Samuel C. Stretton.

The mark of a great trial lawyer is someone who has great pride in the legal profession and in their craft.

I am a young lawyer. What are some of the do's and don'ts in the courtroom setting?

Many modern courtrooms aren't the same as the traditional courtrooms in years past. Although there are still some wonderful old courtrooms that reek of history and past great advocates, the modern courthouses are usually very small with a number of exactly the same courtrooms on a particular floor. As a result, there is not often the same sense of history and awe. In fact, one courtroom in Lancaster actually has a full-length mirror right by the jury box. If a lawyer is trying a case in that room, it gets distracting initially because one keeps looking at themselves in the mirror. Clearly, the thought process in placing a full-length mirror by a jury box is questionable at best, since the courtroom is not a men's or women's clothing store.

For a young lawyer going into court there should be a very simple rule. Whatever the size and age of the courtroom, courtrooms are to be treated with great dignity. Lawyers always dress professionally and appropriately and act with dignity, treating everyone in the courtroom with respect.

Every lawyer should stand any time a judge leaves or enters the room. There is no reason to stand for juries, although many district attorneys do so. Jurors are fellow citizens. One stands for the judge because the judge in the courtroom symbolizes the law and the dignity of the law.

When questioning a witness, ask permission from the judge to question the witness while seated. Sometimes it's easier to organize notes when one is seated. But check with the courtroom, since some judges prefer lawyers to standing when they question at the podium, if there is a podium available.

Don't walk around as if you were Perry Mason or someone else. It's just distracting. Lawyers should either sit or stand, but remain essentially in one place. In very old courtrooms there used to be a little rail at the foot of the jury box where lawyers of old would often place one foot on that rail at the one side of the jury box and make their argument from that vantage point. Modern jurors seem to want more space. The best practice is not to lean on or touch the jury box.

Never demean your opponent. When there are disagreements, make objections. When one makes objections, they stand. One does not go on the basis for the objection unless the court asks. Speaking objections should not be made. If one needs to get into detail then ask for a sidebar conference.

But a good lawyer shall try to avoid sidebar conferences. These conferences upset and bore the jury. Further, most sidebar conferences really are not needed.

When approaching a witness or a plaintiff or defendant in the witness box, always ask permission of the judge—at least initially—to approach. Never remain and stand in front of the witness box unless there is something you have to point out to the witness. Return either to the podium or to your seat.

Never, never, never turn one's back when talking to the court or to the jury. Young lawyers sometimes get talking and walk back and forth and around the courtroom and are talking with their back to the jury. That is not only discourteous, but often times the jury can't hear what the lawyer is saying.

Dress like a professional, but don't dress extravagantly. The best advice is dress as if one is in church.

Obviously, one never chews gum in a courtroom. Witnesses should be told also not to chew gum. It's not only discourteous, but more importantly, sometimes it's hard to hear someone when they are chewing gum.

Lawyers and their clients should not be eating in a courtroom. No lawyer at the counsel table should have candy bars, candy, or anything of that nature. Jurors can't do that and lawyers should not do it either. Eating should be done during breaks or during the lunch hour. Similarly, lawyers should not have coffee cups on the counsel table. During trials, the water pitcher with plastic cups should suffice.

When addressing a judge or making arguments, always stand. When talking to a judge, it's probably better to stand at the podium. Some courtrooms require that because the acoustics are so bad the microphones are either at the podium or on the counsel table.

If the trial is a criminal case and the lawyers want to give the client a pen or pencil to write with, always check and get permission from the Sheriff. Some of those items are security risks and every Sheriff's Department has a different procedure.

Be careful of what one calls the overactive or pesky client. Many clients think they know more than anyone else and constantly want to bombard their lawyer with questions and comments. One has to be very firm with a client that the lawyer knows what they are doing. A client who is constantly whispering in their lawyer's ear will cause the lawyer to miss critical issues or not make connections that should be made. Give the client a piece of paper and tell them to write questions down and then just slide the questions over so the lawyer can glance through them. As every lawyer will find out, most of the questions are absolutely totally worthless and, if asked, could cause the case to be lost. But it is important that a client show interest. There is no better way than a client to have a pen and paper and at least keep notes. Tell your client not to stare down the jurors, particularly in a criminal case.

