Little Mistakes Lawyers Make In Courts And How To Avoid Them

By S.O. Akobe, Esq.  

 (Republished for the Benefits of the New
Wigs)     

The job of a lawyer is indeed, a highly professional one with
several expectations from many quarters. It might interest you to
be reminded that Lawyers are the only learned people on Earth;
others including Professors of all times are merely
educated/literate but they are not learned! Anybody can open a
school without reading Education. Anybody can open a
Clinic/Hospital without necessarily reading Medicine or Medical
Courses. Instances abound where NGOs open Hospitals and employ
Medical Doctors to work there! However, in the legal profession, it
is only Lawyers called to the Nigerian Bar that can open a Law Firm
in Nigeria! This speaks volumes about the nobility of the Legal
Profession.

Thus, as members of a noble profession, when lawyers appear in
courts, there are several areas in which they are not expected to
faulter. Unlike footballers, the field of play for a Legal
Practitioner is the court and the spectators/viewers are his
clients, his client’s adversary or adversaries and his or their
lawyer(s), the judge(s), other fellow lawyers (learned colleagues)
that are in court, and sometimes, members of the Fourth Estate of
the Realm (the Press) who may be in Court to cover the proceedings.
For the purpose of this discourse, we shall highlight some of the
little mistakes that lawyers make in court and how to avoid them to
wit:

1. The Use of the word “You” while addressing a
   Judge(s): It is very wrong for a lawyer to refer to a
   judge(s) as “you” while addressing same in the open court. No
   matter the out-of-court relationship or familiarity with a
   judge(s), great respect must be accorded to same while in open
   court. During Court proceedings, it is common to hear lawyers when
   addressing a Judge say things like, “You directed all the parties to file their processes
   as at the last adjourned date”. This is absolutely wrong as such
   expression belittles the position and status of the Judge(s). When
   addressing a Judge(s) in Court, the appropriate expressions
   include, “This Honourable Court”, “Your Lordship(s)”, “My Lord(s)”,
   “Your Worship(s)”, “Your Honour(s)”. For example, instead of
   telling a judge that “You directed all
   the parties to file their processes as at the last adjourned date”,
   the appropriate thing to say is, “This Honourable Court” or “Your
   Lordship(s)/My Lord(s)” or “Your Worship(s)”, or “Your Honour(s)”
   as the case may be, “directed all the parties to file their
   processes as at the last adjourned date”. The point I’m labouring
   to make clear here is that in no circumstance should a lawyer while
   in court address or refer to a judge(s) as “You” even if it is an
   inferior court.
2. The use of the words “with all due respect” while
   announcing appearance in courts: It is very common to see
   lawyers even the very old ones at the Bar announce appearances in
   court in the following words, “With all
   due respect to my Lord, I am S.O. Akobe, Esq. I
   humbly announce my appearance for the Applicant!” Is there
   something wrong with this mode of announcing appearance in courts?
   How about, “With due respect to this
   Honourable Court, S.O. Akobe, appearing for the Applicant? Any
   problem with this? Yes! As beautiful and weighty as they may seem,
   the use of the words “with all due respect or with due respect” in
   these two highlighted examples of announcing appearance in courts,
   is what marred the whole thing. The expression “with all due
   respect or with due respect” as the case may be, is usually used
   when one wants to disagree with a position, assertion or argument.
   It can be employed in court if a lawyer intends to take a contrary
   view which might be opposed to that taken by his fellow Counsel or
   even by the judge(s) presiding over a matter in which the Counsel
   appears. For instance, if a lawyer on the other side has argued
   what you as a Counsel feel is not the correct position of the law,
   you can begin by saying, “With all due respect or with due respect
   to my learned senior/colleague, his line of submissions are highly
   misconceived…” Sometimes, a judge presiding over your matter as a
   lawyer may take a stand or make comments which you feel are either
   not correct or more importantly, appear to be prejudicial to your
   client(s’) case or uncomplimentary to your person or status as a
   lawyer. In such instances, you can express your reservations, mind
   or view beginning with the words “With due respect to My Lord/ Your
   Lordship, Your Worship, Your Honour, as the case maybe, the views
   just expressed are not the true position of the matter.” At this
   point, you can proceed to explain what you feel is the real gist of
   the matter. In all of these instances, with all due respect or with
   due respect only has to do with disagreeing with certain asserted
   postions, arguments or conclusions. The use of the words “with all
   due respect” is not only necessary in that regard but also very
   essential in order to ensure that your preferred position,
   assertion or reservations are clearly expressed or communicated to
   the court without throwing out humility to, and respect for both
   the court and your fellow Counsel, to the wind! However, it is a
   very big blunder to employ such expression while announcing
   appearance for a client in court. In order to avoid such blunder
   therefore, a lawyer must be conscious not to ever start announcing
   his or her appearance in courts with the words, “With due respect
   to my Lord….” or “With all due respect to this Honourable Court…”
   etc. The appropriate ways of announcing appearance in courts are as
   follows:

“May it please the Court, S. O. Akobe, for the State.”

