Module TLI4801

1----
Author Palmer, R & McQuoid-Mason, D.
Year of Publication 2000
Title Basic Trial Advocacy Skills
-- Publisher Butterworths
Chapter number Chapter 4
Chapter title Manners in Court
Page numbers 31-38

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CHAPTER 4
Manners in court (court etiquette)

The co rrect behaviour at coun (co un etiq uette) is usual ly de termined by

long-s tanding practice. Sometimes ru les of etiquette are also conta ined in
th e practi ce m anu als produced by va rious di visions or th e High Co urt.
Ma ny ru les of etiquette are also contained in the rules o f co nduct of the
legal profession. ' This chapter deals w ith
4.1 Dress;
4.2 Pun ctuality;
4.3 Introd uct ions;
4.4 Modes of add ress;
4.5 Behaviou r in cou rt;
4.6 W itn esses ;
4.7 Coun termin ology;
4.8 Percepti ons of bias; and
4.9 Humour in co un .

4.1 Dress
Ap propri ate cou n dress fo r lawye rs is da rk co loured suits or dresses
(b lack. dark grey or blue) Ties should be understated - loud ti es and
ca n oon characters on ties m ay be viewed as improper . Be awa re of
sm aller deta il s. such as ensuring th at shoes are clean and th at shin to p
coll ar buttons are fastened . If a robe is required . ensure it is un creased. of
a suitab le size and in good repair. Male w itn esses should dress in co llar
and ti e. and fe m ale w itn esses shou ld dress sm artly and co nse rvative ly.

4.2 Punctuality
Alw ays ensure that yo u are at th e co un at leas t 3 0 m inu tes before th e
co urt' s starting time. judges and the pub lic expect lawyers to be pun ctual:
repeated tardin ess wi thout adeq uate expl anations may be trea ted as
co ntempt of co urt.

1 See the Genera l Council of Lhe Ba r of Soul h Afr ica Rules of Professional Eth ics and Lhe
tmemarional Code of Eth ics. and see ch I - ch 3.

31
32 Basic Trial Advocacy Skills

4.3 Introductions
Trial lawyers should always introduce themselves to the judge who will be
presiding in their cases . The term 'judge· is used generically to include
judges of all courts - magistrates. regional magistrates, High Court, Su-
preme Court of Appeal and Constitutional Court judges. You only need to
introduce yourself once - it is not necessary to reintroduce yourself before
each subsequent case you may have before the same judge. (It may,
however, be prudent to reintroduce yourself if you have not appeared
before the judge for a long time and he or she may not remember you).

4.3.1 How to introduce yourself to a j udge

(a) In the judge's office
On the morning of the trial, prior to the start of proceedings, go to the
judge's office and briefly introduce yourself. The judge's office is re-
ferred to as 'chambers' in High Court buildings . The introduction must
be brief and along the following lines:
"Good morning, judge . I am Mary Delgado, of the firm Delgado and
Partners, and I am appearing for the plaintiff in the Mistry v Mistry
trial which is due to start today ."
'judge' is the mode of address to a High Court judge in chambers (see
paragraph 4.4 .2 below) .
After completing the handshake, remain standing whi le you await the
judge's response . Depending on each judge's inclination, habit and
time pressures, you may either receive a short response ("N ice to
meet you, Ms Delgado") after which you should leave the office, or
you may be invited to sit down for a short chat with the judge .
(b) !f the judge is not in his office
If you cannot locate the judge before the start of the trial, you must
introduce yourself when placing yourself on record for the trial:
"M'Lord, I am Mary Delgado of the firm De lgado and Partners. and I
appear for the plaintiff in this case. I did try to introduce myself ear li er
this morning. but unfortunately I could not locate your Lordship."
Finally, court etiquette requires you to be accompanied by your oppo-
nent when seeing the presiding officer out of court, but this ru le does
not apply to pre-trial introductions . In the High Court, the p ractice is to
be ful ly dressed for court when introducing yourself.
If you have not previously met your opponent, or any of the court
officials (like the stenographer, interpreter, court orderly), yo u should
forma lly introduce yourself to them as we ll.

