Friday 5 January 2018

Court Etiquette

Firm 8B Class of 2017 KSL

Introduction:
Court etiquette would refer to the code and behaviour that delineates expectations for social behaviour to contemporary norms within a societal class or group. This would essentially entail making a good impression and code of behaviour, an outlook of what you express. In this case, we look at the court room etiquette, where there are many stated and unstated rules of conduct for litigants, advocates and other court attendees. This would entail the manner in which you are subject to the court and addressing tribunals. It will deal with the aspect of dressing and addressing the court.
 Owing to the fact that the law court wields authority and power, one must be in such a position as to act in a certain way in respect to the court. We can find as per section 57 of the Advocates Act Chapter 16 Laws of Kenya, which wields the court punitive and disciplinary powers in respect to honourable conduct in the court. We can see this addressed by Warsame J in Equip Agencies Ltd v Credit Bank Limited Nairobi HCCC no. 773 of 2004 that dealt with the principle undertakings of an advocate showing that even if the court has no right, it has jurisdiction to make an order in exercise of its disciplinary jurisdiction. the purpose of this is to enforce honourable conduct among advocates in regard to the laws. This was illustrated in Allison v Gen Medical Council where misconduct is punishable. Court etiquette would address the following issues;

1.     Introductions:
A practitioner should introduce himself or herself to the presiding Judge on the first occasion of appearance before the Judge concerned. This introduction is regardless of whether or not the practitioner knows the Judge personally.
Where the practitioner has appeared before an Acting Judge who has since been elevated to having a permanent appointment, it is correct to reintroduce oneself to that Judge.
When you are appearing before a Judge for the first time, and need to introduce yourself, invite your opponent to accompany you when you make your introduction. As is implied above, you should make the introduction before the Court sits.
However, where one is required to appear in Court at short notice and the opportunity has not presented itself to introduce yourself to the presiding Judge then, when the matter is called, stand up and announce your surname (please note surname only) to the Judge and apologize for not having made the introduction earlier. Do not refer to yourself by any title such as “Mr.” or “Miss” or whatever – simply provide the Judge with your surname and apologize for not having made the introduction in Chambers earlier[1].
Salutation
Before anything the first show of respect and or introduction is when an Advocate stands on his/her feet, when the judicial officer enters the courtroom, This is a silent form of introduction, which entails an exchange of bows – you bowing to the court and the court simultaneously bowing to you[2].                
Some may view this tradition, as unnecessary and believe that standing shows sufficient respect or deference to the court.
Ronnie Boodoosingh expresses his text, ‘The Complete Advocate’ what I consider the best view – “… [Bowing] is a mark of respect and acknowledgment by all parties of the important role each plays in the administration of justice. The court recognises the assistance it is entitled to receive from attorneys and the attorneys in turn salute the fairness they should expect from the Bench.”
Similar respect ought to be shown when you leave the court, especially when the court has not ruled in your favour. Respect for the court supersedes your feelings on the judge’s ruling, or even on how he has conducted the matter[3].
The rationale behind court introductions is to make their presence known to the court for purposes of record, to show attention, and to suggest a type of relationship between, the advocate/representative and their clients.[4] These records further assist the courts in administration of justice to maintain fair play between the litigants.
2.     Punctuality
The Judicial Service Code of Conduct and ethics[5] observes that officials, be punctual and meet deadlines; punctuality is essential because it ensures that the judiciary moves in accordance with time and accords justice to all. Punctuality ensures proper running of the courts.

In Kenya the laid out standard on punctuality is not codified but considered more of a natural norm, having said this you will not find any law that expects its people to adhere to punctuality rather what you will find are rules, policies and regulations on conduct that touch on punctuality.

