The Significance of Etiquette in Court
The very foundation of the legal system rests on respect, order and fairness. No one expects a judge to tolerate rude behavior or a lack of decorum. Yet, some lawyers may treat court proceedings too informally to maintain the respect due the court and the legal system. Professionalism establishes the parameters for practice in the courtroom setting, shaping how opposing counsel and judges perceive you — and how they may treat you in return . This can have a snowball effect throughout your career. Respect extends to clients who then are more likely to trust attorneys who are viewed as professionals. Judges also respect attorneys who display professionalism in court, and often favor them with more leniency than attorneys they perceive as disrespectful.
Without question, lawyers must strive to uphold the very highest ethical standards; otherwise, no one wins: the courts, the public, the client, and the profession in general.
Courtroom Dress Code for Attorneys
Most who practice law recognize with a pretty high degree of certainty what is appropriate to wear in court, as well as what is not. Obviously attire that might be acceptable at the local pub or grocery store may not be suitable in court. However, in many situations, dress appropriate for court can and often does differ in appearance and style depending on where one is appearing, what type of court it is and what the lawyer’s role is as either an advocate or an adversary.
Most courts in the United States have become increasingly casual as to attire. Some state courts and federal district courts retain a public perception that they are more formal than other state courts and federal district courts. Notwithstanding, lawyers should particularly avoid showing disrespect to the court and to the profession through the wearing of inappropriate or sloppy attire.
The United States Supreme Court remains the most formal level of court. Justices are no longer required to wear robes, and there is no dress requirement that attorneys wear jackets and ties. But that has not stopped them. The solicitor general wears a morning coat and waistcoat with striped pants. And some lawyers appearing there routinely wear black tie.
Many foreign judges wear robes, wigs and bands around their collars. A few trial judges in the UK wear a full wig and full gown. All judges on the circuit bench wear wigs and gowns, but this does not apply in hearings before the courts of quarter sessions in England, Wales, and Northern Ireland.
While attorneys appearing before most state courts generally wear business casual attire, patterns vary. Many family, juvenile, probate and municipal courts continue to require jackets and ties for male attorneys. In some states, some attorneys adopted a regional flavor, wearing what is referred to as southern or western dress. Some of these attire is too challenging for most.
In municipal courts, some lawyers dress in shorts and flip-flops. One municipal court in Oklahoma noted their concern with attorneys dressing too casually, including the judge suggesting that attorneys "wear industrial strength flip-flops." The president of the Oklahoma Bar Association wrote a letter to all lawyers urging them to dress appropriately.
Attorneys dress much differently depending on their role in court. Attorneys who appear just to observe may dress more casually than attorneys who argue motions or try cases. Counsel for the prosecution often dress differently than the defense counsel. Appellate attorneys dress differently than trial attorneys.
The advice that your mother gave you will always hold true. When in doubt as to what to wear, err on the side of caution. Dress in a manner that shows respect for the court, the law and your client’s cause.
Verbal and Nonverbal Communication in The Courtroom
When it comes to oral advocacy, there are no "do-overs" in the courtroom—presentation of evidence and closing arguments are arguably the most critical components of litigation. Having an understanding of proper courtroom etiquette helps attorneys be more persuasive and makes a good impression on judges, who can be turned against a lawyer before they’ve even begun their arguments.
The key to communication protocol in the courtroom is knowing how to address court personnel.
· The judge is addressed as "Your Honor."
· All parties in action are addressed by their surnames sans honorific when they are called to the stand or to make a motion.
· If there are multiple parties in an action (i.e., multi-party litigation), only refer to the party you are currently addressing by name to the judge.
· Witnesses can be addressed both directly and indirectly through the attorney, and opposing counsel may be addressed both directly and indirectly, provided that the court is always addressed through "the Honourable Court," "Your Honour" or "the Court."
· When addressing the court, attorneys should always stand and remain standing until the judge indicates that he or she may resume a seat.
· Attorneys should always rise when the court enters or leaves a courtroom.
· Attorneys should not interrupt the judge or opposing counsel.
· Attorneys should ask the court for permission to approach witnesses, judges and opposing counsel, as well as to publish (i.e., show, bring or hand to) exhibits to the jury.
· All documents should be clearly identified with tabs. Annotations should be placed on the tabs, such as "objection," "sustained," "overruled," "admitted into evidence" or "exhibit" so court personnel can quickly understand their purpose.
Professional Respect for Court Staff
It is equally important to extend the same respect for the decorum of the court to the clerks and bailiffs. When addressing a clerk or bailiff, use the formal title, Mr., Ms., or Mrs. followed by the last name. Do not distract them, but rather wait patiently to be acknowledged. Even though you may be waiting your turn in the courtroom, when a clerk or bailiff is competently performing their official duties, you need to afford them the courtesy of giving them your full attention. If they are being pulled away from their duties to assist you, the same treatment applies. Being courteous and respectful to the staff, whether or not court is in session illustrates that you are a true and respectful professional, and your demeanor will be appreciated.
Courtroom Protocol and Procedures
Understanding courtroom procedures is crucial to being prepared for court and having a successful case. Courts operate on numerous complex rules that can be difficult to understand. Through experience comes familiarity but unless you are an extremely frequent flier at the courthouse or have a criminal or civil matter that requires a lot of time and attention in court, chances are you are not intimately familiar with every aspect of this legal process.
Even if you have been in court frequently, it is important to familiarize yourself with courtroom procedures well in advance of your scheduled court date. To prepare for going to court, make a list of questions about the process so you can get the answers from your attorney in advance and then read the instructions provided to you by the court to familiarize yourself with the court procedure. Many courts have procedures for how to bring and respond to motions and petitions in place on their websites. Familiarizing yourself with the basic procedures and tone of the court can give you vital insight into what will happen when you’re there . For example, if you learn that the judge prefers mediation over a trial and that you will have to pay the associated fees in advance, you may be very motivated to settle out of court.
