a pocket manual of courtroom etiquette (february 25, 2016 draft)

7/25/2019 A Pocket Manual of Courtroom Etiquette (February 25, 2016 Draft)

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2016 William H. Burgess, III. All rights reserved. No part of this publication may be reproduced or transmitted

in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information

storage or retrieval system, without permission in writing from the author.


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Table of Contents

Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Chapter 1. Revolution and Reprofessionalization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Chapter 2. Law and the Civil Society. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Chapter 3. Organization and Purpose of a Courtroom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Chapter 4. Courtroom Rituals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Formal Opening Ceremony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Oath-Taking. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Recesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Receiving and Publishing a Verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Adjournment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Investiture.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Chapter 5. Authority and Obligation to Regulate Courtroom Order and Decorum. . . . . . . . . . . 27

Chapter 6. Courtroom Attire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Basic Clothes Etiquette. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Judges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Courthouse Employees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Attorneys. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33Parties, Witnesses, Spectators, Law Enforcement Officers, Jurors, and Others. . . . . . . . 36

Chapter 7. Judges. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Punctuality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Preparedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Demeanor.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Rules of Order for the Courtroom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Written Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Scheduling Court Time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Leaving the Bench. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Conduct Toward Other Judges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Chapter 8. Attorneys at Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

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Preserving the Right to Fair Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Behavior Towards Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Preparedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Written Submissions to the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Entering the Courtroom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Reporting to the Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50While Waiting to Appear. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

In the Bar Seating Area and at Counsel Table. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

When to Stand. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

Where to Speak From. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

How to Speak.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

Proper Forms of Address. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

Interaction With Courtroom Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

Interaction With Other Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

Interaction With the Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

Pretrial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

When Counsel Has Concluded His or Her Business Before the Court. . . . . . . . . . . . . . . 67Leaving the Courtroom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

Chapter 9. Jury Trial Etiquette. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Preparation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Where to Sit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Where to Speak From. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Recesses and Absences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

Interaction With the Judge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Interaction With the Clerk. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71Interaction With Adversary Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Interaction With the Court Reporter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Traversing the Well. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Interaction With the Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

Opening Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

Examination of Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

Speaking Objections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

Bench Conferences and Requests to Excuse the Jury. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Upon Completion of Witness testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Closing Arguments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

During Jury Deliberations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Upon Receiving the Verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

Upon Adjournment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82

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Appendix A: Oath of Admission to the Florida Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

Appendix B: Creed of Professionalism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

Appendix C: General Principles, Guidelines for Professional Conduct. . . . . . . . . . . . . . . . . . . . 85

Appendic D: Notes On the English and American Bars and Benches.. . . . . . . . . . . . . . . . . . . . . 87

Bibliography.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (omitted)

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PREFACE

Law is a deep science. Its boundaries, like space, seem to recede as we advance; and though

there be as much of certainty in it as in any other science, it is fit we should be modest in our

opinions, and ever willing to be further instructed. Its acquisition is more than the labor of a life,

and after all can be with none the subject of an unshaken confidence. In the language, then of a

late beautiful writer, I am resolved to consider my own acquired knowledge but as a torch flunginto an abyss, making the darkness visible, and showing me the extent of my own ignorance.

1

The richness of civilized society depends on the ability of its citizens to understand the

subtleties of social context, to manage more than one type of behavior, and to have a high sense

of occasion. Knowing how, when, and where to behave properly is a critical social skill, and is

why etiquette plays an important role in the courtroom.

Social etiquette comprises standards of outward behavior based on normative rules for

social conduct that are generally accepted among members of society. Courtroom etiquette is a

subset of social etiquette and is more narrowly defined as a code of behavior for attorneys andjudges. Courtroom etiquette incorporates overall concerns for good manners and politeness, but

also extends to the human interaction within the confines of the courtroom setting and focuses on

professionalism2as a positive goal to be achieved when attorneys conform to etiquette.3

The core of American courtroom culture at the state and federal levels descends from our

nations English heritage. One of the dominant characteristics of Americas inherited culture is

procedural formalism. Procedural formalism recognizes inequality and attempts to compensate

for it by making all parties conform to the same standards, which is integral to impartiality.

Procedural formalism is not, however, the same as procedural rigidity. Procedural formalism is a

tool, not a rule, and is focused on operational effectiveness and not on power and control. It

displaces informal, often politicized, good old boy practices that are especiallydisadvantageous to women, minorities, and outsiders.4 Such formalism protects everyone by

1Resolution 34, David C. Hoffman,Fifty Resolutions In Regard to Professional Deportment, ACOURSE OF

LEGAL STUDY,ADDRESSED TO STUDENTS AND THE PROFESSION GENERALLY, Vol. II (Baltimore: Joseph Neal 1836),

quoting from Anna Jameson, VISITS AND SKETCHES AT HOME AND ABROAD WITH TALES AND MISCELLANIESNOW

FIRST COLLECTED, Vol. I (London: Saunders & Otley 1834).

2The Florida Bars Standing Committee on Professionalism definesprofessionalismas follows:

Professionalism is the pursuit and practice of the highest ideals and tenets of the legal profession. It embraces far

more than simply complying with the minimal standards of professional conduct. The essential ingredients of

professionalism are character, competence, civility, and commitment.

3Catherine Thrse Clarke,Missed Manners in Courtroom Decorum, 50 MD.L.REV. 945 (1991) at 959.

4See, e.g., Claude I. Depew, President, The Bar Association of the State of Kansas,Progress in Public

Relations, KANSAS JUDICIAL COUNCIL BULLETIN(October 1954), p. 17 (Laymen who go into the courts, either as

litigants or witnesses, are usually in a serious mood and look upon the proceeding as serious business. A court where

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imposing uniform standards of conduct and works as a prophylaxis against more serious

deliberate misconduct by providing clear behavioral expectations and boundaries. Proper

courtroom etiquette furthers the positive effects of procedural formalism by attaching a common

standard to individual behavior.

Procedural formalism in the courts and the sense of proper etiquette among attorneys andjudges has declined over the past half century, and is approaching the point of being a lost art in

some courtrooms. As one author has observed, The decay of etiquette results at least in part

from ignorance, which is attributable to the absence of written rules or even orally expressed

expectations outlining commonly accepted standards of courtroom behavior.5 For the

betterment of the legal profession and the society it serves, the trend must be reversed.

This book is, in a significant way, the product of cultural-social archaeology utilizing a

variety of American and foreign sources spanning over 200 years of courtroom tradition and

custom. An attempt has been made to attribute every contribution from every source utilized,

and the author takes full responsibility for any that have been overlooked. It may surprise some

that the basic good manners expected of everyone, and the challenges to maintaining properdecorum, have remained remarkably similar over the years in the state and federal courtrooms of

the United States and in the courtrooms of England, Australia, Canada, New Zealand and other

countries sharing English heritage. As a result, very little of what appears on the pages of this

book is unique or original and, although written primarily for use in Florida state courts, many of

the manners and rules of courtroom etiquette outlined in the text are to one degree or another

followed in other jurisdictions.

