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Thursday, 7 February 2013

'Good morning', or no 'good morning'?

I was spectating in court late last year when practitioners at both ends of the bar table copped it from the bench for having the temerity to say 'good morning' when making their appearances.

His Honour did not immediately reply to the greetings of both counsel. After a prolonged silence, the magistrate stared directly ahead and said,

"I will remind all practitioners with business before the Court this morning of what Justice Palmer said in Wilson v Department of Human Services [2010] NSWCA 1489 about unnecessary familiarity in the courtroom. It is inappropriate in our adversarial system to commence submissions with anything other than, 'May it please the Court'. Now ... "

The magistrate was an unfamiliar one (to me, anyway, and I assume to the practitioners involved) but the issue was obviously a sore point with him, if his immediate knowledge of the citation of Wilson's case was any indication. I hadn't read the case before, or even heard of it. (My more learned colleague has since referred me to this excellent discussion of the case, from then-president of the Bar Association of Queensland, RJ Douglas SC.)

In my view, that case turns on its own facts, and is more directed towards the appropriateness (or otherwise) of theatrics by counsel to win the tribunal of fact over to their side. The judgment was - as has been pointed out - more critical of disingenuous greetings directed at the opposing side's witnesses. The reference to greeting the bench was in the context of when one side does and the other doesn't.

In any event, I see the occasional greeting or exchange of pleasantries as a harmless part of normal human interaction, especially in summary or pre-trial matters when the days can be long.

What do you think?



11 comments:

Jono Miller said...
This comment has been removed by the author.
Jono Miller said...

There are some magistrates to whom a good morning is natural and acceptable.

There are some who I'm happy to greet with the artificially formal "if it pleases the court"

On a tangent - there's nothing more excruciating than listening to a plea where every sentence contains "your honour".

I love the advice given by Garner and Scalia:

Remember the relationship you want to establish: that of a junior partner addressing a senior partner. Speak accordingly—not being obsequious or excessively deferential, nor being offhand or chummy.

Garner, Bryan A.; Antonin Scalia (2009-09-16). Scalia and Garner's Making Your Case: The Art of Persuading Judges (Kindle Locations 2589-2590). Thomson West Law. Kindle Edition.

Jezebel said...

I bet the atmosphere in court was chilly for the rest of the day. That might how the magi wants it but is he the only person in the room that counts (no)?

Anonymous said...

I disagree with some of the Nsw decision on some points, but there is a point there about the behavior of some lawyer's towards their 'victims' = the people they cross examine.

I was overhearing a conversation between two lawyers where one said, "and I said good morning to her and she wouldn't say "hello" back when I past her in the foyer, just because I made her cry at the committal." (!) maybe joking, but a little bit of truth in it too, and far too careless with the responsibility that comes with compelling answers from witnesses (even if you do think they're lying.)

We need more courtesy, not less.

Anonymous said...

Although your post doesn't indicate the nature of the hearing in which you observed the Magistrate chastise Counsel (ie. whether a procedural/administrative hearing, or a substantive contest), the Magistrate has "in my respectful submission" totally misapplied the ratio of Wilson to serve their own pomposity. I have for a number of years now quite deliberately greeted a Magistrate in procedural hearings (Mentions, Contest Mentions, Committial Mentions etc) with "Good morning", rather than the 19th century "May it please your honour"(etc). Firstly, there has been a very significant push by the powers to be to make the lower Courts user friendly and accessible. How many criminal Accused would even understand what "May it please your honour" even means.

Wilson was very clearly a case that turned on very particular circumstances and primarily in the way Counsel addresed a witness at the commencement of cross-examination.

Said Magistrate, if he/she carries on again might be directed to the final paragraph of Wilson:

Para 113 - For these reasons, the practice of salutations by advocates should be completely abandoned in all Courts in all contentious litigation.

In all seriousness, there are some things in the Victorian Criminal Justice system, particularly at the Magistrates' level which make me shake my head and wonder why we bother.

Ivan T. Terrible said...

I thnk that magistrate should prove he is not a robot.

Kyle said...

It's hard to tell without knowing the context if this particular exchange was warranted or unnecessary. I agree that the NSW rule seems at first blush a little heavy-handed. But, a bit like the rule about telling a Bench about our submissions rather than our thoughts, the general rule is not itself a bad one.

Politeness and civility is never misplaced. But something that might be misconstrued as over-familiarity or favouritism...that's something we've got to avoid. We've all encountered people in court rooms who can be overly sensitive or quick to perceive slights or injustices where none exist or are intended. Sometimes it's the nature of the case; sometimes it's the nature of the people.

For my part, I'm always conscious of not wanting to convey to my opponent I might have some link to a Bench that might embarrass the Bench. (Mind you, I don't think I know any Benches that well for it to be a real concern, but there you are.) And in especially fraught cases — either because of the subject matter, or the stage of the proceeding — I err on the side of understatement. At a mention or plea, it's one thing; part-way through a contest, it's another.

Jadzia said...

I was the associate to an absolutely lovely judge who expressed (out of court) annoyance about such greetings, feeling that they were overly familiar and unprofessional in such an environment.

I can see both sides; I worked for several judges and feel an urge to greet them in a friendly manner, but I also know that a lot can be read into a little thing, and with members of the public present (often with very high stakes in the matter), it's best to appear utterly distant and professional.

I stick with "If the court pleases..." and offer a smile to those who I know. It's a matter for them as to whether or not they return it, and it avoids the embarassment described here.

Anonymous said...

It all depends on your definition of 'professional', I guess. I find that word gets bandied around more carelessly every year. It's become a synonym for, 'fake, artificial, impersonal, meaningless' call-centre breeziness.

Anyone who finds it impossible to separate their personal feelings from their professional responsibilities shouldn't be on the bench. 'Objectivity' is not the same thing 'incivility'. Nor does 'detachment' equate to 'rudeness'.

Peter Mc said...

Well nowadays it is more of a case of "Good afternoon Your Honour", but generally I would not try that either unless I know from past experience or observation that the particular Magistrate concerned was okay with that type of greeting. In terms of being blasted from the Bench for my mode of addressing the Court one of the biggest serves I have ever had was a few years ago shortly after Magistrates were "upgraded" to "Your Honour" and I unconsciously went through my whole plea using, you guessed it, "Your Worship".

Once I had sat down The Magi in question glowered at me for a full 30 seconds and then proceeded to rip strips off me for my discourtesy, for which I apologised as fulsomely as possible. Unfortunately my excuse about "old dogs" and "new tricks" did not impress.

Full credit to His Honour though he took on board all the key elements of my plea and gave the result sought notwithstanding my faux pas.

Anonymous said...

I don't know whether Wilson stands for the proposition that a 'good morning' in court is inappropriate, or that a 'good morning' is unnecessary.

In all my years i've never met a judicial officer who was offended by a simple good morning, without some f**king hyena smile of course, but just a plain old 'good morning Your Honour... might i mention the matter of xyz'. In fact a well renowned silk I have instructed and will continue to instruct says a courteous 'good morning' to witnesses prior to sniping them each and every time.