Chief Justice Bauman comments

By The Honourable Chief Justice Robert Bauman

I have been invited to provide some comment from the Bench on what is expected of articled students, when it is appropriate for a student to appear in an advocacy role, and how a student might best prepare for a court appearance.

Many of the following observations may seem obvious or trite. But from some of the things that occur in our courtrooms, it is evident that not everyone who appears before us understands what is expected or appropriate.

WHAT DOES THE COURT EXPECT OF ARTICLED STUDENTS?
Generally speaking, what judges and masters expect of articled students appearing in court is really no less and no different than what we would expect of lawyers who appear before us.
Articled students who appear in court should act with professionalism and integrity, and must never mislead the court.
Articled students should be well prepared for appearances before the court. They should be thoroughly conversant with the pertinent facts and relevant law. And they should be respectful of the court, the parties, and the process.

WHAT KIND OF MATTERS SHOULD ARTICLED STUDENTS APPEAR ON?
Formerly, Law Society Rule 2-43 enumerated the specific matters on which an articled student could appear in Supreme Court: uncontested chambers applications, contested applications on limited procedural matters, and hearings before the registrar.
The starting point for Law Society Rule 2-32.01 is quite different.

Subject to some limits, an articled student may provide all legal services that a lawyer is permitted to provide, so long as the student’s principal or other practising lawyer ensures that the student is competent to provide the service, is supervised as the circumstances require, and is properly prepared.

Rule 2-32.01 puts considerable onus on lawyers supervising articled students. As it pertains to court appearances, the rule makes it incumbent on the supervising lawyer to ensure that the scope of representation a student takes on is commensurate with her or his abilities.

Quite apart from the specific limits set out in Rule 2-32.01(2), there will undoubtedly be some matters on which a student should not appear, and it will be incumbent on supervising lawyers to discern these.
For example, a student should not appear in court on matters where it can reasonably be expected that during the hearing or appearance, the exercise of experienced professional judgment will be required.

PREPARING FOR COURT
Articled students appearing in court must be well prepared. They must understand the factual basis of the application they are making as well as the relevant substantive law and procedural rules. Being well prepared takes diligence and care.

Part of being well prepared means being able to answer questions from the court. It is disappointing to a judge or master to ask a question of a lawyer or student appearing in court, and find that the person appearing does not know the essential factual background. Apart from it being embarrassing to the lawyer or articled student when their inadequate preparation is revealed, it can also result in wasted time and expense.

Good advocacy is based in large measure on solid and thorough preparation in advance of the court appearance. Being well prepared also engenders a sense of confidence.

In general terms, a good way for articled students to prepare for chambers appearances is to sit in chambers as an observer and see how things are done.

It is also a good idea to attend a CLE session on chambers practice or read a CLE manual on the topic.

APPEARING IN COURT
When appearing in court, articled students, like all lawyers, should conduct themselves with courtesy and respect. This describes a continuum of behaviours, including:

• being mindful that courtroom etiquette requires appropriate formality: one judge tells me of a submission she heard that if an application was not successful “the trial would be screwed.” That sort of language and informality is inappropriate;

• bowing when the judge or master enters and leaves the courtroom, standing to address the court, and introducing yourself by surname and initial and spelling your surname;

• being properly attired – ties and jackets or suits for men, business attire for women;

• being on time;

• speaking politely to the judge or master as well as to court staff and opposing counsel;

• refraining from being overly familiar with the judge or master. Comments on a judge or master’s hairstyle or clothing are completely out of line. (Yes, it has happened); and

• standing when making submissions and not interrupting your opponent. All objections or submissions are to be made to the judge or master. A courtroom conversation with the litigant or other lawyer should be in an off the record whisper.

• From the first appearance in court, an articled student should strive to build with the court a reputation as a well prepared and competent counsel whose conduct and demeanor reflects an appropriate regard for the formality and solemnity of the judicial process and the courtroom.

IN CLOSING
All judges, masters and registrars were articled students once.
We recognize that articled students are at the beginning of a learning curve, and that appearances in court can be nerve wracking and daunting.

But also remember that as an articled student appearing in court, you are participating in a legal process and a judicial system that is one of the finest in the world.

Take pride in your professional role and in the opportunity you have to serve your client and assist the court.

This article was published in the June 2012 issue of BarTalk. © 2012 The Canadian Bar Association. All rights reserved.