Authors: Ebelechukwu Enedah and Leroy Edozien with invaluable contribution from Adeyinka Abdulsalam

Introduction

Court-room etiquette is imperative in the administration of justice. It preserves professionalism, efficiency and fairness in legal practice. The aim of this paper is to re-assess decorum and etiquette in virtual proceedings which have come to stay in the “new normal”. This paper will commence by reviewing the traditional approach to court proceedings and how the outbreak of COVID-19 has affected the conventional court sitting with the introduction of remote hearing, which is an imperative measure introduced to align with the social distancing guidelines imposed by the government to curb the spread of the disease. We will then proceed to discuss, how court etiquettes and decorum have evolved to adapt to the emergence of virtual hearing. The paper will conclude by giving possible recommendations.

Court-room Etiquettes

Nigeria practices an adversarial system of litigation, whereby parties present their case before a judge in a courtroom who then decides the case on the basis of the presentation made by the parties to the dispute. It is the duty of the judge to observe the conduct of the parties to ensure the principle of fair hearing is adhered to and to also observe the demeanour of witnesses in order to determine who is telling the truth and thereafter effectively dispense justice.[1] When appearing before a judge in Nigeria, there are a number of etiquettes that must be observed by the parties, their counsels, witnesses and other security personnel. Some of them include:

For parties and witnesses –

• Wear clothing that would be appropriate for business.
• Arrive on time.
• Turn off electronic devices and cell phones before entering the courtroom.
• Be polite to the judge, opposing counsel, and court staff.
• Rise when the judge and jury enter and leave the courtroom.
• Stand when speaking to the judge.
• Do not interrupt others while they are talking.[2]

For counsel –

Rule 36 of the Rules of Professional Conduct (RPC) provides that, When in a courtroom, a lawyer shall;

• Be attired in a proper and dignified manner and shall not wear any apparel or ornament calculated to attract attention to himself
• Conduct himself with decency and decorum, and observe the customs, conduct and code of behaviour of the court and custom of practice with respect to appearance, dress, manners and courtesy.[3]

Rule 45 of the RPC provides that,

• Except with the permission of the court, a lawyer appearing before a High court, Court of Appeal, or the Supreme court shall do so in his robes. Robes in this context refer to Barrister’s wig, Robe, Wing tipped Collar, and Bands or Collarette for female Barristers. [4]

Other court etiquettes include the duty to address the court with respect. Judges in the High court, Court of Appeal, and Supreme court should be addressed as “My Lord”, while in the Magistrate court, magistrates should be referred to as “Your Worship” or “Your honour” or simply “Sir”

The outbreak of the COVI9-19 pandemic has created a logjam in the physical hearing of legal disputes. It is quite apparent that the physical hearing of disputes would have to be reduced to the barest minimum pending when the country has little or no cases of the virus or a cure has been found for the virus. This inadvertently creates a problem on how justice can be effectively dispensed.

In order to address the issue stated above, the National Judicial Council has issued guidelines on Virtual Court hearings. The guidelines provide that courts should insist on virtual hearings for matters that do not require taking evidence.[5] Judicial officers, court officials and security personnel, shall as a default arrangement, sit and be in regular courtrooms for any virtual court sitting. Judicial officers subject to prior approval of their Head of court may sit from their respective chambers.[6]

The emergence of virtual hearing necessitates the need to critically examine how the traditional (physical) court etiquettes have evolved in virtual court proceedings.

Virtual court proceedings do not discard the traditional (physical) court etiquettes, it only modifies it. Hence, some of the etiquettes mentioned above will still be functional in virtual proceedings. However, some of the aforementioned etiquettes will evolve as a result of the unorthodox process of virtual proceedings. Some of these etiquettes include;

• Download the online platform in which the court has ordered will be used for the virtual proceedings.
• Each party should acquire the technical know-how required to operate the online platform before the commencement of the proceedings.
• Ensure that the device that is being used as a medium of communication is adequately charged and a backup power plan is available in the event that the battery of the device is depleted.
• Each party, counsel of the parties, or anybody who is invited to join the proceedings should be in a quiet environment during the duration of the proceedings.
• Each party, counsel of the parties, or anybody who is invited to join the proceedings is responsible for having strong internet connection in order for the proceedings to happen seamlessly.
• Lawyers should always be fully robed, while parties and other participants in the proceedings should be formally dressed as would be done in a physical proceeding. This will preserve the professionalism and sanctity of the proceedings.
• Lastly, every participant in the proceedings must be on mute unless they are addressing the court.