4.4 Modes of address

4 .4 .1 Magistrates ' and Regional Magistrates ' courts
In the Magistrates' and Regional Magistrates' courts, presid ing officers are
addressed as 'Your Worship' (never 'My Worship') during court proceedings,
Manners in court (court etiquette) 33

and by thei r norma l civi li an titles ('Mr Jones'; 'Mrs Radebe'). outside co urt .
(Note, thi s informal mode of address also applies when introducing you r-
se lf ro the magistrate in his or her office .) Modes o f address such as 'Your
Worsh ip ' and 'My Lord ' are in creasing ly being seen as outmoded and
unnecessarily pompous , and may. through usage or legislation . be re-
placed with a uniform mode of address of ' You r Honour' in all courts in
th e future.

4.4.2 High Court and Supreme Court of Appeal

In the High Court and the Supreme Co urt of Ap pea l. the presiding office r
is addr ssed as 'My Lord' (p ron ounced 'M'Lord') in co urt. and as 'j udge·
out of co urt or in ~ha mb e r s . Note. too. th at the inform al ·you · and 'your' is
replaced by 'You r Lordship' - for example. "No. M'Lord, I was not aware
that your Lordshi p has not completed yo ur Lord ship 's question ."
As the term 'M 'Lord ' is addressed to th e office of the High Cou rt judge.
it is preferab le co address both male and fema le High Co urt judges in this
way. A female j udge may prefer to be addressed as 'Her Ladyship' -
establi sh her prefere nce prior to the co mmenceme nt of the tr ial by
checl,ing with her registrar (th e judge's secreta rial assistant) .
Wh en referrin g ro a High Court or Supreme Court of Appea l judge in
wr iting, th e co rrect m ethod is to refer to, for examp le. 'Mr justice
Tshabala la' or 'Ms justice Theron' .

4.4.3 Constitutional Court

Constitut iona l Court judges are refe rred ro as 'justice · in and out of co urt.
and in wriLing.

4.4.4 judge and assessors

It is also acceptab le to address a judge sittin g alone as 'th e Court', and thi s
mode of address is the co rrect mode when the cou rt co nsists of a judge
and assesso rs. The judge and assesso rs are th en co ll ectively add ressed
as 'th e Court'. It is bad mann ers to address your subm iss ions onl y to
the presiding officer ('M 'Lord') when the court consists of a judge and
assessors.

4.5 Behaviour in court

4.5.1 Entering and leaving the courtroom
Wh en the judge enters the co urtroom, th e orderl y will shout "Rise in
co urt" . at which all those present in the courtroom must stand . Wh en th e
judge reaches th e bench, he or she will stand . bow slightly and th en sit
dow n. Th is is th e cue for eve ryone in the co urtroom to sit as w ell . If th e
co urt consists of a judge and assessors, you should wait unti l the last
assessor is seated before siuing down . When the judge leaves the court-
room. th e orde rly again announces th at eve ryon e should rise - rema in
standi ng unti l the judge is out of the co urtroom.
 34 Basic Trial Advocacy Skills

Anyone (lawyers, witnesses and members of the publi c) en tering or

lea ving th e co urtro om whilst it is in session should:
(a) when leav in g, briefly pause at the ex it door, turn towards the judge,
bow slightly, and then exit; and
(b) when ente ring, enter the courtroom, pause, bow slightly towards the
judge, and then proceed to your place.
Shou ld you wish to deliver a message to one of the trial lawyers whil e th e
court is in sess ion, ente r the courtroom and quietly sit down next to the
lawye r co ncerned. Then wr ite out a message, leave the note with the
person concerned, and quietly ex it. It is distracting to the court and bad
manners to whisper to one of the trial lawyers whilst proceedings are in
progress. Also limit such interventions to m atters that cannot wait until
the next adjournment.