“May it please Your Lordship(s)/My Lord(s)/Your
Worship/Honour(s) (as the case may be), my name is S.O. Akobe, and
I humbly appear for the Respondent.”

“Respectfully my Lord(s)/Your Worship/Your Honour(s), S.O.
Akobe, for the Claimant”.

It must be stated here that there is no hard and fast rule of
announcing appearance in courts. In other words, there is no
special or specific format of announcing appearance in courts. But,
this cannot be overstretched to accommodate the use of the
expression “With due respect” while announcing appearance in
courts. Thus, while there is no specific manner of announcing
appearance in courts, there are specific manners in which
appearance in courts should not be announced and that include the
use of the words, “with all due respect or with due respect”.

3. The practice of “moving motions in terms”: It
   is common to see lawyers in courts apply to move their motions in
   terms of the motion paper. This is good and it is allowed in
   practice but then, it appears many lawyers don’t know when and how
   same is properly done. Moving a motion in terms or moving in terms
   of the motion paper simply means moving the motion without going
   through the regular formalities involved in moving a motion in
   court. The practice of moving motions in terms is usually employed
   in motions or applications that are non-contentious in nature so as
   not to waste the precious time of the court and the energy it saps.
   But, how is it done? Severally, I have seen lawyers in courts move
   their motions up to the level of adopting their written address as
   their argument in support of their motion only to end up saying,
   “My Lord(s)/Your Worship/Your Honour(s), I humbly apply to move in
   terms of the motion paper”! With all due respect, this is not
   correct. Just like I earlier said, the essence of moving motion in
   terms is to save time and energy in noncontentious applications.
   Thus, if you as a Counsel go as far as adopting your written
   address in the process of moving your application in court, what
   time have you saved the court and what energy have you preserved?
   The misconception that bedevils many lawyers in the process of
   moving motion in terms is the assumption that moving motion in
   terms connotes “moving an application in full without adumbrating
   same”. Adumbration is not compulsory in moving applications in
   courts except where a Judge(s) requests a counsel to address
   him/them on certain issues arising from the application. So, to
   hold the view that moving in terms is to move a motion without
   adumbrating or making further oral submissions, is clearly a very
   wrong position. Having said this, how then can a motion be moved in
   terms? It is very simple. To move in terms, a lawyer simply
   introduces the motion to the court, stating the date on the motion
   paper and the date the same was filed, and then, sits down in order
   for the court to hear from the Counsel on the other side as to
   whether he would be opposing the application or not. If the other
   Counsel expresses his intention not to oppose the application, the
   Counsel who filed the application will proceed to address the court
   in the following manner or words similar to that: “My Lord, this
   application being a harmless one, I humbly apply to move same in
   terms of the motion paper, more so as my learned friend (i.e.
   Counsel to the Respondent(s) is not opposing the application. We
   are most obliged!”. That’s all! The Counsel is not expected to
   further say things like, “Our application is brought pursuant
   to…and is supported with…paragraphs affidavit deposed to by
   one…with exhibits… annexed thereto…We rely on all the paragraphs of
   the said affidavit. In compliance with the rules of this Honourable
   Court, we also filed a Written Address…We adopt same as our
   argument in this application…” No! Once a Counsel has gone this far
   while moving an application in court, it will be a grave
   summersault to say that he wants to move in terms of the motion
   paper! This is because by moving in terms of the motion paper, a
   Counsel simply pushes the duty of getting the details of the
   application as contained in the motion paper to the Judge. These
   details include the Order and Rule (s) of the Court upon which the
   application is brought,  reliefs sought in the application,
   the number of the paragraphs of the supporting affidavit and the
   details of the deponent thereof, including annextures thereto (if
   any), as well as the argument in the written address. Most times,
   in line with the purpose of moving motion in terms which is to save
   time and energy in noncontentious applications, the Court will not
   bother going through all these details. The court in that instance,
   will simply look at the prayers in the motion paper and if they are
   grantable, the court will simply rule, “Ordered as prayed!”.

*To be continued…

(S.O. Akobe, Esq., formerly with N.O.O. Oke (SAN) & Co. Ibadan,
is currently a State Counsel with the Kogi State Ministry of
Justice. He can be reached via akobe4onu@gmail.com)

By S.O. Akobe, Esq.  

