Courtroom Conduct, Courtroom Conduct, Demeanor, and EthicsDemeanor, and Ethics

Judge David KalemkarianJudge David KalemkarianFresno County Bar Association Fresno County Bar Association

General MeetingGeneral MeetingFebruary 24, 2006February 24, 2006

OverviewOverview Personal IntroductionPersonal Introduction PreviewPreview

Preliminary QuestionsPreliminary Questions Why am I here?Why am I here? Why is the issue of courtroom conduct important?Why is the issue of courtroom conduct important? What kind of reputation do you want to have?What kind of reputation do you want to have? How big is the problem of improper courtroom conduct?How big is the problem of improper courtroom conduct?

Tips/RulesTips/Rules CivilityCivility EthicsEthics Practice and Procedure—Fresno County Bench Officer Pet PeevesPractice and Procedure—Fresno County Bench Officer Pet Peeves

Concluding RemarksConcluding Remarks GoalsGoals

Recognize the importance, personally and professionally, of Recognize the importance, personally and professionally, of appropriate courtroom conductappropriate courtroom conduct

Develop an insight into Fresno County Superior Court Bench Develop an insight into Fresno County Superior Court Bench Officers’ likes and dislikesOfficers’ likes and dislikes

Why am I here?Why am I here?

Party lineParty line Recent appointment as a Superior Court Recent appointment as a Superior Court

JudgeJudge Family law judges and attorneys are not Family law judges and attorneys are not

frequently involved in general bar frequently involved in general bar association activitiesassociation activities

Real reasonReal reason The prior 43 judicial officers asked said The prior 43 judicial officers asked said

“NO”“NO”

Why is the Issue of Courtroom Why is the Issue of Courtroom Conduct Important?Conduct Important?

What is the most important asset What is the most important asset that a lawyer has?that a lawyer has? Their physical appearance?Their physical appearance? Their personality?Their personality? Their brainpower?Their brainpower? Their REPUTATION!!!!Their REPUTATION!!!!

A lawyer’s reputation is directly related to A lawyer’s reputation is directly related to their conduct—good or bad, inside and their conduct—good or bad, inside and outside of the courtroomoutside of the courtroom

What Kind of Reputation do You What Kind of Reputation do You Want to Have?Want to Have?

A reputation of being a “Classy Lawyer”A reputation of being a “Classy Lawyer” Law firm in Phoenix, Arizona, conducts a Law firm in Phoenix, Arizona, conducts a

session with its new associates on the subject session with its new associates on the subject of “How to Be a Classy Lawyer”of “How to Be a Classy Lawyer” Good reasons given for being “classy”:Good reasons given for being “classy”:

It’s a small town. If you aren’t classy, word gets aroundIt’s a small town. If you aren’t classy, word gets around Classy lawyers get better results. Judges, juries, and Classy lawyers get better results. Judges, juries, and

appellate courts trust classy lawyers moreappellate courts trust classy lawyers more It’s more efficient. Less time is wasted on petty and It’s more efficient. Less time is wasted on petty and

needless disputesneedless disputes Classy lawyers get more referralsClassy lawyers get more referrals It’s good for the firm. A firm with a classy reputation It’s good for the firm. A firm with a classy reputation

provides each of its members with tremendous provides each of its members with tremendous advantagesadvantages

How Big is the Problem?How Big is the Problem? Starting PropositionStarting Proposition--Improper courtroom conduct --Improper courtroom conduct

by a lawyer has a direct and negative impact not by a lawyer has a direct and negative impact not only on the reputation of the individual lawyer, but only on the reputation of the individual lawyer, but also on the prestige and honor of the legal also on the prestige and honor of the legal professionprofession

Locally—Improper courtroom conduct is the Locally—Improper courtroom conduct is the exception, not the ruleexception, not the rule Unofficial consensus of the bench—Fresno County has a Unofficial consensus of the bench—Fresno County has a

great Bargreat Bar I wouldn’t be here if The Fresno County Bar Association I wouldn’t be here if The Fresno County Bar Association

Board wasn’t concerned about proper courtroom conductBoard wasn’t concerned about proper courtroom conduct There are new lawyers who don’t yet know the rulesThere are new lawyers who don’t yet know the rules There are more experienced lawyers who have refused to There are more experienced lawyers who have refused to

learn the ruleslearn the rules There are veteran lawyers who have simply forgotten the rulesThere are veteran lawyers who have simply forgotten the rules

How Big is the Problem?How Big is the Problem?

