responding to the objection.
If your opponent objects to a question asked by you, do not respond to the objection by making comment across the bar table and then just push on with your questioning. Such conduct is discourteous and will inevitably and rightly incur the ire of the judicial officer.
14. Posture, position and conduct at the bar table
When you are standing in court stand up straight. Do not rest a foot or knee on a chair. Do not drape over the lectern. When you are sitting do not slouch in the chair. Such behaviour is inconsistent with the formality of the courtroom setting and the respect a practitioner should be showing to the court. There is nothing impressive or appropriate from an advocacy point of view about looking disinterested or overly casual.
Some counsel have the tendency to step out from behind the bar table towards the bench when handing an exhibit to the court usher, or towards the witness when passing a document to the usher to be handed to the witness. This should not occur. Counsel’s position is behind the bar table. No one should pass between the bench and the bar table other than the judicial officer’s staff.
Remain relatively still behind the bar table. Do not walk around or engage in excessive gesticulating. Such conduct not only contravenes court etiquette, it is also, when you are questioning a witness, poor advocacy because it serves to distract the attention of the trier of fact from the witness.
If you wish to approach opposing counsel during a hearing you should ask the judicial officer for permission to do so. Similarly, if you wish to leave the bar table to consult with your client you should ask the judicial officer for permission to do so.
If you are appearing in a matter that forms part of a court list, once your matter is complete you should not just leave the bar table so the judicial officer is left looking at an empty space. You should step to the end of the bar table and remain there while the next matter in the list is called and until counsel for the next matter arrives at the bar table. Once that occurs you should bow to the bench and then depart. The exception to this is if the judicial officer tells you that you should feel free to leave the bar table. You should respond to this invitation by bowing and then departing.
Refrain from drinking out of any form of bottle at the bar table. It is just not a good look and conveys a degree of disrespect for the formality of the occasion. Use the glass provided or, if you must, bring your own glass.
Do not bring coffees and other drinks into court, something which is a growing tendency. A courtroom is not a café.
15. Make submissions – do not express opinions or beliefs
One of the most commonly contravened etiquette rules is the tendency of counsel to use phrases which amount to the expression of an opinion or belief rather than the making of a submission. A court is neither entitled to, nor interested in, counsel’s opinion or belief as to the law or facts. Do not use phrases such as, ‘In my view’, ‘I feel’, ‘I believe’ or ‘I think’. The appropriate terminology is ‘I submit’, ‘In my submission’, ‘I contend’ or even ‘The State/defence position is’.
If you disagree with the proposition of the judicial officer do not say they are wrong or that you ‘respectfully’ disagree with them. Whether you think the judicial officer is wrong, or whether you disagree with them, is not to the point. The appropriate form of response will be something along the lines of, ‘Your Honour, in my respectful submission the position is’ or ‘Your Honour, in my respectful submission the better view is’ or ‘Your Honour, with respect the case you have referred to is not authority for the proposition that’ or ‘Your Honour, I invite you to accept the alternative proposition, specifically’.
I know that there are some who hold the view that the use of the words ‘with respect’ should be avoided because they can carry with them a disparaging tone and often precede a degree of disrespect. I agree that overuse of the words should be avoided. However, in my view if the words are used sparingly and not during a vigorous exchange or clash between the judicial officer and counsel, they are not objectionable and can help counsel to avoid slipping into the error of expressing opinions or beliefs.
16. Mind your language
You should not swear or use vulgar slang other than as part of a quote. To do so is disrespectful to the court and inconsistent with the formality and solemnity of the courtroom environment.
So, for example, referring to a witness’s evidence as ‘bulldust’ or ‘crap’ or ‘rubbish’ is unacceptable.
Extract from Glissan’s Advocacy in Practice:
“It should be immediately pointed out that observation of the rules of etiquette makes one’s path as an advocate easier and more pleasant in every sense.
The rules of etiquette are few in number and indeed they can commonly be brought down to one simple statement: always be courteous.
There is no rule of court etiquette that would not be immediately apparent to a layperson with neither training nor experience in the law who applied common sense and good manners to the problem at hand.
It matters not that the judge is being rude or boorish, that your opponent displays a complete lack of manners and common sense, that your witnesses are intractable and fractious – none of these things, irritating though they may be, lessens one whit the duty that you owe to the court to maintain cool, calm courtesy: courtesy to the judge; to other counsel; to the witnesses; and to the court staff.
The rules of etiquette are not merely old fashioned rules of behaviour out of step with modern reality – far from it, they are in fact a system of rules that counsel should strive to emulate.”
A judicial wish list: five things you can do to make the bench happy
I turn to the second part of my talk, specifically giving you my thoughts about what judicial officers want from legal practitioners. I will confine myself to identifying five such ‘wants’.
I emphasise that these are my thoughts based on my experience about what judicial officers want from legal practitioners. Nonetheless, I am confident that the matters I am going to raise are matters that many judicial officers would include in their wish list.
