Chapter 8 Addressing the Judge

A judge is not a jury. A judge usually requires different treatment.

Contrary to some silly rumours, judges are usually wise, excellent lawyers, very experienced trial advocates, and fair.

Assume this to be the case.

In fact, it is usually a good idea to find out about your judge. Ask the usher what mood she is in. Ask in the robing room what she is like. Learning about your tribunal is part of your job. What you discover can be used to the advantage of your case, and can hone your address all the better to fit the judge's expectations.

Some advocates start with the belief the judge will be slow, perhaps other worldly, even daft: this is crazy advocacy. It annoys the judge and so you lose precious respect. It makes it more difficult to persuade the judge because now you are likely to be ignored, as it might be thought to be a loss of face for the judge to agree with you.

Understand the judge's need for formality. Don't fight it.

Judges occupy a formal position in society. They have enormous power within the law. They can separate families, they can change lives with jail sentences, they can imprison witnesses (and advocates) for contempt, and they can seize huge sums of money and freeze assets. Within society's pecking order, they are by necessity in a higher position in their court to all around them, and rightly so. Quite literally, they sit higher than those around, on the Bench. Their important status is carried and made accessible by formality. There can be no other way. There should be no other way.

So a judge must be approached with:

RESPECT and

DEFERENCE and

POLITENESS.

You can disagree, but always with deference.

You can agree, but not casually - instead, always with politeness.

You may not see eye to eye.

But

never,

never,

never,

forget respect.

Ever!

She is in charge.

For example, don’t ever say, as I have sometimes heard said, ‘I hear what you say’ - it means you get the point, disagree with it, and think little of it - you will be blown out of the water, rightly so.

If the judge senses you do not respect her, you will not be persuasive, which is your job, so you will not be doing your job properly.

And furthermore, do not address a judge as ‘you’ - it is always ‘your Honour’, or ‘your Lordship’, or maybe ‘your Worship, possibly even ‘your Grace’- get the right terminology, and do not be over-familiar by saying things like: ‘what you said was’... no, it is ‘what your Honour said was...’

And if referring to another judge, it is not: what she said was - it is ‘what her Honour said was.’

This may sound pernickety, but it is quite important, and effective - done right and the Judge will respect that your respect her - done wrong, and the Judge will think you a rank amateur.

Submissions should be BRIEF.

The judge will see the point. It does not get better by banging on and on.

Little more need be said on this.

Remember it.

Full stop.

To a judge, a point need only be made ONCE.

Be sure however the point has been heard and understood.

EYE CONTACT will tell you if the judge has the point.

So too will the movement of the JUDGE'S PEN - watch the pen, or fingers on keyboard, to see that what is being submitted is being written down, and do not race ahead of the speed of the pen when making your submission.

And don't keep repeating the same point as it will not get more persuasive by repetition.

Of course, what is permissible is to come at the same point from different angles - although arguably this is in fact making different points.

‘The car was travelling too quickly,

It certainly was not travelling slowly,

It was speeding far above the speed limit,

Travelling way too fast for the amount of traffic on the road.'

This all says pretty much the same thing - four times - that the car was too fast - but in different ways.

In a submission, your OPENING PARAGRAPH SHOULD BE REHEARSED.

It should capture neatly and succinctly the overall point you wish to make, and why. It should be a clear summary of your position.

After your opening paragraph, provide the judge with a structure for the detail of your submission. List the areas you will cover. Allow her time to write the areas down. Watch the pen.

Now take her to each area, and begin each area with a clear summary of it.

Then the detail.

SUMMARY, THEN DETAIL.

Remember that if the judge can follow your argument easily, this gives you respect and will help make you persuasive.

And what helps the judge to follow the argument is an opening clear summary. It provides a MAP. Judges love maps. With a map, they will understand where you are going and why. You become easier to understand. And if you are easier to understand, you may become dangerously close to being irresistible.

DO NOT ASSUME YOUR JUDGE KNOWS ALL THE LAW,

....OR EVEN ANY OF IT.

Remind her of it. Do not be afraid.

Slowly.

Refer to the authorities - slowly.

Read the relevant sections of statute - slowly.

Make sure your judge is on the same page, at the same paragraph, at the same word.

Pause, and allow the judge to arrive at the same point as you.

So many submissions are hurried, perhaps out of fear the judge will think she is being wrongly taught to ‘suck eggs', or out of simple nervousness.

But remember JUDGES ARE PEOPLE, NOT MACHINES. They cannot know everything in the law.

Sometimes a judge's recollection of a former case is just slightly inaccurate, in a material way which is highly relevant to your case.

I’ve said earlier judges can be assumed to be excellent lawyers. Now I’m saying don’t assume they know the law. Some may think I’m contradicting myself. I’m not. A judge cannot be assumed to know the letter of every statute and the precise ratio of every case. So much in a legal argument can turn on the precise words. What you can assume is that judges, as good lawyers, will be very able at absorbing the implications of the precise words. And they will usually thank you for reminding them. They will usually know quite a bit about the area under discussion. But it is best for the advocate to proceed on the assumption the area is new to the judge, and in this way, you will not make the mistake of assuming the judge knows a point of detail which in fact she does not, is then embarrassed you have assumed she does know it, and is now in danger of losing face, and so inclining against your argument to preserve her dignity.

And you will be helped by the judge if the area is really very well known to her - she will tell you - so you need not worry that she might think it unnecessary to remind her of the law - if there really is absolutely no need, you will be told. At the same time, you can rely on your judge to be fair- minded, so she will often quickly point out the areas which are new to her.

Just sometimes, oh just occasionally, very seldom indeed - but yes it does happen - your judge might actually...well...be completely wrong on the law, or on some fact, but think she is utterly and completely right.

Oh dear - you have to find a way of correcting her, without causing loss of face, while not rolling over to remain popular with her, and so sell your client down the river, and yet not lose respect by picking a fight, on what the judge thinks is a bad point, but you know is not, yet you risk your credibility to correct her.

So, it is now that you need the cunning of Iago, the pluck of Lady MacBeth, the silver tongue of Henry V, and the chutzpah of Mark Anthony. Do not stand mute like Hamlet - you must step into the fire, and weave your words with care, self-effacement, some flattery, perhaps even just a smidgen of humour, guided always by the thought you wish to assist rather than fight.

Imagine you stand alongside her, showing the way, as a caring guide, rather than stand in front of her, telling her what's what, as an authority.

You are not the authority, she is, so help her to get it right.

When addressing a judge, remember to try to see the overall position from her point of view.

I have mentioned this before - it is one of the three beacons - but it is so important, I could mention it on every second page.

From the point of view of the judge, always, you are there to ASSIST. And a judge will value your assistance. She will want to understand your argument, even if she will disagree with you in the end.

Don't rush, don't hide, stand solidly, reassured by the knowledge that with politeness, deference, a slow delivery, one point at a time, assuming the law to be new to the judge, perhaps with a good, short skeleton, and above all with respect, just about every judge will listen courteously and with approval.

And if listening, you are more likely to persuade her.