Over the years, I have been asked by a number of law firms to outline to their junior staff the “rules” as to how counsel should behave in Court. There was considerable enthusiasm by the recipients and it was plain that this was a gap in their legal and professional education.
I say “rules” because there were none that could readily be ascertained. At most there was best practice which could be passed down by senior counsel by example. Judges have not generally been forthcoming in articulating their expectations.
That is – until now. In July there was published by the Courts of New Zealand a document entitled “Guidelines for Courtroom Conduct for Counsel”, which has been endorsed by the Chief Justice and Heads of Bench. This is greatly welcomed and is compulsory reading for all who practise in the Courts. Much of it is self-evident but that does not detract from its importance, whether it has been previously known and observed by particular counsel or whether it reveals what was not known.
The Guidelines commence with a statement of the obligation of counsel to show respect to the Court (including Court Registry staff) and its processes and to all persons in the Courtroom. Significantly, it also stated that counsel are entitled to expect that Judges and Court staff will likewise treat everyone, including counsel, with respect. This last point is no doubt intended to meet the not infrequent complaints by lawyers of Judicial intolerance.
I welcome the direction that Judges in Court are to be addressed as “Your Honour” (or the Maori equivalent – e te Kaiwhakawa/Tiati) and not “Judge” and, to be phased out, the common practice of “Sir” or “Ma’am”. For myself, I have deprecated the latter and always used “Your Honour”, something that I picked up while practising at the New South Wales Bar where “Sir” was considered discourteous and unacceptable. The term “Judge” is reserved for social occasions. I recall attending a law dinner when I was recently admitted when, in a group discussion, a senior lawyer called His Honour Justice Reginald Hardie Boys as “Reg” and was severely reprimanded by the Judge.
There is next a section on Court dress. Appropriate dress is said to be a dark suit with a plain or striped collared shirt and tie in the case of men and a striped blouse (not required to be collared or buttoned to the neck) or plain dark clothing (including a dress) and jacket in the case of women. Suit coats and jackets are required to be buttoned when counsel stand to address the court. In this respect, I recall appearing in the Court of Appeal as junior to Ted Thomas as he then was shortly after returning from study and teaching at Cambridge. The Court included Justice Haslam who I had shown around Cambridge when he was visiting. At the morning adjournment, after the Judges had retired, the Registrar approached me and said: “I have a message for you from His Honour Justice Haslam”. I anticipated that the message would constitute an acknowledgement of our previous acquaintance but no, it was: “His Honour would appreciate it if you did the buttons up on your jacket”!
Gowns are required for hearings in the Employment Court, Court Martial, High Court (other than matters in Chambers), Court of Appeal and Supreme Court as well as jury trials in the District Court (but not trials before a Judge alone). Culturally required headwear may be worn in court but, regrettably, the restriction on barrister’s wigs to ceremonial occasions remains. I was disappointed when wigs were abolished for court appearances as I believe that they added a desirable degree of formality to court proceedings.
Food and drink may only be taken into court if packed in a bag and not consumed there. The prohibition on returning from an adjournment with a cup of coffee and placing it on the Bar table therefore remains.
Electronic devices (laptops, iPads, mobile phones) may be used in Court provided that their use “does not undermine the dignity of the court, disrupt the proceedings or prevent the discharge of [counsel’s] duties to their client.” Sound recording is not however permitted in the courtroom including for the purpose of electronic notetaking using artificial intelligence or otherwise. The
Guidelines are silent on the practice of seeking the Judge’s permission to persons in the Court other than counsel taking notes of evidence.
Seating arrangements and bowing are also addressed. When the Court is sitting, counsel should bow when entering and leaving the courtroom. Consistently with the term “Inner Bar”, King’s Counsel have priority at the front row with the most senior seated at the right end and thereafter in order of seniority. What is not addressed is the priority which Crown Counsel in practice have been accorded in the seating arrangements.
When a case is called, counsel are required to introduce themselves and junior counsel prefacing their name with Mr or Ms but the use of professional or formal titles (Dr, Professor, Sir, Dame, Lady) is not to be used. When I was first admitted to the Bar, the convention was that a Judge was presumed to know the name of counsel and so a formal introduction was not required. I would have thought that, particularly with Registrars taking a note of appearances before the Judge enters and providing that note to the Judge, King’s Counsel and senior litigators who appear often in the courts should be able to continue to rely on that convention.
Counsel are required to wait to speak until they are invited by the Judge to do so, including after any adjournment. In my observation, this has not been commonly observed when a Judge enters the court after an adjournment. In my view, counsel should not assume that he or she can just carry on from where he or she left off at the adjournment as there may be matters that a Judge or other counsel wishes to raise. Only one counsel may stand at a time so that a counsel who is on his or her feet when an opposing counsel rises to raise a matter or to make an objection, the first counsel should sit while that occurs.
Counsel may converse with their co-counsel while the Court is sitting “provided this is not distracting or disruptive and does not undermine the dignity of the court”. I would add to that “and while the Judge is talking”. I was impressed when witnessing a New South Wales Judge who was delivering a trial ruling stopping and, addressing two lawyers in the courtroom who were talking, said: “Do not speak while Her Majesty’s Judge is delivering a Judgment”. This is reflected in the Guidelines expressly by the stated requirement that counsel should remain silent during a ruling or judgment. The long-standing practice of counsel stating at the conclusion of a ruling or judgment “As Your Honour Pleases” or “Thank you, Your Honour” is preserved.
The use of the term “my learned friend” is to be phased out in favour of “my learned colleague” (is nothing sacred?). Alternatively, the terms “counsel for the plaintiff/defendant” or their Maori equivalents can be used. Co-counsel should be referred to as “senior [junior] counsel for the plaintiff, Ms. X”.
The convention of not leaving the Judge in a courtroom without at least one counsel present is retained.
Remote hearings are addressed. Counsel appearing remotely must remain seated and visible throughout the hearing and, unless the hearing is in Chambers, must be gowned. This is clearly intended to avoid the situation reported in America of counsel being seen to be naked or in pyjamas. What is not addressed is a situation that I found myself in on one occasion when attending remotely from home when my cat leaped on to the desk and walked in front of the computer.
As stated above, these Guidelines are welcome and fill a gap that previously existed.
James Farmer KC
26 August 2026