Little Mistakes Lawyers Make in Courts and How to Avoid Them
The job of a lawyer is indeed, a very highly professional one with several expectations from many quarters. When lawyers appear in courts, there are several areas in which they are not expected to faulter. Unlike footballers, the field of play for a Legal Practitioner is the court and the viewers are his clients, his client's adversary or adversaries and his or their lawyer(s), the judge(s), other fellow lawyers (learned colleagues) that are in court, and sometimes, members of the Fourth Estate of the Realm (the Press) who may be in Court to cover the proceedings. For the purpose of this discourse, we shall highlight some of the little mistakes that lawyers make in court and how to avoid them below:
1. The Use of the word "You" while addressing a Judge(s)
It is very wrong for a lawyer to refer to a judge(s) as "you" while addressing same in the open court. No matter the out-of-court relationship or familiarity with a judge(s), great respect must be accorded to same while in open court. During Court proceedings, it is common to hear lawyers when addressing a Judge say things like, "You directed all the parties to file their processes as at the last adjourned date". This is absolutely wrong as such expression belittles the position and status of the Judge(s). When addressing a Judge(s) in Court, the appropriate expressions include, "This Honourable Court", "Your Lordship(s)", " My Lord(s)", "Your Worship(s)", "Your Honour(s)". For example, instead of telling a judge that "You directed all the parties to file their processes as at the last adjourned date", the appropriate thing to say is, "This Honourable Court" or "Your Lordship(s)/My Lord(s)" or "Your Worship(s)", or "Your Honour(s)" as the case may be, "directed all the parties to file their processes as at the last adjourned date". The point I'm labouring to make clear here is that in no circumstance should a lawyer while in court address or refer to a judge(s) as "You" even if it is an inferior court.
2. The use of the words "with all due respect" while announcing appearance in courts
It is very common to see lawyers even the very old ones at the Bar announce appearances in court in the following words, "With all due respect to my Lord, I am S.O. Akobe, Esq. I humbly announce my appearance for the Applicant!" Is there something wrong with this mode of announcing appearance in courts? How about, "With due respect to this Honourable Court, S.O. Akobe, appearing for the Applicant? Any problem with this? Yes! As beautiful and weighty as they may seem, the use of the words "with all due respect or with due respect" in these two highlighted examples of announcing appearance in courts, is what marred the whole thing. The expression "with all due respect or with due respect" as the case may be, is usually used when one wants to disagree with a position, assertion or argument. It can be employed in court if a lawyer intends to take a contrary view which might be opposed to that taken by his fellow Counsel or even by the judge(s) presiding over a matter in which the Counsel appears. For instance, if a lawyer on the other side has argued what you as a Counsel feel is not the correct position of the law, you can begin by saying, "With all due respect or with due respect to my learned senior/colleague, his line of submissions are highly misconceived..." Sometimes, a judge presiding over your matter may take a stand or make comments which you feel are either not correct or more importantly, appear to be prejudicial to your client(s') case or uncomplimentary to your person or status as a lawyer. In such instances, you can express your reservations, mind or view beginning with the words "With due respect to My Lord/ Your Lordship, Your Worship, Your Honour, as the case maybe, the views just expressed are not the true position of the matter." At this point, you can proceed to explain what you feel is the real gist of the matter. In all of these instances, with all due respect or with due respect only has to do with disagreeing with certain asserted postions, arguments or conclusions. The use of the words "with all due respect" is not only necessary in that regard but also very essential in order to ensure that your preferred position, assertion or reservations are clearly expressed or communicated to the court without throwing out humility to, and respect for both the court and your fellow Counsel, to the wind! However, it is a very big blunder to employ such expression while announcing appearance for a client in court. In order to avoid such blunder therefore, a lawyer must be conscious not to ever start announcing his or her appearance in courts with the words, "With due respect to my Lord...." or "With all due respect to this Honourable Court..." etc. The appropriate ways of announcing appearance in courts are as follows:
"May it please the Court, S. O. Akobe, for the State."