4.5.2 Do not wander or walk about in court

The ge neral rul e is that a lawye r appearing in a trial should not move
away from his position without the permission of the court. Do not walk
around wh en asking the witness questions or m ak ing submissions . In a
cr iminal case when the defence lawyer wishes to speak to his cl ient (the
accused who is standing in the dock), the defence lawyer will have to
req ues t the cour t's permission:
" M ' Lord, may I approach the accused for in structions on that point?"
Note that if a longe r discussion is required, it is more appropriate to
reques t a short adj ournment. This m ea ns th at th e judge will leave the
courtroom, and be reca ll ed by the court ord erly once th e co nsultation has
bee n comp leted .

4.5.3 Always stand when being addressed by the judge

When the judge speaks to you as a trial lawyer appearing in the matter
befo re him, you should imm ediately stand up. When th e judge is ad-
dressing your opponent, you must sit down . For exampl e, if you are busy
cross- exa mining an opposition witn ess , and your opponent stands up to
object, you must imm ed iately sit down. This indicates to th e judge -
whose attent ion has been focused on you - that your opponent is stand-
ing, and th e judge will then focus on your opponent to hea r the basis of
his objection.
Only if th e judge is add ress ing both you and your opponent simu ltane-
ously (for exampl e, discussing a possible postponem ent date), shou ld you
both be standing at th e same time.
You are also required to stand when indicating your acceptance of a
court ruling : for example, when the judge comp letes the delivery of the
judgment, both you and your opponent should sta nd up to indicate your
acceptance of th e decision by saying : " As the court pleases."
Manners in court (court etiquette) 35

4.5.4 Get the judge 's permission before moving on to the nex t
stage of the trial
After each stage of a trial. or after an intervent ion by the judge. first get
hi s permi ssion before co ntinuing.
For example: During plea pro ceedi ngs in a criminal tr ial after the ac-
cused has pleaded not-guilty. you w ill info rm the Court what the basis of
the accused's defence is. and then asl~ leave (pe rm issio n) to rea d the
Section 1 I 5 statement in to the record:
Magistrate (to accused): How do you plead?
Accused: Not gu ilty. You r Worsh ip.
Defence Counsel Your Worship. I co nfirm th at the accused's
plea is in accordance with my in structions. I
have prepared a w ritten statement in terms
of Sect ion 1 15 of the Cr im inal Proced ure
Act. May I read it into the reco rd?
[On(y continue once the magistrate assents.]
Another example: Whil st yo u are cross-exa min ing a witness. the magi strate
intervenes by ask ing a question. If it is a sho rt interve nti on (o ne or two
questions). you may rema in standing until th e m agistrate gives you an
ind icat ion to co ntinu e:
Magistrate: [Having completed his questioning of the witness.]
Yes . Mr Radebe . you m ay co ntinue.
Defence Counsel: As th e co urt pleases. Now. Mr j ones . you said . . .

4.6 Witnesses
When bein g questioned du ri ng exa min atio n-in-chi ef or cross-examination.
witnesses mu st l oo l~ at the lawye r putti ng the ques ti on . and then loof<. at
th e j udge when answering the questio n. Should the w itness nor be tra ined
to do so. the j udge is lil~e l y to become irrita ted by bei ng treated lif<.e an
interested obse rver to a co nve rsat ion between the lawyer and th e witness.
Witnesses yet to be ca ll ed must wait outside the co urtroom (with th e
exception of certain ex pert wimesses who may be requ ired to hea r the
ev id ence for the purpo ses of the ir later te stim ony).

