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Chapter 3 – Part I YOUR ROLE AS AN ADVOCATE – IN COURT

The Honorable David Hittner and The Honorable Lamar McCorkle

Judge, U. S. District Court Judge, 133

District CourtSouthern District of Texas Harris County, Texas

I. COURTROOM ETIQUETTE

In the era of the so-called “Rambo litigator,” itis not surprising that courtroom etiquette hasbecome a more rare commodity than in thepast. As a licensed lawyer thrust into thisatmosphere, you may believe that you mustabide by these tactics. The problem, however, isthat judges expect all attorneys, including theinexperienced ones, to adhere to certain basicstandards of conduct. Whether in state orfederal court, there are several fundamentalprinciples and rules of court etiquette that willgenerally apply in all jurisdictions and, in mostcases, before any judge. This chapter highlightsgeneral recommendations to familiarize you with acceptable standards of practice, providepractical suggestions for court appearances andpleadings, and outline the basic rules of courtroom etiquette. While substantive rules of law and procedure are essential to thepreparation and trial of any case, this chapterfocuses on the intangible aspects of preparing and presenting a case to the court and jury.

II. DEVELOPING A GOODREPUTATION

One key to a successful trial practice is todevelop a good reputation. In dealings with thejudge and other attorneys, reputation may meanthe difference between a satisfying or stressfulexperience, or even the difference betweensuccess and failure. In many instances, you willhave only your reputation upon which to rely.In those cases, if the judge trusts you, he or she will allow you more flexibility than wouldotherwise be the case. A reputation for honesty,integrity, accountability, respectfulness, andfairness may take years to develop, while a poorreputation may be earned quickly and can beincredibly difficult to rehabilitate. “A brokenreputation is like a broken vase—it may bemended but it always shows where the break was.” Henry Wheeler Shaw. Most attorneysunderestimate the impact that a negativereputation can have on their careers. Youshould be aware that judges often discuss“problem” attorneys among themselves. Thus,a victory gained at the price of acompromisedreputation is pyrrhic at best.Not only is your reputation integral tosuccessful practice before judges but also torelationships with other lawyers. Attorneys oweeach other “courtesy, candor, cooperation, andscrupulous observance of all agreements.” The

Texas Lawyer’s Creed

. Ill feelings between clientsshould not influence your professional conductand do not excuse vindictive or retaliatory practices. Keep in mind that there will alwaysbe a later case that could invite “reciprocity” by that same opposing counsel. To quote a well-known political adage, “What goes around,comes around.”

Fortunately for the profession, recent yearshave marked an increased emphasis on civility among attorneys.

Brent E. Dickson & JuliaBunton Jackson, Renewing Lawyer Civility, 28 Val. U. L. Rev. 531 (1994); Marvin E. Aspen, The Search for Renewed Civility in Litigation,28 Val. U. L. Rev. 513 (1984). Civility betweenadversaries is an important component inbuilding a positive reputation. You shouldcooperate with opposing attorneys to resolvelegal disputes; you should view the court as thesolution of last resort. Many state and federal

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courts require a certificate of conference,indicating that counsel have conferred in agood faith attempt to resolve the dispute butfailed to do so. This requirement should not betaken lightly, for underlying it is the recognitionthat many disputes can and should be resolved without court involvement.

III. THE DAMAGE FROM UNETHICALCONDUCT

Not only may unreasonable and unethicalconduct damage your reputation as a lawyer,but it may also exact a financial cost.Increasingly, courts are imposing varioussanctions for frivolous filings, vexatiouslitigation, obstructing discovery, andunnecessarily multiplying litigation. A courtmay impose sanctions against an attorney, hisor her clients, and even against a law firm, if appropriate. See Fed. R. Civ. P. 11; 28 U.S.C.§1927; Tex. R. Civ. P. 13; Nasco, Inc. v.Calcasieu Television, 501 U.S. 32 (1991) (stating that a court may sanction an attorney pursuantto its inherent powers even if an attorney’sconduct does not fall within the ambit of Fed.R. Civ. P. 11 or 28 U.S.C. §1927). If anopposing attorney has engaged in sanctionableconduct, you should bring it to the court’sattention by filing the appropriate motion.Pointed and heated letters exchanged betweenadversaries, with copies to the judge, aregenerally regarded by members of the judiciary as directed to them, not to the opponent.Nor should you mislead the court in any written or oral presentations. Such conduct may breach legal ethics, violate the procedural rules,and expose you to sanctions. Perhaps mostimportant, if you engage in such maneuvers youmay never regain credibility with that judge.

