Appearing as counsel

Explain the adversarial process

Take the time to ensure that your client understands how the adversarial process works. Your client must understand that litigation involves risk, and even if the client believes that the cause is just, the result might not be to his or her liking. The client should also be aware that litigation is costly, and that there is a risk that they may have to pay costs. Take the time to explain the concept of cost awards to the client. If, throughout the retainer, the client is pushing you to behave unprofessionally, remind the client of possible cost sanctions.
In some instances, the best course of action will be for the client to settle the case. It is well known among lawyers that most filed cases settle. Be sure to explain to your client why cases settle, and have a frank discussion as to why and when settlement is desirable. This conversation is a natural fit with a discussion about costs. Also explain to your client your obligation to advise and encourage settlement whenever it is possible to do so. (see rule 3.2-4 of the Code of Conduct). The discussion about settlements also relates to other communication matters raised in this course, such as explaining to the client that you need to communicate in a civil manner with the other side, and the role of undertakings.
When your client comes to you, he or she may have preconceived notions about litigation. Those notions might be misguided. You are inviting complaints if you do not take the time to educate your client and keep them well informed about how the court process works, how settlement operates within the system, and the issue of costs.
When engaged in litigation, a lawyer needs to be alert to his or her professional obligations to the client, the court, the state, and to other lawyers. Educating your client about the litigation process is important for managing your client’s expectations. Taking the time to explain the ground rules allows the client to understand why you are conducting matters in a certain fashion, and lets them know what to expect. Something as simple as the client not understanding why you bow to the judge, or refer to the opposing lawyer as “my learned friend”, can create problems.

 Role of the court

Your client needs to understand the role of the court. A client might believe the job of the judge is to pronounce the result the client desires. Another client, perhaps for cultural reasons, might not understand the role of a judge in Canada. Take the time to explain the role and powers of a judge in general, and in the client’s context in particular. For example, in a custody dispute, you should explain both the procedural role of the judge as well as the court’s duty to take into account the best interests of the child.
You may have to explain to some clients that a judge has the jurisdiction to govern conduct before the court, including matters such as contempt and conflicts of interest before the court. Section 5.1 of the Code speaks to the role of lawyers before courts and tribunals and on the role of the lawyer in adversarial proceedings.

Communicating in court

These are some simple rules for communicating professionally in court. These observations are intended to supplement the duties contained in the Code of Professional Conduct:
  • Unless you are physically unable, stand when you are addressing the court.
  • Stay seated when opposing counsel is addressing the court.
  • If you have an objection, rise, state the objection, then sit down.
  • Communications between counsel should be directed to the judge. It is bad form to turn to opposing counsel and engage in a conversation.
  • Do not make personal attacks upon your opponents.