Respect the decorum of the court and always act with courtesy to one's opponent.

How much leeway do I have in a courtroom if I believe the judge is wrong or being unfair or believe opposing counsel is doing unethical things and being unfair?

The answer is very straightforward. When litigating, whether it's an argument or hearing or trial or appellate argument, one must respect the decorum of the court and always act with courtesy to one's opponent. Rule 3.5 of the Rules of Professional Conduct require a lawyer to follow the decorum of a tribunal. Under 3.5(d), a lawyer cannot engage in conduct intended to disrupt a tribunal. It should be noted the comments to this Rule help to expand a lawyer's responsibilities during a hearing. Comment 4 specifically states a lawyer has to refrain from abusive or obstreperous conduct.

The comment notes: “A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

It should be noted that Comment 5 prohibits disruptive conduct also at any deposition.

Rule of Professional Conduct 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. Clearly, acting badly or against the decorum of the courtroom could fall into that prohibition.

Therefore, what's a lawyer to do? Obviously, an experienced trial lawyer will now have to make the record with appropriate objections.

A young lawyer is sometimes at a disadvantage. Sometimes a young lawyer wants to impress their client or use a lot of bluster to make the client think they are fighting for them. But, that's a big mistake.

Essentially, any experienced trial lawyer knows if the judge or opposing counsel are doing things wrongly or making terrible mistakes, the lawyer has the right object. The lawyer has a right to make a record, normally at sidebar, speaking objections are not usually allowed before a jury.

Once a lawyer makes their record, that's all they can do. A lawyer cannot act rudely and should not demean the court. The lawyer should in a proper fashion make the objection and state the reasons concisely. If some of the reasons are mistakes by the judge then they should be objected to and presented in an appropriate and dignified manner.

If a judge or opposing counsel continues, then the lawyer again appropriately makes objections and makes a complete record. In no way should the lawyer act disrespectfully to the judge even if the judge is wrong. The lawyer just makes their record and points out in a proper and dignified fashion the mistakes and they can be reviewed later.

The lawyer certainly has the right to file a complaint with the Judicial Conduct Board after the hearing or with the Office of Disciplinary Counsel after the hearing if opposing counsel or the judge are acting badly. In fact, there may be some mandatory requirements if the misconduct of opposing counsel goes to the honesty, trustworthiness, and fitness of the counsel under Rule 8.3 of the Rules of Professional Conduct and similarly under Rule 8.3(b), a lawyer has a mandatory duty to report a judge if the judge's conduct raises a substantial question as to the judge's fitness for the office. These are mandatory requirements and it's an obligation to report serious misconduct by a lawyer or judge because it goes to the integrity and fairness of the system.

The lawyer has remedies in terms of protecting a record and appeals and, at the same time, filing complaints with the appropriate agencies. Under Rule 8.2 of the Rules of Professional Conduct, the lawyer shall not make false statements or reckless statements about a judge or a judge's integrity or qualifications.

Obviously, in litigation sometimes parties become impassioned. Sometimes voices are raised. But, at all times, even when one's opponent is doing something that is terribly wrong, a lawyer must respond not in kind, but with the appropriate objections, raising the appropriate issues, and then later taking the appropriate steps to correct the matter.

A lawyer does not have the right to start to scream or yell or act badly themselves in response to the conduct. Clearly, a lawyer has no right to become physical. This writer remembers a lawyer who got upset with a judicial ruling and had an altercation with opposing counsel, punching them, which resulted in a suspension from the practice of law, as it should.

Lawyers, particularly younger lawyers, should know that sometimes good opposing counsel is going to push the envelope and try to bait them or get them so mad they're not as effective. Every lawyer should recognize that trick and not fall into the trap.

Further, every lawyer should recognize if their opponent is acting badly, the judge is usually not oblivious to the misconduct. The judicial officer will take the appropriate steps if the issues are properly raised before the court.

At times, it is frustrating because, unfortunately, many lawyers don't have the opportunity to get trial experience. Although in a county, one often sees the same lawyers trying a lot of cases, either public defenders or DAs or certain private lawyers, most lawyers don't go into court. In fact, there's been an estimate recently that 99 percent of lawyers do not go into court regularly and only 1 percent do. That failure is seen in the quality of litigation which is often not that good. Even well-prepared lawyers don't know how to go off script, rely too much on written questions and notes, and don't pick up on things in a trial. An experienced litigator knows how to observe and watch the courtroom and usually has no notes since everything should be in their head.