Before you go to court, become familiar with the client handbook or guidebook created by the court for the type of case in which you have an interest. These guidebooks include information about what to expect from the court and judge, how to behave and dress in court, as well as advice on how to prepare for court. These preparation tips can be very valuable and could have a major impact on the outcome of your case. A court may deny a certain motion because it is not in the preferred format or did not include all of the relevant information. This is usually not the type of error the judge is willing to overlook, so he or she will reject the motion without addressing the issue at hand.
Knowing the process before you enter the courtroom is the best way to ensure you are fully prepared for what’s ahead.
Courtroom Interruptions and Time Management
And of course, interruptions. Someone walks into the courtroom and starts talking while you’re in the middle of a sentence. Or the judge interrupts you because they misheard something you said. Or a bailiff walks in and disrupts you at some inopportune moment. Sometimes the printer decides to spit out a few pages of my brief in the middle of me talking. People walk in and out of the courtroom, many of them not lawyers or witnesses, and I sometimes have to issue a "quiet, please" order.
It’s maddening, but you can’t really display that disgust in front of the court. Simply bear down and keep going. Sometimes even when the judge’s just annoyed, you may get a nasty comment about your "obnoxious, throaty laugh" by way of a mid-sentence interruption. See what I mean by having to master your reactions? Remember, it’s all about keeping your cool, even so far as to self-deprecate when you do go off the rails: "Your Honor, I’m very sorry. Clearly the smell of this awful rumor is stronger than my self-control." Obviously, that approach depends on the judge’s sense of humor—if the Judge has none, then don’t joke. Just apologize, then carry on.
There are a couple of little tricks for handling such gaffes. Do not stare at the person who interrupts, or even give them the slightest bit of your attention; doing so will throw you off. Try to stay focused on the bench and the people in front of it, and keep talking. If it’s not something horrible that’s thrown you off (the random person talking, for example, or a sudden realization that your printer has spit out just the first part of your 10 page brief), try to repeat your last few sentences before moving forward: "As I was saying, Your Honor…" Then, after a quick pause to make sure you’re in the clear, go on as if nothing really happened. Don’t dwell on it. Move on.
Understanding Ethics and Professional Misconduct
A lawyer’s professional obligation is to dispense zealous and effective advocacy on behalf of his or her client. This includes the responsibility to act with integrity in every facet of their practice. This does not mean that every issue a lawyer is handling rises to level of being a court appearance. However, when a lawyer makes an appearance for any purpose in court, they should always keep in mind that the courts give special consideration to the legal profession. It is exceedingly significant when an officer of the court engages in unethical and/or immoral behavior.
The Rules of Professional Conduct (RPC) outline attorney obligations to both their clients and the court. If an attorney is uncertain about a particular action or procedure, they should consult with an experienced attorney in their office. Failure to seek advice and/or engage in unethical behavior could result in sanctions against the client on the case. Notably, sanctions against a party could result in the attorney being held jointly and severally liable for any damages. This is particularly true in family and juvenile matters where the monetary sanctions against a party are less about fines and more directed towards the payment of the other party’s legal fees resulting from having to file an emergent motion to remedy the misconduct. The sanctions are a powerful means to encourage attorney and client behavior appropriate for the court system. As such, the sanctions imposed must be carefully measured and thoughtful. The challenge is that the same behavior may result in magnanimous sanctions against one party and none against the other, creating disparity in effect, if not intent.
At the recent American Academy of Matrimonial Lawyers annual meeting, I attended a panel discussion on attorneys imposing sanctions against parties for ethical violations and/or lack thereof. The panel featured a former judge, a private marital/family law practitioner and a legal ethics guru. The discussion centered on whether sanctions should be uniformly applied or whether they should be discretionary based upon the behavior present and circumstances involved. Certainly, the panelists were in agreement that sanctions had to reasonably relate to the severity of the act and the reason for the prior erroneous conduct . However, the should sanctions always be made? This is where the panel diverged.
The former judge was an advocate for discretion while the private practitioner tended to favor limited use of discretion, making sure that the sanctions related to the conduct at issue. The legal ethics guru represented the mean position – discretion had to be exercised but sanctions should be routinely sought for all egregious conduct as part of the attorney’s ethical obligations. This makes sense since lawyers have an ethical obligation to act in good faith and with candor towards the court consistent with our role as an officer of the court. It is also our duty to provide competent advocacy for our clients. That is, we should use all legally appropriate means to advance our client’s position. In this respect, a party will more likely get a fair shake from the judge if they do not need to check on the attorney’s professionalism and competence.
Behavior which is always subject to sanctions includes:
Sanctions can come in various forms including, but not limited to: monetary sanctions, an award of counsel fees to the opposing party, an award of costs to the opposing party, referral to the state bar association ethics committee, court supervision of the offending attorney for a specified period of time (i.e. monitored probationary period), reprimands, censure, suspension or disbarment.
It is crucial that all attorneys comply with their ethical obligations while practicing law in the State of New Jersey. This is particularly true when appearing before the Court. Preserving our legal system and the trust and reliance the public has upon attorneys is part and parcel to what being a member of the legal profession is all about. It is essential that the public has the utmost confidence in our legal system in order for mypractice as a family law attorney to have continued merit and for reasonable people to actively seek the assistance of attorneys when legal issues arise.
In order to uphold the integrity of our legal system, all attorneys must always be cognizant of their duties and responsibilities when representing clients before the Court. Misconduct cannot be tolerated and must always be addressed. This is true whether committed by attorneys or litigants.
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