According to the Reid-and-Holland book, an advocate should never be late. However, sometimes fate will deal us a hand that makes us late. When that happens, it is important that the advocate apologize to the court and briefly explain the delay with utmost sincerity. It is not required or appropriate for the advocate to cry about it or be dramatic about the apology, but an apology is appropriate all the same. [6]

3.     Dress Code
The Advocates dress code is something that has evolved with the legal profession, as stated by the former Honorable Chief justice Willy Mutunga, “Judicial attire has changed throughout history, adapting to newly empowered governments, populist movements, and popular fashions. Robes, wigs, hats, gloves, and medals have been added to and subtracted from the judiciary’s wardrobe[7].”
Governments formed in many parts of the world have had a habit of changing the legal fraternity’s look to portray dignity, strength and authority over their citizens. Take for instance the white wig’s use was to reflect the wisdom that the judges had and their capability to hear and determine any matter presented before them.
The rationale behind court dressing has been designed to exude power and demand a certain level of respect and dignity. The darker the color, the more authority the attire conveys. A gray or navy pinstripe suit communicates the highest authority.[8]

The Law Society of Kenya’s code of conduct states that an Advocate’s mode of dressing when in public should be modest and in a manner, that lends itself to the dignity of the legal profession. Repeated failure to adhere to the dress code without adequate reason can undermine the standing of the Advocate in the eyes of the public[9]. It is worth noting that the legal profession is a noble profession and as such, any member has to be appropriately dressed in order to uphold the profession’s dignity.

a)    Female Advocates
Ladies should not wear revealing shirts or tops including dresses, they can however wear non-revealing blouses and trousers and braid their hair when appearing before judges, Magistrates and Tribunals. The hair however is not be colored that is; different shades of colors such as purple, red and so on. The hair should be neat and held back from the face with a hair band.
b)    Male Advocates
Male advocates are to wear neckties at all times and a full suit; the coat can only be removed with the permission of the presiding judge/magistrate while in court. The suits colors must be dark. Male Advocates should not
·         Wear sagging trousers
·         Wear muscle fit shirts/ slim shirts
·         Reveal tattoos, chain necklaces while in court.
Shoes exposing the toes are banned unless one suffers from a feet ailment; the shoes colors should always be either black, grey, navy blue or brown this to apply to the clothing and to both male and female Advocates
In Sandstorm v. State,[10] the Florida Court of Appeals stated several reasons for placing limits on an attorney's dress. The judge, however, must refrain from imposing his personal preferences upon the lawyers. The court's dress requirement, therefore, must be reasonably related to the proper administration of justice.
 In this case, Sandstorm, an attorney, appeared in court before Judge Tyson without a necktie. Judge Tyson informed Sandstorm that he must wear a tie in the courtroom. Sandstorm stated that he would wear what he wanted to wear." The next time Sandstorm appeared before Judge Tyson, he wore a western-style or string tie. Judge Tyson granted a brief continuance in the pending case so that Sandstorm could change his tie. The judge warned Sandstorm that he would be held in contempt unless he returned to court wearing a fabric tie. When the trial reconvened, Sandstorm was cited for contempt.
 In upholding the trial court's decision, the Florida Court of Appeals stated that failure to wear a tie is not contemptuous behavior or behavior, which obstructs justice. Willful disobedience of a court order to wear a tie, however, is contemptuous behavior and is a direct affront to the court's authority. Sandstorm not only disobeyed a court order, he also obstinately rebutted the court's direction to wear a fabric tie. The Court of Appeals held that Sandstorm's refusal to comply with the court's order demonstrated a total lack of cooperation with the court; therefore, the trial court appropriately cited him with contempt. The dissenters stated that one's clothes reflect his personality and lifestyle and that the Florida Constitution protects an individual's personal liberty and his right to choose his or her own lifestyle without undue governmental interfere
This freedom of choice, however, may be limited if a substantial justification exists. One justification for requiring attorneys to dress in a particular way is to preserve the dignity of the judicial proceeding
Similarly, in Andrew Barney Khakula vs Law Society of Kenya & Another[11] the petitioner sort for orders that the LSK dress code was unconstitutional as it infringed on the fundamental freedom and rights as per article 47 of the constitution of Kenya.
The Honorable D. S. Majanja in his ruling found that, “Council of the Law Society is empowered under the provisions of the Advocates Act (Chapter 16 of the Laws of Kenya). The Law Society of Kenya Act (Chapter 18 of the Laws of Kenya) to issue regulations and directions regulating the conduct of advocates, including the manner of dress in court. In so doing, the duly elected Council of the Law Society acts on behalf of the members.”

