by the Honorable Kimberly K. Menninger
I am often asked what are the best practices a lawyer should use in the courtroom. After twenty-two years on the bench and sixteen years as a litigator, I believe I’ve seen it all: the good, the bad, and the ugly (although time will tell on this front). So, how do you become the good and not the bad or the ugly? As I share these thoughts I want to remind you, as I do my law students, that in the practice of law the most important attribute you have is your reputation.
Good reputations take time to build but they can be destroyed in an instant. Be cautious! The saying, “What happens in Vegas stays in Vegas” is not what happens in courtrooms; instead, what happens in the courtroom gets shared everywhere and especially throughout the legal community. On this front, judges do their best to curtail courthouse gossip, but people in courtrooms share what they see and hear. Take, for instance, the time I allowed a comfort animal to be on the shoulder of a testifying witness: the animal happened to be a large bird who was seated between the witness and my bench. Within fifteen minutes of that decision, the courtroom was packed with staff and attorneys who came to watch this testimony. There was no press release or coverage—just the court ruling and the informal court gossip network. So, as we talk about courtroom behavior, it is important to realize that everything you do—the good, the bad, and ugly—will be seen and shared within the legal community. Knowing this, it would be wise to conduct yourself at all times with dignity, courtesy, and integrity as you promised when you took the California Attorney’s Oath.
The goal of this article is to make sure that all of you are The Good. The best way to start this dialogue is to take a look at the good behaviors we have seen by attorneys we admire and the bad or ugly behaviors we have disliked.
The Good Identify the best litigators you have had the privilege of watching in court and identify what you like about them. What made them stand out? In my experience those best attorneys are prepared both academically and in their courtroom skills. These attorneys anticipate the unlikely and bring those issues to the attention of the court. They have an excellent command of the Evidence Code. They prepare and argue well-researched trial briefs and motions in limine. As for their presentations, they have a thorough command of the facts of their cases, provide interesting articulation of their positions, and produce interesting presentations, often using the courtroom presentation equipment. They are well-organized throughout their presentations and it goes without saying they are on time, efficient, and polite to staff, the court, counsel, and all others in the courtroom.
The Bad and the Ugly So what do the bad and the ugly look like? What behaviors have you seen that you have not thought highly of? From the bench, here are some that I have observed.
Incorrectly Citing Case Law Attorneys who cite incorrect law are not well regarded in courts. Unfortunately, in my experience, I have seen attorneys cite cases that stand for propositions inconsistent with what they represent to the court. There are three reasons this can happen. In the first instance, the law has changed recently and the attorney was not aware of the change. In the second instance, the attorney’s research was never accurate or thorough. In the third, it was an intentional deception to the court and parties. It appears to me that most of these mistakes occur because an attorney is not thorough. The most common experiences I have had suggest attorneys have prepared hastily and have only read the headnotes of a case or have not made sure the case is still valid. It is easy to avoid these mistakes by doing your homework and only citing cases after you have thoroughly read them and determined the case is still good law. Under no circumstances should you deceive the court as the California Code of Ethics and California Business and Professions Code Section 6068 prohibit you from misleading a judge through a false statement of fact or law and require you to use candor at all times with a court.
Repeating Yourself in Court Repeatedly arguing a point to a court especially after the court has ruled is not an effective way to litigate. Courts seek to give litigants the time they need to fully and thoroughly articulate their positions. Assume the court has read everything you have submitted and has heard all that you have said. Repeating your position or speaking louder will not cause a court to change its mind or to hear you more clearly. Once an argument has been made and submitted, it is time for the court to rule and for the parties to listen. From this point on, the attorney’s arguments must stop. Good litigants know this; acknowledge a court’s rulings and move on to the next issues with respect and professionalism. If you properly made your record, legal remedies can be explored later if you think the court got it wrong.
Failing to Listen It is the job of all attorneys to listen to the parties and the court while on the record. Some lawyers become distracted and argue a point after the court has made a ruling in favor of that party or after the opposing counsel has conceded the issue. This litigant has just won! Unfortunately the attorney did not listen, is still arguing, and has missed the win. This behavior has often resulted in a chuckle or two by others in the courtroom who are paying attention.
Failing to Extend Courtesy to Others “I will strive to conduct myself at all times with dignity, courtesy, and integrity.” This quote, a part of the California attorney’s oath, clearly states the expectations on our California attorneys. Courtesy, in essence, is being polite and treating others with respect. In the courtroom you are expected to be polite and respectful to the court, counsel, parties, witnesses, and especially to court staff.
Court staff are the key to all courtrooms. They are critical to court operations and deserve our respect and courtesy. In Orange County, our courtroom staff are trained professionals who juggle many things at one time with competing priorities.
Court clerks are in charge of all things administrative within the courtroom from answering phones, emails, correspondence, coordinating the calendars, jury instructions, jurors, and often other court staff. All communications between attorneys and the court go through the clerk, and attorneys cannot bypass court clerks to talk to the court.
Bailiffs, on the other hand, are in charge of jurors, the press, all things security and safety, as well as all movement within the courtroom. They are armed to protect the court and ensure the safety of the courtroom. They are professionals and take their positions seriously. Please treat them with respect and communicate with them when you need to enter into an area within their purview.
