HOW NOT TO BE AN ASSHAT IN THE COURTROOM Effective courtroom appearances, defined as getting what you want from the

judge, require more than walking into court and regurgitating that which was already said in your papers. Appearing and arguing in court is similar to putting on a performance at the theatre. You are the actor and the judge, clerk, and opposing counsel are the audience. Of course since the Judge will be ruling on your matter, he or she is also the theatre critic whom you must sufficiently impress for him or her to rule in your favor [and in keeping with my theatre analogy, to garner a positive review.] In my years of appearing in court, I have seen the full range of courtroom behavior by lawyers on both sides of the bar, plaintiff and defendant. I have observed Oscar-winning performances that have resulted in the seemingly impossible act of changing of the court’s mind on a ruling. From the other end of the spectrum I have witnessed B-grade performances, where lawyers succeeded in losing a motion won on the tentative ruling from the day before. In my opinion, when an issue before the court is a close call or one where the court has full discretion to rule as it sees fit, how the attorney performs on the courtroom stage may tip the judge either way when making a final decision. This paper will tell you some of what you need to know to make an effective and professional courtroom appearance. If you practice what is preached in here, I can’t guarantee that you will convince the judge to always rule in your favor. But if you lose it will NOT be because you were perceived by the court to be a total asshat. In other

words, if your issue is a close call, you will have lost on the merits and not because the judge panned your courtroom performance. Courtroom Audience/Participants When talking about courtroom methods, style, tips and tricks, you should first become familiar with courtroom participants. Most articles discussing court appearances focus on how to interact with the judge and neglect to go over other details. However, understanding courtroom logistics and the roles of others in the court is critical to putting on a good performance in the courtroom. So, let’s first talk about exactly who will be in the audience when you appear on stage. To keep things in context, I will provide tips and tricks in this section when discussing the individual courtroom participants. The Judge – The judge will be discussed later in this paper. Judge’s Clerk – Other than the judge, this is the most important person in the courtroom. The judge’s clerk performs many functions before, during, and after a court session. To name a few, the clerk fields phone calls, controls access to the judge, accepts and files documents, and maintains the court’s calendar. When talking to the clerk on the phone, by e-mail, or in person, always be courteous, respectful, and cordial. Once obtained, make a note in the file on the clerk’s first and last name. In future calls, it’s acceptable to address the clerk by his or her first name, for example: “Hello Irene, this is attorney Mortimer on the City of San Francisco case. I was wondering if the

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


Judge might have time next week to hear an ex parte application we intend to file.” If you want the clerk to exact revenge in the various ways he or she can, then talk down to the clerk, be snide, abrupt, or condescending. Treat the judge’s clerk like dirt and that clerk can make life real difficult for you. Anger the clerk and he or she might not let you have access to the judge. Be rude and the clerk might not let you slide on an otherwise late filing. Be a jerk and the clerk might tell you that your requested hearing date is not available although it might be. Court Reporter – This is the person who is taking everything down that is said by the judge and counsel. There is no interaction between you and the reporter in open court, albeit he or she might ask you for the spelling on a name or admonish you to slow down when talking. Some tips on keeping the reporter happy: - Don’t talk over each other, meaning don’t talk at the same time that the judge or opposing counsel is talking. Most reporters have a hard time recording court proceedings when counsel or the judge are talking at the same time. - Don’t talk too fast. While court reporters are usually the best of all reporters, they don’t like it when people talk so fast it is hard for them to keep up. You can show everyone your inexperience, your uncaring attitude, or break the flow of your brilliant argument if the judge has to admonish you midstream to slow down for the reporter.

- Smile and be friendly with the reporter. While it may not seem being nice to the reporter will ever matter [because normally you never say anything to a reporter while appearing in court], a pissed off reporter who thinks you are a creep can hurt your case. How so? One example, what if it’s critical to immediately obtain a copy of the transcript of the proceeding that occurred that day? If the reporter remembers that you were professional and respectful to everyone while appearing in court, he or she may be able to get that transcript to you a bit faster than if the reporter recalls you acted like an ass. Law Clerks – I mention these people simply because they might appear in court. I don’t want you wondering, “Who the hell are these people?” In federal court, often times the judge’s clerks sit in the jury box and observe the proceedings of that day. While they do not interact with the court participants, they are important for one reason: most likely they have provided the legal research and tentative decision on your motion or proceeding. Judges can choose to accept the law clerk’s decisions as their own, require further research, ask addition questions of them, etc. While you should NEVER look at the clerks and address them in open court, it does not hurt, in my opinion, to look their way and flash a quick, respectful smile. Let them know that you recognize their importance and respect their position.