There are several sources of inspiration for this book. Foremost is my observation from

many years as a trial attorney and judge that politeness and good manners in the courtroom not

only make the process of justice run more smoothly, efficiently, and effectively, but also serve to

greatly reduce the emotional and physical stresses that ordinarily accompany our adversarial legalprocess. Inspiration for this book also comes from many of those who have written incisively on

how people ought to behave in court, including David C. Hoffman,6Lynda K. Hopewell,7

Catherine Thrse Clarke8and many others whose works are cited throughout the text.

lives, fortunes, or liberties and rights are at stake should bear a dignified atmosphere, and formality makes for

dignity.).

5Catherine Thrse Clarke,Missed Manners in Courtroom Decorum, 50 MD.L.REV. 945 (1991), p. 948.

6David C. Hoffman,Fifty Resolutions In Regard to Professional Deportment, ACOURSE OF LEGAL STUDY,

ADDRESSED TO STUDENTS AND THE PROFESSION GENERALLY, Vol. II (Baltimore: Joseph Neal 1836).

7Lynda K. Hopewell, Appropriate Attire and Conduct for an Attorney in the Court Room, JOURNAL OF

THE LEGAL PROFESSION12, 187-199 (1987).

8Catherine Thrse Clarke,Missed Manners in Courtroom Decorum, 50 MD.L.REV. 945 (1991), pp. 945-

1026.

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The primary purpose of this book is to inform attorneys and judges of the courtroom

manners proven over time to be the most effective in conveying the right message and avoiding

inadvertent slight or insult that might inhibit otherwise effective communication, with the caveat

that each courtroom runs a little bit differently from the others. The book is, thus, not a dictation

of what is universally right or proper in court, but merely a torch thrown into an abyss

intended to inspire further professional consideration, discussion and debate. The answer to thechallenges of courtroom behavior can, in the last analysis, come only from the culture, and not

from the government, and the underlying message of this book is simply that judges and

attorneys can have a better courtroom culture if they want it and are willing to practice it.

William H. Burgess, III, B.C.S.

March 1, 2016

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Chapter 1

Revolution and Reprofessionalization

The American legal system has inherited a great many things from the English in additionto a tradition of good manners in court. It is from England that America inherited a theory of the

social contract, the concept of individual liberty, a constitutional tradition dating back to the

Magna Carta, divided government (comprising separate executive, legislative, and judicial

branches) with various checks and balances, permanent courts, the adversary trial system, trial by

jury, and the notion that no one, not even the king, was above the law. Specific legal concepts

and doctrines, such as the rule against perpetuities and the statute of frauds also came from

England. It should surprise no one that many, if not most, of the customs and traditions of the

American courtroom were inherited from the English.

Roscoe Pound estimated that between 140 and 165 colonial lawyers studied at the

English inns of court9, most of them after 1760.10 Thirty-five of the fifty-six signers of the

Declaration of Independence were lawyers or benefitted from legal training; nine of those thirty-

five received their legal training through the inns of court.11 By the time of the American War of

Independence, as a result of the scarcity of trained professionals and the high cost of their

services (and some popular antipathy toward lawyers in general), the American colonies

presented a mixed picture of amateur and professional advocacy. As the war loomed, the courts

became increasingly politicized as the populace polarized between revolutionary and loyalist

factions. Open rebellion finally severed the ties to the British legal system, including its inns of

court. As a result, many American lawyers had to retire from the practice of law out of fear for

their safety as to one side or the other, and perhaps one-third of the American legal profession

became refugees. Many of Americas most outstanding lawyers were forced to find refuge inCanada, Bermuda, and other royalist safe havens, at significant loss to the American legal

profession. A bitter antipathy toward lawyers as a result of post-war economic collapse, a strong

dislike of everything English including the English common law (although many pre-war laws

9Every English barrister must be trained and schooled in one of four inns of court (Lincolns Inn, which

traces its records to 1422; Inner Templeand Middle Temple, which were recorded as separate societies in 1388; and

Grays Inn, which may have begun operations as early as the late 14thcentury.), which are located near one another

in London and which have created a unique professional community. After instruction in an inn of court, each

barrister must spend a period of pupillage, or apprenticeship, with an established barrister. The respective governing

bodies of the four inns of court, the benches, exercise the exclusive right of admitting persons to practice by a formal

call to the bar. The inn system has for centuries comprised Englands great legal university, training barristers for

the English and colonial bars, including the colonial bars of the American colonies.

10Roscoe Pound, THE LAWYER FROM ANTIQUITY TO MODERN TIMES157-58 (West Publishing Co. 1953).

11See Signers of the Declaration of Independence, U.S. National Archives & Record Administration

(Washington DC), at http://www.archives.gov/exhibits/charters/declaration_signers_gallery_facts.pdf; Robert F.

Boden, The Colonial Bar and the American Revolution, 60 MARQUETTE L.REV. 1 (1976).

1
http://www.lincolnsinn.org.uk/http://www.innertemple.org.uk/http://www.middletemple.org.uk/https://www.graysinn.org.uk/https://www.graysinn.org.uk/http://www.middletemple.org.uk/http://www.innertemple.org.uk/http://www.lincolnsinn.org.uk/


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and customs were retained), and the lack of a distinct body of American law combined with the

exodus to produce disastrous results.12

America experienced a long post-war period of deprofessionalization of legal advocacy,

which included universal lowering of educational requirements, indiscriminate admission to

practice (which destroyed the bar associations), and elected judgeships for which there was no orscant requirement to know the law. Some states did not require any legal education, or any

education at all, to practice law.13 With virtually no regulation, corruption became rampant, with

much of the work which should have been done by responsible and experienced professionals

coming to be done by men who could not meet the minimum standards required of an honorable

profession.

There were many in the legal community who believed that the practice of law was an

honorable profession, and who fought against the popular tide and for proper standards of

competence, character, and conduct. As the nation expanded and industrialized, the need for

trained, competent, professional lawyers and judges became manifest. The turnabout began in

the middle of the nineteenth century, signaled by such occurrences as the rise of law schools withstandardized curricula, the institution by the states of formal requirements for the admission to

practice law, and national standardized written bar examinations. In 1855, Massachusetts gave

the first written bar examination. As national reprofessionalization of the law took hold, local

and state bar associations were rejuvenated. In 1870, Harvard Law School Dean Christopher

Columbus Langdells revolutionary innovations in legal education, including the Darwinian

case law method of study (as opposed to the Blackstonian method of lectures on English

common law and treatises), taught by the Socratic method,14allowed law schools to supplant the

law office apprenticeship method as the primary source of members of the bar. In 1878, the

American Bar Association (ABA) was created. In 1880, New Hampshire established the first

statewide board of bar examiners. By 1914 most states had adopted some form of written bar

examination.

Reprofessionalization also extended to ethics. The ABA adopted standardized canons of

professional ethics, and in 1908 created a Standing Committe on Professional Ethics. In the

early twentieth century, law schools began to teach ethics, and by 1980 ethics were being

12See Anton-Hermann Chroust,Dilemma of the American Lawyer in the Post-Revolutionary Era, 35 NOTRE

DAME L.REV. 48 (1959); Arman Sarvarian, PROFESSIONAL ETHICS AT THE INTERNATIONALBAR(Oxford University

Press 2013).