4. 7 Court terminology
Tri al lawye rs m ust become fam iliar w ith a nu mb er of impo rtant words
and phrases used in co urt proceedi ngs:
(a) "/ submit . .. ": During argum ent at th e close of the tr ial. or argument
on specific issues that ar ise during th e tria l (for exa m pl e. fo llow in g an
objection) . tri al lawyers make submi ssio ns to the co urt on the correct
appro ach . thus : "M' Lo rd. I submit that th e co urt should find .. " Do
not use: " I think "; " ! ave r "; " I co nclude"; " I say"; " I state"; " I am of the
opin ion"; " I declare" .
36 Basic Trial Advocacy Skills

(b) "As the court pleases": This is a stock response phrase indicating the
accepta nce of decisions by the co urt, or is used where counsel wishes
to indicate that he has completed a subm ission. Do not use "as it
pleases the court"; "the co urt pleases"; "OK, M'Lord" ; "Alright" or ''I'm
finished , M' Lord" .
Direcr ques tions from the ben ch, should, however, be answered with a
simp le "yes" or " no ":
judge: Were the papers served on the defendant personally?
Counsel: Yes, M'Lord.
(c) "lj the court will bear with me": This is a phrase used to request the
court to be patient for a littl e while while you find a misplaced note or
authority. It is meant to indi cate a short delay (a minute or two at
most) . Do not use: "If th e court will wait a whil e"; "M'Lord. just hold
on a second" ; or " Give me a mom ent to find my note. M 'Lord." If the
delay is likely to be longer than a minute or two , rather request a short
adjournment.
(d) "With respect"/ "With great respect"/ "With the greatest respect". A
submission preceded by the term "with respect" indicates in advance
to the judge that you do not agree with the view stated by him on the
issue being discussed . Should the debate become m ore heated . and
your disagreement with the judge's position stronger. you may show
your intensified disagree ment by prefacing your submission by saying
"with great respect. Your Worship " . Should you reach a stage in your
interaction with the court where you conside r the co urt' s position to
be utterly without foundation, you may indi cate your disagreement by
prefacing your respo nse: "with the greatest respect .. . " (Thus. the
greater the professed respect . th e less the actual respect for the court's
point of view .)
Note , that however strong your disagreement with the court. your
submissions must remain courteous and restrained in tone, volume
and content. (Rem ember. you have a need to reta in the sympathy of
2
the court- see chapter 5.4.)
(e) " ! am indebted to the court": This is the traditio nal method of saying
'tha nk you' in court proceedings, and is stil l in widespread use :
judge: Ms Ch etty. I will give you a short adjournment to take
instructions on that point.
Counsel: Thank you. M'Lord. (Or: I am indebted to the Court.)
(f) "My instructions are . . .": Often your client may insist you make an
app li cation to, or requ es t of the court that is ill-advised, or it may be

2 On e of th e authors wa s fond of repeating th e exce ll ent advice he had bee n given yea rs
previously by Mr justice McCreath befo re hi s first Sup reme Court trial: "C law the facts,
and indulge the judge." Years later, after a pro longed and hea ted exchange betwee n
this author and th e pres iding judge in a tri al in Ladysmith, one of the co-co unse l in th e
same case enquired: "What was that adv ice of yours again - claw th e judge and in-
dulge the facts?"
Manners in court (court etiquette) 37

