Best Practices: How to Prepare for Court and What to Expect

In the 16 years that I have been practicing family law, I reflect fondly on my former years. Earlier on, junior counsel would learn by attending court with senior counsel: watching, taking notes, and absorbing it all. At that time, all appearances were in-person and it was exciting. You learned courtroom decorum and best practices by simply being present, watching, and asking questions. Unfortunately, since the pandemic, our junior counsel have not had the same experience. 

Hopefully the below points will assist those young lawyers and be a refresher for others.

How do I put my best foot forward?

Far too often we get caught up in our many files and responsibilities and forget that as counsel we have an obligation to our client to attempt to resolve or at least narrow issues before Court.  The following are a list of useful, pre-court strategies:

1. Ensure you follow the Notice to Profession. Each Court has implemented their own Notice to Profession which outlines the procedures and filing requirements. Review them and follow it.
2. Upload all documents you are relying on to CaseLines. This is no longer a suggestion. If you fail to upload documents to CaseLines, you run the risk of your client’s matter not being heard. Upload them and make a note of the Master numbers when referring to documents. Judges now expect this.
3. Once all material has been served, have a call with the other lawyer and try and narrow the issues.  You would be surprised at how much you can accomplish by picking up the phone and speaking to the other lawyer.  Go through each issue to be addressed and see if you can resolve or narrow it.
4. If you do resolve some issues, prepare a draft order, and upload it to CaseLines. This will ensure the judge is up to speed and it will save you time while you are in Court. You can revise the draft order as you go through the balance of the issues with the judge.
5. If you were able to make progress with the other lawyer, file an amended confirmation form updating the judge. I typically attach the draft order that has been approved by the other lawyer and provide a summary of what issues remain outstanding and how the Court can help.
6. Prepare for Court, but do not prepare a script. Often, we see lawyers simply reading from notes they have prepared.  Do not do this. Often these lawyers become flustered if a judge asks a question. Instead, prepare points you want to touch on and practice explaining the story.  When I was a junior lawyer, I would pace my office or dining room and practice out loud. Try it.
7. Talk to your client. Lawyers often forget to explain the process to their client. Explain the process early and often. Explain to the client what to expect, what orders the Judge can make, and be as direct as possible. You want the client to attend court knowing what is likely to happen. Remember that clients are not lawyers – do not treat them as one and assume they know what is happening.

What happens in Court?

This is where the fun starts. It is good practice to attend court well before to meet your client and the other lawyer and have further discussions. From there, here are a few tips to remember:

1. Ensure you have checked in with the court clerk. You will typically have to fill out a form in court with your name, who you represent, phone number and email.  In some courts, such as Brampton Superior Court, this form must be completed before you attend Court and filed online.  Check the Notice to Profession.
2. When you enter the courtroom, if the judge is already there, you bow. 
3. If you are the Applicant, you sit on the right side and if you are the Respondent, you sit on the left side.  Have your client sit beside you.
4. Bring a notepad/pen for your client or ask them to bring one. They can take their own notes and write down points for you to review.
5. When the Judge walks in, stand up, bow, and only sit down once the court clerk has permitted you to do so.
6. Stand when speaking to the Judge and only sit if they prefer that during conferences.
7. Do not interrupt the other lawyer or party. Wait your turn. Judges do not appreciate discourteous counsel.
8. Make sure you remind your client to not speak or make any facial gestures. Judges see this and are not impressed.
9. Speak slowly. 
10. Set an agenda. During your submissions, explain to the judge what the outstanding issues are and how his or her Honour can assist in resolution.  If you require an opinion on each issue, ask for that. Judges appreciate when counsel attend court with a plan in place on how to move the file forward.
11. Refrain from bashing the other party or counsel. Remain focused on moving the file forward.
12. When your matter is completed, stand when the judge stands and bow.

With the above tools and knowledge in place, you will hopefully take joy in litigation and find a fulfilling career. Good luck!

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