 (Republished for the Benefits of the New
Wigs)     

The job of a lawyer is indeed, a highly professional one with
several expectations from many quarters. It might interest you to
be reminded that Lawyers are the only learned people on Earth;
others including Professors of all times are merely
educated/literate but they are not learned! Anybody can open a
school without reading Education. Anybody can open a
Clinic/Hospital without necessarily reading Medicine or Medical
Courses. Instances abound where NGOs open Hospitals and employ
Medical Doctors to work there! However, in the legal profession, it
is only Lawyers called to the Nigerian Bar that can open a Law Firm
in Nigeria! This speaks volumes about the nobility of the Legal
Profession.

Thus, as members of a noble profession, when lawyers appear in
courts, there are several areas in which they are not expected to
faulter. Unlike footballers, the field of play for a Legal
Practitioner is the court and the spectators/viewers are his
clients, his client’s adversary or adversaries and his or their
lawyer(s), the judge(s), other fellow lawyers (learned colleagues)
that are in court, and sometimes, members of the Fourth Estate of
the Realm (the Press) who may be in Court to cover the proceedings.
For the purpose of this discourse, we shall highlight some of the
little mistakes that lawyers make in court and how to avoid them to
wit:

1. The Use of the word “You” while addressing a
   Judge(s): It is very wrong for a lawyer to refer to a
   judge(s) as “you” while addressing same in the open court. No
   matter the out-of-court relationship or familiarity with a
   judge(s), great respect must be accorded to same while in open
   court. During Court proceedings, it is common to hear lawyers when
   addressing a Judge say things like, “You directed all the parties to file their processes
   as at the last adjourned date”. This is absolutely wrong as such
   expression belittles the position and status of the Judge(s). When
   addressing a Judge(s) in Court, the appropriate expressions
   include, “This Honourable Court”, “Your Lordship(s)”, “My Lord(s)”,
   “Your Worship(s)”, “Your Honour(s)”. For example, instead of
   telling a judge that “You directed all
   the parties to file their processes as at the last adjourned date”,
   the appropriate thing to say is, “This Honourable Court” or “Your
   Lordship(s)/My Lord(s)” or “Your Worship(s)”, or “Your Honour(s)”
   as the case may be, “directed all the parties to file their
   processes as at the last adjourned date”. The point I’m labouring
   to make clear here is that in no circumstance should a lawyer while
   in court address or refer to a judge(s) as “You” even if it is an
   inferior court.
2. The use of the words “with all due respect” while
   announcing appearance in courts: It is very common to see
   lawyers even the very old ones at the Bar announce appearances in
   court in the following words, “With all
   due respect to my Lord, I am S.O. Akobe, Esq. I
   humbly announce my appearance for the Applicant!” Is there
   something wrong with this mode of announcing appearance in courts?
   How about, “With due respect to this
   Honourable Court, S.O. Akobe, appearing for the Applicant? Any
   problem with this? Yes! As beautiful and weighty as they may seem,
   the use of the words “with all due respect or with due respect” in
   these two highlighted examples of announcing appearance in courts,
   is what marred the whole thing. The expression “with all due
   respect or with due respect” as the case may be, is usually used
   when one wants to disagree with a position, assertion or argument.
   It can be employed in court if a lawyer intends to take a contrary
   view which might be opposed to that taken by his fellow Counsel or
   even by the judge(s) presiding over a matter in which the Counsel
   appears. For instance, if a lawyer on the other side has argued
   what you as a Counsel feel is not the correct position of the law,
   you can begin by saying, “With all due respect or with due respect
   to my learned senior/colleague, his line of submissions are highly
   misconceived…” Sometimes, a judge presiding over your matter as a
   lawyer may take a stand or make comments which you feel are either
   not correct or more importantly, appear to be prejudicial to your
   client(s’) case or uncomplimentary to your person or status as a
   lawyer. In such instances, you can express your reservations, mind
   or view beginning with the words “With due respect to My Lord/ Your
   Lordship, Your Worship, Your Honour, as the case maybe, the views
   just expressed are not the true position of the matter.” At this
   point, you can proceed to explain what you feel is the real gist of
   the matter. In all of these instances, with all due respect or with
   due respect only has to do with disagreeing with certain asserted
   postions, arguments or conclusions. The use of the words “with all
   due respect” is not only necessary in that regard but also very
   essential in order to ensure that your preferred position,
   assertion or reservations are clearly expressed or communicated to
   the court without throwing out humility to, and respect for both
   the court and your fellow Counsel, to the wind! However, it is a
   very big blunder to employ such expression while announcing
   appearance for a client in court. In order to avoid such blunder
   therefore, a lawyer must be conscious not to ever start announcing
   his or her appearance in courts with the words, “With due respect
   to my Lord….” or “With all due respect to this Honourable Court…”
   etc. The appropriate ways of announcing appearance in courts are as
   follows:

“May it please the Court, S. O. Akobe, for the State.”