How about statewide?How about statewide? ABA website—list of 10 different ABA website—list of 10 different

California counties whose bar California counties whose bar associations have adopted rules of associations have adopted rules of professional conductprofessional conduct

Note: The FCB adopted litigation guidelines Note: The FCB adopted litigation guidelines on 4/10/92on 4/10/92

Lawyers in other counties can be Lawyers in other counties can be horrendous in terms of their tactics, horrendous in terms of their tactics, conduct, and ethicsconduct, and ethics

How Big is the Problem?How Big is the Problem?

How about nationally?How about nationally? Gallup Poll (November 17-20, 2005)—”Please Gallup Poll (November 17-20, 2005)—”Please

tell me how you would rate the honesty and tell me how you would rate the honesty and ethical standards of people in these different ethical standards of people in these different fields: very high, high, average, low, or very fields: very high, high, average, low, or very low?....”low?....”

Only 18% of the responses for lawyers were in the Only 18% of the responses for lawyers were in the very high and high categoriesvery high and high categories

Below nurses, druggists, doctors, teachers, police Below nurses, druggists, doctors, teachers, police officers, clergy, funeral directors, bankers, accountants, officers, clergy, funeral directors, bankers, accountants, journalists, real estate agents, and building contractorsjournalists, real estate agents, and building contractors

Above telemarketers, car salespersons, advertisers, Above telemarketers, car salespersons, advertisers, congressmembers, stockbrokers, business executives, congressmembers, stockbrokers, business executives, and labor union leadersand labor union leaders

How Big is the Problem?How Big is the Problem?

How about nationally? (Continued)How about nationally? (Continued) Harris Poll (August 9-16, 2005)—”I am Harris Poll (August 9-16, 2005)—”I am

going to read off a number of different going to read off a number of different occupations. For each, would you tell me occupations. For each, would you tell me if you feel it is an occupation of very great if you feel it is an occupation of very great prestige, considerable prestige, some prestige, considerable prestige, some prestige or hardly any prestige at all.”prestige or hardly any prestige at all.”

Only 18% of the responses for Lawyers were Only 18% of the responses for Lawyers were in the “very great prestige” category, down in the “very great prestige” category, down 18% since 1977 (50% decrease)18% since 1977 (50% decrease)

Low numberLow number Declining numberDeclining number

Judicial Officers Aren’t Perfect, Judicial Officers Aren’t Perfect, EitherEither

There may be some judicial officers who need There may be some judicial officers who need improvement in certain areas—e.g., timeliness, improvement in certain areas—e.g., timeliness, courtesy, and demeanorcourtesy, and demeanor

I’m certainly not perfectI’m certainly not perfect I try to be my own worst critic—continually evaluating I try to be my own worst critic—continually evaluating

my own conduct on the bench my own conduct on the bench I also ask my staff about the appropriateness of my I also ask my staff about the appropriateness of my

conduct anytime there has been a particularly difficult or conduct anytime there has been a particularly difficult or combative hearingcombative hearing

The key—we can all learn and improveThe key—we can all learn and improve Opportunity for a brave soul—Approved by Opportunity for a brave soul—Approved by

Presiding Judge SarkisianPresiding Judge Sarkisian Brown bag lunch program for the bench regarding our Brown bag lunch program for the bench regarding our

shortcomingsshortcomings Well attendedWell attended Bench will take it to heartBench will take it to heart

Three Very Simple RulesThree Very Simple Rules

Use your common senseUse your common sense Think before you act (count to ten)Think before you act (count to ten) If you’re not sure, and you have time, ask If you’re not sure, and you have time, ask

someone elsesomeone else Use common courtesyUse common courtesy

Do unto others as you would have them do unto Do unto others as you would have them do unto youyou

Ask yourself--If someone said it or did it to me, would I Ask yourself--If someone said it or did it to me, would I like how it sounded or felt?like how it sounded or felt?

The wildcard--know your judicial officerThe wildcard--know your judicial officer Each judicial officer has different likes and dislikesEach judicial officer has different likes and dislikes You should make adjustments accordinglyYou should make adjustments accordingly

Civility Tips/RulesCivility Tips/Rules Comprehensive Rule of CivilityComprehensive Rule of Civility

Lawyers should always act and speak Lawyers should always act and speak with civility, courtesy, and respect, and with civility, courtesy, and respect, and should not degrade or disparage the should not degrade or disparage the intelligence, ethics, morals, integrity, or intelligence, ethics, morals, integrity, or personal behavior of the opposing party, personal behavior of the opposing party, counsel, witnesses, jurors, court counsel, witnesses, jurors, court personnel or judicial officer, personnel or judicial officer, unlessunless such such matters are specifically at issue in the matters are specifically at issue in the proceedingproceeding