13Hon. Randall T. Shepard, On Licensing Lawyers: Why Uniformity is Good and Nationalization Is Bad, 60

N.Y.U.ANNUAL SURVEY OF AMERICAN LAW453-462 (2004); Arman Sarvarian, PROFESSIONAL ETHICS AT THE

INTERNATIONAL BAR(Oxford University Press 2013).

14There are many who would say that the Langdellian Revolution and the Socratic method are dead. See

Robin West, Socratic Teaching Is a Thing of the Past, NEW YORK TIMES, December 15, 2011.

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universally taught in all ABA-approved law schools.15 In the course of the twentieth century, the

focus of the ABA, bar associations, and others in the legal community broadened from ethics to a

focus on professionalism in general.

What constitutes improper attorney or judicial conduct has, at this point, been clarified by

various formal rules and codes of conduct that mandate certain behavior. A clear, articulatedconsensus within the legal community as to the standards of everyday courtroom etiquette and

decorum remains lacking, and this development appears to be a logical and necessary next step in

the ongoing professionalization process.

While blatant acts of courtroom misconduct are in most cases dealt with swiftly and

firmly because the rules are clear and the immediate need to maintain proper order is commonly

understood, breaches of courtroom etiquette16are often harder to recognize. Common breaches

of courtroom etiquette nonetheless have a corrosive effect over time on the court process, and

work to reduce the prestige of the courts, effectiveness of attorneys and judges, and respect for

the law in a society driven by mass media that tend to treat courtroom misbehavior as a form of

popular entertainment.

15See James E. Moliterno,An Analysis of Ethics Teaching in Law Schools: Replacing Lost Benefits of the

Apprentice System in the Academic Atmosphere, Faculty Publications Paper 1011, William & Mary Law School

Scholarship Repository (1991).

16A breach of etiquette is conduct that does not rise to the level of contempt of court. Only a thin line may

separate the two. Catherine Thrse Clarke,Missed Manners in Courtroom Decorum, 50 MD.L.REV. 945 (1991)

at 977.

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Chapter 2

Law and the Civil Society

Our system of justice rests upon the mutual regard of the bench and bar. Each branch of the

profession traditionally accords the other the courteous behavior and ordinary civility whichstems, not from any need or inclination of submissiveness of one branch for the other, but from the

high demands and lofty purpose of the system itself.17

One of the major benefits of human progress is the privilege to live in the civil society.

The civil societyis a social order of human interrelationships bound in consensus over the rules

of living together and the ways in which those rules are made and applied to resolve conflicts

among and between individuals and associations of individuals. It is the sum of a social compact

in which human beings surrender their natural liberty in exchange for civil libertyto live at peace

with one another with the freedom to do whatever the laws of the state do not prohibit. These

rules of living together form a cultural identity comprising traditions, values, customs, morals,

and beliefs tried and tested over time and passed from one generation to the next. Socialinstitutions such as the court system are the products of this complex historical trial-and-error

experimental process.

In America, order in the civil society is maintained on the basis of the rule of law. The

rule of law is the legal principle that law should govern a nation, as opposed to being governed

by arbitrary decisions of individual government officials. The rule of law is based on the

principles of responsibility of the individual, rationality, and civility.18

Freedom presupposes responsibility, and personal responsibility is essential to defining

individuality. This principle of individual responsibility applies to the formal law and in the

whole sphere of private relations beyond the formal scope of the law.

Rationalityis the coming together of a group of citizens united in the law, examining a

problem with adequate information, and coming to a reasoned, common conclusion. This is the

way jury trials proceed.

Civilityis courteous social interaction characterized by sober and reasoned debate on

matters of mutual interest. Civility is a learned and practiced trait. It requires self-control, social

awareness, empathy, gratitude, and respect. It allows disagreement with other opinions without

disparagement of other people, derision of other peoples opinions, or denigration in discussion

with other people. It has deep roots in the notion of respect for the individual, premised on the

belief that all human beings are created equal and are endowed by their Creator with certain

17In re Frerichs, 238 N.W.2d 764 (Iowa 1976) (Opinion by Harris, J., with all justices concurring).

18See Associate Justice Anthony Kennedy,Law and Belief, Address to the American Bar Associations

Annual Convention (August 2, 1997).

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unalienable rights, among which are life, liberty, and the pursuit of happiness.19 Civility

obligates people to treat one another with respect and decency, regardless of the differences

between them. People who are civil to each other respect one anothers human aspirations and

equal standing in a democratic society and in advancing the rule of law.20 Without civility

disagreements become open hostilities leading to unnecessary delays and costs, and no

discussion, debate, hearing or trial in any case can serve its purpose or achieve its objective.21

Civility is required to make the adversary legal system work.22

A critical component of civility is etiquette, which is a code of honor and correctness that

delineates expectations of social behavior according to tacitly accepted norms within a society,

social class, group, or profession. It is a voluntary system for restraining the social behavior

inspired by selfish or offensive impulse in order to maintain communal harmony and the dignity

of the person, promote cultural coherence, and to satisfy an aesthetic sense of shared correctness.

Etiquette is not fixed, varies from one situation to another, and can change and evolve over time.

Etiquette can be quite complex, and has to be learned and practiced. The unwavering purpose of

etiquette is to soften personal antagonisms and create formal boundaries and limits on behavior

in order to avert or minimize conflicts and create and maintain an orderly, disciplined, efficientand respectful environment in which legal disputes can be peacefully resolved. Law may be said

to exist to compensate for the failure of etiquette.23 Etiquette is in turn a prerequisite for law, and

law cannot be justly administered without etiquette.24

An essential part of etiquette ispoliteness, the dextrous management of words and

actions whereby we make other people have a better opinion of us and of themselves.25

Politeness assumes the equality of participants in a social interaction and insists on a reciprocity

19This belief is enshrined in the second paragraph of The Unanimous Declaration of the Thirteen United

States of America, In Congress, July 4, 1776, more commonly known as Americas Declaration of Independence.

20Associate Justice Anthony Kennedy,Law and Belief, Address to the American Bar Associations Annual

Convention (August 2, 1997).

21Hon. Warren E. Burger, Chief Justice of the United States, The Necessity for Civility, Address at the

opening session of the American Law Institute, 52 FED.RULES DECISIONS211 (May 18, 1971)

22Thomas Gibbs Gee, The Uncivil Lawyer, 15 REV.LITIG. 177 (1996).

23See Lawrence C. Becker and Charlotte B. Becker, eds., ENCYCLOPEDIA OFETHICS(New York: Rutledge,

2001), p. 487.

24See Judith Martin,A Philosophy of Etiquette, PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY

137:3, 350-356 (September 1993); Diane Coutu,In Praise of Boundaries: A Conversation With Miss Manners,

HARVARD BUS.REV. (December 2003); Judith Martin, Speech at Harvard Law School, (Cambridge April 22, 1987).

25Lawrence E. Klein, SHAFTESBURY AND THE CULTURE OF POLITENESS(Cambridge University Press, 1994),

quoting Lord Shaftesbury, from Abel Boyer, THE ENGLISH THEOPHRASTUS (1702), pp. 106, 108.

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in which participants are sometimes talkers and sometimes listeners in an exchange of

disciplined and peaceful self-expression.