The best experience for trial lawyers is to do a fair amount of appeals. For instance, people in the public defender's or DA's offices ought to ask for a rotation through the appellate unit. Doing appeals regularly for a year or two, is very good training for any trial lawyer. Reading the whole record on trials will teach a lawyer what not to do, but also will show how foolish people seem in the cold transcript when they get angry or mad and do things they shouldn't be doing. Any lawyer who has done appeals and is trying cases often times can visualize the transcript which will have a great influence on the lawyer not to act similarly during the course of their trial.

But, the bottom line is very simple. Lawyers are professionals. They have a very strict and strong Rules of Professional Conduct that must be complied with. They should treat their opponents as colleagues, with respect and dignity. Courtesy should be given freely. Litigation is not war and is not combat and anyone who acts or approaches litigation that way is making a serious mistake and will not be effective for their clients in the long run.

Judicial officers who are making mistakes will learn the hard way through appeals and/or discipline if they continue in that fashion. The Judicial Conduct Board is very strong if a judge acts improperly on the Bench or doesn't show civility or acts without proper decorum. Every lawyer should remember law is a profession and one should act accordingly. Failure to do so will do great damage to the profession and also great damage to one's reputation. If young lawyers haven't figured it out yet, reputation in the practice of law goes a long, long way.

Finally, all lawyers have an obligation to teach younger lawyers and not to act badly in a courtroom which could undermine that very important role.

Just deal with the issues and facts of the case.

Are there certain phrases or statements a lawyer should avoid in addressing the court or arguing a case or trying a jury trial, etc.?

One of the most important things any lawyer should learn is that it really doesn't do one much good to spend to their time criticizing their opponent or trying to suggest their opponent is a bad lawyer or doesn't act honestly. Judges usually don't want to hear that. It's far better to deal solely with the issues at hand and argue the merit or lack of merit of a particular issue and support that argument, not only with appropriate law, but some reference to the relevant facts. Normally, it's not a good idea to try to say something bad about one's opponent or suggests they are not being truthful because many times judges know the lawyers.

One of the phrases lawyers can do without is the word disingenuous. This word has been around a long time, but rarely used until recent years. In fact, looking at some older dictionaries about 30 to 40 years ago, in many of them the word does not appear. The meaning of this word is very negative. Potentially a person who is disingenuous is lacking in frankness, candor, or sincerity. Synonyms by modern dictionaries are insincere, dishonest, untruthful, false, deceitful, duplicitous, lying, and hypercritical. In other words, this is a serious charge to make against one's opponent suggesting they are a liar or absolutely dishonest. The word disingenuous might sound neutral, but its meaning is very harsh.

The term disingenuous should be dropped from the litigation category. If someone disagrees with the opposing lawyer's factual recitation or feels that they misstated a fact, then point out the lawyer misstated X, Y or Z. There is no need for name calling. But, disingenuous is used all the time in oral arguments before the Superior or Supreme or Commonwealth courts by lawyers. This word should be erased from a lawyer's vocabulary when litigating or speaking about another person.

Another word or phrase that the legal profession could do without is “learned counsel.” That term is banded about often in arguments and particularly in appellate arguments. Usually, it tends to be with a sarcastic meaning and raises questions about the knowledge of one's opponent. Again, there is no need to use that kind of terminology. It's far better just to discuss the case on the issues and if there is a disagreement as to interpretation, just point out the disagreement. Name calling or sarcastic name calling really doesn't help the case at all.

Gender referencing is not a good idea. Calling one's excellent female opponent a young lady doesn't go over so well with a lot of judges or courts. It's a term that should be banished, at least from the male's legal comments. The best advice to lawyers is don't worry what the gender of your opponent is. Just present one's case and refer to one's opponent by their name.

Suggesting during appellate arguments that the lawyer is certain that the appellate judges have reviewed all the records really shouldn't be said. Many appellate judges or appellate court panels are “hot courts” where they have reviewed the record in detail. Others have not. There is no reason to say that because all it is suggesting is perhaps they haven't. It's not a good way to approach an argument.

The most successful arguments don't ever mention or discuss one's opponent or their way of speaking or their presentation of the facts. Just deal with the issues and the facts. Present arguments in a logical concise fashion. That is the mark of a good appellate lawyer and good argument lawyer.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.

