How Are We Judged?

As in most discords, it would take two to tangle. A confrontation in court would seldom come to a head without provocation. That much must be clear. But this book is not about what is or is not injudicious or what the judges' proper decorum should be. This is an endeavour to set out the general wants and demands of judges, whether reasonable or oppressive, that should best be, for more reasons than one, accommodated. It is not to say that no judge would conduct himself or herself exemplarily, but there have been too many lapses or infractions to the dismay and discomfort of the professions. I have been on both sides of the fence for more years than I care to remember. It is my firm belief that when a task could be accomplished without pain, it would be moronic of an advocate to be uncivil or repulsive, particularly when the pay-master's interest, not one's own, is or should be placed in the forefront. This is good advice proffered. Besides, a first rate advocate is a top performer before any judge, good, bad or indifferent. Evidently, each advocate has his or her natural flair and a personalized mannerism to suit his or her individuality and characteristics. But ways and habits need to be adjustable to withstand judicial assaults.

There are many ways to avert a head-on collision with a judge. This book does not set them all out, nor does it seek to discuss good advocacy. Only pointers for survival are given. A proficient advocate is one who will be listened to, not ignored. An irate or frustrated judge is a worse judge who would inevitably be less receptive and more irrational. A pampered judge is not necessarily a better judge, but his attitude would probably be less negative. Aggression must be restrained and defiance suppressed. Insolence should be avoided at all cost. When Justice Gleeson was Chief Justice of New South Wales, he was heard to have said:

"Stress is not something you get."
"Stress is something you give."

There is a grain of truth in what Gleeson CJ said, albeit probably spoken in jest. This is worth repeating later as a warning note.

Every advocate should strive for a warm reception of his or her arguments. After all, an advocate is engaged to win or contain damage. Lay clients' interests must always be kept at heart, not one's ego. There are at least as many ill-mannered judges as there are ill-prepared advocates, but an advocate must try his or her utmost to have the ears of the Bench. That could not be achieved by arrogance or insensitivity.