Where sensitive matters are relevant to an Where sensitive matters are relevant to an issue, lawyers should pursue such inquiry as issue, lawyers should pursue such inquiry as narrowly as reasonably possiblenarrowly as reasonably possible

Civility Tips/RulesCivility Tips/Rules General points regarding civility:General points regarding civility:

Civility is not inconsistent with vigorous Civility is not inconsistent with vigorous advocacyadvocacy

You don’t have to get down in the gutter to be an You don’t have to get down in the gutter to be an effective advocateeffective advocate

Civility is a judgment call—what qualifies as civil Civility is a judgment call—what qualifies as civil in one circumstance may not be in anotherin one circumstance may not be in another

Family Law Case—Is an affair relevant?Family Law Case—Is an affair relevant? Not in most cases--No fault divorce in CaliforniaNot in most cases--No fault divorce in California

Shouldn’t be mentionedShouldn’t be mentioned Only purpose would be to harass/embarrass the other Only purpose would be to harass/embarrass the other

partyparty What if it is relevant? How do you deal with it?What if it is relevant? How do you deal with it?

Only bring out Only bring out relevantrelevant facts facts Don’t use inappropriate names—e.g., cheater or Don’t use inappropriate names—e.g., cheater or

adultereradulterer

Civility Tips/RulesCivility Tips/Rules General points regarding civility (continued)General points regarding civility (continued)

Be careful with your tone—Don’t use a demeaning, Be careful with your tone—Don’t use a demeaning, condescending, or sarcastic tonecondescending, or sarcastic tone

Use volume control—Don’t yell or raise your voice Use volume control—Don’t yell or raise your voice inappropriatelyinappropriately

Don’t make “sniping” commentsDon’t make “sniping” comments Uncivil behavior can include conduct, not just spoken wordsUncivil behavior can include conduct, not just spoken words

Inappropriate noises—huffing and puffing, moaning and groaningInappropriate noises—huffing and puffing, moaning and groaning Inappropriate body language—folding your arms in disgustInappropriate body language—folding your arms in disgust Slamming down your fist, or slamming books or binders closed Slamming down your fist, or slamming books or binders closed Storming out of the courtroomStorming out of the courtroom Giving the “evil eye”, or other inappropriate facial expressionsGiving the “evil eye”, or other inappropriate facial expressions Mouthing of expletivesMouthing of expletives

Bottom line regarding uncivil behavior--“I know it Bottom line regarding uncivil behavior--“I know it when I see it”, and you should toowhen I see it”, and you should too Jacobellis v. Ohio (1964) 378 U.S. 184—Justice Potter StewartJacobellis v. Ohio (1964) 378 U.S. 184—Justice Potter Stewart

Ethical Tips/RulesEthical Tips/RulesThe “Credometer”The “Credometer”

Every lawyer has a Every lawyer has a “Credometer” rating“Credometer” rating Put another way, what is Put another way, what is

your reputation for your reputation for integrity?integrity?

Is your word as good as Is your word as good as gold?gold?

Or does the old joke applyOr does the old joke apply—”That lawyer’s lips are —”That lawyer’s lips are moving, he must be lying”moving, he must be lying”

New attorneys start New attorneys start somewhere in the middle—somewhere in the middle—viewed with ”cautious viewed with ”cautious optimism”optimism” Within a short time, your Within a short time, your

Credometer rating is “cast Credometer rating is “cast in stone”in stone”

0

5

10

15

20

25

GoldStandard

CautiousOptimism

No Trust

Ethics Tips/RulesEthics Tips/Rules Main Points Regarding EthicsMain Points Regarding Ethics

Be HonestBe Honest Never knowingly misstate, misrepresent, or distort any fact or legal Never knowingly misstate, misrepresent, or distort any fact or legal

authority and do not mislead by inaction or silence.authority and do not mislead by inaction or silence. Written materials and oral argument should accurately state Written materials and oral argument should accurately state

current law (favorable and unfavorable) and fairly represent the current law (favorable and unfavorable) and fairly represent the party’s positionparty’s position

Do not, either orally or in writing, assign to the opposing party or 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 counsel a position that they have not taken to create a “record” of events that have not occurredevents that have not occurred

Do not participate in inappropriate ex parte communications Do not participate in inappropriate ex parte communications with the Courtwith the Court

On or off the recordOn or off the record Back in chambersBack in chambers In Courthouse parkIn Courthouse park

Don’t Exhibit BiasDon’t Exhibit Bias Never, ever, participate in or tolerate racial, ethnic, religious, Never, ever, participate in or tolerate racial, ethnic, religious,

gender, or sexual orientation biasgender, or sexual orientation bias Remember, word gets aroundRemember, word gets around

