A retired District Court Judge dissects the new courtroom etiquette rules and says expectations have declined

David Harvey

In August 2026, an updated set of guidelines for courtroom conduct for counsel, endorsed by the Chief Justice and Heads of Bench, was published. The 2026 guidelines replaced those issued in 2009.

That there should have to be a need for such guidelines says much about the state of the profession and the way in which counsel deal with one another and with the court.

Things seem to have moved from a time where there was a clear understanding of what was acceptable and what was not. It all had to do with respect – for one’s fellow practitioners and, of course, for the court.

Sadly, these earlier understood norms of etiquette seem to have fallen by the wayside. That it should be necessary at any time to reduce these norms to writing and then approve and publish them says unfortunate things about what could only be described as a decline or a deterioration in standards.

To further exacerbate the problem, it seems that the elements of conduct have changed in what – in terms of legal history – could only be described as the brief span of an hourglass. Have times changed so much between 2009, when it seemed necessary to publish the first set of guidelines, and 2026?

This article will consider some of the contents of the two sets of guidelines and whether the 2026 guidelines condone a lesser standard of conduct than that of 17 years ago.

The first and most obvious thing about the two guidelines is that the 2026 document is recognisably the 2009 document rewritten and expanded rather than a replacement from scratch.

So, structurally the documents are very similar and share some major premises and expectations:

• respect for the court and its processes;
• punctuality;
• standing and bowing conventions;
• controlled speech (one counsel on their feet at a time, wait to be invited, silence during rulings);
• formal modes of address;
• restrained language;
• exact quotation of documents;
• courtesy to court staff; and
• the closing rituals (“As your Honour pleases”; not leaving the judge alone).

These remain.

Both documents sit alongside the Conduct and Client Care Rules and are pitched partly at new practitioners, yet the expectations apply to all.

 

Wider scope

The scope of the 2026 guidelines is wider than those of 2009. The 2009 guidelines covered trial courts – the High Court and District Court. The 2026 document covers the whole judicial system, down to JPs and community magistrates, includes coroners, Family Court Associates, the Employment Court, Court Martial, Environment and Māori Land Courts, remote hearings. It also extends to police prosecutors who are not lawyers.

One theme appearing in both documents deals with modes of address. In 2009, when counsel addressed the judge, the use of the words “Sir” and “Ma’am” was approved. That is to be phased out although little rationale is given – probably because there is none.  Perhaps in these days of fluid and indeterminate identity the polite forms of address are a bit too gender specific.

Some female judges are afraid that the use of the term “Ma’am” makes them feel old. That seems to be more of a problem for the judge than for counsel. Would another less abbreviated term be preferred? One hesitates to suggest “Madam” with the various meanings that term may convey. Perhaps “Milady” although that term, at least for me, engenders visions of Dumas’ villainess, the Countess de Winter.

 

Learned in law

In referring to opposing counsel, the 2009 guidelines referred to “my learned friend”. The new guidelines would prefer to see that term phased out although it may be tolerated. The new guidelines prefer the use of the words “learned colleague.”

Once again, no rationale is given for the change and indeed what is proposed seems to misunderstand the nature of the adversarial process.

Counsel on the other side is an adversary. He or she is not a colleague. A learned colleague is one’s junior or counsel for a co-party. A colleague is definitely not counsel for the other side and certainly not a prosecutor in a criminal trial.

The use of the term “learned” is well-known within the law.

Lawyers were “learned in the law” and the bar was one of the three “learned professions” (with divinity and medicine) from at least the 16th century.

Phrases like “learned counsel” and “learned serjeant” appear in Tudor and Stuart-era reports although the Oxford English Dictionary records a use in 1485.

The parallel parliamentary convention of referring to a lawyer-MP as “the honourable and learned member” comes from the same root.

“My learned friend” specifically, used by one barrister for his opponent, seems to be a product of the 18th century. It turns up in verbatim trial reports of that period, such as the state trials and the Old Bailey proceedings.

By the last quarter of the century, it was clearly a settled convention of the English bar. The great advocates of the 1780s–90s – such as Erskine, Garrow and their contemporaries – used it as a matter of course.

Before the mid-18th century, counsel’s speeches were rarely taken down word for word, so the phrase may well have been spoken earlier than it was recorded.

By the 19th century it was familiar enough to be a target for satire. Dickens has Serjeant Buzfuz deploy it in Bardell v Pickwick (1837), and the later joke about the “learned friend” being neither learned nor a friend was already in circulation.

Of course, the use of the term “my learned friend” may be said with a sneer. Equally so with “my learned colleague.” The guiding principle is whether counsel using the term of address is being respectful and behaving in keeping with the formality of the proceedings.

 

Buttoned up

Curiously, although a very traditional and recognised form of address for one’s opponent is to be “phased out”, the guidelines for dress seem to be more prescriptive.

The 2009 guidelines expressed dress in gendered terms. The language was men: dark suit, collared shirt, tie; women: “equivalent standard”.

