Courtroom Etiquette and Demeanor

Professor Moses'

31 COMMANDMENTS

Courtroom Etiquette and Demeanor

for Trial Advocates

Presented by: Renee Magee

Judge, 337th District Court

Harris County, Texas

Email:

"As an officer of the court, defense counsel should support the authority of the court and the dignity of the trial courtroom by strict adherence to codes of professionalism and

by manifesting a professional attitude toward the judge, opposing counsel,

witnesses, jurors, and others in the courtroom."

Standard 4-7.1(a) - Courtroom Professionalism

ABA Standards for Criminal Justice: Prosecution and Defense Function

See also, ABA Model Rules of Professional Conduct

Etiquette: A body of rules governing the way in which people behave socially,

ceremonially, and in public life.

For an amusing glimpse of courtroom demeanor gone awry, look at The Three Stooges'

gambits in Disorder in the Court.

Just when you least expect it - courtrooms gone wild!! (1) (2) (3) (4) (5) (6)

Success in the courtroom and life itself comes from a combination of

character, competence, and commitment.

"There's one other reason for dressing well, namely that dogs respect it,

and will not attack you in good clothes."

Ralph Waldo Emerson

Here are my suggestions to law students studying trial advocacy and to new lawyers concerning how you should conduct yourself in court.

1. Respect the Rules of the House. Find out the do's and don't's of the court you'll be practicing in, and follow them. Your client, your witnesses, and your colleagues need to be advised of some of these pet peeves. Every judge has likes and dislikes. A few have rules that are downright persnickety, but most make good sense. For example, all judges want everyone to turn off cell phones and pagers while court is in session; some judges cannot abide any background noise from talking lawyers while the judge is trying to take a plea; some judges are very protective of their privacy and don't want visitors when the door to their chambers is closed; some judges don't want prosecutors bargaining on probation revocations, the judge considering this a contract between the defendant and the court; some judges get very perturbed by lawyers who wait until the last minute to raise housekeeping issues that keep prospective jurors waiting in the hallway; many judges are sensitive to discourteous conduct or bickering between opposing lawyers; most judges don't want anyone, including lawyers, reading newspapers or magazines in the courtroom; they don't want anyone bringing edibles into the courtroom; they don't want anyone propping their feet on tables, chairs, or benches; they don't want lawyers sitting on tables, railings, desks, or arms of chairs; they don't want people wearing headgear or hats, including baseball caps, in their courtrooms; they don't want lawyers leaning on the bench; they don't want lawyers referring to parties or witnesses by anything other than their last names, e. g. "Mr. Ames," "Dr. Burns." ln rural areas, judges may not want to hear how things are done in the big city. Almost all judges are very put off by lawyers interrupting them or opposing counsel. (Let the judge and, unless you need to protect the record, your opponent finish before getting your two cents worth in.) With regard to trials, most judges want you to be able to opine how long it will take to try the case, whether you have scheduling conflicts, whether you anticipate filing motions prior to trial, whether there is a possibility of settlement and whether there are anticipated problems that need to be resolved prior to trial. Many judges prefer that you premark your exhibits; some require that you file an exhibit list with the court. Most judges do not want you to argue your objections or respond to the other side's objections in the presence of the jury. Normally only one attorney for each party will be permitted to examine or cross-examine any one witness, and the lawyer who examines or cross-examines is typically the lawyer who will be permitted make and respond to objections. i.e., no double-teaming on examination or objections. Many judges prefer that you not make substantive motions, e.g., motion for directed verdict, in the presence or earshot of the jury. In cases involving expert testimony, many judges do not want the proponent of the witness to ask the judge to declare the witness an expert; instead the judge prefers to leave it to the opposition to either object to the expert witness' competence or ask to voir dire the purported expert witness re his/her qualifications; only if the opposition raises an objection to the witness' qualifications to testify as an expert will the court be willing to rule that the witness is qualified. Many judges have minimal dress codes for lawyers and defendants. Some judges insist that you have a written motion for continuance prepared and filed if you are going to announce "not ready." Some will require the parties to get together in advance of trial and determine which exhibits will involve evidentiary challenges, i.e., those to which admissibility is not stipulated. Some will require regarding opening statement that counsel request and obtain prior court approval before introducing topics that may have a significant potential for unfair prejudice. Some will require that counsel meet and confer prior to the deadline for submission of instructions and make a good faith effort to agree on the submission of all non-standard instructions. Some courts require that each requested instruction be submitted on a separate sheet of paper. Most judges will not want you to initiate any sort of substantive, case-related ex parte (out of the presence of opposing counsel) conversation about the case with the court. Trial judges frown (no pun intended) on lawyers and others who may exhibit facial expressions, head shaking, or guttural approval or disapproval of transactions or testimony elicited from a witness. Pretrial and peri-trial contact with jurors outside of court is prohibited everywhere. Similarly, all judges do not allow you to address a juror by name after voir dire is complete. To avoid improper currying of favor, most judges prefer that you make suggestions regarding comfort of the jury out of the jury's presence. The list can go on and on. It will vary in each jurisdiction and with each judge. In addition to using your common sense, it's up to you to ask around and find out the likes and dislikes of your particular trial judge.