Another essential part of etiquette isgood manners. A manner is a way of doing

something, and can be classified as being good or bad. Good manners manifest courtesy and

respect for other people and significant institutions, and signal sophistication and tolerance.26

They are a way for someone to show others that he or she cares about him or her. Good manners

make it easier to feel comfortable in social situations, and they make it so people can avoid

unpleasantness in human interaction.27 As Edmund Burke observed:

Manners are of more importance than laws. Upon them, in a great measure, the laws depend. The

law touches us but here and there, and now and then. Manners are what vex or sooth, corrupt or

purify, exalt or debase, barbarize or refine us, by a constant, steady, uniform, insensible operation,

like that of the air we breathe in. They give their whole form and colour to our lives. According to

their quality, they aid morals, they supply them, or they totally destroy them.28

A broad-based knowledge of proper courtroom etiquette is necessary for attorneys to be

more effective advocates and for judges to be better judges.29 Justice moves more efficiently andeffectively when parties are cooperative and the surroundings are orderly. Rules of etiquette and

good manners keep the focus of the courtroom contest on issues and facts and away from

distracting personal clashes and irrelevancies. The display of manners in the courtroom affects

how justice and the integrity of the law are perceived by the public.

The importance to effective advocacy of proper courtroom etiquette and good manners

was spelled out by Chief Justice Warren Burger in 1973, who said in relevant part:

A truly qualified advocatelike every genuine professionalresembles a seamless garment in

the sense that legal knowledge, forensic skills, professional ethics, courtroom etiquette and

manners are blended in the total person as their use is blended in the performance of the function.There are some few lawyers who scoff at the idea that manners and etiquette form any part of the

necessary equipment of the courtroom advocate. Yet, if one were to undertake a list of the truly

great advocates of the past one hundred years, I suggest we would find a common denominator:

they were all intensely individualistic, but each was a lawyer for whom courtroom manners were a

key weapon in his arsenal. Whether engaged in the destruction of adverse witnesses or

undermining damaging evidence or final argument, the performance was characterized by

coolness, poise and graphic clarity, without shouting or ranting, and without baiting witnesses,

26Travis Pickens, Why Manners Matter, 81 OKLA.B.J. 33 (December 11, 2010).

27Margaret Webb Pressler, The Reasons for Good Manners, WASHINGTON POST, February 10, 2011.

28Letters on a Regicide Peace, SELECT WORKS OF EDMUND BURKE, Vol. 3 (1795), (Indianapolis: Liberty

Fund, 1999), p. 72.

29Catherine Thrse Clarke,Missed Manners in Courtroom Decorum, 50 MD.L.REV. 945 (1991), pp. 961.

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opponents, or the judge. We cannot all be great advocates, but as every lawyer seeks to emulate

such tactics, he can approach, if not achieve, superior skill as an advocate.30

Standards of courtroom civility and etiquette have evolved considerably over the past few

centuries from mostly personal, aspirational standards within a relatively small and homogenous

community of practitioners to increasingly mandatory standards within a large, diverse, mass

community. Whereas in the past rude and uncivil attorneys risked little more than being shunned

and losing business that might otherwise come through referrals from their peers, modern badly-

mannered attorneys can risk being sanctioned by the state bar or even being found in contempt of

court for incivility and rudeness in the courtroom. Those who regulate attorney conduct are for a

variety of reasons seemingly becoming increasingly strict with, and intolerant of, misbehaving

attorneys. The same appears to be true for those who regulate the conduct of judges.

Bad manners and incivility can be blatant or subtle, but all of it produces stress in the

courtroom environment. Stress in this sense is anything that knocks people out of

homoeostatic balance. When a person feels stress, self-awareness is diminished, disillusionment

is increased, and he or she is more likely to behave rudely toward others, which causes stress onthose people and increases the stress felt by him or her. Most of the time, the stress passes and

people are able to regain their balance. When, however, stress is chronic it can lead to chronic

anxiety, a sense of helplessness, and depression.31 Courtroom stress is particularly damaging

where judges frequently bully attorneys who appear before them, which tends to create an

abusive and dysfunctional environment that can spread well beyond the courtroom.32 Few

judges, attorneys, or other professionals deliberately engage in rudeness or incivility, however,

and courtroom misbehavior is more often caused by thoughtlessness than by actual malice.

Practicing proper etiquette breaks the stress-rudeness/incivility cycle by causing people to

instinctively stop and think before they speak or act, and to be polite when they do. Where

rudeness and incivility adds stress to a courtroom environment, good manners and proper

etiquette decreases stress.33

30Warren E. Burger, Chief Justice of the United States, The Special Skills of Advocacy: Are Specialized

Training and Certification of Advocates Essential to Our System of Justice?, 42 FORDHAM L.REV. 235-36 (1973).

The article in its entirety was delivered as the Fourth Annual John F. Sonnett Memorial Lecture on November 26,

1973, at Fordham Law School in New York. The text of the law review remains substantially as the speech was

delivered.

31See Daniel T. Lukasik,How Stress and Anxiety Become Depression, TRIAL, December 2008, at 32-33;

Elizabeth Trenary,Lawyers and Depression: Understanding the Connection, U.MIAMI L.REV. (February 17, 2014),

http://lawreview.law.miami.edu/lawyers-depression-understanding-connection/; Rosa Flores and Marie Arce, Why

Are Lawyers Killing Themselves?CNN, January 20, 2014.

32See Jane Lee,Bullying Judges Breed Stressful System: Kirby, THE AGE, February 22, 2013.

33See The Stress/Rudeness Vicious Circle, THE JOB DOC BLOG, December 19, 2013; Christine Porath and

Christine Pearson, The Price of Incivility, HARVARD BUS.REV., January-February 2013; Peter Post, Stop. Think. It

May Ease Stress in the Office, BOSTON GLOBE, December 22, 2013; see also Richard Gray,Best way to beat stress?

Help others with everyday tasks, DAILY MAIL, December 14, 2015.

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Unfortunately, most of the finer standards of courtroom civility and etiquette are

unwritten, and those that are in writing normally are in the form of brief admonishments or

didactic lists with no or very little accompanying explanation of why certain behavior is or is not

correct. Civility and etiquette are not generally the subjects of formal instruction in law school.

With the exception of large law firms, it is uncommon for a legal organization or association to

incorporate more than the most rudimentary of courtroom manners in instructions for attorneys.While the overwhelming majority of attorneys who come to court have a strong sense of

propriety and professionalism, the rules of courtroom etiquette and their application can vary

widely from one courtroom to another, giving practitioners an uneasy sense of exactly what is

expected in terms of manners in their interactions with others in court. With the decline of the

level of knowledge within the community of courtroom civility and etiquette, effective

courtroom manners is becoming a lost art. The following text attempts to reverse that trend by

laying out the more common manners and rules of etiquette expected of those who come to court.

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Figure 1Example of a classic courtroom arrangement for a federal courthouse.Source: U.S. Courts Design Guide, General Services Administration (2007).

Chapter 3.

Organization and Purpose of a Courtroom

A courtroom exists for the purpose of conducting the judicial business of the public in a

dignified, orderly, and professional manner. The courtroom provides a locus in which the judge,attorneys for the parties, the clerk, court officers, and other participants in the justice system can

resolve criminal or civil disputes in an atmosphere of reverence and respect for the law.