The 2026 guideline is gender neutral. It drops the requirement that a blouse be collared or buttoned to the neck, permits “taonga” – although one’s taonga may be another’s piece of rock – in place of a tie, culturally required headwear, korowai on ceremonial occasions and brighter colours in the Family and Māori Land Courts. This, of course, does not suggest that the courtroom has become a runway.

The guideline adds a new expectation that jackets be buttoned when standing to address the court although why that should need to be stated is a mystery. Any follower of the early 2000’s series Boston Legal will recall that whenever Alan Shore – played by James Spader – stood to address the court, he buttoned his jacket. And when he sat down, he unbuttoned it.

This is straightforward dress etiquette. It is not peculiar to a courtroom. Anytime a suited man stands, his jacket should be done up. Seated – jacket undone. Elementary.

As far as gowns are concerned – certainly an artefact and, if modernisation was the objective, should have gone the way of wigs – the 2026 guidelines are more demanding than their predecessor.

The 2009 guidelines required robes only in the High Court. The 2026 version requires gowns in the Employment Court, Court Martial, Court Martial Appeal Court, High Court, Court of Appeal, Supreme Court, District Court jury trials and for remote appearances in those courts.

The 2009 prohibition on robing in court is relaxed to allow it, where necessary, before the judge enters. I might say that the 2009 rule was probably more observed in the breach than in the observance.

 

‘Accommodating’ exemptions

The manner of introductions has been reviewed. The 2009 guidelines allowed men to be introduced by surname and women with the honorific “Ms”. Now, all counsel must include the title they use, such as Mr, Ms or their chosen title, but professional or formal titles (such as Dr, Professor, Sir, Dame or Lady) are not to be used.

The outcome of this involves a certain level of clumsiness as counsel may introduce himself as Mr X – and thereby stating the obvious – rather than just X. Given that formal titles are not permitted, one can only speculate as to the reason for this. The only one that occurs to me is that it brings male counsel in line with their female counterparts. But that is an assumption on my part – once again, there is an absence of explanation or rationale.

The 2026 guidelines present a significant shift when it comes to the use of electronic devices. The 2009 guidelines effectively prohibited phones on, texting, email and any electronic search not connected to the trial (and even that had to be notified).

The 2026 guideline permits device use subject to professional obligations, the dignity of the court and context (list court versus jury trial). It requires silent mode and adds a new absolute prohibition on filming, photography and sound recording, expressly including AI note taking.

The 2026 guidelines contain a new section on “accommodations” that may be available to recognise disability or other factors.

There are exemptions from standing and bowing for disability or injury, notification of childcare, breastfeeding, disability or interpretation needs, karakia and waiata only with leave, observance of kawa and tikanga on marae where a court may be convened in that location, and rules for interpreters and communication assistants.

It may seem unusual that some of these things need to be stated, although the issue of waiata and karakia warrants clarification. It is probable that the rationale for these provisions is so that the procedure is clear rather than being subject to judicial whim or caprice.

 

Pronoun oddities

As far as witnesses are concerned, the 2026 Guidelines contain a reference to the use of pronouns. Guideline 38 states:

“It is counsel’s responsibility to make sure they know the correct spelling and pronunciation of the names of their clients and witnesses and also the titles and pronouns they use. Wherever possible, this information should be conveyed to the registrar in advance of the hearing.”

There are two oddities to this provision. The first is that the proper pronoun to be used should be obvious. The pronoun, in the case of a witness, would be singular. In the case of a group it would be plural. I am sure that the Guideline is not designed to rewrite proper English usage.

Although there seems to be an inclusivity element behind this Guideline – and once again the rationale is not stated – one wonders whether or not this proposal bends the knee to individual preferences and imaginings rather than reality.

The second oddity is that witnesses are to be given titles such as Dr, Professor, Sir or Dame, while counsel are forbidden to use those same titles for themselves.

If the purpose of the “no titles” rule is to provide a form of level playing field without deference for any title or form of address, perhaps that level playing field should apply to witnesses as well.

The fact of the matter is that witnesses, where warranted, will be addressed by title as a matter of courtesy – Doctor, Professor and the like. But if that courtesy is to be extended by the Court to witnesses there seems to be little reason why it should not be accorded to Counsel.

 

Change for change’s sake?

I have selected some of the Guidelines for this discussion. I have not analysed the document section by section, nor have all the comparisons with the 2009 Guidelines been engaged.

This discussion points out some anomalies with the 2026 recommendations and one receives the strong impression that some of the changes have been made for the sake of change. The difficulty is that the changes in my view represent a condonation of a decline in standards or alternatively a levelling of the high standards of conduct expected of Counsel.

The problem is that very little reasoning for change is advanced. The 2026 Guidelines assert rather than explain.

The only stated justifications advanced relate to taonga, footnoted in the Chief Justice’s interim guidance of 2021, the Guideline about junior counsel speaking which is footnoted to the Supreme Court and Cout of Appeal practice notes and the rule relating to standing and bowing where this “”would be challenging, impossible or uncomfortable” which in many respects is so obvious that one wonders whether it need be stated.

