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:
- They have lied to the court.
- Arranged for another person to lie to the court.
- Have falsified a document which has been tendered to
the court.
- 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
[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
[13] Etiquette Guidelines for council in court, May 2009, https://www.courtsofnz.govt.nz/going-to-court/practice.../Etiquetteguidelines.pdf
[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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