Decorum is especially important when members of the public are engaged in litigation, or

when they are spectators before the court. Judges, attorneys, clerks, court reporters, security

personnel, witnesses, spectators, representatives of the media, and all others who enter thecourtroom are expected to behave at court in a manner supportive of the solemnity of the Courts

position and of the occasion of the partys hearing. Behavior, conditions, or attire not conducive

to the dignified and orderly operation of official court business may be prohibited in order to

maintain the dignity of the courtroom and its facilities and the integrity of the legal processes

taking place therein.

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Figure 2Example of a corner bench courtroom arrangement for a federal courthouse.Source: U.S. Courts Design Guide, General Services Administration (2007).

The courtroom should be clean, orderly, well-lit, quiet, and in good repair. Walls and

floors should be clean and clear of dust, trash, and graffiti. Carpets and curtains should not be

stained, have holes in them, or otherwise be in obvious disrepair. Furnishings should be

undamaged and fully functional. The walls of the courtroom should not be decorated with

anything that detracts from a neat and businesslike decor.34

The classic arrangement of a courtroom is a long rectangle with the public entrance at one

end facing the judges raised bench at the other. An alternative model is the corner-bench design,

which relocates the judge to the corner of the room and places the witness stand closest to the

center, facing the public entrance. This allows the jury box, counsel tables, and spectator rail to

move forward, making better use of courtroom space and creating an impression of a courtroom

34See, e.g.,Minimum Courtroom Standards in the State of Illinois, SUPREME COURT OF ILLINOIS(January

2011), paragraph 3.6, p. 4 (No personal items of decoration shall be affixed to courtroom walls or in public view.);

also, Joseph H. Hinshaw, Court Room Decorum, 37 J.AM.JUD.SOC. 44 (1953-54).

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in the round with the well of the courtroom at its center.35 Both designs incorporate the

following features:

Thepublic galleryis the area of the courtroom where the public and persons who are not

members of the bar are seated. The public gallery is separated from the rest of the courtroom by

the bar.

The baror bar railis a dividing rail in a court of law that separates the area of the

courtroom reserved for the judge, prosecution, defense, and jury from thegalleryarea occupied

by the general public. The bar is why organizations that regulate attorneys are called bar

associations. Passing the licensing examination to practice law is called passing the bar

because one who passed was no longer one of the lay people forced to sit behind the bar in the

gallery, but could join the professional attorneys sitting in the area of the wellby passing the bar

dividing the two sections of the courtroom.

Ajudgeis an elected or appointed representative of the government charged with being

fair and impartial in matters brought before the court. A judge is responsible for presiding overcourt proceedings and seeing that order is maintained, ruling on the admissibility of evidence

sought to be admitted at trial or hearing and on other matters brought before the court by motion

of a party, instructing juries on the law, and deciding sanctions to be imposed upon

determinations of guilt or liability.

Thejudges benchis a large desk behind which a judge sits at the front of the courtroom.

The bench normally rests on an elevated platform, giving the judge a view of the entire

courtroom and what is going on within it. The judge can see much more than the attorneys can,

and this view tends to magnify and exaggerate some of the things judges see. The empty space

between the bench, jury box and counsel tables is called the well of the court.36 The bench also

is a metaphor for the judges role in the proceedings. It is extremely disrespectful to the Courtfor persons who are not court employees to directly traverse the well and walk directly to the

bench or to the witness stand without Court permission.

A bench trial is a trial with a judge and no jury. A bench warrant is a warrant issued

by a judge on his or her own initiative. When one asks to approach the bench one is asking

both for a bench conference (also known as a sidebar conference) to speak privately with the

judge outside the hearing of the jury or others in the courtroom and to actually step closer to the

35See Frank Greene, FAIA, Seat at the table: Hierarchy, Iconography, Anachronism, THE AMERICAN

INSTITUTE OF ARCHITECTS(2015).

36Note that some references erroneously refer to the entire area beyond the bar separating the gallery from

the rest of the courtroom as the well.

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judges desk. Traditionally, it is considered disrespectful for anyone to place a hand or document

on the bench without express permission from the judge.37

Behind where the judge sits in a state courtroom there normally is a backdrop comprising

a set of flags, one the American national flag and the other the state flag, standing astride the seal

of the specific jurisdiction the court is sitting in. In federal courtrooms, only the Americannational flag is displayed. The American flag should be positioned to the judges right as he or

she faces the courtroom, and if there is an eagle atop the flagstaff it should be facing toward the

courtroom. In state court, the state flag should be placed on the judges left as he or she faces the

courtroom, in the same manner as the American flag.38 This backdrop symbolizes the power and

authority of the court to command the respect of those who are in attendance.

The clerk of the courtattends court meetings and is responsible for keeping paperwork

and exhibits filed with the court, and for administering the oath to testifying witnesses. The clerk

sits in a fixed stand near the judge in the courtroom, normally in close enough proximity to be

able to directly exchange documents by hand with the judge.

The court reporteror stenographer is the person who records everything that is said or

introduced into evidence in the courtroom for later transcription. The reporter is the only person

authorized to make the official record of the proceedings. When physically present, the reporter

positions himself or herself where he or she can best hear the speakers. In some types of

proceedings, the court reporter may be reporting the proceedings through the sound system of the

courtroom from a remote location, or there may be just recording devices and no court reporter at

all.

A court deputyor bailiffis a law enforcement officer or court employee who assists the

judge in maintaining order in the courtroom, and who is responsible for the custody of a jury.

One or more deputies or bailiffs may work in a courtroom. They will station themselves asnecessary to perform their duties. One of their responsibilities is to guard in-custody defendants

who are in the courtroom. In most courtrooms, there will be a fixed security post where a court

deputy or bailiff will sit and, in criminal cases, where they can take fingerprints from a defendant

who has been convicted.

37See Whos Who and Whats What in the Courtroom, HG.ORG.

38See 4 U.S.C. 7(k) When used on a speakers platform, the flag, if displayed flat, should be displayed

above and behind the speaker. When displayed from a staff in a church or public auditorium, the flag of the United

States of America should hold the position of superior prominence, in advance of the audience, and in the position of

honor at the clergymans or speakers right as he faces the audience. Any other flag so displayed should be placed

on the left of the clergyman or speaker or to the right of the audience.

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In criminal cases, the party39bringing the charges before the court is the government.

Prosecutorswho prosecute criminal cases against defendants on behalf of the government, and

civil attorneys who representplaintiffs, in county and circuit courts, sit at the counsel table

closest to the jury.

A defendantis a party who is defending or denying a formal accusation made by aprosecutor in a criminal case or by a plaintiff in a civil case. Attorneys charged to represent the

best interest of the defendants in criminal or civil cases sit with their clients at the defense table

during trial or evidentiary hearings. When trial is not being held, and there is insufficient seating

at the table for all attending defense attorneys, the jury box can be used as a bar seating area to

seat attorneys waiting to have their cases called, with any out of custody clients, if present,

waiting in the gallery. Attorney seating in the jury box is, however, a privilege extended by the

Court and is not a right: The Court can revoke the privilege and require one or all attorneys to sit

in the gallery. When the case of a client is called, the attorney normally will move from the

counsel table or bar seating area to the lectern to address the court on the matter. Defendants

typically stand at arraignment and sentencing, but are allowed to sit at defense counsel table

during hearings of motions and during trials.

