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Wolfhagen, Samuel --- "The Procedural Sandpit: A Playground of Professional Development" [2023] PrecedentAULA 66; (2023) 179 Precedent 35

The procedural sandpit:

A playground of professional development

By Samuel Wolfhagen

The sandpit of civil procedure that a young practitioner plays in for their first 3–5 years in practice is a perfect bootcamp, a staged masterclass in the aspects of legal practice they will rely on for the remainder of their career. Drafting documents to be filed with registry, communicating with colleagues, appearing in court – these seemingly banal tasks can provide a personal crash course in ethics, the opportunity to develop keen attention to detail, and instil in the junior lawyer a love of the profession.

COURTROOM ADVOCACY AND PROCEDURAL APPEARANCES

Lawyers take, and likely always will take, an interest in frightening new practitioners, or soon to be practitioners, with war stories about court. The first time I went along to watch a directions hearing, as a paralegal with an ill-fitting blazer and awkward enthusiasm, the lawyer I was with turned to me and said: ‘The first time I ever appeared in court, I threw up in the bathroom beforehand ... Just you wait, there’s no way to prepare for it.’ I’m grateful that I have now passed that particular milestone, with no vomit involved. It’s a war story that is worth combatting with a tale with a touch more hope than the original version conveys.

There is no doubt that courtroom advocacy and procedural appearances are difficult. They require an acquisition of new skills that no practitioner, no matter how smart, will master immediately off the starting blocks. I personally seem to suffer from a mild knee and hand tremble when standing at the bar table, with no correlation with my level of preparedness or anxiety about a particular appearance. The true war story is attempting to confidently hand up a short minute of order to the sheriff while the page is visibly shaking in your hand.

Personality

The humble procedural appearance serves to build a professional legal personality, as well as confidence. Watching effective barristers, it is clear that one can develop one’s own style of addressing the court and colleagues. While being too flashy as a junior is never to be encouraged, every appearance is an opportunity to develop confidence at the bar table. Even if the outcome of an appearance is essentially successful, and the orders your client wanted were made, there will be some appearances that feel more effective and polished than others. Young lawyers should resist the urge to move on immediately from the appearances that were not their best and rather take the time to draft a court file note, and personally review which aspects went well. This will serve to make the next time easier.

Appearing regularly, especially in the seemingly minor and procedural stages of a claim, is an opportunity to develop a style of advocacy as well as learn which aspects of one’s practice need work. It should not be underestimated how much developing a professional personality at court can make young lawyers better at what they do and more excited about turning up to work every morning.

Preparation

The best way to use each appearance to learn, and to increase one’s standing with the court, is to properly prepare. It’s a point that is rather beaten to death, but it’s worth talking about the specifics.

If the appearance in question is a first directions hearing, for example, a young lawyer can add value by giving thought to how a matter will travel to final hearing. A common mistake of juniors the world over seems to be a belief that certain types of strategic thinking are beyond our pay grade and expertise. This is not the case. Applying oneself to reviewing a matter in detail to identify potential issues before an appearance should be treated as both an exciting and essential step. Once those issues are identified, young lawyers should come up with proposals on how best to mitigate them. It may be that this involves a comment to the court, rather than a proposed order, as the full impact may not be known at such an early stage. I cannot speak to the supervision arrangements of all juniors, and so it should also be noted that coming up with a strategy may well require some clearance from a supervising solicitor before you start cracking jokes at the bar table and suggesting that interrogatories are necessary in a simple slip and fall matter.

Reaching into the ‘grab bag’ of lawyer phrases at the bar table can help achieve this. For example, ‘if I can be of assistance...’, ‘perhaps I can assist by providing the court with further context...’, ‘by way of background...’, ‘we put the court on notice that ...’, ‘it may be of value to note, at this early stage...’ Knowing how to punctuate your commentary will make the words spring all the more easily to your lips. After all, when you’re standing at the bar table, everything is improvisation.

Purpose

Every interlocutory appearance can essentially be reduced to a set of competing proposals. In the ACT, the procedural sandpit I dig around in, the drafting and structure of the Court Procedures Rules 2006 facilitate these small battles. There is a rule for almost every procedural step, with a range of powers under which the court can make orders, with varying considerations and discretions to be exercised each time. While this may seem frustrating and unclear (it really can be), it also presents an opportunity to the young practitioner to craft an argument by reference to these ‘source rules’, the powers of a registrar, and the factual circumstances of a client’s claim and instructions. For example, if one is asking for an order about the service of subpoenas outside of the typical timeframes, I’d recommend attending court with the relevant rule, the rule under which the registrar can make the order sought, as well as your reasons for seeking it.