c)     At the Court of Appeal
Advocates are to wear plain black gowns or plain dark colors, the wigs are optional.

d)    Judges:
By a decision arrived at by consensus at the Judges Colloquium, which was also attended by the Judicial Service Commission and presided over by the former Chief Justice Willy Mutunga the following dress code was agreed upon[12].
  • Wigs will be discarded with immediate effect. Those who have them can either keep them as souvenirs or hand them over to the Chief Registrar;
  • No head gear of any type will be worn except by the Qadhis;
  • There will be two robes for each court, one ceremonial, one functional;
  • Each court will deliberate on the material and colors of robes it would wish to wear;
  • Magistrates will through their association deliberate on whether or not they want to wear robes;
  • Each court will determine the dress code of the members of the Bar appearing before it.

4.      Modes of Address
Advocates should use indirect speech when addressing the court and when addressing other advocates. For example they should say, “Does your honor wish me to proceed?” or “Does my learned friend wish to object?”
i. Magistrate’s Courts
In the Magistrate’s courts, presiding officers are addressed as “Your Honour” during court proceedings and by their normal civil titles. Modes of address such as “Your Worship” and “My Lord” are increasingly being seen as outmoded and unnecessarily pompous, and may, through usage or legislation, be replaced with a uniform mode of address of “Your Honour” in all courts in the future.In O.P Sharma and Ors v high court of Punjab and Haryana.in that judgement court examined etiquette of advocates held in contempt because of the behavior displayed to the magistrate.

ii) High Court, Court of Appeal and Supreme Court
The presiding officer is addressed as “My Lord” in court, and as ‘judge’ out of court or in chambers. Note, too, that the informal ‘you’ and ‘your’ is replaced by “Your Lordship”- for example. “No, My Lord, I was not aware that Your Lordship has not completed your Lordship’s question. The Advocate Act stipulates out personal qualities by an advocates required for the execution of advocates professional and technical duties.
As the term ‘My Lord’ is addressed to the office of the High Court judge, it is preferable to address both male and female High Court judges in this way. A female judge may prefer to be addressed as ‘Her Ladyship’ or “My Lady”– establish her preference prior to the commencement of the trial by checking with her registrar. The Leadership Integrity Act stipulates that a state officer should treat members of the public and other public officers with courtesy and respect.

5.     Behavior In Court
i. Entering and leaving the courtroom
When the judge enters the courtroom, the orderly will shout, “Rise in Court” at which all those present in the courtroom must stand. When the judge reaches the bench, he or she will stand and bow slightly and then sit down. This is the cue everyone in the courtroom to sit as well. When the judge leaves the courtroom, the orderly again announces that everyone should rise – remain standing until the judge is out of the courtroom.
Everyone (lawyers, witnesses and members of the public) entering or leaving the courtroom when it is in session should: when leaving, briefly pause at the exit door, turn towards the judge bow slightly, and then exit; and when entering, enter the courtroom, pause, bow slightly towards the judge, and then proceed to you place.
Should you wish to deliver a message to one of the trial lawyers while the court is in session, enter the courtroom and quietly sit down next to the lawyer concerned. Then write out a message, leaving the note with the person concerned, and quietly exit. 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 matters that cannot wait until the next adjournment.


ii) Do not wander or walk about in court
The general rule is that a lawyer appearing in a trial should not move away from his position without the permission of the court. Do not walk around when asking the witness questions or making submissions. In a criminal case when the defense lawyer wishes to speak to his client (the accused who is standing in the dock), the defense lawyer will have to request the court’s permission: e.g. “My Lord, May I approach the accused for instructions on that point?”
Note that if a longer discussion is required, it is more appropriate to request the court for a short adjournment. This means that the judge will leave the courtroom, and be recalled by the court orderly once the consultation has been completed.