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


Bailiff – Usually a peace officer [sheriff in state courts, U. S. Marshall in federal court.] Piss off the bailiff and he or she can make your visit inconvenient. They can grimace at you, not grant you courtesies, or order you about the courtroom, telling you to not sit there, move over here, etc. Colleagues, Peers – Do you have trouble speaking in front of people, an audience or group? In Speech 101 at the university did you get nervous speaking in front of the class? Well the environment is even worse in the courtroom because most of the time when you argue in court sitting in the gallery will be fellow attorneys waiting for their matters to be called. While waiting their turn, those lawyers are watching your performance. And I guarantee you will be thinking about them while at counsel table. One of the most difficult events you might have to face is being shamed by the judge and then turning around to leave the court. All eyes in the gallery will be upon you and you know it. In cities where it’s always the same attorneys appearing in same courts, your performance will be remembered by everyone in court that day. It’s best that your peers remember that you had your act together and performed in a brilliant and professional manner. Opposing Counsel – Yes, even opposing counsel will be sizing up your courtroom performance. For example, if counsel detects you don’t appear to know your way around the courtroom, he or she will conclude you are inexperienced. Your newbie performance may affect what opposing counsel will recommend to a client. A good performance may motivate counsel to suggest the client settle the case.

A bad performance may motivate counsel to advise the client to press on because in his or her opinion it is only a matter of time before you really screw up the case. The Judge A discussion about how to interact with the judge [or “the court”] would not be complete without first knowing how judges work, in other words, how they go about their daily business. In most towns, counties, States and federal courts, judges are extremely overworked. Their dockets are filled with insignificant cases, important high-stakes cases, criminal cases, and hundreds of other daily tasks. An example of how overworked: in 2005, I had one federal judge tell us that he was limiting the number of days he was giving the parties to try the case because “we have over 500 cases on the docket.” Judges have at least one law clerk to assist in research, writing decisions, and even making decisions for the judge to adopt. Bigger courts, such as busy federal districts, provide each judge a minimum of three clerks, and some up to five. Regardless of this help, judges are still extremely busy with court and other functions. The reason I mention all this is because you must realize: (1) Yours is not the only case the court is dealing with, so don’t expect the court to “get into” your case, for the judge to understand all its nuances and subtleties, nor to give your case special attention. Unless your case is in the headlines, assume your matter is “one more hassle the court has to deal with.”

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


(2) In all likelihood the judge does not have the time to read a significant portion of your pleadings. Judges usually have their law clerks do that. Some judges admit that to cut to the chase they skim the papers the day of the hearing. (3) Because the courts are busy and overworked, it pays off to make all your pleadings brief and to the point. This will help the judge in his or her work and also may be the factor that causes a ruling in your favor. If you get right to the point in your papers, tell the court exactly what you want and provide the authority for a decision in your favor, it’s all the more likely you will win [assuming there’s merit to your position.] Impressing The Judge Logistically there’s really not all that much to properly appearing in front of the judge. Most of it is common sense. When you make an error [and you will, it’s only a matter of time] you will most likely err by not adhering to courtroom etiquette or protocol. So let’s talk about how NOT to win the court’s asshat lawyer of the day award. (1) Addressing the Court: The easiest way to piss off a judge is to call him or her names. Of course you would never do that, right? Well, every time you address the Court by calling him or her “judge” you are calling the judge names and disrespecting the court. This is because in the courtroom you NEVER address the court as “judge.” While you might see some idiots and old timers refer to the Court as “judge” that does not make their conduct proper. Whenever addressing the Court the proper term is “YOUR HONOR.” There are

