Don't roll your eyes, shake your head or snicker when opposing lawyer is arguing: Canada court

Lawyers' facial expressions and non-verbal reactions in court recently drew the ire of the Ontario Superior Court of Justice, Canada's largest superior trial court. .Justice C Chang took objection to the fact that one of the counsel appearing before it in a case was resorting to facial expressions and snickering when the opposing counsel was arguing"During the application hearing, counsel for the applicant somehow decided that it was appropriate during opposing counsel’s submissions to express themselves by way of, among other things, eye rolling, head shaking, grunting, snickering, guffawing and loud muttering," the Court noted.Even though the counsel apologised at the insistence of the judge, the rest of the hearing saw more such displays, albeit in a more muted fashion.Justice Chang said that this behaviour is neither a new nor rare phenomenon. "Too often, counsel seem to believe that enthusiastically attempting to disrupt and/or demean opposing counsel during the latter’s oral submissions is one of the hallmarks of an effective advocate. It is not. Too often, counsel seem to believe that “rolling eyes, dancing eyebrows and other mannerisms” whilst opposing counsel is making submissions to the court constitute proper critique or response to those submissions. They are not," the Court said. .The Court emphasised that counsel have to restrict their submissions to only oral or written arguments and not indulge in non-verbal reactions when opposing counsel are arguing. "Counsel’s submissions to the court are to be made in only two ways: written argument and oral argument.... Indeed, during a court hearing, there should be nothing from counsel but complete oral and non-verbal silence while someone else “has the floor"," the Court stated..Counsel’s submissions to the court are to be made in only two ways: written argument and oral argument.Ontario Superior Court of Justice.Justice Chang did acknowledge that in the "heat of the battle", human emotions can get the better of even the most seasoned advocate. He said that, however, the kind of "sophomoric" behaviour he sees too often from counsel, is unacceptable. "The type of misconduct demonstrated by the applicant’s counsel in the case-at-bar significantly delays the timely and effective administration of justice, exacts an unnecessary and unacceptable additional cost on litigants and erodes the public’s respect for the legal profession and, more importantly, for the rule of law," the Court explained. .The Court opined that a fundamental shift in mindset is required to ensure that counsel remember their duty to treat their opposing counsel with professionalism and civility."Whether the culprit is a lack of proper mentoring, an overconsumption of courtroom television shows, extended periods of time without in-person human interaction or something else entirely, a fundamental shift in mindset is required to stem this tide. It has long been a tradition and requirement of etiquette in our courts that counsel refer to their counterpart as their “friend”. While most counsel use this appellation, painfully few appear to understand that the fundamental intention underlying its use is to remind counsel of their duty to treat opposing counsel with professionalism, courtesy, respect and civility," the Court observed. .Before moving on to its judgment, the Court advised all counsel to keep this in mind "lest the already threadbare state of professionalism and civility between them deteriorate into the irremediable"..The judgment came on an application moved by China Yantai Friction Co. Ltd. (the applicant) seeking recognition and enforcement of a commercial arbitral award dated November 18, 2018 of the China International Economic and Trade Arbitration Commission (CIETAC).The respondent, Novalex Inc. opposed the application arguing that the award ought not be recognised by the Court as it was unable to present its case at the arbitration. The Court ultimately found in favour of the applicant and said that there was no reason for it to refuse recognition or enforcement of the award. .The Court noted that the applicant's counsel's behaviour in court could have attracted significant costs but since there was a prior agreement between the parties regarding costs, the Court refrained from imposing any further penalty.