July 2009
Blast from the Past
This is the premiere of a new department in Bar News. As the WSBA enters its 76th year, we thought it would be interesting to revisit what was on the minds of WSBA members from decades past. This article, from The State Bar Review, Volume II, Number 2, is reprinted as it first appeared in January 1936. You may find yourself thinking that these articles are as relevant today, or, perhaps, we’ve learned a great deal since then. Let us know what you think!
“The wise man must remember that while he is a descendant of the past, he is a parent of the future.” — Herbert Spencer — British social philosopher, 1820–1903
Courtesy and Decorum in the Courtroom
The time available this morning will permit me to discuss only one phase of trial ethics, namely, Courtesy and Decorum in the Courtroom, or what might be termed Courtroom Manners.
While courtesy is hardly ethics, it is closely akin to ethics. If you study the lives of distinguished lawyers and judges, you will find that as a general rule they were well-bred gentlemen. Either by nature or by self training, they were courteous to their fellow men.
Be not merely polite — be courteous. Courtesy is one thing and politeness is quite another. Some of the most polite lawyers I have known have been so lacking in other requisites of the profession that in my opinion they had no proper place in the courtroom at all. It is not of them that I am speaking.
By courtesy, I mean constructive consideration — the consideration that springs from a desire to be fair, to be upright, to be frank, to be magnanimous, to be kind, and to be noble.
Be courteous to witnesses, to adverse parties, to opposing counsel, to the court and to the jury.
You do not need the vaunted polish of a Lord Chesterfield, but if you wish to truly adorn your chosen profession, you should develop that civility which is the passport of good society everywhere and which stamps you as one of nature’s noblemen.
These qualities may not be vital to success, but they will play a very important part in contributing to the happiness of a lawyer’s life and that durable satisfaction which is derived from conduct consonant with the dignity of his profession.
The gist of what I want to impress upon you respecting the ethics of the trial can be boiled down to three little words. If you forget everything else I say this morning within five minutes after leaving the classroom, I hope that there are at least some among you who will remember these three words for the remainder of your lives and have occasion to invoke their guidance in many a famous trial. These three words are: “Be a gentleman!” Because more truly than it may be said of a king, a gentleman can do no wrong.
Choose for examples to emulate not those lawyers who by mere ability, aggressiveness and truculence may have gained a temporary notoriety as spectacular fighters. Rather choose those gentlemen of the bar who by their integrity, high-mindedness, courtesy and fidelity have won the esteem and admiration of their brethren and the public alike as true ministers of justice.
In selecting a motto to set the standard of his conduct, the young lawyer could do no better than to take the words of the poet:
“Be Noble — and the Nobleness that lies in other men
Sleeping but never dead
Will rise in majesty to meet thine own.”
But, you may say, these are glittering generalities. How are they to be applied in the rough and tumble of a lawsuit? In an effort to answer this natural query, I shall endeavor to draw upon my eleven years’ experience on the Superior Court bench to point out certain pitfalls and to formulate certain commandments for the practical application of these principles to courtroom conduct. Like Woodrow Wilson, I have fourteen points:
1. Avoid Snarling, Wrangling and Contentiousness.
While an able lawyer must be a good fighter, he gains nothing by being an ill-tempered one. Judges and juries may sometimes enjoy the excitement of wordy encounters, but when the time comes for rendering the verdict or the judgment, they have more respect for and more confidence in the fair-minded gentleman than for him who deals in epithets and abuse.
2. Avoid a Truculent and Aggressive Air.
For every lawyer who carries a chip on his shoulder there is usually another who is ready to knock it off. The man who is looking for trouble seldom fails to find it. A trial lawyer should be a good sportsman, not merely a belligerent gladiator.
3. Refrain from Indulging in the Four B’s —
Badgering, Browbeating, Bully-ragging and Bulldozing witnesses on cross-examination.
Nothing brings greater discredit and disrepute upon the profession. You don’t have to be cross in order to be a good cross-examiner.
4. Do Not Make the Mistake of Regarding All the Opposition Witnesses as Perjurers.
—and all your own as upright and honest. You will be shocked to learn how frequently the judge or jury reaches just the opposite conclusion.
5. Never Ridicule or Abuse Opposing Counsel.
Your fellow lawyers should be your best friends. It should always be possible for you to do “As adversaries do at law, strive mightily, but eat and drink as friends.”
6. Eschew the Raucous Voice.
Mere shouting and bellowing never persuade. A well modulated voice is a joy to judge and jury. There are appropriate moments for passion and eloquence, but to be effective they must be used with restraint.