IV. THE TEXAS LAWYER’S CREED

In addition to the standards of acceptablebehavior governed by the sanctions, rules andcommunity standards of practice, the SupremeCourt of Texas and the Texas Court of Criminal Appeals have endorsed a creed of expected standards of practice and behavior. The Creed governs relationships betweenattorneys and their clients, opposing counsel,and the courts. As mentioned in other chapters,you will find The Creed after the Introductionto this Volume. In addition, there are local andspecialized creeds such as those adopted by theHouston and Dallas Bar Associations, the Texas Trial Lawyers, and the Texas Associationof Defense Counsel. The United District Courtfor the Northern District of Texas articulatedthe expected litigation standards for that districtin a judicial opinion. See Dondi PropertiesCorp. v. Commerce Savings & Loan Ass’n, 121F.R.D. 284, 286-89 (N.D. Tex. 1998). Youshould familiarize yourself with the Creed and with other standards of conduct adopted by thelocal bar association where you are practicing.

V. ADDITIONAL “RULES OF COURT”

A. Know the Local Rules

In addition to building and maintaining a goodreputation, you should always familiarizeyourself with the court and judge to whom yourcase has been assigned. There are various waysto prepare. Judges often maintain manualsindicating their own preferences for courtroomprocedure and attorney conduct. If a judge doesnot maintain a personal procedure manual,refer to the local rules or local bench books of the court before which you will be practicing.

Another valuable source of information about aparticular judge’s preferences is the judge’scourt staff. The court staff may include acourtroom deputy, case manager orcoordinator, law clerks, court reporters, courtclerks, and bailiffs. Each of these individualshas different responsibilities related tomanaging the judge’s docket and courtroomdecorum. You will need to determine whichindividual is best suited to answer certainquestions; however, before approaching any of these individuals, you must ascertain the judge’spolicy on attorney contact with the staff.

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Contacting a member of the court staff in violation of a judge’s order is an

ex parte

communication. Usually the courtroomcoordinator/case manager is available to answerquestions from the public, but many judges donot permit law clerk contact with the public.

Finally, you may find the judges themselves tobe a source of invaluable information. Judgesoften are willing to answer specific questionsduring motion hearings, scheduling conferences, and pretrial conferences on theirparticular courtroom practices. Do not beafraid to ask judges about their preferencesregarding courtroom procedure.

B. Treat Court Staff with Courtesy andRespect

Treat the court staff with courtesy and respectat all times. All too often, attorneys misdirecttheir frustrations at these individuals. Not only is it unfair to abuse the court staff, butinvariably, the judge quickly learns of rude orabrasive conduct. If you engage in it, you willsuffer consequences from the judge and/or thestaff member, either directly or subtly.

Additionally, do not attempt to ask the courtstaff any legal questions. Usually theseindividuals are not attorneys, and they cannotpractice law or give legal advice. Again, any typeof

ex parte

communication should be avoided.

C. Dress Appropriately

You also need to note several specificguidelines for courtroom etiquette. First, alwaysdress appropriately. “Clothing that distracts oroffends is, to some judges, a breach of etiquettebecause it undermines the serious, professionalatmosphere of the proceedings.”

Catherine T.Clark,

Missed Manners in Courtroom Decorum

, 50 M

.L. R

. 945, 1001 (1991). Appropriate dressindicates your respect for the court. When in doubt,opt for conservative attire. In addition, encourageyour clients and witnesses to appear neat and wellgroomed. Often, the physical appearance of attorneys, clients, and witnesses will make a lasting impression on the judge and will significantly affectthe jury.

D. Maintain Respectful Demeanor

When appearing before the judge in thecourtroom, maintain a formal and respectfuldemeanor. The correct way to address the judgein the courtroom is “your honor.”

Always

stand when addressing the court, including during arguments and objections. Judges usually require you to obtain permission from the courtto approach the bench, the witness stand, orstanding exhibits. Do not address opposing counsel directly, but rather convey allobjections through the judge. At the conclusionof a hearing or day of trial, you should ask to beexcused by the court.If a judge conducts a less formal courtroom, heor she may advise that certain formalities arenot required. However, absent such specificguidance, always observe all these formalities.

You should be respectful not only toward thejudge but also toward witnesses, jurors, andopposing counsel. Always address others incourt by their titles (Mr., Ms., Dr., etc.) and lastnames. Maintaining composure with hostileopponents or witnesses rather than resorting tosharp retorts or childish remarks will earn youthe respect of both judge and jury. Also, do nothesitate to concede a point to opposing counselor to the judge, especially when such aconcession will not hurt your side. You mustmaster the skill of disagreeing without being disagreeable. Politeness is a constructive way toconvey sincerity and professionalism to a judgeor jury.Effective and zealous representation does notrequire antagonistic, uncivil, hostile,obstructive, or obnoxious behavior; nor does itrequire attribution of bad motives, disparaging personal remarks, smirking or snickering,slamming books, or the like. Such conduct