Court reporters are tasked with writing all that you say when you are on the record. It would help them if you could slow down, speak clearly, and make sure everyone knows when you are addressing the court on the record. Your record is important for all post-hearing events and therefore needs to be accurate and complete. Court reporters will interrupt you if you speak over another person, speak too fast, or begin speaking as though you are on the record before you are actually on the record. To stay on the good side of court reporters and to make sure you have an accurate record you need only follow these steps and do it with professionalism.
Counsel interaction is important. As a litigator, you represent a party. In that representation, you will vigorously advocate the position of your party in writing and orally. As required in the California attorney oath, you will discharge your duties to that client to the best of your abilities. This means becoming invested in the position you are articulating legally and, oftentimes, emotionally. You will sometimes be in the heat of battle while in the courtroom but are expected to perform effectively and professionally. Some of the best attorneys I have observed have long learned that today’s opposition may be tomorrow’s ally, and there is an art to keeping the battle to the battleground. They fight with all they have while arguing in court, but immediately turn it off when not in session. They behave in a way that is often kind, friendly, and always professional. The very best of the best litigators have mastered the art of turning off their battle behavior and turning on their professional behavior within seconds. This can be hard to do, but it’s my observation that attorneys who have mastered the art of this truly increase their level of happiness and satisfaction with our legal profession. This same rule also holds true for courts. You can and should be able to vehemently argue to a court, but when that argument is over, all of the participants, led by the court, should have an energy change that results in a reduction of the temperature in the courtroom and the ability for all to engage professionally.
As a last comment on courtesy, judges always appreciate attorneys who are polite and respectful to all in the courtroom including witnesses, jurors, opposing counsel, and court watchers. Your charge is to faithfully discharge your duties and to do so with “dignity, courtesy, and integrity”; behaving badly is not required to do this.
Erring in Calendar Management All cases are important. Courts strive to hear all cases on their calendar in an efficient manner allowing all parties to be heard. Courts are required to balance efficiency against the right to be heard. In order to manage these contrasting goals, courts use calendar and timing functions. When you are estimating the length of a hearing it is important to give the court an accurate estimate of your case. We all know that cases in court are “dynamic” and those dynamics may change your timing throughout the course of a case, so give the court your best estimate. If you receive information that changes your time estimate, you should inform the court as soon as you can.
It is equally important to arrive on time to all of your proceedings, or communicate to the clerk when something prevents you from arriving on time. We all know emergencies come up and communication with the court clerk will help the court effectively balance its responsibilities. If you are a litigator and also have parental or caretaking responsibilities, you may have extra demands and dynamics that can pop up and cause you to be late or to miss court appearances. Many of us on the bench have shared that experience. We know that those responsibilities will take precedence over all else, but we need you, as attorneys, to communicate these issues with the court clerk as soon as they arise. The key to becoming a good lawyer is becoming a good communicator.
Lastly, the timing and the management of your witnesses and presentations are very important. The court will set a calendar for the jurors, witnesses, and other cases that reflect the information you have provided. Jurors are not used to being in court and their time is precious. Jurors sacrifice when they serve as jurors. They sacrifice money, time, energy, attention, and the pleasure of doing what they want in order to serve. In exchange, judges try hard not to waste the time of the jurors. Hearing legal challenges before a jury gets to court or after the jury leaves exemplifies the respect we have for jurors by prioritizing their time over the convenience of the court or the parties. For these reasons, it is imperative that the timing estimates are accurate and that most legal issues are resolved in the pre-trial conference so that issues that should have been anticipated are not “popping up” throughout the middle of the trial.
Failure to Observe Courtroom Etiquette Litigants should observe courtroom etiquette. All attorneys should ask permission before approaching the court, the bar, the court reporter, the well, a back room or jury room. There are often strict rules regarding your movement around and throughout a courtroom. Staff and the court have discussed these rules and have a mutual understanding of their shared expectations. If these rules are not available in writing, ask the bailiff or the clerk what those rules and courtroom policies are and (when needed) how to comply with them. Bailiffs will stop your movement if you are trying to move within the courtroom in a manner that is not safe. To avoid embarrassment and to ensure everyone’s safety you should always heed the rules of the court.
Failure to Heed Litigation Rules All attorneys are taught that some courtroom rules are non-negotiable. All litigators know these rules but some forget to use them. Here is a list of commonly agreed-upon accepted litigation rules:
Make your record; Do not engage in speaking objections; Do not interrupt anyone else who is speaking on the record; Do not read to the court; Do not personally attack; Do not remove juror information from the courtroom; Keep your evidence organized and do not remove it from the courtroom; Do not tell a jury “you got it wrong” after a verdict; Do not raise your voice, make faces, or show anger; And, last but not least, when a court asks you to cite authority for their proposition, do not tell the court “that’s the way they do it down the hall.”
In conclusion, it is my belief that most, if not all, attorneys strive to be the Good Attorneys and avoid behaviors that exemplify the bad and/or the ugly. It is an honor to be a part of the noble profession of law and I am humbled by the fact that this is the only profession that defends civil rights, protects citizens, punishes those who infringe on the rights of others, and provides a forum of civilized debate to determine contested matters in all areas of disagreement. The courtroom is the battlefield, but this forum for debate and disagreement must be civilized and professional for it to be trusted. We, the litigators and the judges, are the guardians responsible for this forum. So, in my most persuasive voice, I say, “Use your best practices and become or continue to be The Good.” I look forward to seeing you on the battlefield.
The Honorable Kimberly K. Menninger is a judge with the Orange County Superior Court. She can be reached through the Editor-in-Chief.
Approaching the Bench is an occasional column that offers insight into the courts or litigation best practices.