Introduction
One of the most challenging aspects of my job, even after almost 30 years of practice, is to manage the expectations of my clients. They are heavily influenced by their own set of friends, family and the media, believing that what they see about lawyers on American shows and movies should be the way it is her. I always burst their bubble when I tell them our justice system is nothing like that. No gavels, no lawyer wigs (that’s an English tradition, anyway), and no yelling and screaming at the judge, the opposing lawyer, or the opposing party. Well, almost never. Alas, we are human, too.
I confess to my clients, and now to all of you, that one of the best aspects of my job is the civility and professionalism that lawyers exhibit with one another and with the court. As the last decade or more has shown the world, we are clearly lacking in decorum and propriety. Some people think such terms are archaic, and for some, even a vestigial bastion of white colonialism. I respectfully disagree. It is simply establishing a proper manner in which to conduct oneself, a list of rules to live by. I recognize not everyone likes having rules, and not everyone likes playing by the rules. But without rules, we will inevitably descend into riots, lawlessness and anarchy, and as a lawyer, there is nothing I detest more than a dystopian society. We are not animals, but rather, we are human beings who think, rationalize and can solve problems without resorting to brute force and “might makes right” ideology.
This blog will be about some of the rules of professionalism that we exhibit in court that may seem and sound strange to outsiders. Let me pull back the curtain and explain to you why we use the terms we do, why we act the way we do, and even why we dress the way we do in those “funny-looking vampire robes” as some have called them. I will help you understand the system a little better, and perhaps appreciate that we are not barbarians looking to fight to the death to see who wins.
A Brief History Lesson
As I am sure many people know, our legal system is based on the English common law system, a system that is many centuries old. As with anything old, some of the rules and practices may seem out of date, but it had a place when it was considered and implemented. For example, we have implemented a system where resolve our disputes in a neutral setting (a courthouse), with a trier of facts and law (a judge), and with the option of each party having someone speak for them (a lawyer or representative), as illiteracy was a real and common concern (it sometimes still is).
The judge sits in between the two parties, usually on an elevated stage. This is to show that the judge is neutral and will not be “in the fighting arena” with the parties and their lawyers. This was, and still is, such an important duty. In centuries past, a judge was a representative of the Royal Family (the King or Queen) which governed the country. It was seen as an “honour” to be chosen by the royals to try cases, as opposed to being part of the royals themselves, who were seen as governing “by the grace of God.” This is why we use the term “your Honour” to refer to judges.
I am often asked why we do not juries in family law cases. Good question. We simply don’t, as the issues between the parties arise out of very private matters and ought not to be judged by the common folk, of whom a jury is comprised, and in such a public forum. If we had juries in family law trials, it would simply be “too many cooks in the kitchen.” The ultimate resolution in family law cases used to be whether the parties would be granted a divorce. Only a judge can decide whether the legal test for a divorce is met. The other issues, such as support, decision-making, parenting time, etc., are commonly referred to by judges and lawyers as “corollary issues.” These issues can be, and are often are, resolved by the parties themselves, and do not need a judge to resolve them.
A judge does not sit alone in the courtroom twiddling his/her thumbs. They require lawyers, or the parties themselves, to present their case. Lawyers (and judges) are required to wear black robes, a use that goes back nearly 500 years. There were several practical reasons for wearing these robes, including keeping warm on cold days, differentiating oneself from the “common folk” (clients), having a pouch sown on the back of the gown allowed for clients to pay their lawyers privately, without the seeming “vulgarity” of having to ask for and exchange money with the client for the services they rendered. We now keep the tradition of robes for other, more noble reasons – it allows the public to feel confident that all lawyers are seen and treated by the court as the same, as we are all dressed the same, and not pre-judged by who has the more expensive wardrobe.
Lawyers are often referred to as “counsel” as we provide advice to our clients. Between lawyers ourselves, we often refer to each other as “our friend,” or “our learned friend.” That terminology sometimes draws the ire of some of my clients. But I explain to them, as I explain to you now, that we recognize and respect the work that each of us has undertaken to go to law school, complete our articling experience (our “apprenticeship” program), our preparation for and completion of the bar exam, and our eventual “Call to the Bar” as licensed lawyer members of the Law Society of Ontario.