Respect the decorum of the court and always act with courtesy to one's opponent.

How much leeway do I have in a courtroom if I believe the judge is wrong or being unfair or believe opposing counsel is doing unethical things and being unfair?

The answer is very straightforward. When litigating, whether it's an argument or hearing or trial or appellate argument, one must respect the decorum of the court and always act with courtesy to one's opponent. Rule 3.5 of the Rules of Professional Conduct require a lawyer to follow the decorum of a tribunal. Under 3.5(d), a lawyer cannot engage in conduct intended to disrupt a tribunal. It should be noted the comments to this Rule help to expand a lawyer's responsibilities during a hearing. Comment 4 specifically states a lawyer has to refrain from abusive or obstreperous conduct.

The comment notes: “A lawyer may stand firm against abuse by a judge, but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review, and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.”

It should be noted that Comment 5 prohibits disruptive conduct also at any deposition.

Rule of Professional Conduct 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. Clearly, acting badly or against the decorum of the courtroom could fall into that prohibition.

Therefore, what's a lawyer to do? Obviously, an experienced trial lawyer will now have to make the record with appropriate objections.

A young lawyer is sometimes at a disadvantage. Sometimes a young lawyer wants to impress their client or use a lot of bluster to make the client think they are fighting for them. But, that's a big mistake.

Essentially, any experienced trial lawyer knows if the judge or opposing counsel are doing things wrongly or making terrible mistakes, the lawyer has the right object. The lawyer has a right to make a record, normally at sidebar, speaking objections are not usually allowed before a jury.

Once a lawyer makes their record, that's all they can do. A lawyer cannot act rudely and should not demean the court. The lawyer should in a proper fashion make the objection and state the reasons concisely. If some of the reasons are mistakes by the judge then they should be objected to and presented in an appropriate and dignified manner.

If a judge or opposing counsel continues, then the lawyer again appropriately makes objections and makes a complete record. In no way should the lawyer act disrespectfully to the judge even if the judge is wrong. The lawyer just makes their record and points out in a proper and dignified fashion the mistakes and they can be reviewed later.

The lawyer certainly has the right to file a complaint with the Judicial Conduct Board after the hearing or with the Office of Disciplinary Counsel after the hearing if opposing counsel or the judge are acting badly. In fact, there may be some mandatory requirements if the misconduct of opposing counsel goes to the honesty, trustworthiness, and fitness of the counsel under Rule 8.3 of the Rules of Professional Conduct and similarly under Rule 8.3(b), a lawyer has a mandatory duty to report a judge if the judge's conduct raises a substantial question as to the judge's fitness for the office. These are mandatory requirements and it's an obligation to report serious misconduct by a lawyer or judge because it goes to the integrity and fairness of the system.

The lawyer has remedies in terms of protecting a record and appeals and, at the same time, filing complaints with the appropriate agencies. Under Rule 8.2 of the Rules of Professional Conduct, the lawyer shall not make false statements or reckless statements about a judge or a judge's integrity or qualifications.

Obviously, in litigation sometimes parties become impassioned. Sometimes voices are raised. But, at all times, even when one's opponent is doing something that is terribly wrong, a lawyer must respond not in kind, but with the appropriate objections, raising the appropriate issues, and then later taking the appropriate steps to correct the matter.

A lawyer does not have the right to start to scream or yell or act badly themselves in response to the conduct. Clearly, a lawyer has no right to become physical. This writer remembers a lawyer who got upset with a judicial ruling and had an altercation with opposing counsel, punching them, which resulted in a suspension from the practice of law, as it should.

Lawyers, particularly younger lawyers, should know that sometimes good opposing counsel is going to push the envelope and try to bait them or get them so mad they're not as effective. Every lawyer should recognize that trick and not fall into the trap.

Further, every lawyer should recognize if their opponent is acting badly, the judge is usually not oblivious to the misconduct. The judicial officer will take the appropriate steps if the issues are properly raised before the court.

At times, it is frustrating because, unfortunately, many lawyers don't have the opportunity to get trial experience. Although in a county, one often sees the same lawyers trying a lot of cases, either public defenders or DAs or certain private lawyers, most lawyers don't go into court. In fact, there's been an estimate recently that 99 percent of lawyers do not go into court regularly and only 1 percent do. That failure is seen in the quality of litigation which is often not that good. Even well-prepared lawyers don't know how to go off script, rely too much on written questions and notes, and don't pick up on things in a trial. An experienced litigator knows how to observe and watch the courtroom and usually has no notes since everything should be in their head.