1. File submissions and other materials on time
Make every effort to file submissions, affidavit material and any other required documentation on time; that is, in accordance with the time limits set by the applicable rules of court or any directions made by the judicial officer.
Judges undertake a considerable amount of preparation in advance of substantive hearings. They do this for two principal reasons: first, so that prior to the hearing they know what the real issues are and hence also know what matters they want to canvass with counsel as the hearing unfolds; second, so they can at least attempt to manage and keep on top of their judicial workload.
It is irritating for a judge to set aside precious time to prepare for a hearing only to find that the required materials have not been filed by one party or the other on time.
2. Be organised and prepared
Be organised and prepared. If the judicial officer has put the time in prior to the hearing it is only fair you do the same. Indeed, it is your professional responsibility to do so.
Being prepared means you have detailed knowledge of not only the relevant legal principles that can be derived from the cases you are intending to rely upon but also how and why the principles were applied to the facts of those cases. Being prepared means you should be able to clearly articulate why you submit that a particular legal principle applies to the facts of your case and the result that you argue should flow from the application of the principle. Being prepared also means you should have identified any weaknesses in your case and are able to address them in the course of the presentation of your argument. You should not approach the matter on the basis that any weakness in your argument is likely to go unnoticed. That would be a very rare occurrence. It is almost inevitable that even if your opponent does not pick up on the point the judge will.
I add that in my experience most judicial officers will be particularly tolerant of younger less experienced practitioners who, although still learning the finer points of advocacy, have clearly done their best to prepare as thoroughly as possible.
3. Do not argue points you do not need to argue
As counsel you must develop the skill of being able to read and follow the judicial officer’s lead. If a judicial officer tells you they have read your written submissions filed in advance of the hearing and that they do not at that point need to hear from you in relation to the matters addressed in specified paragraphs of your submissions, do not proceed to attempt to address the judicial officer in relation to those matters.
Remember, the judicial officer has a whole raft of work waiting for them in chambers and you are unlikely to achieve anything other than incurring their ire by insisting on attempting to address them on points they have told you not to address them on. Rather, take the judicial officer’s indication as a compliment as to the erudite nature of your written submissions and move on.
Similarly, if during the course of your oral submissions the judicial officer indicates that they understand and accept the argument you are advancing do not labour the point. You have made the point, the judicial officer clearly understands and accepts it, so time to move on.
4. Understand purpose behind judicial questioning
When I presided over hearings I often perceived that if I questioned counsel, particularly younger counsel, about a particular submission, they became defensive and viewed the question as an irritating interruption or as an indication that I had already decided the point against them. Nothing could be further from the truth.
It is important for counsel to understand that judicial officers do not ask questions for the sake of doing so but rather to test and gain a full understanding of the argument being advanced. Treat any questions asked of you as a further opportunity to explain your argument and to attempt to persuade the judicial officer to accept your contention.
5. Give junior lawyers appearance opportunities
Whenever possible more senior practitioners should give younger practitioners the opportunity to appear in court in substantive hearings. It is imperative that younger practitioners who want to develop into competent advocates are given opportunities to do so by more senior practitioners who employ them or who are responsible for their ongoing training and development.
The opportunities should be given with appropriate supervision. It is incumbent on the more senior practitioner to supervise the junior practitioner’s preparation and to be readily available to assist and guide that preparation. Indeed, it may well be appropriate for the more senior practitioner to appear with the junior practitioner so they can provide any necessary support and advice during the hearing.
The junior practitioner must be given time to properly prepare so they can go into the hearing with a degree of confidence. It is not appropriate that the matter be dropped on the junior practitioner at the last minute.
Nothing I have just said should be taken as suggesting that the junior practitioner be asked to appear by themselves on matters that are obviously beyond their competence and experience.
I am conscious of the additional burden, both from a costs and time perspective, that the more senior practitioner may have to shoulder to facilitate the appearance of a younger practitioner. However, the court will appreciate your efforts as will the profession generally.
Conclusion
I have spent time telling you about commonly breached rules of court etiquette and identifying some judicial ‘wants’. However, I do not want to leave you thinking that the view from the Bench of the profession is all negative. It most definitely is not. As my former judicial colleagues have asked me to convey to you, and as I want to make clear to you, the judiciary does recognise and appreciate the many good things that practitioners do and the vital role that they play in the administration of justice. So, for example, the judiciary does recognise and appreciate the efforts routinely made by practitioners to engage in constructive dialogue in an attempt to resolve disputes or at least limit the issues in dispute. Again, and by way of one more example, the judiciary does recognise and appreciate the efforts routinely made by practitioners to provide sensible assistance to litigants in person.
These are just examples of the types of conduct that judicial officers know that practitioners engage in and which they appreciate practitioners engaging in. There are many other examples of such conduct. At the end of the day, all judicial officers recognise that their relationship with the profession is a co-dependent one.
