Advocacy: Insights from the Bench

When I was at the Bar, I enjoyed the practice and endeavoured to represent my clients to the best of my ability. Having crossed over to the Bench has me noticing all the things young lawyers especially, do wrong in their advocacy and I would like to share some of these to hopefully, improve the quality of advocacy in our Courts. Today, in particular, one observation I kept making with each application and Counsel appearing before me was: Most of the young lawyers seemed to be unprepared for their matter or unsure about the next step they should take. Then, the worst part of it is that they expected me to give them the answers, and tell them what to do as though we were sitting in a tutorial. 

One thing that Counsel ought to remember is that once you are admitted to the Bar you are deemed to be competent and fully able to represent your client. You are expected to be prepared and confident in the presentation of your client’s case. Confidence is 80% of litigation. You can, however, only build your confidence if you are knowledgeable about the subject matter. It cannot be overemphasised how you need to prepare for a case. The amount of preparation dictates your presentation.  An unprepared person will fail to answer the most mundane of questions. 

Confidence is 80% of litigation

So how does one prepare for a court appearance? The first step is to ensure you are familiar with the Court Record. You need to know the sequence of events, the outcome of any previous applications and the way forward. Remember, most Judges would have perused the Record before you appear and may have questions for you. So know your Record. Do a chronology chart if you have to. Have a skeleton of the applicable laws and cases.

It helps to conduct a search on the Court’s Record to familiarise yourself with the full details of proceedings and the Court’s understanding of the case which may be gleaned from the manner in which proceedings are captured and the rulings of the Court on certain issues. Conducting a search on the Record also allows you to have a better understanding of the Judge you will appear before. While the same law governs procedure, different Courts have different styles. If the matter was previously handled by another colleague take time to speak to them about the case. However, do not let their experiences mar you. Often, we are prejudiced against others not by the fault of that person but by our own.

Secondly, Counsel must develop language that is compelling but polite. This does not mean the use of flowery language, big words or Latin phraseology.  Actually, what happens in most cases where lawyers try to adopt this approach of sounding bombastic and overly learned is that they end up misusing the words. Just remember that all Court proceedings are formal proceedings. Be coherent in putting your idea across.  This can be achieved by having a few notes on the side.

Also, be confident in addressing the Court. It’s rather awkward that when you’re asked to place yourself on the record you start flipping papers as though to search for your name amongst the documents. Counsel should be able to state their name, the name of their firm or institution and for whom they appear without flipping papers. Counsel should also be able to state the business of the day when requested. Don’t give a lengthy background to the case…“What happened at the last sitting”…the Court knows that. Get straight to the point…” Since the last sitting the following developments have taken place…”. That way you will capture the attention of the Court and it will show that you are familiar with your Record.

Lastly, be prepared for whatever questions the Court might have.  This entails that you are prepared with a plan A, B and C. Where you are uncertain as to how you are supposed to proceed, the intelligent thing to say is that you did not anticipate the issue coming up and would seek some time to consult. Usually what happens is that Counsel states “I seek the Court’s guidance”. Giving you guidance on what course of action to take is not the job of the Court and it interferes with the objectivity of the adjudicator. As Counsel, you ought to be confident with the route you want to take. Go to the Court with legitimate authority-backed options. As stated above, be prepared by being knowledgeable about the facts of your case and the law.

Now, connected to this topic is the issue of demeanour. Demeanour basically relates to your outward appearance and how you behave. How you carry yourself speaks a lot about your confidence. Psychologists say that up to 93% of our communication is non-verbal. It’s the unsaid things that say the most. It’s the way you dress, the way you sit, and how you place your things on the table as you take your place. Are you able to even look at the Judge as they speak? Are you constantly fidgeting with your phone or flipping papers as others are speaking? If you’re in Open Court is your gown falling off your person? A person who is confident in what they are doing is always present and aware of what is happening. It’s very important that you work on your demeanour. Dress appropriately for the occasion. Differentiate between party and work clothes, hair and dare I say make-up (for the ladies). Remember, the job of Counsel is solemn and sober. You cannot appear in Court as if you have just come out of a bar-room brawl or you are headed to a night on the town.  If you are to be taken seriously, you must appear serious.

In conclusion, I would urge every person setting out in practice that in litigation it’s all about preparation. It’s a mind game for which you must be fully prepared.  Once you learn to properly prepare for your Court appearances litigation will be very enjoyable and thrilling. However, if you seek to drag tardiness to Court the day will come when you will wrongly convince yourself that you were not meant for it.

Lady Justice Lombe Phiri.

Lady Justice Catherine Mulenga Lombe Phiri is a Judge of the High Court of Zambia currently serving on the General List at the Lusaka High Court.  She was appointed to the Bench in November 2017. Before her appointment to the Bench, she was the Deputy Chief State Advocate for Taxation and Financial Crimes at the National Prosecution Authority (NPA). During her time with the  NPA, she served on several national and regional working groups in the area of anti-money laundering and terrorist financing. Admitted to the Zambian Bar in April 2005, she holds a Bachelor of Laws Degree from the University of Zambia and a Postgraduate Diploma in Legislative Drafting from the Zambia Institute of Advanced Legal Education. Judge Lombe Phiri is a fellow of the Draper Hills Summer Fellowship at the Centre for Democracy Development and the Rule of Law hosted by Stanford University. She is currently pursuing a Master’s Degree in International Public Law and Human Rights at the University of Lusaka.  In her free time, Judge Lombe Phiri enjoys gardening,  reading, playing golf and cooking.  She also has a passion for mentoring young people and does this through several informal networks. She is a wife and mother of two children.
Her vision is for a free and just society inclusive of divergent views.