As such, we are colleagues, and so we refer to each other in court as “my friend.” If the opposing lawyer is more senior to us, we sometimes refer to them as “my learned friend.” (This used to be reserved for select experienced and specially appointed lawyers, but we have long done away in Ontario with “Queen’s Counsel” or “King’s Counsel.”) The cases we take are not supposed to be personal to any of us, so we can be courteous and professional with one another. We have dictates, set out by the Law Society of Ontario’s Rules of Professional Conduct, that bind all of us to behave professionally. That means no yelling at, fighting with or swearing at one another, at the opposing parties, or at the court. We stand up and bow, out of respect, for the judge when they enter and exit the courtroom, or when we enter or exit the courtroom. We address the judge as “your Honour” and use polite, but where necessary, firm language, in our communications in court. And even after the case is done and we may not have been successful, we say “thank you” to the judge and to our fellow counsel. We do this because, as lawyers, we are also “Officers of the Court.” This means we have obligations not just to our clients, but to the court itself – we must “play fair,” act properly, speak clearly, and to hold ourselves to a high level of decorum and accountability, so we do not bring the administration of justice into disrepute.
Along this line of reasoning, I often must explain to my clients that we are not supposed to “ambush” the other side. We must share disclosure and prepare for trial in an informed setting. We do not prepare with the other side in a collaborative setting – after all, it is still adversarial – but must play by the rules of court and we cannot sneak things in at the last minute. Once again, the “gotcha” moment son American moves and TVS shows is very dramatic, and our courts are seldom that exciting. Nor should there be. It’s not meant for other people’s entertainment.
I also tell clients that I cannot take advantage of an inexperienced lawyer, especially if I know they have made a palpable error or miscalculation. Our reputation is then called into question in both the smaller legal community and then greater one, especially if I am “called on the carpet” by the LSO for what we refer to as “sharp practice. I take my integrity and my public reputation seriously in the legal community seriously, and I will not ruin in one minute that which I have taken 30 years to establish, just to gain an unfair advantage in court. I will always act ethically, and if I am asked by a client to do otherwise, I will immediately fire that client. In fact, IO say exactly this in my initial engagement/retainer letter with clients. I would be naïve to say that all lawyers act in this manner, but I can only control my words, my actions and my behaviours. I won’t lie and say I have not pushed the boundaries at times – alas, I am human, too, as I said earlier in this blog – but I will not ruin my career for a client/case.
Finally, I tell my clients that I must also present myself in a proper manner to the self-represented litigant. We do not refer to a self-represented litigant as “my friend” but we must still be respectful and professional, even when we do not receive the same level of courtesy from them. I refer to them as “Mr.,” “Ms.” or other such “honorifics.” I do not call them by their first names in or our court, and especially not in court, and I must often remind self-represented litigants to refer to me as Mr. Runco, and not as “Carm.” I demand this when addressing me in person, in court, or in any correspondence with them. They are neither my friend nor my colleague, and unless we have agreed to call each other by first names out of court, this level of mutual respect usually leads to better outcomes. It reminds them that this court case is not personal to me, but rather, it is my business/vocation.
As such parties are not bound by the same rules that I am bound by as a lawyer, I must be aware to not to let my guard down, and to not “play in the mud” when my opponent tries to drag me there. It is why I demand that any communications be in writing, so there’s no misunderstanding of what either of us have said; that any conversations be in open court and not in a closed environment; and finally, that they be given an opportunity to speak with a lawyer of their choice, or with an advice or duty lawyer at court, so that they and the court do not think I have “pulled a fast one” on them. To paraphrase the former First Lady of the US, Ms. Michelle Obama, “when they go low, we go high.”
Conclusion
After reading this blog, I trust that you have a better appreciation of the rules and responsibilities that lawyers have to protect the institutions in which we practice. We try our best to present ourselves, our clients, and our clients’ cases in a professional and courteous manner, and we expect the same from others. I know people sometimes equate family court to the Jerry Springer Show, the Maury Povich Show, or even Judge Judy. Those are TV shows, i.e. it’s a form of entertainment. And even if some of the issues addressed in those shows are tangential to family court issues, lawyers have an ethical obligation to not let our family courts devolve into such a circus atmosphere. We know better than to do so, and so we must act accordingly. That is why I say a prayer every morning, known as the St. Thomas More Prayers for Lawyers. It is set out below. Please pay particular attention to the last line. It’s a constant reminder.
St. Thomas More, counselor of law and statesman of integrity, merry martyr and most human of saints.
Pray that, for the glory of God and in the pursuit of His justice, I may be trustworthy with confidences, keen in study, accurate in analysis, correct in conclusion, able in argument, loyal to clients, honest with all, courteous to adversaries, ever attentive to conscience.
Sit with me at my desk and listen with me to my clients’ tales.
Read with me in my library and stand always beside me so that today I shall not, to win a point, lose my soul.