"May it please Your Lordship(s)/My Lord(s)/Your Worship/Honour(s) (as the case may be), my name is S.O. Akobe, and I humbly appear for the Respondent."
"Respectfully my Lord(s)/Your Worship/Your Honour(s), S.O. Akobe, for the Claimant".
It must be stated here that there is no hard and fast rule of announcing appearance in courts. In other words, there is no special or spicific format of announcing appearance in courts. But, this cannot be overstretched to accommodate the use of the expression "With due respect" while announcing appearance in courts. Thus, while there is no specific manner of announcing appearance in courts, there are specific manners in which appearance in courts should not be announced and that include the use of the words, "with all due respect or with due respect".
3. The practice of moving motions in terms
It is common to see lawyers in courts apply to move their motions in terms of the motion paper. This is good and it is allowed in practice but then, it appears many lawyers don't know when and how same is properly done. Moving a motion in terms or moving in terms of the motion paper simply means moving the motion without going through the regular formalities involved in moving a motion in court. The practice of moving motions in terms is usually employed in motions or applications that are non-contentious in nature so as not to waste the precious time of the court and the energy it saps. But, how is it done? Severally, I have seen lawyers in courts move their motions up to the level of adopting their written address as their argument in support of their motion only to end up saying, "My Lord(s)/Your Worship/Your Honour(s), I humbly apply to move in terms of the motion paper"! With all due respect, this is not correct. Just like I earlier said, the essence of moving motion in terms is to save time and energy in noncontentious applications. Thus, if you as a Counsel go as far as adopting your written address in the process of moving your application in court, what time have you saved the court and what energy have you preserved? The misconception that bedevils many lawyers in the process of moving motion in terms is the assumption that moving motion in terms connotes "moving an application in full without adumbrating same". Adumbration is not compulsory in moving applications in courts except where a Judge(s) requests a counsel to address him/them on certain issues arising from the application. So, to hold the view that moving in terms is to move a motion without adumbrating or making further oral submissions, is clearly a very wrong position. Having said this, how then can a motion be moved in terms? It is very simple. To move in terms, a lawyer simply introduces the motion to the court, stating the date on the motion paper and the date the same was filed, and then, sits down in order for the court to hear from the Counsel on the other side as to whether he would be opposing the application or not. If the other Counsel expresses his intention not to oppose the application, the Counsel who filed the application will proceed to address the court in the following manner or words similar to that: "My Lord, this application being a noncontentious one, I humbly apply to move same in terms of the motion paper, more so as my learned friend (i.e. Counsel to the Respondent(s) is not opposing the application. We are most obliged!". That's all! The Counsel is not expected to further say things like, "Our application is brought pursuant to...and is supported with...paragraphs affidavit deposed to by one...with exhibits... annexed thereto...We rely on all the paragraphs of the said affidavit. In compliance with the rules of this Honourable Court, we also filed a Written Address...We adopt same as our argument in this application..." No! Once a Counsel has gone this far while moving an application in court, it will be a grave summersault to say that he wants to move in terms of the motion paper! This is because by moving in terms of the motion paper, a Counsel simply pushes the duty of getting the details of the application as contained in the motion paper to the Judge. These details include the Order and Rule (s) of the Court upon which the application is brought, reliefs sought in the application, the number of the paragraphs of the supporting affidavit and the details of the deponent thereof, including annextures thereto (if any), as well as the argument in the written address. Most times, in line with the purpose of moving motion in terms which is to save time and energy in noncontentious applications, the Court will not bother going through all these details. The court in that instance, will simply look at the prayers in the motion paper and if they are grantable, the court will simply rule, "Ordered as prayed!".
*To be continued...
S.O. Akobe, Esq., formerly with N.O.O. Oke (SAN)& Co. Ibadan, is currently a State Counsel with the Kogi State Ministry of Justice)