The use of electronics is now becoming a bigger and larger part of the courtroom. But in using electronics, it's very annoying if they don't work, it's not set up right or one has difficulty using it. Sometimes it's better not to use electronics and just talk to jurors the old fashioned way. When addressing the judge, always address the judge as “Your Honor.” One never wants to argue with a judge or over-talk a judge. This is particularly true if it's before a jury. Judges are held in high esteem normally. A jury is not going to know if a judge isn't doing everything right. So, treat the judge with respect, but make one's trial record. One can be very respectful to the judge, but at the same time put in the appropriate objections to reserve issues for appellate review.

It's important to object to error at the time it happens. One usually has to make the motion for a mistrial if the error is such that the lawyer thinks it should cause a new trial. One should check with some judges who don't want any objections made during opening or closing statements. This writer thinks that is foolish because it doesn't preserve the record as well. If that happens, then keep good notes and make the objections once the opening or closing statement is done. The better practice and most judges allow objections to be made contemporaneous with the remarks. On the other hand, if a lawyer abuses the right and makes many, many objections, the jury is not going to like this intrusion into the opponent's argument. One should object, but one has to be precise in their objections and use good judgment.  Most things are not that objectionable and not going to make a difference. It will annoy the jury if there are too many objections.

When one talks to a jury, never, ever, use notes. Lawyers have to stand up and talk directly to the jury. If one has to use notes, then perhaps they are not fit for being a trial lawyer. That doesn't mean they are not smart and capable, it just means that trial law isn't their strong point. One handicaps themselves if they use notes. Talk to the jury and look at the jury and make changes as one is watching the jury. If one is reading or looking at notes in closing statements, then one misses the jurors' reactions. It also raises the question in jurors' minds why the lawyer needs notes. If the lawyer knows the case, there is no need to talk from notes.

When a jury reaches a decision or verdict, the lawyer must take the verdict stoically. Whether the lawyer is happy with the verdict or is extremely upset, a lawyer should not reflect that in their face or actions. Further, if one wants to talk to jurors afterwards, the court must give permission. Even if the court gives permission, if jurors don't want to talk to the lawyer, then the lawyer shouldn't talk to them. But in talking to jurors, one should never ask how they voted or things of that nature. One should never criticize a jury. Good questions are what was a determining factor, what they thought the lawyer could have done better, etc. Sometimes it's also of value to ask the jury how they viewed the plaintiff or defendant's testimony or the testimony of a witness. It's informative to learn what the jury sees and takes from a witness' testimony. This will also be an eye opener to a young lawyer.

It's important to be on time in all trials. It's up to the lawyer to bring a sense of dignity and purpose to the courtroom. Jurors will appreciate it if a lawyer tries the case well, acts with respect, treats opposing counsel with respect and treats a jury with respect.

There is no reason at all for opposing counsel to be mortal enemies. They certainly have an obligation to present their viewpoints in a very vigorous and active fashion. But, outside the courtroom there is no reason why they should not talk to each other or treat each other with disdain. The mark of a professional is to treat one's opponent with dignity and respect.

Another thing the young lawyer should learn is to get to know the court staff and treat the court staff with respect and dignity. Many of these court officers can provide very useful information about habits of the judge in a courtroom. They are also usually generally very nice people and friendships can often become lasting when dealing with the court officers. Jurors will reflect on how a lawyer treats a court officer. If a lawyer treats a court officer as if they are a second-rate citizen, it will clearly be reflected in the jury box.

Don't criticize one's legal opponent to the jury or the judge. There is nothing really to be gained by that unless there's some extraordinarily wrong and outrageous conduct. Most lawyers learn that the judges know lawyers and criticizing a lawyer the judge knows and respects is not going to get the opposing lawyer very far. The jurors want lawyers to represent their clients to their best ability, and not spend time demeaning each other.

The Rules of Ethics apply during trial. Never, ever give a personal opinion on the merits of a case or the verdict. That is absolutely prohibited not only just in case law, but in the Rules of Professional Conduct. Only an untrained lawyer or an unethical lawyer will give their personal opinion to the jury. Giving a personal opinion will also create the possibility of a mistrial or an overturned verdict.

