Behavior Reminders for the Young Lawyer
The Bencher—July/August 2021
By Judge Judith K. Fitzgerald (Ret.)
“Behavior is the mirror in which everyone shows their image.”
—Johann Wolfgang von Goethe
With so few live in-court appearances during this pandemic year, I’d like to provide some reminders about appropriate courtroom behavior and highlight conduct that judges do and don’t appreciate from counsel.
We all strive to be excellent lawyers. This article provides practical tips for getting ready and going to court. Keep in mind that civility goes a long way with the judge and enhances your reputation for professionalism and courtesy as you develop the skills to become an excellent practitioner. I’ll begin with the way litigation begins—at the pleading stage.
What should you always check out when preparing pleadings?
When preparing pleadings, review the national rules of procedure, read the local rules and the judge’s own posted procedures, and comply with all, even when you regard the judge’s preferences as “make-work.” If you have any questions, contact the judge’s administrative assistant or a local lawyer who appears in that court. As an example, if the judge wants all the pleadings fully justified or wants the font to be 14-point Times New Roman, then use the prescribed format for your written submissions. And always take a look at the docket to be certain nothing has happened that will change what you need to emphasize.
How can you be sure you will make a good first impression?
Be totally honest with the facts and the law. Your pleadings and briefs are usually the first time the judge gets any familiarity with you, so don’t waste it. Always disclose binding case law even if you have an argument to change it. When you can, have someone read your work product before you file it. Sometimes what seems really cogent to you isn’t all that clear to someone else.
Let’s move to the courthouse. When should you arrive?
Be early, not just on time. Some judges will delay opening court for a few minutes, but others won’t wait for you or your client, even if the reason is because you couldn’t get through security in time. And remember to turn off your cell phone and any other device that makes noise or records anything. No photos, no recordings! No talking to counsel, just to the judge. Some judges take away devices when they make a sound, so beware.
The judge is coming—what do you do? Stand and face the court when the judge enters and leaves. Treat the courtroom as though it were a national treasure—in fact, courtrooms are national treasures as they are where justice is sought and provided. The judge presides over that space; treat the judge as a national treasure too.
At the podium, what do you think the judge will notice first?
Think about your face. A smile, or at least a pleasant, engaging countenance, is much more appealing than a frown or angry look. The judge is going to look at you, so be prepared to look back. A stage director I know once told me that you always need a face. In other words, look alive! Show your face, not the back of your head.
Consider what you are going to wear. Dress professionally. The idea is to ensure that the court’s focus is on your argument and not on what you are wearing. Whether we like it or not, our appearance forms a basis by which other people develop their perception of what we are like. We want the judge to see us as competent, trustworthy, believable. If we are messy, if our pleadings are sloppy, we are not going to make the best impression we can make, and that can adversely affect our client too.
And know how to use all the equipment available in the court. Judges are getting quite savvy at technology—and even more so since audio-visual equipment has been the way courts have run during the COVID-19 crisis. If the judge knows how to use it, you should too.
Pay attention to instructions though. If there is a sign on the podium that says “don’t touch the microphone,” then don’t touch the microphone. Microphones are sensitive and can throw an entire system out of whack, which may harm the ability to record the proceedings.
What is the purpose of a trial?
Yes, it is simply to prove the facts. Organize your case, your trial notebook, and your time toward that goal. One hint to prepare for trial is to have answers to the questions you reasonably anticipate and if there is an objection made, how the law relates to those facts. If the court accepts proffers, be prepared to give a short, concise recitation of what the witness will say. Good practice is always to have a proffer ready for each witness. A proffer helps you match the witness with the element of the proof you need to produce and forces you to have a clear summary in mind of what you want the witness to testify about, even if not used as a proffer.
Who is the most important person in the room?
The factfinder, not you. So, talk to the factfinder, not to opposing counsel or to the audience.
Find out in advance what the judge wants to be called and whether the judge has any pet peeves.
“Your Honor” or “Judge X” usually works fine. One federal district court judge years ago did not want to be thanked. Most of us have an automatic reaction to say “thank you” at the end of an argument, for example, but this judge would go into a long explanation about how it is not proper to thank the court for doing its duty. The court will thank the jury members for their public service, but everyone else is there for the job, not to be thanked for ordinary services.
One judge wants everyone to talk while seated at counsel table, not to stand at the podium. However, in certain jurisdictions, you are expected to stand whenever you are being addressed by the judge (even if you are not at the podium). Other judges have particular ways they want exhibits and documents marked and offered. Find out what those are: Do you get the witness to identify and then offer, or do you go through the whole testimony of the witness and then offer them all? Just remember to offer them into evidence at some point!
How do you start your case, and who do you look at?
