Courtroom Conduct, Demeanor, and Ethics

1. Courtroom Conduct, Demeanor, and Ethics Judge David Kalemkarian Fresno County Bar Association General Meeting February 24, 2006

2. 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

3. 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”

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

11. 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

12. 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

13. 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

14. 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 • Only purpose would be to harass/embarrass the other party • What if it is relevant? How do you deal with it? • Only bring out relevant facts • Don’t use inappropriate names—e.g., cheater or adulterer

15. 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

16. Ethical Tips/RulesThe “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”

17. 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

18. 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

19. 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

20. 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.

21. Concluding Remarks • “The fault, dear Brutus, is not in our stars, But in ourselves. . . .” • William Shakespeare, Julius Caesar, I, ii. 134 • Each of you controls your destiny, and shapes your own reputation—do your best to be a “classy lawyer”, and then sit back and reap the benefits