Transcript Courtroom Conduct, Demeanor, and Ethics
Courtroom Conduct, Demeanor, and Ethics
Judge David Kalemkarian Fresno County Bar Association General Meeting February 24, 2006
Overview
Personal Introduction Preview Preliminary Questions Why am I here?
Why is the issue of courtroom conduct important?
What kind of reputation do you want to have?
How big is the problem of improper courtroom conduct?
Tips/Rules Civility Ethics Practice and Procedure—Fresno County Bench Officer Pet Peeves Concluding Remarks Goals Recognize the importance, personally and professionally, of appropriate courtroom conduct Develop an insight into Fresno County Superior Court Bench Officers’ likes and dislikes
Why am I here?
Party line
Recent appointment as a Superior Court Judge Family law judges and attorneys are not frequently involved in general bar association activities
Real reason
The prior 43 judicial officers asked said “NO”
Why is the Issue of Courtroom Conduct Important?
What is the most important asset that a lawyer has?
Their physical appearance?
Their personality?
Their brainpower?
Their REPUTATION!!!!
A lawyer’s reputation is directly related to their conduct—good or bad, inside and outside of the courtroom
What Kind of Reputation do You Want to Have?
A reputation of being a “Classy Lawyer” Law firm in Phoenix, Arizona, conducts a session with its new associates on the subject of “How to Be a Classy Lawyer” Good reasons given for being “classy”: It’s a small town. If you aren’t classy, word gets around Classy lawyers get better results. Judges, juries, and appellate courts trust classy lawyers more It’s more efficient. Less time is wasted on petty and needless disputes Classy lawyers get more referrals It’s good for the firm. A firm with a classy reputation provides each of its members with tremendous advantages
How Big is the Problem?
Starting Proposition--Improper courtroom conduct by a lawyer has a direct and negative impact not only on the reputation of the individual lawyer, but also on the prestige and honor of the legal profession Locally—Improper courtroom conduct is the exception, not the rule Unofficial consensus of the bench—Fresno County has a great Bar I wouldn’t be here if The Fresno County Bar Association Board wasn’t concerned about proper courtroom conduct There are new lawyers who don’t yet know the rules There are more experienced lawyers who have refused to learn the rules There are veteran lawyers who have simply forgotten the rules
How Big is the Problem?
How about statewide?
ABA website—list of 10 different California counties whose bar associations have adopted rules of professional conduct Note: The FCB adopted litigation guidelines on 4/10/92 Lawyers in other counties can be horrendous in terms of their tactics, conduct, and ethics
How Big is the Problem?
How about nationally?
Gallup Poll (November 17-20, 2005)—”Please tell me how you would rate the honesty and ethical standards of people in these different fields: very high, high, average, low, or very low?....” Only 18% of the responses for lawyers were in the very high and high categories Below nurses, druggists, doctors, teachers, police officers, clergy, funeral directors, bankers, accountants, journalists, real estate agents, and building contractors Above telemarketers, car salespersons, advertisers, congressmembers, stockbrokers, business executives, and labor union leaders
How Big is the Problem?
How about nationally? (Continued)
Harris Poll (August 9-16, 2005)—”I am going to read off a number of different occupations. For each, would you tell me if you feel it is an occupation of very great prestige, considerable prestige, some prestige or hardly any prestige at all.” Only 18% of the responses for Lawyers were in the “very great prestige” category, down 18% since 1977 (50% decrease) Low number Declining number
Judicial Officers Aren’t Perfect, Either
There may be some judicial officers who need improvement in certain areas—e.g., timeliness, courtesy, and demeanor I’m certainly not perfect I try to be my own worst critic—continually evaluating my own conduct on the bench I also ask my staff about the appropriateness of my conduct anytime there has been a particularly difficult or combative hearing The key—we can all learn and improve Opportunity for a brave soul—Approved by Presiding Judge Sarkisian Brown bag lunch program for the bench regarding our shortcomings Well attended Bench will take it to heart
Three Very Simple Rules
Use your common sense Think before you act (count to ten) If you’re not sure, and you have time, ask someone else Use common courtesy Do unto others as you would have them do unto you Ask yourself--If someone said it or did it to me, would I like how it sounded or felt?
The wildcard--know your judicial officer Each judicial officer has different likes and dislikes You should make adjustments accordingly
Civility Tips/Rules
Comprehensive Rule of Civility
Lawyers should always act and speak with civility, courtesy, and respect, and should not degrade or disparage the intelligence, ethics, morals, integrity, or personal behavior of the opposing party, counsel, witnesses, jurors, court personnel or judicial officer, unless such matters are specifically at issue in the proceeding Where sensitive matters are relevant to an issue, lawyers should pursue such inquiry as narrowly as reasonably possible
Civility Tips/Rules
General points regarding civility: Civility is not inconsistent with vigorous advocacy You don’t have to get down in the gutter to be an effective advocate Civility is a judgment call—what qualifies as civil in one circumstance may not be in another Family Law Case—Is an affair relevant?