Device use is framed by reference to the dignity of the Court, non-disruption and duty to the client with a context-sensitivity test.

The convention about leaving with one other counsel present is simply declared, without more, to have “ceased”. No explanation is given although there is one and it resides in the deeps of time.

The phase-outs of “Sir/Ma’am” and “my learned friend” are announced without any reason given.

The reader has to infer the underlying rationales –  bicultural recognition of te reo as an official language, gender neutrality, accessibility, and accommodation of technology as a working tool.

Those inferences are reasonable, but the document does not make the argument, and a reader sceptical of the changes could fairly say he or she was never invited to be persuaded.

Still there are a number of matters that largely remain the same. Punctuality – the politeness of princes – remains the same and anyone who understand my predilection for punctuality will know it is one of the three “P’s” necessary for effective advocacy – punctuality, preparation and presentation.

Most of the 2009 document remains – standing and bowing for the judge; bowing at the bar; one counsel standing at a time; waiting to be invited to speak; remaining seated after adjournment; silence during a ruling and the formula that follows it; no expressions of displeasure; seeking leave to take instructions; exact reading of documents, with copies for the judge; respect for court staff; no swearing except when quoting evidence; “Justice” for the senior courts and “Judge” for the others; formal names for witnesses; notifying the court of absences, time-estimate problems and outstanding matters; and the last counsel not leaving before the judge.

 

Decline in expectations

My personal view is that the 2026 document represents a decline in expectations. Perhaps a generous interpretation, if one is minded to be of that vein, may be that they Guidelines represent a change in the nature of formality.

Is this a difficulty? One of the reasons for the level of formality that accompanies courtoom procedure is that it encourages something that seems to be lacking in today’s society and that is discipline – discipline in thinking, discipline in behaviour, a discipline that requires dilution of any sub-conscious hostility that might arise as a result of the conduct of litigation along with a quality that the Republican Romans understood – that of dignitas – the dignitas inherent in the formal processes of the Court and the dignitas that naturally attracts to the advocate who, for the moment he or she is on their feet, commands the room.

The case that expectations have fallen rests on three points

First, the indirect form of speech is no longer required.

Secondly, devices are permitted in court.

Thirdly, two familiar verbal formulas are being retired without explanation.

Of these, the device rule is the only one that materially loosens conduct, and it is hedged with a dignity test, a context test and a new prohibition on recording that 2009 never needed. The only justification for the change is that it recognises the way that technology has become an imperative for modern work methods.

The change in speech form removes an important stylistic discipline that distinguished the courtroom register from ordinary speech, and a traditionalist can reasonably regret its loss.

The phase-outs of “Sir/Ma’am” and “my learned friend” are the changes most vulnerable to the criticism of being fashion rather than principle, precisely because no reason is given.

Against these matters, the core disciplines of the courtroom are intact and in several respects tightened: gowns are required in more courts and remotely; punctuality is now “strict”; the obligations around documents, absences, time estimates and corrections are more detailed; jackets are to be buttoned; and the whole scheme now binds people (police prosecutors, counsel before coroners and JPs) whom 2009 did not reach.

The obligation to know the pronunciation of clients’ and witnesses’ names is a new demand. It is not a relaxation but need it really be said. The sentiment has been around for a long time and after all, it is simple politeness.

I recall the late Judge Mick Brown when he was at the Bar, exhorting young lawyers in the Auckland District Court when it inhabited what is now the Metropolis to “at least give your client the dignity of pronouncing his name correctly.”

The additions on te reo, taonga, headwear and tikanga on a marae-based Court may be understood as an extension of what respect for the court looks like in today’s New Zealand.

The 2009 document assumed a single cultural form of formality. The 2026 document treats formality as something that can be expressed in more than one register while insisting on the same underlying conduct.

 

Talking about te reo

One issue that needs to be addressed is the use of te reo in Court. My own view about that is that if one has less than a working knowledge of te reo its use should be avoided.

Te reo is not my language and although I understand a few words and phrases I would not presume to use it in a formal setting – even as a form of introduction. Its use would be a pretence of an understanding of the language at best and at worst, nothing more than virtue signalling.

And given my paucity of comprehension of the language it would be disrespectful and presumptuous to use it if I could not respond in te reo should the Judge address a question or comment in that language

I understand that te reo is an official language. I have directed in cases before me and where the parties have requested it, that they be conducted in te reo. My only requirement was that a reliable interpreter be provided so that I could be clear about what was being said.

Whether these Guidelines constitute an erosion of standards? Much depends on whether one locates the value of court formality in its particular inherited forms or in the discipline and respect those forms are meant to express.

In some respects the Guidelines are more specific and demanding than those of 2009 and a constant theme of criticism is that no rationale is offered for what could be considered a perception of a relaxation in standards in one respect and an urge for specificity of behaviour which might have the objective of the diminution of individuality on the part of Counsel.

To close with a thought once again from Judge Mick Brown “You have got to have style”. And that seems to be absent from the 2026 Guidelines.

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