His Honour Justice Johnstone shared some of his bugbears with the North Queensland legal community at this month’s inaugural Townville Queensland Law Society’s Acing Advocacy series.
Justice Johnstone, Judges Lynham and Kahler, Magistrate Taylor and Claire Grant KC shared their experience and advice in regard to courtroom etiquette and preparation at the Townsville Supreme Court on 6 August before an audience of more than 70.
Hosted by the Immediate Past President of the QLS Future Leaders Committee Mathai Joshi, the session was designed for clerks, graduates and early career lawyers across all areas of practice to provide practical guidance relevant to appearances in both the Magistrates Court and higher courts.
When asked by Mr Joshi about some of the bad habits he had noticed, Justice Johnstone said young practitioners had a couple of “bugbears that everybody who has appeared before me and has made the mistake has heard”.
“I detest being told ‘I understand’,” he said. “You need to tell me you are instructed or you make a submission.
“But if you simply say, well, Your Honour, I understand this, I could say, well, I understand something differently.
“We are no further to resolving anything. The use of the phrase ‘I understand’ has developed over about the last I’d say 20 years.
“And it’s a bridge to say I haven’t actually done any of the work to find out whether this is true, but I don’t want you to think that I’m just leading you down the garden path.
“So I’m introducing this word ‘I understand’ as to say I’ve given some consideration to the proposition I’m putting to you without actually knowing the facts.
“You either know the facts or you don’t. You can either answer a question or you can’t.
“So the use of that phrase ‘I understand’ doesn’t advance anybody. Now, it’s a pet hate of mine. But I think we can be always improving and it’s one of my suggestions.”
His Honour also advised to practitioners to pick up the phone and talk to their opponents rather than email or text, or go visit them.
“Have a conversation. You never know what could be resolved by a good conversation, a quick conversation.”
He also advised that “aggression will get you nowhere” when people were trying to make an impression.
“Aggression in court, aggressive submissions, aggressive style of delivery, aggressive cross-examination except in very, very limited circumstances,” His Honour said. “And particularly aggression towards your opponent.
“So adopting an aggressive tone because you think it will assist your client, it will not.
“If you do it in court, it will make you look very bad.”
His Honour’s final piece of advice was not to “be a mouthpiece for your client”.
“As a young practitioner you are there as an officer of the court with duties to your client and to the court, and your duty to the court is paramount,” he said.
“One of your fundamental practising rules is you cannot simply be a mouthpiece for your client.
“You must forensically test it. You cannot simply say, ‘well, I’m going to adopt what my client says and I’m going to adopt their persona and that’s how I’m going to conduct myself in court’.
“Just because your client thinks they want a show doesn’t mean a show is going to get you anywhere and it doesn’t mean you’re entitled to put on that show.”
Justice Johnstone said practitioners who may feel daunted by appearing in superior courts should anchor themselves in the relief and the rules.
“If you’re daunted by the prospect, you anchor yourself in the relief and the rules,” His Honour said of appearing.
“And you build your approach within that framework, you will not go off the rails.
“The UCPR gives you your signpost. You will be seeking some relief under that rule, under an identified rule.
“So if you’re daunted or worried it’s your first time, there’s your first anchor.”
Mr Joshi, Senior Associate at Connolly Suthers Lawyers, said when he began his career, he was fortunate to have mentors and guides in the profession.
“They helped me in getting the confidence to appear in court and also understanding the do’s and don’ts of practice,” he said.
“And like all of us here today, we all have the potential to continue to learn so that we become excellent solicitors.”
Attendees also travelled from Cairns and Tully for the session and networking. The Townsville District Law Association co-sponsored the event, which was worth 1.5 CPD points. Brisbane’s legal community attended the inaugural Acing Advocacy event last year.
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