ii) Always stand when addressing and when being addressed by the judge
When the judge speaks to you as a trial lawyer appearing in the matters before him, you should immediately stand. When the judge is addressing your opponent, you must sit. For example, if \you are busy cross-examining an opposition witness, and your opponent stands up to object, you must immediately sit. This indicates to the judge – whose attention has been focused on you – that your opponent is standing, and the judge will then focus on your opponent to hear the basis of his objection.
Only when the judge is addressing both you, and your opponent simultaneously (for example, discussing a possible postponement date), should you both be standing at the same time. You are required to stand when indicating your acceptance of a court ruling: for example, when the judge completes the delivery of the judgment, both you and your opponent should stand up to indicate your acceptance of the decision by saying: “As the court pleases/most obliged.”
iii) Get the judge’s permission before moving on to the next stage of the trial
After each stage of a trial, or after an intervention by the judge, first get his permission before continuing. For example: during plea proceedings in a criminal trial after the accused has pleaded not guilty, you will inform the court what the basis of the accused’s defense is.
Advocates should strive to maintain the dignity of the court, they should not engage in behavior that is disrespectful to the court system such as;
  • Taking phone calls
  • Texting and engaging in online activities such as emailing. Do not use electronic devices in court unless it is used as evidential equipment in court and with the permission of the court.
  • Engaging in small talk with other advocates or in conversation that is completely unrelated to the matter before the court.
  • Advocates should not use slang while in court unless it is completely necessary for the court process. They should not also curse uncontrollably or use disrespectful words.
  • Advocates should also show proper respect to the witnesses before the court. They should use proper titles while addressing such witnesses for example they can say Mr. or Ms.[13]

6. Humor
In its most basic definition humour has been defined as the quality of being amusing or comic, especially as expressed in literature or speech.[14] However, when in the context of court proceedings humour has not been as easy to define drawing commentators to giving differing opinion. Humour has been described as being the pepper spray in an arsenal of persuasive literary ordnance: it is often surprising, disarming and when delivered with precision, highly effective. [[15]][[16] ]
Others have found the use of humour in court to be highly misplaced arguing that court comedy disrespects partiers and distracts from the merits of a case.[17]  Renowned author E.B White observes that humour has certain fragility, an evasiveness, which one had best respect.[18]
The use of humour in court can be classified in to two broad categories; that is, as used by members of the bench in judicial opinion or in addressing the court or by members of the bar.
Judicial humour refers to humour in written legal opinions as opposed to spoken humour as employed by judges in hearings or conferences. While spoken humour is fleeting, written humour is designed for permanent preservation in legal reports.
On the other hand there is humour from the bar, while it can take either form of being written or oral it is a widely held opinion that it should be avoided at almost all costs. This stems from the fact that the life of a litigant could well be in the balance, such an act as making light of those circumstances seem highly insensitive.
However, it should be of note that there are instances where humour is unavoidable. Such instances include; where the facts of the matter are by no one’s intervention humorous[19] and where the word play in judicial opinion is construed in such a manner as it appears humorous[20]
In conclusion, it is important to note that the use of humour can have a negative impact on court proceedings. While those who have a natural ability to seem witty can get away with it other may find it hard to incorporate humour in a more serious setting.

7.     Witnesses
The Advocates (Practice) Rules prohibits the advocate from coaching or permitting the coaching of any witness in the evidence he or she will give before any court, tribunal or arbitrator. When being questioned during examination-in- chief or cross-examination, witnesses must look at the lawyer putting the question, and then look at the judge when answering the question. Should the witness not be trained to do so, the judge is likely to become irritated after being treated like an interested observer to a conversation between the lawyer and the witness.
Witnesses yet to be called must wait outside the courtroom (with the exception of certain expert witness who may be required to hear that evidence for the purpose of their later testimony)