ETHICS AND COMMUNICATION

The other benefit of being granted the never-ending list of subpoenas to return and directions hearings to attend is the incidental communication that is involved. This communication includes emails to chambers and verbal discussions with opponents. This necessarily involves different considerations of legal professional duties, best practice, politeness, and ethics. Overnight, you become a representative of your firm, responsible for its reputation as well as your own, with the further challenge of needing to think on your feet.

Learning, for example, that emails to chambers ought to be used only in limited circumstances, sometimes only with leave of the court, and with every party to the matter copied into the correspondence, is an important early lesson. How friendly should you be with your opponents? What information and justifications are appropriate to share before appearing? Which aspects ought only be raised at the bar table? Young lawyers should ask for guidance on these matters. Senior lawyers are not silent and unapproachable phantoms; they have valuable insights and should be bothered for their knowledge at any opportunity.

No matter how simple a procedural step, appearance or strategic position, complexities arise. These may involve a tension between the practitioner’s duty to their client and their duty to the court. They may concern reasoning and restraint. It will not always be feasible, desirable or professionally sound to argue a point until you’re red in the face. Knowing when to concede is an abstract and delicate step in reasoning that can be readily developed in the rise and grind of Monday morning directions lists.

ATTENTION TO DETAIL AND UNDERSTANDING THE LAW

Procedural steps in civil proceedings are the perfect marriage of legislation and case law. To appear effectively you must know what you’re asking for, whether the court has the power to do it, and what the court is required to consider. When preparing court documents, the recipe is similar.

I cannot express (and honestly do not want to express in a national legal journal with readers whom I respect), how many times court registry has rejected my documents. Frankly, I’m not sure this article could hold itself out to be about junior lawyering without addressing the pain of failure, the repetition of mistakes and the reoccurring desire to pack it all in. There was a period of weeks when I couldn’t get a document filed to save myself. The source of my errors, mainly related to format, formality and failing to attach extra bits. The Service and Execution of Process Act 1992 (Cth), and which notice to attach and when, was a particular sticking point.

In my view, it’s being adequate at law school, and getting a gold star for turning up, that dupes us into thinking that being a lawyer will involve knowledge of the content of the law alone. Detail is an inconvenience, sure, but a necessary one. Realising that your task list will stubbornly remain the same length or grow if you don’t address your procedural mistakes is a powerful motivator for addressing detail and format in court documents. The unique humiliation of document rejection can also serve to fortify a young lawyer’s resilience.

To dig myself out of the filing quagmire, I started to make my own court document precedents, including a checklist at the top that could be easily deleted, and pre-format the areas that I could. It also doesn’t hurt to read the relevant legislation at an early stage and commit to knowing it going forward. Repeating mistakes feels bad, and so it should.

The other procedural joy in the ACT is the pre-court procedure of the Civil Law (Wrongs) Act 2002 and the somewhat tense ballet between insurers and junior plaintiff solicitors in letters back and forth over the first 12 months of a claim. The most rewarding way to participate in this sparring match is to know which deadlines apply, make note of them, and stay on the high ground of complying with disclosure obligations. How else can you cheerfully demand compliance from your friends on the other end? While it might seem boring to draft one-line letters serving clinical notes once a week, it’s just a ball-step-change in a more complex performance.

CONCLUSION

Junior lawyers’ involvement in the procedural aspects of a matter is more than a rite of passage, a staging ground for horror stories and a repetitive grind. This hands-on involvement helps crystalise the passage of a claim from instructions to outcomes and teaches a junior lawyer core lessons that never stop being relevant to practice. Without a strategic understanding of why procedural steps are taken, and how that is achieved, a civil claim is an opaque box that any young practitioner will struggle to fathom.

I would encourage all supervisors who have read this far into a silly anecdotal article to grant their juniors involvement in the procedural steps with some level of autonomy. All invitations into the higher-level reasoning of a more advanced practitioner are opportunities to learn and to love the law. It is perhaps out of vogue to express adoration of one’s profession, but in a climate where young practitioners are leaving the law in droves to seek out calmer and more supportive workplaces, I’m continuing to express it, more often and with enthusiasm.

Samuel Wolfhagen is a personal injury solicitor at Maliganis Edwards Johnson specialising in public liability matters who enjoys making fun of aspects of the profession while holding it in high regard. He can be contacted at swolfhagen@mej.com.au or found sitting in the directions list at the ACT Supreme Court on any given morning.