More etiquettes will constantly be created, because this is a new form of court proceedings and all the parties involved including the bench are learning something new, in each virtual proceeding. Courts should consider drafting formal etiquettes for virtual proceedings, in order to give all the possible participants in a virtual proceeding enough time to familiarise themselves with such etiquettes. Courts should also consider making provision for penalties for the breach of such etiquettes in order to encourage compliance.

Also, some traditional etiquettes that do not align with the peculiarity of virtual court sitting might have to be dispensed with. This issue stems from the debate that some court-room etiquettes, such as counsel’s obligation to robe in a courtroom should not be extended to virtual court hearings. The proponents of this theory are of the view that wearing of wig and gown has become spent and needless at this age considering the evolution of the dress code.

Nigeria is a common law country, which was colonised by the United Kingdom, as a result of this, we have a very similar approach to the way we practice law. In the UK, wearing wigs was seen as a fashion statement which quickly grew to become a trend, amongst different professionals in society. However, the trend phased out and barristers chose to retain it as they felt it made them stand out in the society.[7] The gown, on the other hand, was worn as a part of an outfit, which commenced after the death of Charles II as it symbolised the sombre nature of the profession.[8]

It is clear after examining the history of counsel’s robing in court-rooms that it started off as a fashion trend, however, it has grown to become a symbol of the sanctity of the profession. “A barrister’s robes are the badge of an honourable office. The wearing of them emphasises the special functions in the administration of justice, and should remind him that while acting as a barrister he is not a mere individual responsible only to himself for his conduct, but subject to the rules and assumes the duties of his profession.” [9]

There is no dispute as to the rationale for the necessity of lawyers to robe in court, however, as aforementioned, robing in virtual court proceedings is highly contested. The argument against robing in a virtual-court proceeding stems from Rule 36 (a) RPC, which mandates that “when in the court-room a lawyer shall be attired in a proper and dignified manner”. A court-room is defined by Black’s law dictionary as, the part of a courthouse where trials and hearings take place.[10] Hence, a literal interpretation of this definition will mean that robing in a virtual-court proceeding is not mandatory as a virtual court proceeding will not suffice as a court-room. However, if a purposive approach to interpretation is taken, a different conclusion may be reached. This is because a court-room may be seen as more than a physical room, but rather as any platform available, whereby two parties or more can present their case before a judge for the hearing of a dispute. It is plausible to opine with the reasoning given above that robing in virtual hearing is mandatory and cannot be disposed of during virtual hearings.

Conclusion

It is plausible to state that virtual/remote hearing of disputes is the new normal. Hence, it is important that the judiciary moves with the wave and officially makes provision for court etiquettes that must be observed during such virtual proceedings. If these etiquettes are not formally created, it may gradually diminish the standard of professionalism we know the judiciary upholds and also create ambiguities in the interpretation of certain traditional court-room etiquettes that have been passed on to virtual court hearings.

[1] SPA Ajibade, ‘A Case For The Virtual Hearings Of Urgent Matters During The COVID-19 Pandemic… And Going Forward! – S.P.A. Ajibade & Co. Resources’ (Spaajibade.com, 2020) <http://www.spaajibade.com/resources/a-case-for-the-virtual-hearings-of-urgent-matters-during-the-covid-19-pandemic-and-going-forward/> accessed 15 May 2020.

[2] Darice Britt, ‘Courtroom Etiquette: How To Behave In Court’ (southuniversity.edu, 2020) <http://source.southuniversity.edu/courtroom-etiquette-how-to-behave-in-court-132066.aspx> accessed 15 May 2020.

[3] Rules of Professional Conduct, Rule 36.

[4] Ibid, Rule 45.

[5] ‘National Judicial Council’ (Njc.gov.ng, 2020) <https://njc.gov.ng/30/news-details> accessed 15 May 2020.

[6] Ibid.

[7] ‘Why Do Nigerian Lawyers Wear Wigs And Black Gowns?’ (LawPàdí, 2020) <https://lawpadi.com/why-do-nigerian-lawyers-wear-wigs-and-black-gowns/> accessed 10 June 2020.

[8] Ibid.

[9] J. Ola Orojo, Conduct And Etiquette For Legal Practitioners (Sweet and Maxwell 1979).

[10] Bryan A GARNER, Black’s Law Dictionary, Deluxe 9Th (9th edn, West, A Thomas Reuters Business).