7. Be an Aid to the Court.
The better your case is prepared, the better the court’s opinion will be. The better the opinion, the better the law, and the better the community.
8. When You Lose Your Case, Do Not Damn the Judge or Cavil at the Decision of the Court.
Criticism of the official conduct of the court tends to weaken the confidence of the public in the administration of justice and lessens the dignity that should clothe the ministers of justice. The lawyer should be the last to cast reflections on the court, and his own demeanor should be such as to create an atmosphere tending to encourage faith in the administration of justice and lend dignity to those charged with it.
But while deferential respect should always be extended to the court, both as a moral and professional duty, yet nothing more is required than a manly respect, not a servile submission. It is just as important to maintain the independence of the bar as to maintain the dignity of the court. When his duty to his client requires it, counsel need not shirk expressing firm and decided opposition to the views expressed, remarks made or course pursued by the court.
These things should be done with dignity and firmness in open court, however, rather than by denouncing the judge as a crook or an ignoramus in the corridor, where it can do no good and does do much harm. (See Sharswood’s Ethics, p. 61 et seq.)
9. Be On Time When Attending Court.
When you are tardy, you waste the time of many people. If you are in court on a motion, the result of being late may be that the motion may go to the foot of the calendar and opposing counsel may have the major portion of an entire day wasted as a result of your discourtesy on a matter that could have been disposed on in ten minutes. Lord Nelson said: “I owe all my success in life to having been always a quarter of an hour before my time.”
10. Be Sincere with Court and Jury.
Avoid fawning on the court or smirking and smiling with a knowing look at the jury. These are marks of insincerity which defeat their own ends because they are readily detected. As between the rude and insolent lawyer and the unctuous, fawning lawyer, who curries favor with the jury by ostensible solicitude for their comfort or tries by flattery to ingratiate himself into the judicial mind, the former is entitled to the greater respect. Everyone despises the “bootlicker,” or what in collegiate parlance you now call “the apple-polisher.”
11. Cultivate the Gentle Art of Making Friends.
A man who has no friends is poor indeed. Make friends with everyone in the courtroom. Know the clerk, the bailiff and the reporter by name — treat them with courtesy. Make friends with the judge, the opposing counsel and the adverse party. Do it in a manly way, remembering that the best way to make friends is to be one — that
“Kind words are more than coronets
And simple faith than Norman blood.”
12. Shun All Appearance of Undue Familiarity with the Judge, Particularly During a Trial.
Do not enter his chambers except in company with opposing counsel, lest some ignorant party suspect that you are attempting to influence his decision by private conversation.
13. Cultivate the Use of Good English.
Nothing more quickly arrests the attention or captures the interest of judge and jury than a straightforward argument expressed in clear, simple and classic English. It at once marks the lawyer who uses it as one “to the manor born.” Courtroom loungers may prefer the language of the barroom, the gutter or the prize ring, but those who decide your cases for you will be more impressed by the language of Abraham Lincoln, Elihu Root and Newton D. Baker.
14. When in Doubt About Any Point of Courtroom Conduct, Remember That High Moral Principle is the Only Safe Guide, the only torch to light the way in darkness.
In this connection, however, I firmly believe that the three-word motto “Be a gentleman,” with all the word implies, will furnish a dependable slogan under most circumstances which will arise during your trial experience.
While it may appear to many of you that I am giving undue attention to the mere amenities of life, I am fully satisfied that increasing emphasis on better courtroom manners would accomplish a great deal in bettering the administration of justice.
When you enter upon the practice of law, take good care that your conduct is not such that judges and fellow-lawyers will classify you among that small minority at the bar who make themselves notorious by their bad manners in the courtroom. Let your conduct rather place you among those who, I am glad to say, represent the great majority of the bar— those to whom their own honor and the honor of the profession spell more than money or success, who can robustly champion a client’s cause without ever flinching or ever fouling, who distinguish themselves by their diligence and learning in the law, who are inherently loyal to the courts in which they practice, who can fight hard and yet fight like gentlemen, who win a deserved reputation for fidelity to private trust and public duty, and whose courtroom conduct is always such as to merit the approval of all just men.
Daniel Webster declared:
“Justice is the great interest of man on earth. It is the ligament which holds civilized beings and civilized nations together. Wherever her temple stands, and so long as it is duly honored, there is a foundation for social security, general happiness and the improvement and progress of the race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns is entablatures, or contributes to raise its august dome still higher in the skies, connects himself in name, and fame, and character, with that which is, and must be, as durable as the frame of human society.”
If you and I in our humble way do what we can to raise the standard of courtesy and better the traditions of our profession, have we not labored on this edifice with usefulness and distinction?