Always start with “May it please the court, I am X, and I represent Y.” Look at the witness if you have one on the stand, or the judge or jury otherwise, not at opposing counsel or the audience. If you are appearing by phone, be sure to state who you are each time you speak.
What’s the game plan at the podium?
To exude confidence and reliability and to be credible. Stand straight; do not use negative body language—no eye-rolling, no frowning, no signaling your own reaction to the testimony or the argument of opposing counsel. And no gum, candy, or food.
What about your tone of voice?
Sometimes we don’t think about the tone we use. It should be modulated, but clear. It should not be so low in volume that you cannot be heard clearly, but don’t shout either. If the judge can’t hear you, you are not communicating or getting your points across. Yet, talking with too much volume can be irritating or induce hostile reactions in the listener—and the most important of those is the judge. I have heard about some great trial lawyers who took voice lessons to be able to project across a large space without a microphone and without shouting, just to win the tone of voice war with opposing counsel. How you present what you have to say has an impact and sometimes causes more of an immediate reaction than the merits of your position.
What are some important things to consider when writing and arguing pretrial procedures and dispositive motions?
This may sound a bit like English Writing class in high school: Check grammar and spelling; keep the argument in logical order; skip extraneous things; pay attention to page and time limits if they exist; and focus on what is important, but always include a general statement that you rely on the record/briefs for whatever you are not arguing so as not to waive anything.
And, unless you absolutely have something in the factual background that you must express, consider asking the judge whether he or she wants a complete background or wants you to jump to the issue. You can always ask, if the judge doesn’t tell you, whether there is a particular topic the judge would like to hear about first. And if the judge says, “Yes, what about Z?” then talk about Z. That should be a big clue that Z is what is most troubling the judge, even if you don’t know whether the trouble is with your argument or opposing counsel’s.
All of these things help the judge get through the argument more easily and get a ruling out faster. Some courts have time limits to issue rulings and must file reports about their compliance. In general, judges want to get things done as expeditiously as possible and appreciate your efforts to make that happen.
Never interrupt or talk over the judge or whoever has the floor.
The court reporter cannot take down two conversations at one time, so something will be lost, and it may be your best argument that goes out the window. If you need to interrupt, ask permission: “Your honor, I would like to interject something to clarify a statement before counsel goes on. May I?” You may be told no, to wait your turn. If so, make a note and get to it when it is your turn.
If you disagree with a ruling the judge makes, what do you do?
Politely point out what it is you found to be in error and move on. Do not be combative. That never wins you any points with a judge who is there to try to figure out the best resolution to the problem.
Can you rely on your trial notes or your brief if you are making an argument?
Hopefully for trial, you have made an outline of elements you need to prove (or defeat) and how the witnesses will assist. But remember that listening to the witnesses—including your own—is important so you can catch a statement that needs clarification or something that clues you in to a question to ask. For argument, don’t simply restate what is in your brief and don’t read out loud. Make a presentation that engages the judge and affords the opportunity for questions, comments, and clues.
You’ve finished your presentation. What next?
Ask the court if there are any questions you can answer or supplemental briefing you can supply. Then sit and pay attention to what happens next. Don’t daydream about what you said or could have said—you can do that when you get back to the office. In court, keep your radar working. You may get a helpful hint about something that may enable you to provide a supplemental point if the judge offers you the chance or if you ask for it and the judge grants that request.
The judge is leaving the bench. What do you do?
Once again, stand, face the court, and stop talking. Remember that the microphones are often still on even though court is in recess, and sometimes those microphones feed into chambers. The court is not a private facility, and your conversations may not be either. Gather your things and leave if court is over for the day.
One final point: Treat every member of the court staff with the same respect and dignity that you do the judge.
Judges are very protective of their staff members, and insulting or irritating a staff person usually finds the ear of the judge, with results that are not likely to help you gain the reputation you cherish. You don’t need a dressing down in court, with clients or other lawyers present, for mistreating staff. Plus, being friendly and helpful with staff usually gets returned at some time. You never know when you will need a friendly tip from the people closest to the judge.
This list of practical suggestions can be expanded exponentially. Think about your experiences to date and how you can use them as positive examples or as matters to improve. There is no magic formula to developing professionalism and civility in court. But, there is a strong likelihood that practice will make perfect. One place to go and learn these skills from other lawyers is your local American Inn of Court.
The Honorable Judith K. Fitzgerald (Ret.) cofounded the Judith K. Fitzgerald Western Pennsylvania Bankruptcy American Inn of Court, which was named in her honor upon her retirement from the bench in 2013. She is now a shareholder in the Pittsburgh-based firm Tucker Arensberg, P.C., and a professor in the practice of law at the University of Pittsburgh School of Law where she teaches bankruptcy and advanced bankruptcy.