Attorneys Attorneys andand Judicial Officers talk Judicial Officers talk

Fresno County Superior Court Fresno County Superior Court Judicial Officer Pet PeevesJudicial Officer Pet Peeves

Do not file papers lateDo not file papers late Do not appear late and then fail to offer an apology or provide an Do not appear late and then fail to offer an apology or provide an

excuse for your tardinessexcuse for your tardiness When making your appearance on the record, stand up and clearly When making your appearance on the record, stand up and clearly

enunciate your name and all of your client’s namesenunciate your name and all of your client’s names Do not come to court under the influenceDo not come to court under the influence Do not forget to use deodorantDo not forget to use deodorant Do not stand up and call out your case name so you can be first or Do not stand up and call out your case name so you can be first or

next in ordernext in order Do not bring the “Woody” Toy Story action figure with you to Do not bring the “Woody” Toy Story action figure with you to

court and place it in the seat next to you at counsel tablecourt and place it in the seat next to you at counsel table Do not come to court unpreparedDo not come to court unprepared Do not chew gum while on the recordDo not chew gum while on the record Do not drink anything other than water at counsel tableDo not drink anything other than water at counsel table Do not eat food at counsel tableDo not eat food at counsel table

Fresno County Superior Court Fresno County Superior Court Judicial Officer Pet PeevesJudicial Officer Pet Peeves

Do not read a newspaper in court, while court is in session, with the Do not read a newspaper in court, while court is in session, with the paper held up and wide openpaper held up and wide open

Do not have your cell phone bluetooth earpiece installed in your ear Do not have your cell phone bluetooth earpiece installed in your ear while in the courtroomwhile in the courtroom

Do not misuse language, for example, do not ask to “kick over” a case Do not misuse language, for example, do not ask to “kick over” a case instead of asking to “continue” itinstead of asking to “continue” it

Do not, when a case is simply going to be continued, give a long-winded Do not, when a case is simply going to be continued, give a long-winded speech that no one will remember anywayspeech that no one will remember anyway

Do not fail to know relevant facts about your client at the time of Do not fail to know relevant facts about your client at the time of sentencingsentencing

Do not present a stack of letters to the court for consideration during a Do not present a stack of letters to the court for consideration during a sentencing hearingsentencing hearing

If your are asked a specific and direct question by the Court, and you do 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-not know the answer, admit it, instead of serving up a stream of non-responsive smokeresponsive smoke

Do not fail to cite legal authorities for your position, especially when it is Do not fail to cite legal authorities for your position, especially when it is readily availablereadily available

Do not engage in a conversation with opposing counsel while on the Do not engage in a conversation with opposing counsel while on the recordrecord

Do not engage in personal attacks with opposing counselDo not engage in personal attacks with opposing counsel

Fresno County Superior Court Fresno County Superior Court Judicial Officer Pet PeevesJudicial Officer Pet Peeves

Do not interrupt opposing counsel, the witness, or, worse yet, Do not interrupt opposing counsel, the witness, or, worse yet, the Courtthe Court

Do not ask a witness if someone “indicated” something, when Do not ask a witness if someone “indicated” something, when what you really mean to ask is whether they what you really mean to ask is whether they saidsaid something something

Do not use speaking objectionsDo not use speaking objections Do not say, “just briefly, your honor,” or “just one question, Do not say, “just briefly, your honor,” or “just one question,

your honor,” and then blather on for thirty minutes or moreyour honor,” and then blather on for thirty minutes or more Do not fail to listen when the Court is speaking and then say, 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?”“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 Do not continue to argue a point after the Court has made a

rulingruling After a detailed ruling has been made, do not seek to muddy it After a detailed ruling has been made, do not seek to muddy it

up under the guise of requesting “clarification” of the rulingup under the guise of requesting “clarification” of the ruling Do not leave a mess on counsel table at the end of the day—Do not leave a mess on counsel table at the end of the day—

paper cups, wadded up paper, paper clips, etc.paper cups, wadded up paper, paper clips, etc.

Concluding RemarksConcluding Remarks

““The fault, dear Brutus, is not in our The fault, dear Brutus, is not in our stars, But in ourselves. . . .”stars, But in ourselves. . . .” William Shakespeare, Julius Caesar, I, ii. William Shakespeare, Julius Caesar, I, ii.

134134 Each of you controls your destiny, Each of you controls your destiny,

and shapes your own reputation—do and shapes your own reputation—do your best to be a “classy lawyer”, your best to be a “classy lawyer”, and then sit back and reap the and then sit back and reap the benefitsbenefits