The lectern40is the stand where attorneys address issues before the court and question

witnesses regarding matters of fact. In some courtrooms the lectern is fixed; more commonly the

lectern is moveable. It is improper for an attorney to move the lectern without the judges

permission.

A witnessis a person who testifies under oath about facts in a case that are being

disputed. Expert witnesses may, with court permission, offer their opinions on matters in

dispute. The chair where witnesses sit to testify under oath to facts relating to the case before the

judge is the witness stand. The name stand is a legacy of former times when witnesses were

required to stand while testifying, on a small raised platform near the jury box, surrounded by arailing that the testifying witness could hold onto or lean on during his or her testimony. Once

called to the stand, an attorney may not approach the witness, and the witness may not leave the

stand, without the Judges permission.

39Apartyis a person concerned or having taken part in any affair, matter, transaction, or proceeding,

considered individually. BLACKS L.DICT. 1278 (4th ed. 1974).

40In some American courtrooms, the lectern is erroneously referred to as the podium. A lectern and a

podium are, in fact, two very different things. A podium is a raised platform on which a speaker stands to deliver a

speech. A lectern is a slanted stand on which a speaker can place his or her notes. Lecterns come in tabletop and

stand-alone varieties. A speaker mountsa podium andstands behinda lectern.

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Thejury boxis the fixed section of the courtroom where jurors and alternate jurors

chosen from the venire41during voir dire42are seated to hear evidence presented at a jury trial.

The jury box serves to prevent jurors from mingling with attorneys, litigants, or witnesses during

a trial. When a jury is seated, attorneys are not allowed to approach the jury box, address the

members of the jury, or have any other direct or indirect contact with any of the jurors without

the express permission of the judge. The jury box may remain empty during non-juryproceedings, or when a jury is deliberating, or the judge may use it to seat attorneys or in-custody

defendants during arraignments, pretrials, or motion hearings.

The jury box is separated from the well of the court by thejury rail. The jury rail is a low

barrier, approximately waist-high, running in front of the jury box. In older courtrooms the rail is

often narrow and has the appearance a fence, while in modern courtrooms the rail often is solid

with a flat top that gives it the appearance of a long low wall or narrow table. The rail is

intended to separate the jury from the attorneys. It is improper for an attorney to come close to

the rail, touch the rail, rest anything on the rail, or reach over the rail.

A judges chambersis the judges private office, where the judges judicial assistant islocated and which normally includes an area or room for that can be used for conferences or

hearings. The chambers are usually located behind the courtroom and are either adjacent to the

courtroom or very near. In some cases, a judge may have to share a separate specially-equipped

room for conferences and hearings. To see a judge in chambers is to see the judge in his or her

private office, while to hear a matter in chambers usually means that the judge will be using a

conference room and not his or her assigned courtroom.

The judge is supported by his or herjudicial assistant, or JA, who rarely comes to the

courtroom. The JA is a trusted employee working directly for the judge and is responsible for the

administration of the judges office. The JA handles telephone calls, mail, and email

communications with the judge, schedules matters on the judges calendars, and helps the judgeprepare for court. JAs are among the most important people in a courthouse because of their

unique role with judges. The judge also is supported bystaff attorneys. Staff attorneys are court

employees who assist judges with legal research, the preparation of orders, and with other

administrative responsibilities. They may be recent law school graduates or career attorneys.

Note that one of the prominent characteristics of modern courtrooms is that they are much

more noisier than courtrooms of old. Courtrooms of old refers to the time before the

proliferation of central heating and air conditioning, computers, and cellular telephones. The

rushing sound of the ventilation system, the buzz of the overhead fluorescent lights, the hum of

the computers being used by the judge and the clerk (to which the noise of computers in use by

41The group of citizens from whom a jury is chosen in a given case. BLACKS L.DICT. 1556 (6thed. 1990).

42Voir dire is the preliminary examination which the court and attorneys make of prospective jurors to

determine their qualification and suitability to serve as jurors. BLACKS L.DICT. 1575 (6thed. 1990).

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prosecutors and defense attorneys is often added), the sound of doors being opened and closed,

the ring of a cell phone, talking among courtroom attendees, the clerk running his or her desktop

printer, and a system of courtroom microphones and speakers that amplifies all of these sounds

has the effect of surrounding the judge with a cloud of unwanted background noises that during

crowded court dockets can become so loud and distracting as to cause delay or interruption of

arraignments, changes of plea, and other important courtroom business. All of this has had acorrosive effect on courtroom decorum and etiquette.

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Chapter 4

Courtroom Rituals

Generally

The primary function of the law is the orderly, peaceful and just resolution of disputes.

Court sessions are business meetings for the purpose of accomplishing this primary function.

Courtroom procedures are used to organize and facilitate these meetings.

Modern courtroom procedures are a mix of custom, tradition, ritual, and ceremony.

Although these words often are used interchangeably, they have distinct meanings in the

courtroom context. In combination, they comprise the major part of courtroom procedures.

Customis a habit or practice followed as a matter of course among a people. It is a

frequent or common mode or form of action performed in accordance with social conventions.

Social conventions are arbitrary rules and norms governing the countless behaviors persons

engage in regularly without necessarily thinking about them. Shaking hands when meeting

another attorney, standing when the judge enters or leaves the courtroom, and addressing the

Court as Your Honor are examples of courtroom customs.

Traditionis the passing down of elements of culture from generation to generation. A

custom becomes a tradition when it is passed on to, and accepted by, a succeeding generation. It

is, for example, a courtroom tradition that the party bearing the burden takes the counsel table

closest to the jury.

Ritualis the prescribed form or order of conducting a solemn act, observance orprocedure done in accordance with prescribed rule or custom. Examples of courtroom rituals

include change-of-plea colloquies, swearing in witnesses (including the portion of a witness oath

that states so help me God), and giving final instructions to juries.

Ceremonyis an event of ritual significance, performed on a special occasion. A

ceremony may be performed ad hoc, or performed as prescribed by ritual, custom, or etiquette.

Examples of courtroom ceremony include the manner in which a court session is opened,

investitures43of new judges, and the swearing-in of new attorneys.

43Investiture comes from the Latin phrase for dress in robe. In academic circles, the term has come to

mean one who will literally don the university's insignia and regalia. in feudalism, ceremony by which an overlord

transferred a fief to a vassal or by which, in ecclesiastical law, an elected cleric received the pastoral ring and staff

(the symbols of spiritual office) signifying the transfer of the office. After the oath of fealty, the lord invested the

vassal with the fief, usually by giving him some symbol of the land or office transferred.

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Courtroom procedures can be ceremonial, instrumental, or a blend of both. They also can

be formal or informal. The published rules of procedure, for example, are a set of formal rules

that are intended to be instrumental in the conduct of the business of the Court. Examples of the

more conspicuous traditional courtroom procedures include formal opening ceremonies, oath-

taking rituals, recess ceremonies, receiving and publishing a verdict rituals, adjournment

ceremonies and investiture ceremonies.

Formal Opening Ceremony

It is customary for the bailiff or court deputy, after checking the security of the courtroom,

to open its doors to the public 15 minutes or so before the scheduled start of the session. The

amount of time given is designed to give people enough time to take their places in the

courtroom, but not enough time for long conversation, during the formal opening of court.