“May it please Your Lordship(s)/My Lord(s)/Your
Worship/Honour(s) (as the case may be), my name is S.O. Akobe, and
I humbly appear for the Respondent.”

“Respectfully my Lord(s)/Your Worship/Your Honour(s), S.O.
Akobe, for the Claimant”.

It must be stated here that there is no hard and fast rule of
announcing appearance in courts. In other words, there is no
special or specific format of announcing appearance in courts. But,
this cannot be overstretched to accommodate the use of the
expression “With due respect” while announcing appearance in
courts. Thus, while there is no specific manner of announcing
appearance in courts, there are specific manners in which
appearance in courts should not be announced and that include the
use of the words, “with all due respect or with due respect”.

3. The practice of “moving motions in terms”: It
   is common to see lawyers in courts apply to move their motions in
   terms of the motion paper. This is good and it is allowed in
   practice but then, it appears many lawyers don’t know when and how
   same is properly done. Moving a motion in terms or moving in terms
   of the motion paper simply means moving the motion without going
   through the regular formalities involved in moving a motion in
   court. The practice of moving motions in terms is usually employed
   in motions or applications that are non-contentious in nature so as
   not to waste the precious time of the court and the energy it saps.
   But, how is it done? Severally, I have seen lawyers in courts move
   their motions up to the level of adopting their written address as
   their argument in support of their motion only to end up saying,
   “My Lord(s)/Your Worship/Your Honour(s), I humbly apply to move in
   terms of the motion paper”! With all due respect, this is not
   correct. Just like I earlier said, the essence of moving motion in
   terms is to save time and energy in noncontentious applications.
   Thus, if you as a Counsel go as far as adopting your written
   address in the process of moving your application in court, what
   time have you saved the court and what energy have you preserved?
   The misconception that bedevils many lawyers in the process of
   moving motion in terms is the assumption that moving motion in
   terms connotes “moving an application in full without adumbrating
   same”. Adumbration is not compulsory in moving applications in
   courts except where a Judge(s) requests a counsel to address
   him/them on certain issues arising from the application. So, to
   hold the view that moving in terms is to move a motion without
   adumbrating or making further oral submissions, is clearly a very
   wrong position. Having said this, how then can a motion be moved in
   terms? It is very simple. To move in terms, a lawyer simply
   introduces the motion to the court, stating the date on the motion
   paper and the date the same was filed, and then, sits down in order
   for the court to hear from the Counsel on the other side as to
   whether he would be opposing the application or not. If the other
   Counsel expresses his intention not to oppose the application, the
   Counsel who filed the application will proceed to address the court
   in the following manner or words similar to that: “My Lord, this
   application being a harmless one, I humbly apply to move same in
   terms of the motion paper, more so as my learned friend (i.e.
   Counsel to the Respondent(s) is not opposing the application. We
   are most obliged!”. That’s all! The Counsel is not expected to
   further say things like, “Our application is brought pursuant
   to…and is supported with…paragraphs affidavit deposed to by
   one…with exhibits… annexed thereto…We rely on all the paragraphs of
   the said affidavit. In compliance with the rules of this Honourable
   Court, we also filed a Written Address…We adopt same as our
   argument in this application…” No! Once a Counsel has gone this far
   while moving an application in court, it will be a grave
   summersault to say that he wants to move in terms of the motion
   paper! This is because by moving in terms of the motion paper, a
   Counsel simply pushes the duty of getting the details of the
   application as contained in the motion paper to the Judge. These
   details include the Order and Rule (s) of the Court upon which the
   application is brought,  reliefs sought in the application,
   the number of the paragraphs of the supporting affidavit and the
   details of the deponent thereof, including annextures thereto (if
   any), as well as the argument in the written address. Most times,
   in line with the purpose of moving motion in terms which is to save
   time and energy in noncontentious applications, the Court will not
   bother going through all these details. The court in that instance,
   will simply look at the prayers in the motion paper and if they are
   grantable, the court will simply rule, “Ordered as prayed!”.

*To be continued…

(S.O. Akobe, Esq., formerly with N.O.O. Oke (SAN) & Co. Ibadan,
is currently a State Counsel with the Kogi State Ministry of
Justice. He can be reached via akobe4onu@gmail.com)