no exceptions although you may also use “the Court” in certain circumstances. Examples: “Your Honor [if in writing, the title is in caps] I would like to request. . . ,” “Yes, that is how I recall the event, Your Honor.” “Your Honor, may I approach the bench. . . ?” “If the Court could provide me additional time to research. . . ,” “I was hoping the Court might extend the deadline to respond. . . ” Generally, each time you address the court with a request or when answering questions you start or end with a “Your Honor” in the sentence. For example, when answering a question: “My recall of that case, Your Honor, was that the plaintiff waived the attorney/client privilege.” Or, “That would be the same as I remember, Your Honor,” or as happened in one of my trials: “Your Honor, I need to take a restroom break. My apologies to the Court, Your Honor.” [Yes, I had two “Your Honors and one “The Court” in what was really a statement that I am running to the restroom and not requesting a break.] Another example: a trial in federal court was very formal [the Judge taught trial advocacy at Boalt Hall, Berkeley.] Every time I needed to approach the witness on the stand I had to ask “May I approach, Your Honor?” Even after saying that phrase fifty times in two days [and even knowing the Judge’s answer would be “yes”], the Judge never told me to dispense with the formality. (2) Know When to Shut Up. Lawyers often do not know when to shut up when talking with the judge. Generally: -- If you are simply repeating yourself, SHUT UP.

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


-- If you have the judge on your side and ruling in your favor, SHUT UP. -- If the judge says “I have ruled,” or “That’s all counselors,” SHUT UP. -- If the judge cuts you off mid sentence and asks a different question or moves on to something else, SHUT UP and move on to talking about what the judge wants to talk about. -- If the judge criticizes your argument or says “I looked at that, there was no merit to the argument. Move on to your next point.” SHUT UP and move on to your next point. (3) Be Organized. Nothing will lead toward impending doom faster than being unorganized when appearing before the court. The easiest way to be logistically organized is to arrange all papers BEFORE leaving the office. When setting up on counsel table you then lay out the materials for easy reference during your presentation. Note: In federal court, some judges require you stand at a podium directly in front of the bench. In those situations there won’t be a table for you to spread out your materials. What I have done in those circumstances is to spread out my materials on counsel table behind me so that I can excuse myself to the Court, walk a few steps back and get the materials I need. At the podium I have access to the main papers and pleadings in an A-Z file sorter. I write on a Post-It note placed at the front of the sorter where the papers are located in the sorter. I then refer to the PostIt note "index" when needing something for oral argument.

I usually place materials in the sorter is as follows [assume it’s a motion I brought]: (1) My papers are in chronological order, each document under a separate letter: Notice of motion, Motion, Points & Authorities, Declarations; Exhibits; (2) The opposition’s papers: Points & Authorities; Declarations; Exhibits; (3) My Reply [to opposition] papers; (4) All legal research: copies of cases, statutes, separated in the sorter by those categories; (5) All cases and other authority cited by opposing counsel; (6) Evidentiary objections to the opposing party’s “evidence;” (7) Evidentiary objections file by the opposition; and (8) A proposed order should the court require counsel to have one prepared [many courts require such]. As you can see, there are lots of paper related to arguing a motion and appearing in court. Therefore, use my organizational technique to avoid getting confused or overwhelmed in court. Also, using a sorter forces you to keep things brief on oral argument because your sorter will contain only the main papers relevant to your presentation to the judge. 4. Body Language. It’s essential for you to observe, interpret and react to a judge’s signals that he or she is sending while you and opposing counsel are addressing the Court. One could write a book on interpreting “judicial body language.” Due to space constraints, I can only give you a few tips on what to look for and what to do when seeing negative body language coming your way. -- Does the judge appear angry or upset? Hopefully it’s not something you did. But you take judges in the mood you find them. If the judge

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


appears upset for reasons other than because of you, you still need to workaround situation. Be especially vigilant to not do anything that might upset the judge further. Moreover, be brief and to the point. Basically get in and get out as fast as you can. -- Does the judge appear unprepared and unaware of what you said in your papers? If so, don’t say “I said that in my papers Your Honor.” Don’t embarrass the judge by implying the judge did not read your papers. If you see the judge stumbling, guide him or her through your papers. Highlight your main points so the judge can see there is merit to your position and that ruling in your favor is proper. -- Does the judge appear disinterested in your argument because he or she has made a decision? For example, while making what you perceive is a brilliant argument the judge moves your file to what you have seen in the “matter concluded” stack or the Judge is distracted and appears to have moved on to something else other than your case. On detecting such signals this is the time to pull out all the stops to get the judge’s attention so he or she will reconsider a ruling not in your favor. War story: One time I had been arguing my client’s position to the Judge. The court appeared ready to impose a TRO against my business client. While I was talking I saw the judge close the file and start to hand it to his clerk to be placed in this Judge's “matter concluded” stack. At that point I shifted my argument saying that issuing a TRO was improper because the