Not in most cases--No fault divorce in California Shouldn’t be mentioned What if it is relevant? How do you deal with it?
Only bring out relevant facts Only purpose would be to harass/embarrass the other party Don’t use inappropriate names—e.g., cheater or adulterer
Civility Tips/Rules
General points regarding civility (continued) Be careful with your tone—Don’t use a demeaning, condescending, or sarcastic tone Use volume control—Don’t yell or raise your voice inappropriately Don’t make “sniping” comments Uncivil behavior can include conduct, not just spoken words Inappropriate noises—huffing and puffing, moaning and groaning Inappropriate body language—folding your arms in disgust Slamming down your fist, or slamming books or binders closed Storming out of the courtroom Giving the “evil eye”, or other inappropriate facial expressions Mouthing of expletives Bottom line regarding uncivil behavior--“I know it when I see it”, and you should too Jacobellis v. Ohio (1964) 378 U.S. 184—Justice Potter Stewart
Ethical Tips/Rules The “Credometer”
Every lawyer has a “Credometer” rating Put another way, what is your reputation for integrity?
Is your word as good as gold?
Or does the old joke apply— ”That lawyer’s lips are moving, he must be lying” New attorneys start somewhere in the middle— viewed with ”cautious optimism” Within a short time, your Credometer rating is “cast in stone”
25 20 15 10 5 0 Gold Standard Cautious Optimism No Trust
Ethics Tips/Rules
Main Points Regarding Ethics Be Honest Never knowingly misstate, misrepresent, or distort any fact or legal authority and do not mislead by inaction or silence.
Written materials and oral argument should accurately state current law (favorable and unfavorable) and fairly represent the party’s position Do not, either orally or in writing, assign to the opposing party or counsel a position that they have not taken to create a “record” of events that have not occurred Do not participate in inappropriate ex parte communications with the Court On or off the record Back in chambers In Courthouse park Don’t Exhibit Bias Never, ever, participate in or tolerate racial, ethnic, religious, gender, or sexual orientation bias Remember, word gets around Attorneys and Judicial Officers talk
Fresno County Superior Court Judicial Officer Pet Peeves
Do not file papers late Do not appear late and then fail to offer an apology or provide an excuse for your tardiness When making your appearance on the record, stand up and clearly enunciate your name and all of your client’s names Do not come to court under the influence Do not forget to use deodorant Do not stand up and call out your case name so you can be first or next in order Do not bring the “Woody” Toy Story action figure with you to court and place it in the seat next to you at counsel table Do not come to court unprepared Do not chew gum while on the record Do not drink anything other than water at counsel table Do not eat food at counsel table
Fresno County Superior Court Judicial Officer Pet Peeves
Do not read a newspaper in court, while court is in session, with the paper held up and wide open Do not have your cell phone bluetooth earpiece installed in your ear while in the courtroom Do not misuse language, for example, do not ask to “kick over” a case instead of asking to “continue” it Do not, when a case is simply going to be continued, give a long-winded speech that no one will remember anyway Do not fail to know relevant facts about your client at the time of sentencing Do not present a stack of letters to the court for consideration during a sentencing hearing If your are asked a specific and direct question by the Court, and you do not know the answer, admit it, instead of serving up a stream of non responsive smoke Do not fail to cite legal authorities for your position, especially when it is readily available Do not engage in a conversation with opposing counsel while on the record Do not engage in personal attacks with opposing counsel
Fresno County Superior Court Judicial Officer Pet Peeves
Do not interrupt opposing counsel, the witness, or, worse yet, the Court Do not ask a witness if someone “indicated” something, when what you really mean to ask is whether they said something Do not use speaking objections Do not say, “just briefly, your honor,” or “just one question, your honor,” and then blather on for thirty minutes or more Do not fail to listen when the Court is speaking and then say, “I’m sorry, I wasn’t listening, could you please repeat that?” Do not continue to argue a point after the Court has made a ruling After a detailed ruling has been made, do not seek to muddy it up under the guise of requesting “clarification” of the ruling Do not leave a mess on counsel table at the end of the day—paper cups, wadded up paper, paper clips, etc.
Concluding Remarks
“The fault, dear Brutus, is not in our stars, But in ourselves. . . .”
William Shakespeare, Julius Caesar, I, ii. 134