Order in the Court

The Recorder
By Douglas S. Lavine
March 14, 2007


Imagine you are the senior physician at a hospital, watching through a one-way mirror as a young doctor prepares to remove a patient's appendix. The neophyte is a graduate of Yale University and Harvard Medical School, where he was at the top of his class. But you observe that he is not wearing surgical gloves, doesn't know where to position himself at the operating table, and isn't sure what surgical tools to use. Concern turns to panic and you take steps to stop the operation.

That is roughly how it looks from the bench when a new lawyer demonstrates a lack of familiarity with the basic norms of courtroom behavior and practice. The lawyer who doesn't know how to act in a courtroom is at a considerable disadvantage because his credibility is instantaneously diminished in the eyes of everyone in the system.

Experience, of course, is the great teacher and no one expects new lawyers to arrive in court as fully formed advocates.

But there is no excuse for even the most inexperienced attorney not to take the time to learn certain basics. And there is no good reason for mentors, and senior lawyers, not to take the time to teach them to new initiates.

Many of these suggested behaviors seem self-evident, but experience teaches me that they are often overlooked. I hope they help new lawyers avoid the sorts of mistakes that I made when starting out and that I have frequently observed during my judicial career.

FIRST STEP: LET THE JUDGE KNOW WHY YOU'RE THERE

1. Be on time. Always plan to get to court well ahead of when the proceeding starts. Lateness is unprofessional and can seriously inconvenience the court, opposing counsel witnesses, jurors and parties. Make allowances for bad weather and heavy traffic, or late buses and subways.

If you are late, always begin your court appearance with an apology and an explanation. For example: "Your Honor, I apologize to the court and attorney Dithers for being late. A tractor-trailer overturned on I-91 and the highway was closed for half an hour."

2. Introduce yourself and succinctly state your business. When first appearing, do not assume that the judge knows why you are rising to speak or who your client is.

Introduce yourself, state who you represent and what your business is. Many experienced lawyers use a time-tested opening like this: "Good morning, Judge Smith. My name is Esther Jones from the firm of Jones & Jones. I am here representing the plaintiff, Madeleine Myers, in connection with her Jan. 14, 2007, motion for summary judgment."

That is enough. Do not launch into your argument until asked to do so.

3. Stand when addressing the court. Unless you have a physical limitation, always stand when addressing a judge or panel of judges. Speaking from a sitting position is disrespectful. If you are unable to stand due to illness or a medical problem, ask the court's permission to remain seated and explain why this is necessary.

4. Speak clearly, slowly and loudly enough to be heard. For years, court reporters asked me to slow down. I actually bought a stamp that said "Go Slow" and stamped it at the top of each page of the legal pad I was using in court. If you speak too fast, you won't be heard or understood. You also must speak loudly and clearly enough to be heard.

5. Talk through the court. Do not speak directly to opposing counsel in court. Always speak through the court. If your adversary says something requiring a response, do not turn to him or her to engage in cross talk.

The proper response is to speak directly to the judge and say something like this: "Your Honor, attorney Snodgrass is mistaken when he states that my client failed to respond to the interrogatories in a timely fashion. The response was made three days prior to the date required by the rules of practice."

6. Do not interrupt. The urge to interrupt opposing counsel, a witness or the judge is sometimes overwhelming. Resist the temptation. It is rude in private conversation, and unprofessional in the context of a courtroom.

7. Avoid ad hominem attacks. The popular culture sometimes makes it appear that successful lawyers are masters in the art of verbal character assassination.

Aggressive argumentation and questioning of witnesses is fair game; name-calling masquerading as advocacy is not. It is never appropriate to engage in ad hominem attacks in court.

8. Do not raise issues before a jury that should first be aired before the court. If a jury is present, it is inappropriate to raise certain issues in its presence before first airing the issue before the judge. For example, it is improper to refer to evidence when an adversary has made it clear that he believes the evidence is so prejudicial, or irrelevant, that it will be objected to and ought not be exposed to the jury.