plaintiff had not produced sufficient evidence for a TRO. I then said “The plaintiff cannot get a TRO without evidence, Your Honor.” At that point the Judge stopped his swinging arm midstream and replaced the file back in front of him. He then questioned the plaintiff counsel about what evidence the plaintiff had produced and had been admitted. At the close of arguments the judge changed his mind and did not issue the TRO. This illustrates my point. I read the judge’s body language and determined he was about to issue the TRO [rule against my client.] I then shifted gears and repeated my best argument to get the Judge's attention, the plaintiff had not submitted sufficient evidence to support its TRO request. -- There are signals and body language that judges unintentionally or deliberately send to counsel while appearing in court. Most of the time signal meanings can be interpreted with common sense. Use your real life experience to figure out what the Judge is saying and react / behave accordingly. Bonus Tips On Interacting With The Judge: -- Listen to EVERY WORD! A common lawyer gaffe is failing to listen to what the judge is saying and failing to answer the judge’s questions. Near as I can tell, this is because lawyers go into court with a prepared speech, typically an echo of what they said in their papers. These lawyers are unprepared to deviate from their prepared scripts, so it throws them off when the judge asks questions beyond what the lawyer has rehearsed or memorized.

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


While in court ALWAYS listen to what the judge is telling or asking you. Pay attention to buzz words that might hint to what the judge is thinking. For example: “Counselor, I am having trouble with that case your cited as authority because…..” [This would tell you that the court does not agree with the case you provided in support of a point, the court may not be considering it and you better address that by, for example, discussing the case or coming up with other cases to support your argument]; or “I saw that mentioned in your argument but did not see it supported by the declaration the witness submitted.” [This would be code for saying you did not provide admissible EVIDENCE to support a point made.] “Mr. Mortimer I don’t think that is the issue important to my making a decision . . . ” [This comment by the Court tells you that you need to convince the Court otherwise or shift gears to talking about a different issue.] -- NEVER LIE TO A JUDGE! Many lawyers lie to the court. They mislead the court on what an appellate case says, submit papers designed to mislead or confuse the court, or tell lies in open court, to the judge's face. Many lawyers justify their untruthfulness because “everyone does it” or they are only telling “white lies.” Some lawyers get away with telling lies for a long time. Sometimes it’s because they realize that few lawyers are held to account for telling lies to counsel or the court. However, tell lies long enough and eventually the wrong judge will be lied to.

That judge will sanction the lawyer, report his or her conduct to the Bar, and possibly even imprison the lawyer. Consider a federal court Judge's comments when sentencing a lawyer who, inter alia, lied to the Judge.1 When imposing sentence on the lawyer [close to three years in prison] Judge White's comments included: As a lawyer the Defendant should be held to a higher standard of conduct. The Defendant should be punished severely as a lawyer who lied to the court. If you can't believe what the lawyers say, you have no basis for finding the truth, no basis to follow the law, and the system breaks down.2 If you are new to the profession, don’t lie. If you have been telling lies for a long time, but have not been caught, STOP. Be assured that at some point you will get caught, whether in your first year of practice or a thirty-year veteran. It will happen, the getting caught part. The choice is yours. -- Admit Fault or Ignorance. If the judge says that something is your fault, accept blame and move on. Don’t argue with the judge nor try to excuse your behavior. Don’t try to blame others. Accept responsibility, fall on the sword, and move on. Oh, and NEVER blame the secretary, paralegal, messenger, etc. Just like the captain of a ship, you’re the attorney and have the ultimate responsibility. Judges dislike it when attorneys blame staff for the attorneys' mistakes.

Honorable Jeffrey White, U. S. District Court, Northern District of California. 2 United States v. Ellerman 07-0080 - USDC, Northern District California Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.



If a judge asks a question and you don’t know the answer, admit your lack of knowledge and request additional time to find the answer. A judge will think more of you for admitting ignorance rather than a feeble attempt to cobble together a dumb ass response. How do you ask for more time? Here’s an example: The Court: Mr. Mortimer, how does the IBM v. Widget Business Machines case square with your point about . . . ? Attorney Mortimer: I apologize Your Honor I am unaware of that case. However, before the Court ruling on the matter I would appreciate the opportunity to review that case and provide additional briefing and to address the Court’s query. Or perhaps: The Court: Mr. Mortimer I did not see that case mentioned in your papers, nor did you address plaintiff’s point. Attorney Mortimer: I apologize for my error Your Honor. I would like the opportunity to look through my papers to be sure I did not discuss the matter. I thought I did in the third section. [Fast forward past my looking through my papers.] On looking at my papers I see that I neglected to discuss that case. I request additional time to brief the issue, that case and to address Your Honor’s concerns. I can submit additional briefing to the Court and opposing counsel by this afternoon or tomorrow morning, or within the time Your Honor requires. -- Shut Up! When in the courtroom gallery, keep quiet. If you must talk with counsel next to you, whisper in the lowest of tones. Because even whispers can be distracting, the better way to communicate is with notepad and pen. Don’t make noise by

opening binders, shuffling papers, or opening/shutting briefcases.