The formal opening of a session of court has a long history and is intended to give an

unmistakable message of dignity, respect, and control.44 The opening ceremony also serves to

create the silence in the courtroom necessary for proper order and decorum.

Morning sessions of court in America have traditionally been opened in a simple

ceremony that may be approximated as follows: One minute or so before the scheduled start of a

court session, the judge signals or otherwise notifies the court bailiff or other court officer to

ready the courtroom for the judges arrival. In some cases, it has been by a bell, buzzer, or a

knock or knocks on the other side of the courtroom door leading to the judges chambers. This

action signals those in the courtroom to end all conversation, go to their respective positions, put

all papers away, and ready themselves for the arrival of the judge. If the signal is not audible to

all in the courtroom, the bailiff and other court officers inform all to get ready and be quiet. As

the judge enters the courtroom a minute or so after the warning, the bailiff or court officer

commands All rise! and requires all to rise and stand.45 The bailiff or court officer pauses untilthe judge is on the bench and seated or ready to be seated, and announces The [type of court]

Court for the [name of jurisdiction] is now in session, the Honorable [name of the judge]

presiding! followed by a brief pause and then Please be seated!46 If there are persons in

attendance who need to be sworn by the clerk, as with members of a venire or defendants facing

44David M. Rothman,Exercising Judicial Control Without Contempt, JUDICIAL CONDUCT REPORTER(Fall

1999).

45In former times, the judge would enter, stand by the bench, face the America flag, wait until all was quiet

in the courtroom, and lead all assembled in the Pledge of Allegiance. In earlier times, the opening of a session of

court would include a prayer. The judge would then take a seat at the bench. It is now extremely rare for an

American trial or appellate court session to begin in this fashion. In modern times, it is the common custom for a

judge to simply enter and sit down at the bench.

46In some versions of this ceremony, the bailiff will rap one time after announcing that the court is in session

and before commanding all to be seated. In other versions, it is the clerk in the court who makes all of the in-court

announcements.

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arraignment, the bailiffs or court officers last command is changed to Those appearing [for

arraignment/as potential jurors] please remain standing to receive the oath! All others please be

seated! After the oath is administered, the bailiff commands those sworn, Please be seated! It

is improper for anyone in the courtroom to talk or sit down during this ceremony.

Oath-Taking

The requirement in judicial proceedings that witnesses swear an oath to tell the truth

before giving testimony is a centuries-old tradition going back to at least Roman times. The

purposes of the oath are to bind the witnesss conscience to tell the truth, and to subject the

witness to penalties for contempt of court or the crime of perjury if the testimony given is

untruthful. Traditional oaths ended with the phrase so help me God or similar language to

invoke the fear of divine retribution for lying, but such language has been omitted from the

secular oaths of modern times.

The rhythmic, repetitious whole oath form calls for the witness to raise his or her right

hand and solemnly swear, affirm, or attest to tell the truth, the whole truth, and nothing but thetruth. The whole oath is likely of Anglo-Saxon origin, as all of the words in it are Anglo-Saxon

and none are of Latin or French origin. This form of oath existed since at least the 13thcentury

and was part of English legal tradition at the time of the founding of the American colonies. The

colonies independently adopted the whole oath into their own legal traditions before the

American revolution.47 This form of oath is preferred in judicial proceedings because it

emphasizes the absolute veracity of a statement and is comprehensive: The triple phrasing aims

to keep a witness ... from misleading a jury with lies instead of the truth; half-truths instead of the

whole truth; or truths submerged in untrue, misleading or distracting filler rather than the

unclouded truth.48

Sometimes the words so help me are added to the end of the oath, as a way of warningthe witness of potential consequences for untruthfulness. Although the requirement to swear to

God (or other deity) has been omitted, it is permissible for a witness to end his or her oath with

so help me God, or reference to another deity. It also is permissible, if a witness desires it, for

the witness to place his or her hand on a Bible, Koran, or other sacred religious text, or even the

U.S. Constitution when reciting the oath, but this is rarely practiced in American courts. In the

end, oath-taking in court serves the purpose of making a record of the witnesss obligation to tell

the truth and understanding that there may be severe consequences for failing to meet this

obligation.

47See James E. Clapp, Elizabeth G. Thornburg, Marc Galanter, and Fred R. Shapiro, LAWTALK:THE

UNKNOWN STORIES BEHIND LEGAL EXPRESSIONS(New Haven: Yale University Press 2011), p. 288.

48See Thomas G. Gutheil, M.D., Mark Hauser, M.D., Myra S. White, Ph.D., J.D., Graham Spruiell, M.D.,

and Larry H. Strasburger, M.D., The Whole Truth Versus The Admissible Truth: An Ethics Dilemma for Expert

Witnesses, J.AM.ACAD.PSYCHIATRY LAW31(4): 422-427 (2003).

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Recesses

A judge may call a recess in different ways. One way is for the judge to strike a gavel to

punctuate the moment and get everyones attention, and then announce the recess and its duration

in terms of the time when Court will reconvene, e.g., The Court will be in recess until [time] by

the courtroom clock. The bailiff will then command, All rise! and, when all in the courtroomare standing, the judge will leave the bench for the recess. The command to rise is also a

command to stop talking, put all papers aside, and pay attention, so that everyone in the

courtroom understands that there is a break in the proceedings. It is desirable that the time of

return to session be stated in exact terms of the time on the courtroom clock, as opposed to more

ambiguous statements such as ten minutes, about a quarter after, or the like, without

reference to the courtroom clock. If the judge does not know how long the recess will last, as

when there is an urgent matter the judge must address in chambers, it is appropriate to announce

recess pending the call of the Court.

Another way is for the judge to tell the bailiff or court officer to call the recess, informing

the bailiff or court officer of the duration and time of return. In such cases, the bailiff or courtofficer will command All rise! The Court will be in recess until __________ on the courtroom

clock.

When there is an afternoon session, the noontime recess is normally an hour to an hour-

and-a-half. After a noontime recess, American courts are traditionally reopened for the afternoon

session in the same fashion as for the morning session. It is proper for the afternoon session for

the bailiff or court officer to say after the judge is seated, The __________ Court for the

_______________ is again in session. Please be seated. After short recesses during a session,

it is permissible for the bailiff or court officer to say Court is again in session. Please be

seated.

In recent years, many American judges have relaxed their courtroom procedures, some to

where the judge enters the courtroom with little or no advance warning, takes a seat at the bench,

and starts calling cases. The reasons for such relaxation are varied, and range from the judges

dislike of or embarrassment at49formality, to the time pressures of overloaded dockets. It is,

however, properly expected by those who come to court that the session starts with a public

recognition that it is a court of law and not a fast-food restaurant.50

49Many judges have an unreasonable fear that enforcing traditional courtroom formalities and customs will

cause them to be perceived publicly as tyrannical egomaniacs.

50David M. Rothman,Exercising Judicial Control Without Contempt, JUDICIAL CONDUCT REPORTER(Fall

1999).

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Receiving and Publishing a Verdict

One of the most solemn (and dramatic) courtroom rituals is the receiving and publishing

of the verdict in a trial after the jury has completed deliberations. The usual procedure is as

follows:

The jury signals or indicates to the court deputy of bailiff that it is ready to return verdict.

