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Advocates warned not to be hotheads

Retired District Court Judge Rackemann entertained and educated the audience at the first Modern Advocate Lecture Series event. Photos: Geoff McLeod

Whilst litigation is adversarial, that doesn’t mean you should be a hothead”, retired District Court Judge Michael Rackemann advised the audience at the first Modern Advocate Lecture Series of 2024.

Queensland Law Society hosted the lecture at Law Society House last week, with Mr Rackemann, who retired earlier this year, sharing insights and anecdotes on practical advocacy skills and preparing for trial.

While speaking about how to become a better advocate, Mr Rackemann made a point about professional courtesy.

“Whilst litigation is adversarial, that doesn’t mean you should be a hothead when dealing with your professional colleagues,” he said.

“…Matters often arise in the context of correspondence flying between solicitors having arguments about some procedural matter or another. And almost inevitably that correspondence, or parts of it, will end up being exhibited to affidavits, that then end up being placed before the judge.

“Now when the judge sees your correspondence, what would be best for you, is if the correspondence is rational, courteous, civil and makes requests or proffers responses that are reasonable, focused and justifiable on their face rather than the exact opposite.”

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He advised that solicitors could be “firm” and “not weak-kneed” in their correspondence but that terms must be “professionally appropriate”.

“You don’t have to be a hothead in order to stand your ground or insist upon your clients rights or the like.”

Mr Rackemann also told advocates they would become better if they focused on the judge, reflecting on a time when as a young barrister a senior silk advised him to focus on winning the case while the silk won the judge.

“I’ve always kept it in my mind, because it reminded me of two things,” he said.

“It reminded that it was important when you’re being an advocate not to do just what you thought needed to be done but to do it persuasively.

“And it reminded me that in the end of the day it’s all about the judge because that is the object of your advocacy.

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“And the more that your primary focus gets away from what you want to do and gets on to how can I assist the judge that I’m seeking to persuade, the better advocate you will become.”

He also admitted advocacy was stressful, “there is no doubt about that”, and shared an anecdote about a surgeon questioning why barristers got stressed when going to court and he (the surgeon) was not stressed before performing operations.

Mr Rackemann quickly highlighted the differences between the court and the operating theatre.

“It is stressful when you are trying to perform your professional task as there is one of your professional comrades on the other side who is trying thwart you,” he said. “And whether you’re successful or not depends on the judge or tribunal member you’re appearing before.

“But it is also rewarding because you’re on your feet in the courtroom, or the hearing room, making your case.

“So it’s a stressful but also rewarding exercise to become involved in, and advocacy at its core has the idea that you are making the case for somebody.”

Mr Rackemann made it clear that professional advocates owed a duty to the court and this was the first thing to bear in mind when doing advocacy work.

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“You are officers of the court and you owe duties to the court as a consequence of all of that, and those duties are higher than the duties to your client and you must prefer those duties to your client’s interests where they conflict,” he said.

“So you can’t just be the mouthpiece for your client. You can’t simply say whatever your client wants to say or whatever you think might impress your client.”

Mr Rackemann recommended to those in the room and on line refer to their ethical obligations in the Australian Solicitors Conduct Rules.

He share some guidelines from the document such as being “frank in court” and “not knowingly make false statements to an opponent in relation to the case”.

“Those last few matters concerning frankness go to your honesty or dishonesty, they go to your reputation,” he said.

“These are very important things. They are very important things in the profession and they are very important things in the court.

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“I can assure you that the judges are well aware of people who have a reputation for dishonesty and you are on the back foot in terms of being persuasive if you have a reputation for dishonesty.

“You may be forgiven for many things but it is very hard to recover from having a reputation for dishonesty so I caution you to be very careful in that regard.”


The QLS President welcomed the audience.

Queensland Law Society President Rebecca Fogerty, who introduced Mr Rackemann, recommended that any young lawyer should also read his conference paper, How to Infuriate A Judge.

“Judge Rackemann is renowned for his sense of humour,” she told the on-line and in-person audiences.

“As passionate advocates for good law and good lawyers in Queensland for over 150 years, one of the Queensland Law Society’s key areas of focus is commitment to our ongoing education and learning opportunities for our lawyers,” Rebecca said.

“We are very lucky to have a guest this evening who has, time and time again, dedicated himself to educating our members and fellow practitioners on all aspects of practising in the law.”

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The lecture will be available to members shortly on the QLS Shop. Keep an eye out for details about the second MALS event on 27 August.

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