8.     Perception of Bias
The rule of natural justice[21] is based on two main pillars. The first pillar is that of a fair hearing which dictates that people whose rights, interests and expectations may be affected by a decision should be given sufficient prior notice and adequate chance to be heard before any decision is made.[22]
Justice must not only be done, but also be seen to done.
R v Sussex Justices holds true for all aspects of the trial.  For example, the client you are defending on a criminal charge may not understand your undue familiarity with the prosecutor (who may be an ex-colleague and good friend).  Maintain a professional reserve in your dealings with your court opponents, lest your client interpret your later behavior during the trial (like a concession properly made) as having been influenced by your friendship 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 name in the presence of your opponent , nor should you discuss social matters when seeing in chambers in the company of your opponent
The bias rule provides the second pillar of natural justice and requires that a decision maker must approach a matter with an open mind that is free of prejudgement and/or prejudice. It is a widely known fact that the bias rule originated from the courts but has over time become a rule of universal application.[23]  The application of the rule against bias find its place in a vast array of decision making forums, these include; tribunals, inquiry panels, government ministries and even private arbitrators.[24]
There has been evidence to support the long standing nature of the concept of the bias rule. In fact as early as in the seventeenth century where such a conflict of interest was regarded by English courts “against right and justice and against natural equity”.[25]
The principle upon which the bias rule is founded in more recent times can be traced to Lord Hewart’s famous statement that “...justice should not only be done, but seen to be done.”[26] This precludes that the appearance of justice being done is almost as important as justice being done. [27] The importance of the bias rule has become increasingly linked to public confidence in the courts and other forms of decision making tribunals to which the bias rule applies.[28]
The issue on bias has been dealt with in the Kenyan judicial system in high profile case of Philip K. Tunoi & another v. Judicial Service Commission & another [2016] eKLR.

9.     Honesty
Advocates are expected to be the officers of the court. They must act competently and diligently. They are expected to honest and frank during the court proceedings. They should not knowingly mislead the court by providing false or inaccurate information. The Advocates Practice and Etiquette rules clearly state that an advocate should not practice any deception on the court.[29]
The Advocate must at all times maintain the highest standard of honesty and integrity towards the court.[30] This is in accordance to rule 12 of the LSK Code of Conduct and Ethics for Advocates[31]
Advocate must advice client not to lie to court
In the event that a conflict of duty arises where a defendant informs you as the Advocate that:
  1. They have lied to the court.
  2. Arranged for another person to lie to the court.
  3. Have falsified a document which has been tendered to the court.
  4. Arranged for another person to falsify the document which has been tendered to the court before a judgment or decision has been laid down.
The practitioner must;
Give advice to the client that the court should be informed of the lie or falsification and request the authorization to inform the court.
Adamantly decline to take part in the case unless authorized by the client to disclose to the court the lie or falsification. However, in the event that he declines to take part in the case, he must maintain confidentiality between him and the client and cannot inform the court of the lie or falsification.[32]
An ideal lawyer, as a prosecutor should never act to achieve a conviction at all costs but to assist the court and to put the evidence before the court that would assist in meeting the ends of justice. An ideal lawyer should not harbor vendetta, prejudice or ill will against an accused person. His main job is to assist the court achieve the ends of justice. He should never conceal evidence or legal provisions that favor the accused person. As an advocate you are regarded as an officer of the court so you should be willing to help the court in making its decision even if it will mean doing the work designated for your opponent.[33]