Be one's self in talking to a jury. Oftentimes one sees young DA's start out very loud and in a loud voice with some dramatic statements and then a minute or two later mention their name and then discuss the evidence. That may be effective for some people, but for many it's not and it's pretty well a canned presentation. Be one's self, talk to the jury. Have a story to tell and work your facts into the story. Do not be bombastic. Yelling and screaming gets nowhere in a courtroom. Logic, reason, creating a story, and filling the story with facts is how cases are won.

Finally, if a lawyer has not had a lot of trial experience, go up to the courthouse and watch good lawyers. Unfortunately, the art of trying cases has declined in recent years partly because there is not the same opportunity that there used to be to go to trial. It is important to go to watch good lawyers, lawyers who have had experience trying many cases. One can learn from those lawyers how to present a case. One has to be careful about imitating them because every lawyer's style is unique. But watching a good lawyer try a case is very beneficial. In days of old, it was normal for lawyers to go over and watch a seasoned trial lawyer if they knew he was up for trial. That doesn't happen as much as it used to. But it would be a good practice to renew.

Finally, a lawyer has to be able to take criticism. In days of old, judges would not criticize lawyers in front of a jury or in the courtroom. That was reserved for after the trial or during a break back in the judge's chambers. But many modern judges let a lawyer have it in the courtroom. One had to learn to take that without getting angry at the judge. Have a poker face and move on as if nothing happened. Finally, don't over-complicate the case. Know every case rises or falls on a few points. Know those points and know how you are going to handle those—and then know when to sit down.

It takes many trials to become a good trial lawyer. The mark of a great trial lawyer is someone who has great pride in the legal profession and in their craft. But also, someone who truly wants to seek justice and presents the case fairly within the rules, evidence, and what's allowed by law and ethics.

A judge cannot provide character witness testimony.

I have asked a judge to be a character witness for me since I am applying for admission to the bar and there might be a character issue. Can I do that?

The answer is emphatically no. Judges are prohibited in Pennsylvania from being character witnesses unless they petition the Pennsylvania Supreme Court and get approval. Otherwise, a judge could be discipline for testifying as a character witness during any type of proceeding, such as an attorney disciplinary proceeding, a judicial disciplinary proceeding, a law student bar admission hearing, among other types of hearings. Federal judges are also not supposed to act as character witnesses.

The Pennsylvania Supreme Court almost never grants permission for a judicial officer to testify as a character witness. The reason is obvious since in the context of the testimony and trial, the dignity of the judicial office could be lessened.

The judicial officer stands for more than just his or her experience and background. When an active judicial officer is called as a witness, the office for which the judge holds is also sitting in the witness box. It does not help the judicial office for a judicial officer to be testifying as to someone's good character in proceedings when there's oftentimes evidence of bad character or bad conduct. This can indirectly demean the judicial officer and his  judicial office. This could be construed to be misusing the prestige of the judicial office to advance the interest of someone else. There is no way a sitting judge can avoid misusing the prestige and power of their office by agreeing to appear as a character witness. As a result, that's why it is prohibited in Pennsylvania and presumably most other states and in federal courts.

But there is a difference if a judge is called purely as a fact witness. A judge can testify as to facts involving what they saw or if it's a hearing, as to the level of preparation and diligence of a lawyer in their courtroom. But the judge cannot provide character witness testimony.

Finally, even though it's obvious, a judge should never, ever testify as an expert witness. That would be an abuse of using prestige of a judicial office for a private benefit. It would be a clear violation of the Rules of Conduct in misusing the judicial office. Further, most judges cannot accept payment for services as an expert witness due to prohibitions in the Code of Judicial Conduct.

Therefore, to answer the question, a judicial officer should never appear as a character witness. Sometimes it's frustrating being a judge, but it is also a great privilege and a high responsibility for being a judicial officer. One of the most important aspects is to protect the prestige and dignity of the judicial office and to adjudicate fairly. A judge's testimony as an expert witness or as a character witness would undermine that prestige.

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.