Courtroom Layout and Moving Around Simply moving around the courtroom can be a daunting task for lawyers whom have not appeared in court much. A discussion of how to handle a courtroom appearance would not be complete without going over the lay of the land, a review of procedures and discussion of protocol. (1) Church: A courtroom is a solemn place where litigants meet with the judge to resolve a dispute or issue. Despite that sometimes courtroom proceedings degrade to being similar to local pub fist fights or feel like a trip to the zoo, most court proceedings are conducted in a quiet, orderly and respectful manner. You should behave in the courtroom the same as you would at church. (2) Courtroom layout: Most courtrooms are square or rectangle shaped and are laid out as follows: -- Gallery: When you walk into a courtroom the first area you approach is the “gallery.” This is the public section of the courtroom. Unless the courtroom is closed to the public, anyone can sit and observe the proceedings. When the morning or afternoon law and motion calendar is heard, the gallery is where all the suits [lawyers] sit to await their matter to be called and heard by the judge. Coming and going from the gallery is not regulated. This means that even while court is in session [e.g., the judge is talking] you can enter and exit the gallery all you want. The only caveat is to keep your

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


comings and goings quiet. Be “walking on your tiptoes” quiet. Bonus Tip: Courtroom hallways can be echo chambers or otherwise amplify noise. So even if in the hallway keep your voice down. Whisper when talking to anyone while in the gallery. Since people often whisper at offending levels, to where the judge can hear you, the better practice is to communicate with each other on notepads. If you have something long-winded to say, quietly exit the courtroom and talk in the hall. When taking your seat or existing, don't slam about papers, books, files or brief cases. Get situated quietly. Don't slam your seat up and down. If the door to the courtroom closes automatically, hold the door while it is closing so to prevent it making noise. In any event, regardless of how the door closes, don't slam it. -- The Bar: Few lawyers know that the railing, mini-wall, “fence,” or other barrier that separates or divides the public gallery from the court or bench is called “the bar.” Becoming a member of the Bar signified an attorney’s right to cross this physical divider [the bar] and appear before the judge. -- Court and Bench: After walking past the bar, one enters the main courtroom area where there are designated areas for the judge, clerks, court reporter, counsel, jury and witnesses. Typically the layout is as follows: -- In front of the bar are counsel tables, where the attorneys and

their clients sit. One table is for the plaintiff, the other for the defendant. Bonus Tip: generally plaintiff and counsel sit at the table closest to the jury box. So look for where the jury box is located in the courtroom; that table closest to the jury box is plaintiff counsel’s table. Since inexperienced lawyers don’t know this, many courts label the tables "plaintiff " and "defendant" so counsel know where to sit. -- While sitting at the counsel table, to the right or left of you will be the jury box. -- In front of counsel table or to the right or left will be the judge’s clerk’s desk. That’s the person you check in with when you first walk into the courtroom for your appearance. See below, but always check in with the judge’s clerk when you first walk in the courtroom door, unless court is in session. If in session, approach the clerk at a break in the proceedings or if the clerk signals you to approach his or her desk so you can tell the clerk why you are there. -- Usually directly below the bench or slightly to the right or left will be the court reporter. -- The bailiff also will have a desk to the right or left of counsel table. -- The Judge: And of course, the most important person in the courtroom, the judge, is seated on the bench [a raised platform directly in front of counsel table.] On the back wall behind the bench there is