that a ve rsion yo u are instru cted to put to a witness is man ifest ly ab-
su rd . In m ost cases, yo u wi ll have a duty to comp ly w ith your client's
wishes. If you are challe nged (usual ly in an incredulous tone) by th e
ju dge, yo ur response that those were your instructions is sufficient to
indi cate that you are merely ca rry ing out yo ur lega l duty . and are not
necessa ril y convinced about th e legal or tact ica l sound ness of yo ur
subm ission.
(g) "/ withdraw the question" or "correction": Often cou nse l will put a
question to a witness (e ither in exa min at ion-in-chi ef or cross-
exam in ati on). and th en decide to change o r modify the question. The
co rrect method to do so is :
Counsel: l'low. M rs Peters. when yo u fir st saw th e bruise marks
on ... (stops. then says: Your Worsh ip, I withdraw the
qu es tion) - then starts aga in :
Mrs Peters. what date was it that you saw the bruises
on yo ur so n for the first tim e?
A shorth and method of achi ev in g the sa m e effect is to in sert the word
'co rr ecti o n ' after th e phrase you want di sca rd ed:
Counsel : Now, Mrs Peters, when you first sa w the bru ise marks
on - cor rection . Your Worship- Mrs Peters, what date
was it th at you saw the bruises on your so n for th e first
tim e?
(h) "My learnedfriend" The co rr ect m ethod o f referring to your opponent
in all courts is " my learned fri end " (neve r sarcast ica lly qualify the
' lea rn ed' w ith , for exa mpl e, ·m y all eged lea rn ed fr iend ' - such be-
haviour is unprofess ion al) . It is also acceptable to refe r to yo ur oppo-
nent by nam e: "M r jones has sub mitted th at ... " (This may be the
safer rou te giv en th e sens itivity o f cenain m embe rs of the Bar at being
addressed as ' my learn ed friend' by attorneys and prosecutors) .
(i) References to judges not before cou rt: Refer to other judges as in the
form al written refe rences: ' Hi s Lo rdship, Mr just ice Du To it, in his
JUdgment ... · Wh en add ress in g the co urt. avo id referrin g to other
judges as " Your brothe r. Du Toi t" - this reference is only used by
judges th em se lves when refe rrin g to o th er judges.
Q) Postponements: adjournments; remands: standing-down:
Th e term postponement is used wh en a case or matter that has no t yet
commenced is postponed to a later date;
Once a matter has co mm enced . you have proceedings and pro ceed-
in gs are always adjourned. (Adjournments ca n be any length of time .
from a few minutes to w ee ks or even m onths . During court hours, the
morning tea-br ea l~ is refer red to as the 'short' adjournment . whi lst th e
lun ch-brea k is referr ed to as th e ' long· adjournment);
A remand refers to the po stpon em ent to anoth er date whilst th e ac-
cused is in custody on a criminal charge, as in : "Your Worsh ip. I ask
that th e accused b e remanded in custody to the 3'd of jun e for trial."
38 Basic Trial Advocacy Skills

Only a witness can stand-down (that is . literally step down from the
witn ess box) . Matters or proceedings cannot stand-down - they can
only be postponed or adjo urn ed.

4. 8 Perceptions of bias
'justice must not only be done. but also be seen to be done.'
This adaptation of the oft quoted dictum from the old Engli sh case of R
v Sussex justices holds true for all aspects of the tria l. For examp le, the
cli ent you are defendin g on a criminal charge may not understand your
undue familiarity with the prosecutor (who may be an ex-co lleague and
good fri end) . Maintain a professional reserve in your dea lings with your
co urt opponents, lest your cl ient interpret your later behaviour during the
trial (like a concession properly made) as having been influenced by your
fr iendship with the opponent. For the same reason, if the judge in your
matter is a friend or close acquaintance, do not refer to him by his first
nam e in the presence of your opponent, nor should you discuss social
matters wh en seeing him in chambers in the company of your opponent.

4.9 Humour in court

Trial lawyers shou ld , as a rul e, avoid attempts at humour during the trial.
This is especially true for criminal trials , where attempts at humour may
be co nstrued as trivialising a serious m atter. Leave attempts at humour to
3
the judge. Som etim es, howeve r, a w ry comment may not be inappropriate .

3 A recent example: du ring a crim in al tr ial in the middle of Lh e test cri cket seaso n, the
judge admonished th e SLate Advocate as fo ll ows:
judge: Mr Damarell . that question has been as ked and answe red twi ce in a
row now.
Prosecutor: Very wel l. M'Lo rd . in the circumstanc es. I won ' t go for a hat-t ri ck.