[1] Court decorum retrieved from http://www.lawlibrary.co.za/professionalupdate/2009/10_01/courtdecorum.pdf
[2] Conduct in Court: Etiquette when Addressing The Court retrieved from www.jambar.org/index.php
[3] At p. 331, Ch. 35 – Courtesies and Traditions
[4] From Wikipedia, the free encyclopedia Greetings in court ,retrieved from https://en.wikipedia.org/wiki/Greeting 
[5]Section 12 3(b)
[6]A judge’s view: things lawyers do that annoy judges; things they do that impress judges
[7]http://kenyalaw.org/kl/index.php?id=1940
[8]JenineGiorgenti  how to dress for success  https://howtodressforsuccess.wordpress.com/
[9] Section 142 of the law society of Kenya code of conduct and ethics.
[10] 309 So. 2d 17 (Fla. App. 1975
[11] Petition 33 of 2013 KLR
[12]As per a circular on judicial dress code No. CJ 90
[15] In re Judicial Misconduct, 632 F.3d 1289 (9th Circuit. 2011)
[16] David A. Golden; Humour, the law and Judge Kozinski’s Greatest Hits, 1992 BYU L, Rev.507
[17] Marshall Rudolph; Judicial Humour: A Laughing Matter? 41 HASTINGS L.J 175 (1989)
[18] E.B White, Some Remarks About Humour, in THE SECOND TREE FROM THE CORNER 165, 165 (Harper & Row Perennial Library 1st ed 1965
[19] It has been observed that chewing tobacco leads to unusual fact patterns in legal suits. Some of the funnier instances include; Bruce vs. Ray [2009], Smith vs. Gardner [1998]. More locally, it has been observed that civil suits more so those relating to divorce have their fair share of humour.
[20] This has been witnessed in such instances where the court in passing its decision, it employs such a style of literature that passes its decision in a humorous manner.
[21] In English law, natural justice is technical terminology for the rule against bias (nemo iudex in causa sua) and the right to a fair hearing (audi alteram partem).  While the term natural justice is often retained as a general concept, it has largely been replaced and extended by the general “duty to act fairly”.
The basis for the rule against bias is the need to maintain public confidence in the legal system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias is very difficult to prove in practice while imputed bias, once shown, will lead to a decision being void without need for any investigation.
The right to fair hearing requires that individuals should not be penalized by decisions affecting their rights or legitimate expectations unless they have been given prior notice of the case, a fair opportunity to answer it, and the opportunity to present their own case. The mere fact that a decision affects rights or interests of another is sufficient to subject the decision to the procedures required by natural justice.
This right to fair hearings is so fundamental in the modern world that it is included in international law. Article 6(1) of the European Convention on Human Rights guarantees the right to a fair hearing; further the right to fair hearing has been termed as the ‘corner stone’ of the American legal system.
[22] Ibid
[23] ibid
[24] See Gilles v. Secretary of State for Work and Pensions [2006] 1ALL ER; Grant v. Teachers Appeals Tribunals (Jamaica)[2006] UKPC 59; R v. Cough [1993] UKHL 1; Webb v. R [1994] HCA 30
[25] Day v. Savadge [1792] Engr 643; (1614) HOB 65. In that case, an action in trespass was heard by the city officials against whom the claim was made.  The decision was overturned by reason of the inherent conflict that the city official faced.
[26] R v. Sussex Justices Ex p McCarthy [1924] 1KB 256 at 259.  In the same year, Atkin LJ similarly remarked that “[N]ext to the tribunal being in fact impartial is the importance of its appearing so.” Shrager v. Basil Dighton Ltd [1924] 1 KB 274 at 284.
[27] Ibid
[28] In Belilos v. Switzerland [1988] ECHR 4; (1998) 10 EHRR 466 at 67 where the European Court of Human Rights explained that the bias rule, as it arose from Art 6 of the European Convention of Human Rights, was based upon the importance of “the confidence which must be inspired by the courts in a democratic society”.
[29] Advocates Practice and Etiquette Rules 1988
[30] Article 2, IBA International Principles on Conduct for the Legal Profession (May 2011).
[31] LSK Code of Conduct and Ethics for Advocates available at www.lsk.or.ke/.../LSK-CODE-OF-CONDUCT-AND-ETHICS-FOR-ADVOCATES-
[32] Section 36, Advocates Practice and Etiquette Rules 1988.
[33] Britt, D. Court Room Etiquette, How to behave in Court, The Etiquette issue; Legal and Criminal Justice, April 2013 available at http://source.southuniversity.edu/courtroom-etiquette-how-to-behave-in-court-132066.aspx

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