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


usually a door for the judge to enter and exit the courtroom. Bonus Tip: Sometimes a court will hold session inside the judge’s chambers or “office,” if you will. When this happens the clerk or bailiff will call your case and you simply follow that person to where the judge’s chambers are located. Bonus Tip: So to appear you know what you are doing, when a judge has session in chambers, typically the court reporter IS NOT in chambers recording the proceeding. In such circumstances, if you feel what is being said needs to be put on the record, request the judge to have a reporter present, or ask that Court to continue the hearing in the courtroom. (3) Watch Your Step. Understand that a courtroom is the judge’s kingdom. With the exception of the gallery, moving around the court’s side of the bar is heavily regulated. Bonus Tip: UNLESS YOU HAVE BUSINESS ON THE COURT SIDE OF THE BAR YOU SHOULD NOT BE IN THAT AREA. “Business” may include checking in with the clerk, asking the clerk questions, or sitting at counsel table because your matter is before the court. There are a number of people who will watch your step for you if you will not. The bailiff watches everyone and keeps order. This may include challenging anyone on the court’s side of the bar and shooing them into the attorney’s matter is not currently before the Judge. Logistical Tips (1) Clerk’s Phone Number – Before you depart for court, ALWAYS

make sure to have the judge’s clerk’s phone number written on a Post-It note or piece of paper. Place that in your wallet, stick it to the display of your PDA or cell phone, or even e-mail it to yourself. Use this number to call the clerk if you are going to be late to court for whatever reason. No judge will sanction or chew you out if you call to say you are going to be late. A judge will shame you in front of your colleagues if you fail to show respect to the court by failing to call about your expected tardiness. In your private life you may get away with not calling to say you will be late for dates, but the quickest way to have a judge knight you to moronhood is to not extend common sense courtesies to the court. (2) Check-In – A lawyer can show his or her rookie status by failing to follow “check in” procedures that most courts require. What is this? BEFORE court commences most courts require for the lawyers appearing on that day’s calendar to check in with the clerk. Checking in simply requires a lawyer to: (1) State his or her name; (2) ID the case name and number; and (3) Say which party they represent [plaintiff or defendant.] Most courts require [or otherwise appreciate] that you simply hand the clerk your business card with the above information hand written on the front of the card, in any open space there might be. Some clerks ask for the card AND also ask you to orally state your appearance. Even though the requested information is on the card don’t pick a fight, just repeat to the clerk the information being requested. Don’t say, for example, “Can’t you read, it’s on the card asshole.”

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


Bonus Tip: Experienced lawyers know about the business card / info requirement and prepare a card while in the office or on the way to the court. Experienced lawyers know that on entering the courtroom the first thing he or she does is to walk up to the judge’s clerk and to check in. Rookie lawyers sit in the gallery and are shamed when the clerk asks the newbie or inexperienced lawyers “did you check in?” Newbie lawyers turn even deeper shades of red upon realizing they don’t know what the clerk means by “checking in.” (3) Equipment and Tech – In modern times, technology has become an integral part of a courtroom appearance, whether arguing a motion or conducting a trial. Some basic rules need mentioning with respect to cell phones: As Mr. T would say, “Pity the fool who leaves his or her cell phone on in court.” Most courts have rules on cell phones. Some Judges will fine you $100 if your phone rings while court is in session. Some judges will confiscate the phone. How best to prevent this: put your phone on “quiet or silent” mode BEFORE entering the court. Check and triple check that the phone is in quiet mode. Choose quiet mode because some phones vibrate quite loudly and can be a distraction. Note: some court clerks, especially in federal court, tell the lawyers to turn phones completely off. DO NOT TRY TO BE SNEAKY AND PUT THE PHONE IN SILENT MODE. If the clerk says your phone must be turned off, turn off the phone.

God help you if after being told to turn off your phone your phone rings while court is in session, especially if the clerk says that it is “the court’s order” that you turn off the phone. Can you imagine an already pissed off judge [for whatever reason] catching you violating a simple court order to turn off your phone? That’s the stuff nightmares are made of. CONCLUSION You would be correct in concluding that a lot goes into avoiding looking like an asshat, moron, or newbie when appearing before a judge in his or her domain, the courtroom. If you are overwhelmed by all of this the best thing for you to overcome your fear is to visit your local courthouse law and motion department. Learn by observing, especially if you don't appear in court all that often. You can learn a lot by watching courtroom participants, especially when you are playing Timmy Tourist and not on the hot seat in your own cases. An especially nifty trick is to visit the Judge’s courtroom in front of whom you will be appearing. You can learn all kinds of things by simply watching a morning of law and motion proceedings. Seeing how your judge conducts court and observing courtroom proceedings will prove quite valuable when it’s your turn to NOT appear an asshat on your case.

Copyright 1996-2009 Michael Mortimer and The Business Litigation Group. All rights reserved.


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