The best experience for trial lawyers is to do a fair amount of appeals. For instance, people in the public defender's or DA's offices ought to ask for a rotation through the appellate unit. Doing appeals regularly for a year or two, is very good training for any trial lawyer. Reading the whole record on trials will teach a lawyer what not to do, but also will show how foolish people seem in the cold transcript when they get angry or mad and do things they shouldn't be doing. Any lawyer who has done appeals and is trying cases often times can visualize the transcript which will have a great influence on the lawyer not to act similarly during the course of their trial.

But, the bottom line is very simple. Lawyers are professionals. They have a very strict and strong Rules of Professional Conduct that must be complied with. They should treat their opponents as colleagues, with respect and dignity. Courtesy should be given freely. Litigation is not war and is not combat and anyone who acts or approaches litigation that way is making a serious mistake and will not be effective for their clients in the long run.

Judicial officers who are making mistakes will learn the hard way through appeals and/or discipline if they continue in that fashion. The Judicial Conduct Board is very strong if a judge acts improperly on the Bench or doesn't show civility or acts without proper decorum. Every lawyer should remember law is a profession and one should act accordingly. Failure to do so will do great damage to the profession and also great damage to one's reputation. If young lawyers haven't figured it out yet, reputation in the practice of law goes a long, long way.

Finally, all lawyers have an obligation to teach younger lawyers and not to act badly in a courtroom which could undermine that very important role.

Just deal with the issues and facts of the case.

Are there certain phrases or statements a lawyer should avoid in addressing the court or arguing a case or trying a jury trial, etc.?

One of the most important things any lawyer should learn is that it really doesn't do one much good to spend to their time criticizing their opponent or trying to suggest their opponent is a bad lawyer or doesn't act honestly. Judges usually don't want to hear that. It's far better to deal solely with the issues at hand and argue the merit or lack of merit of a particular issue and support that argument, not only with appropriate law, but some reference to the relevant facts. Normally, it's not a good idea to try to say something bad about one's opponent or suggests they are not being truthful because many times judges know the lawyers.

One of the phrases lawyers can do without is the word disingenuous. This word has been around a long time, but rarely used until recent years. In fact, looking at some older dictionaries about 30 to 40 years ago, in many of them the word does not appear. The meaning of this word is very negative. Potentially a person who is disingenuous is lacking in frankness, candor, or sincerity. Synonyms by modern dictionaries are insincere, dishonest, untruthful, false, deceitful, duplicitous, lying, and hypercritical. In other words, this is a serious charge to make against one's opponent suggesting they are a liar or absolutely dishonest. The word disingenuous might sound neutral, but its meaning is very harsh.

The term disingenuous should be dropped from the litigation category. If someone disagrees with the opposing lawyer's factual recitation or feels that they misstated a fact, then point out the lawyer misstated X, Y or Z. There is no need for name calling. But, disingenuous is used all the time in oral arguments before the Superior or Supreme or Commonwealth courts by lawyers. This word should be erased from a lawyer's vocabulary when litigating or speaking about another person.

Another word or phrase that the legal profession could do without is “learned counsel.” That term is banded about often in arguments and particularly in appellate arguments. Usually, it tends to be with a sarcastic meaning and raises questions about the knowledge of one's opponent. Again, there is no need to use that kind of terminology. It's far better just to discuss the case on the issues and if there is a disagreement as to interpretation, just point out the disagreement. Name calling or sarcastic name calling really doesn't help the case at all.

Gender referencing is not a good idea. Calling one's excellent female opponent a young lady doesn't go over so well with a lot of judges or courts. It's a term that should be banished, at least from the male's legal comments. The best advice to lawyers is don't worry what the gender of your opponent is. Just present one's case and refer to one's opponent by their name.

Suggesting during appellate arguments that the lawyer is certain that the appellate judges have reviewed all the records really shouldn't be said. Many appellate judges or appellate court panels are “hot courts” where they have reviewed the record in detail. Others have not. There is no reason to say that because all it is suggesting is perhaps they haven't. It's not a good way to approach an argument.

The most successful arguments don't ever mention or discuss one's opponent or their way of speaking or their presentation of the facts. Just deal with the issues and the facts. Present arguments in a logical concise fashion. That is the mark of a good appellate lawyer and good argument lawyer.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.