2. Check Out the Venue. Visit the unfamiliar courtroom. Check out lines of sight from the witness box, the jury box, the bench, the lectern (podium), and counsel tables. If you think that counsel tables need to be rearranged for the sake of fairness, do not move them without obtaining the court's permission. Get a feel for the acoustics. If your exhibits will take up space or if you are carting electronic presentation gear, find out if the court opens early and where you can store your exhibits and/or presentation equipment. Note the location of electric power outlets and lighting controls. Determine who (usually the bailiff) handles the courtroom lighting. Determine what sort of presentation equipment, e.g., flipcharts, video monitors, screens, the court supplies and what you need to do to reserve desired equipment. (If you don't reserve the court's equipment, nine times out of ten, it won't be available when you need it.)

3. Be Punctual. Don't Waste the Court's or Jury's Time. Be Candid with the Court. Being Punctual: Better an hour too early than a minute too late! Be so punctual that the judge can predict the rising and setting of the sun by your comings and goings. Or, as a judge once told me, "Mr. Moses, if you can't be on time, be early!" Tip: When in trial, make it a habit to get to court before your opponent every day. Your adversary will perceive you as ready and confident. Wasting Time: Don't keep the court waiting. If you are going to be tardy for a court appearance, call the court and provide your reasons for being tardy. Tell the court when you will arrive. Don't waste the court's time. Delaying tactics will irritate the court. Judges are concerned with keeping their dockets moving. Trial engagements typically take precedence over any other business. So, if you have matters in courtrooms other than the one in which you are trying a case, make other arrangements in advance for handling of those matters. If you can, save the court some time, e.g., by premarking your exhibits in advance of the court session, by having your witnesses ready to testify, by having orders prepared in advance for the judge's signature, by providing a bench brief regarding key evidentiary rulings, by having all documents about which you intend to question a witness readily available when you start the examination etc. If you anticipate that oral argument will be required for an evidentiary ruling or to resolve some other issue during the trial, alert the court so the matter may be heard either before the jury arrives or after the jury has been dismissed for the day. Most importantly, the jurors have volunteered their time for negligible pay. Their time is valuable to them. Don't ever engage in dilatory tactics and needless repetition that makes clear that you are wasting their time. If you waste the jurors' time, you will lose their goodwill.Candor: Do not make false statements of law or fact to the court.

4. Be Well Groomed, Well Dressed, and Dignified. The same goes for your client, your witnesses, and your co-counsel. Of course, every lawyer recognizes that you don't persuade jurors simply by pointing a suit at them. But, it's a start. People often judge from appearances; jurors and judges are people.

5. Maintain and Attitude of Confidence, Politeness, and Courtesy to All Court Personnel and Opposing Counsel. It helps to have the court staff, e.g., clerk, bailiff, court reporter, etc, on your side. Have a pleasant expression on your face when deal with the court staff. Be nice. Be likeable. Treat opposing counsel in a civil and courteous manner, but do not ever let the jury think that you have a cozy relationship with the other side. Avoid disparaging remarks and acrimony. Abstain from sidebar remarks, i.e., disparaging comments or remarks, not addressed to the court, made while opposing counsel is questioning or making a jury speech. Don't make comments expressing your personal opinion. Don't attribute bad motives or improper conduct to the opposition, unless you have proof. Stay in control of your emotions. Even if opposing counsel is a jerk, don't be confrontational unless it advances your case, e.g., when a prosecutor has suppressed evidence favorable to the defense. The cardinal rule: Don't get angry, except on purpose.

6. Prepare Complicated Stipulations in Writing Before You Present Them in Court. Don't make an offer or request for a stipulation in front of the jurors unless you have vetted it with the opposition in advance of the request or offer. When you have reached an oral agreement concerning stipulations, exchange drafts with the opposition and cooperate in reducing it to writing. As general rule, do not offer any stipulation, unless opposing counsel (and the defendant) has agreed to the stipulation and it has been reduced to writing. In a criminal case, neither side has the duty to stipulate to relevant evidence, even though the evidence may not be vigorously disputed. When you do think about stipulating to witness testimony, recognize that there are two types of stipulation. First, you may stipulate that if any absent witness were present his/her sworn testimony would be thus and so. Second, you may stipulate not only to the testimony that the absent witness would provide but also to the truth and correctness of that stipulated testimony. In the former situation, the credibility of the source of the stipulated testimony and the truth and correctness of that testimony is still at issue. In the former situation, credibility and correctness is not in issue because the truth and correctness of the stipulated testimony is no longer in issue. If the other side has the burden of proof on the issue covered by the stipulation, you are much better of in stipulating to the testimony but not the truth of it. If you have the burden of proof on the issue, try to get the opposition to agree not only to the stipulated testimony but also to the truth and correctness of it. Tip: If the defendant in a criminal case is stipulating to testimony in either situation, the prosecution should ensure that the court admonishes the defendant regarding his constitutional rights to subpoena, confront, and cross-examine witnesses and obtains a knowing waiver (1).

7. Be Ready with Grounds for Your Objections. Try to anticipate possible objections, the grounds for them, and the probable responses. When you do object in the presence of the jury, make your objection timely and specifically to the point. Cite the Rule of Evidence and/or the common designation, e.g., "inadmissible hearsay" for your objection. Don't argue the objection without court approval, and, even then, argue at sidebar. Don't argue with the ruling of the court in the jury's presence. For more see Objections.

8. Request the Use of Easels, Chalkboards, Document Cameras, Video Monitors and Recorders, Projectors, Screens, and Other Equipment Well In Advance So That They May Be Set Up While the Court Is Not In Session. Don't waste the jury's time. If you are going to display evidence, be certain that the medium of display is ready for your use. If you are using an electronic medium, always have a hardcopy backup in case of power failure. If you plan to use a demonstrative aid that requires a special display medium, let the court know in advance what you are going to do.