Likewise, it is improper to argue, in the presence of the jury, that you don't have a document because opposing counsel refused to give it to you during discovery. The proper course of action in such circumstances is to approach the bench and ask that the jury be excused so that the issue can be discussed and resolved outside of the jury's presence.

It also is acceptable to raise the issue through a motion in limine prior to the jury entering the courtroom.

9. Stop arguing after an adverse ruling. Over a career, you are likely to win, and lose, hundreds, or thousands, of arguments.

Once you've made your argument, accept the court's ruling and move on. If you realize that you have failed to say something important after argument has concluded but before a ruling is made, ask permission to make one further point that you have not previously made.

The lawyer who doesn't know how to act in a courtroom is at a considerable disad-vantage because his credibility is instanta-neously diminished in the eyes of everyone in the system.

10. Avoid making facial expressions or audible comments. You may think that a court ruling - or the argument of an adversary is preposterous - but respond in a professional, appropriate way.

Facial expressions, or audible muttering, that indicate surprise or displeasure will not enhance your reputation. Such responses might please a client, but they will annoy and alienate a judge or other decision-maker.

11. Request the court's permission to approach a witness you are questioning. If you are going to approach while questioning a witness to show the witness a document, you must first obtain the court's permission. You may not infringe on a witness' space without the court's approval.

12. Do not read from a document not in evidence. In a trial setting, you may not read from a document unless the document has been admitted into evidence.

13. Never knowingly misstate a fact. In an individual case, and over a career, your credibility is your most valuable asset. Never do anything to undermine it. If you learn that you have misstated a fact, inform the court and opposing counsel immediately. It is better to admit 1,000 mistakes than to have the court, or opposing counsel, come to believe that you were aware of a misstatement and failed to correct it.

14. Cite cases accurately. Likewise, if you have cited a case for the wrong proposition, correct the mistake as soon as possible. It enhances, rather than undermines, your credibility if you admit that you have made a mistake and inform the appropriate players in the system.

Hopefully, this won't happen every day, but I can guarantee that it will happen.

15. Refer to people by their last name. It is presumptuous, in the courtroom setting, to refer to people by their first names. Except in rare instances (e.g., children in juvenile court), people should be referred to as "Mr. Jones, Ms. Smith, Dr. Peters, Col. Mustard," and so on. Doctors, detectives, military officers and other people who have earned titles deserve to be addressed accordingly.

WHEN ARGUING, YOU SHOULD KNOW YOUR AUDIENCE

16. Be courteous and polite to everyone in the court system. Clerks, court reporters, marshals, legal secretaries and others in the court system deserve to be treated with respect and courtesy. Believe me when I tell you that if you are rude or discourteous to court staff, word will get around, and the judges, among others, will find out that you are abusing your authority.

17. Search for your own style. Whenever possible, I used to sit in court and watch other lawyers at work. My advice is this: Learn from everyone, but copy no one. Incorporate the best features of other lawyers' techniques into your repertoire, but find your own voice, your own style.

18. Stress preparation. Whether the matter is small or large, there is absolutely no substitute for preparation. Your goal should always be to know the facts of your case, and the law, better than anyone else in the courtroom.

19. Know your audience. This is a large, important topic and will be the subject of a future column. For now, suffice it to say that every argument should be tailored to appeal to the audience to which it is directed.

Take the time to learn about your audience - be it a judge, a panel of judges, an administrative board or someone else - so that you can fashion your argument in the most persuasive way possible given the cluster of beliefs, experiences and needs of your particular audience.

20. Enjoy yourself. Arguing a client's case in court, or any adversary setting, is often exhilarating.

Try to have fun as you are doing it.

Douglas S. Lavine, a judge on Connecticut's Appellate Court, is the author of "Cardinal Rules of Advocacy" (NITA 2002), and "Questions from the Bench" (ABA Section of Litigation 2004). This article originally appeared in the National Law Journal, a Recorder affiliate based in New York City

Reprinted with permission from the Recorder