Litigant Behaviour in Court – No Surprise that a Judge Will Take it Into Account

[The genesis of this article was a recent reported Judgment of His Honour Justice Tree, one of our Qld-based Family Court Judges, in which His Honour had to deal with a profoundly difficult individual – the recent case of West & West [2015] FamCA 839 (8 October 2015).]

A wise mentor, himself a QC by that stage, told me early in my career that Judges don’t live in ivory towers and they see and hear everything. Over the course of years of working together with this QC and other barristers, it would often come to pass that even if something happened when the Judge was out of the room, his or her Court staff members would retreat to the ante-room or to chambers and tell the Judge what had happened in the Court room in his or her absence.

He would spend about 20 minutes when meeting a new client for matters in which I had briefed him, sitting down and really engaging with the client about what to expect when before “this Judge” – in other words, he was helping the client to understand the objective and subjective matters which might influence outcomes.

It won’t surprise you that many are obvious, but believe you me, if you don’t give warnings (and sometimes even if you do), people WILL misbehave in Court, leading a Judge in family law to be thinking something like, “..well if they are like this before me, what are they like at home?”

Some Judges remark at conferences, that we in family law deal with “good people on their worst day”. That is often true. Conversely criminal lawyers I know say that they are mostly dealing with “bad people on their best day” – the notion that they are fronting up on their best behaviour for the occasion of their sentencing or trial.

Since my QC discussions and his example-setting, I often have a conversation with clients and their witnesses along the lines of always being respectful in Court, not making the Judge’s job any more difficult and suggest that they behave in a manner which gives the Judge no chance to doubt that you are a good person. Likewise you have the best chance of avoiding doubt that you have been honest in your sworn and filed material and that there was no conduct whilst you appeared before the Judge that would leave the Judge in a position where he thought you were less impressive than the other party or where you could be “disliked”.

In some instances, behaviour which manifests in Court can prove the other party’s case.

Here is an actual example (a quote from the written reasons for Judgment) of a Judge summing up a litigant’s behaviour during the 6 day trial of the family law proceedings:-

• His conduct in these Family Court proceedings were a telling illustration. It may fairly be said that the six days over which the trial of this matter spanned were as torrid and hostile as litigation in this court gets. There were highly personalised attacks by the father on virtually all of the witnesses (including his own mother) and the lawyers involved in these proceedings. I was no exception. Amongst a steady stream of personal abuse, the father referred to me as a “criminal”, “terrorist” and colourfully told me that “there is not a bone in your body worth burying.” Later in the proceedings he told me that “there will be a large crowd on the day when you hang” or something similar.

• The father was virtually uncontrollable in the courtroom. He refused to take his cap off, stand when speaking to me or cross-examining witnesses, or stop speaking over me. Ultimately his behaviour became so intolerable that I directed that he continue his involvement in the proceedings from a second courtroom, linked to the main courtroom via video link. That was necessary to ensure that his otherwise incessant interruptions could be overcome by muting the microphone at his end when the need arose. However that did not stop him from a virtually non-stop – although from the main courtroom, silent – tirade against whoever was then speaking. On the final day of trial, presumably as some sort of visual protest, he commenced to tear up material that he had brought with him and which he had placed on the bar table. Even accepting that self-represented litigants in this court often are under enormous personal strain, and hence can behave poorly, it has to be said that the father was a truly remarkable litigant.

The Judge went on to take the behaviour into account (as he was entitled to do) in the following respects:-

• The Judge assessed the mental health evidence as being accurate because the conduct fit the diagnosis by experts and also fit with risk factors which had been identified;
• The Judge was able to see how people were affected by the conduct; and
• The Judge was able to see how the man was unable to control himself and considered that this was a risk of impacting upon children of the relationship and their upbringing.

It probably won’t surprise you that he was ordered to have no contact with his children.

From this, you can easily deduce that your behaviour in Court, whether as a lawyer, a litigant using a lawyer or a self-represented litigant should always act in a measured and respectful manner. Remember you are in someone else’s workplace where your conduct is on display before a person who is going to decide how much of the property pool you receive or how much time you spend with your children.

You do not, for very obvious reasons, want them to dislike you or disbelieve you.

If you speak frankly with most lawyers, they are likely to concede in their advice that if a judicial officer forms a dislike for a litigant, it follows that, human nature being what it is, you will always wonder whether it impacted your outcome.

Stay well behaved and if you are in doubt about how to behave within parameters, sit down and take the time to talk about the day in Court with your lawyer. View the Courtroom early. See where you will be sitting and where others will be sitting. Ask questions about what is allowed and not allowed and what a particular Court’s expectations might be.

Thanks for reading.