In most cases, this is done by the foreperson of the jury, who tells the deputy or bailiff on guard

outside of the jury room, who in turn notifies the judge.

Counsel and the parties, the clerk and (if one is being used) the court reporter return to

their seats in the courtroom. All rise as the judge enters the courtroom, and the judge takes his or

her seat at the bench. The deputy or bailiff announces on the record that the jury has indicated

that they have reached a verdict. The judge tells the deputy or bailiff to return the jury to the

courtroom.

No one will be allowed to enter or leave the courtroom at this point, and everyone in thecourtroom must remain silent. All must stand while the jury enters the courtroom. A deputy or

bailiff remains standing next to the jury box. The foreperson remains standing, holding the

completed verdict form folded in half so that the verdict cannot be seen, while the remaining

jurors take their seats.51 The judge takes his or her seat and orders all others except the jury

foreperson to take their seats. The judge then asks the foreperson, Mr./Ms. Foreperson, has the

jury reached a verdict? The foreperson then responds to the judge, Yes it has. The judge then

tells the foreperson, Please hand the completed verdict form to the deputy/bailiff. The judge

may ask the foreperson to take his or her seat.

The deputy/bailiff then takes the completed verdict form from the foreperson and delivers

it to the judge. The judge checks the verdict form for completeness. If the verdict form is notcompleted properly, the judge returns it to the jury for further deliberation. If the verdict form

properly completed, the judge will state The Court accepts the verdict, and order, The

Defendant will rise and face the jury, and, once the defendant is standing and facing the jury, the

judge will do one of two things:

a. The judge will hand the verdict form to the clerk (or other court officer) and ask that

person, Please rise and publish the jurys verdict, or

51Note that if the jury is hopelessly hung after receiving proper instruction, the Court will discharge the jury

after an abbreviated proceeding and set a new trial date.

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b. The judge will ask the jury foreperson to stand, tell the deputy/bailiff to return the

completed verdict form to the foreperson, and ask the foreperson to read the jurys verdict out

loud.52

The person publishing the verdict, while standing, will state In the case of [State of

Florida] versus [Defendant], case number __________, as to the charge of [offense], we the juryfind as follows: The defendant is [guilty of (offense) as charged/guilty of (offense) as

included/not guilty]. So say we all. The person publishing the verdict repeats this procedure for

all counts tried before the jury. When this task is completed, the person publishing the verdict

will take his or her seat. After the verdict is published, the judge will ask the parties if any party

wants the jury polled. If any party wants the jury polled, the judge, or the clerk or court officer

while standing, will separately ask each juror, Is this your verdict? and each juror will respond

with a Yes or a No. If any juror says no, the jury will be returned to deliberations to come

to a unanimous verdict. If all jurors answer Yes, the judge will then discharge the jury with an

expression of gratitude for their service to the community, and the jury will be escorted from the

courtroom. Everyone in the courtroom will stand as the jurors exit the courtroom.

Once the jurors have left, the judge will ask, Will the defendant [and his or her counsel]

please approach the lectern? and either will impose sentence or set off sentencing if the

defendant is found guilty, or discharge the defendant if the defendant is found not guilty. No one

will be allowed to enter or leave the courtroom until all of the jurors have left, and no one but the

parties and their counsel, and any witnesses called to testify by a party, will be allowed to speak

during sentencing.

When all business has been completed, the Court will adjourn and all present will stand

as the judge leaves the courtroom.

Adjournment

At the conclusion of all matters pending before the Court, the judge will adjourn the

court. This can be accomplished several ways. One way is for the judge to strike a gavel and

announce Court now stands adjourned. The bailiff or court officer will command, All rise!

and the judge will leave the bench. Everybody in the courtroom should remain standing until the

judge leaves and the bailiff or court officer announces, The Court stands adjourned! If a matter

before the Court is to be continued on another day, as when a trial goes into another day, the

judges announcement should be Court now stands adjourned until __________, or This case

now stands adjourned until __________, giving the date or day of that week on which

proceedings will be resumed.

52Having the foreperson read the verdict reinforces the image that the verdict is the jurys verdict, and not

the judges.

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Another way the Court can be adjourned is by the judge informing the bailiff or court

officer and the bailiff or court officer making the announcements, with or without the bailiffs or

court officers use of a gavel.

Investiture

The investiture ceremony is perhaps the oldest tradition of the judiciary. It traces its

origins to ancient times, when such ceremonies and symbolic actions were used by kings to assert

the assumption of rulership and to elicit affirmation of it. The modern American judicial

investiture ceremony serves the similar purpose of publicly marking the beginning of a judges

assumption of his or her judgship by the new judge taking his or her oath to uphold the

Constitution and the laws, and his or her being presented with a robe, a gavel, and other symbols

of judicial power and authority. New bishops and college presidents also share the investiture

tradition in comparable ceremonies.

The modern form of the judicial investiture ceremony is derived from feudal conventions.

During the flourishing period of feudalism, the relationship between lord and vassal wasimportant and dignified, and was established by traditional formalities. These were divided into

homage and fealty, on the part of the person receiving the fief, and investiture, on the part of the

person bestowing it. The two acts of homage and fealty were normally performed at the same

time. The person who was to become the vassal would kneel before the lord and place his hands

pressed together in those of the lord, who then raised him from his kneeling position and gave

him the kiss of peace. Following this, the oath of fealty was taken upon the gospels or some relic

deemed sacred by the contracting parties. The performance of these two solemn acts transformed

the person performing them into the lords vassal. At the same time that the lord received the

homage of the man, he handed him some material object that represented the fief. This part of

the ceremony was known as investiture.53

The investiture of a field was represented by a clod, of a forest by a branch. A prelate

was given gloves, a crosier, and a pastoral ring. The vassal was expected to pay for his holding

with services, consisting chiefly of military services and judicial services. If he withheld his

services he forfeited his fief. Military service was on demand of the lord and at the expense of

the vassal, but was normally limited to not more than forty days once a year. When the lord

administered justice, he called his vassals to his court where they helped in the administration of

justice and also for themselves to be judged, as necessary.54

53Andrew Stephenson, A.M., Ph.D., THE HISTORY OF CHRISTIANITY, Vol. II (Boston: Richard D. Badger,

The Gorham Press 1919), pp. 185-87; see also William Cruise, Esq., TREATISE ON THE ORIGIN ANDNATURE OF

DIGNITIES OR TITLES OF HONOR, 2d ed. (London: Joseph Butterworth & Son 1823), pp. 9, 32.




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In the twelfth century the investiture was put in written form, and comprised two

documents: An affidavit of a notary, witnessing the oath of fealty and homage, and a written

description of all that the fief comprised. During the growth of feudalism, the Christian church

became feudalized and investiture ceremonies became an established part of ecclesiastical law

and procedure.55




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Chapter 5.

Authority and Obligation to Regulate Courtroom Order and

Decorum

Courts have the inherent power to preserve order and decorum in the courtroom, to

protect the rights of the parties and witnesses, and generally to further the administration of

justice. This power exists apart from any statute or specific co

a pocket manual of courtroom etiquette (february 25, 2016 draft)

Documents