Over the centuries the English court system has developed many customs. The customs are not arbitrary and can be summed up into one simple point: Consideration and respect for the interests and concerns of all parties. By following the customs, one will have a better chance of bringing into the court a high degree of credibility, respect, and even success for himself.
Not all of the customs are covered here. But here are some important suggestions that one should follow:
Avoid Judge’s Pet Peeves
Judges are persons, too. They have preferences just as you do. Click here to read about some of their gripes (opens in new tab).
Addressing the court
Unless you are so invited to do, never directly address the judge or any officer or litigant of the court. You are not dealing with the individual members of the court. A court is defined as the person and the suit of the sovereign. During court proceedings, you are doing business with the court as a complete entity. Therefore you address the court. When you address the court, look directly at the judge, even if your message is to be acted upon by another member of the court.
It is permissible to begin your address to the court with the phrase, “Your Honor.” The judge is the chief officer of the court. He is the contact point for the court. By saying “Your Honor” you are merely getting the attention of the court and opening a communication channel with the court.
It is possible to have a court without a judge. In England that would happen if the king himself were sitting on the throne, conducting the proceedings. In America, if the judge were absent, then the jury (if it is not an advisory jury) could either sit en banc, or appoint a judge, or the jury foreman could conduct the proceeding himself. If no jury is present, then the plaintiff (in his sovereign capacity) would conduct the proceedings, and all communication with the court would be through him.
Court decorum is a high priority. When someone is addressing the court, when he has the floor, he is entitled to be fully and fairly heard. You should be like a statue. Nodding or shaking your head, talking to others, reading, or otherwise distracting yourself or others is a grave discourtesy. It is acceptable to take notes when another is talking. You can lose a lot of points in the minds of others who understand court customs (you certainly do not want to lose status in the mind of the tribunal). Attorneys should admonish their clients and witnesses to never show any outward response to anything said or done in the courtroom. If the opposition is lying through his teeth, you will get your opportunity to present your truth later.
The court, through the judge or other channels, is always the entity with whom you are doing business. It is acting in a sovereign capacity. As such, it receives no direction from anyone but acts on its own sovereign authority. When addressing the court, it is a gross error to say something like, “The court’s attention is directed to….” or “The court will note….” It is also a gross error to so address the human who speaks for the court. If you want the court to take notice of something, you can properly preface your presentation with, “The court’s attention is invited…” or “May it please the court…”. Never say to the judge, “Your attention is invited,” because you are addressing the court through the judge, you are not addressing the judge himself. It is ok to say, “Your Honor, the court’s attention is invited…,” because the phrase “Your Honor” serves only to open the channel of communication.
The whole idea is that the court is in charge of things. You do not want to do or say anything to challenge the sovereignty of the court–it will be resented. If the court does something that you believe is unfair or wrong, the proper corrective response would be to object or to make a verbal or written motion.
Except for the robe, you should dress as the judge dresses. John Molloy’s book, Dress for Success is an excellent resource. A best-seller, it is in all the libraries and bookstores. Wear a business suit, polished shoes, conservative haircut. Your appearance broadcasts your attitude. You can be certain that if you look like a rebel, you will be so treated. It is a discourtesy of major proportions to do as one litigant did in a San Francisco appellate court: A 21-year-old, on his way to the beach, walked into the clerk’s office wearing only bathing trunks and sandals with long uncut hair. His response to criticism: “Hey! I have a right to dress any way I want!” Yes, indeed. But he didn’t get what he wanted from them. Look and talk like a lawyer; speak informally or court English (not slang); appearance plays a big role in winning your case. What’s at stake is your credibility. Are you believable? Not if you sound, act, and dress like a ruffian. Read more about that here.
In America we are trilingual. We speak three languages: Street English (slang), Formal English (taught in schools), and King’s English (not taught in the schools, but used in the courtrooms).
Although they involve similar sounds, they are quite distinctive in how they convey ideas. For example, in Street English, if you think something is really good you can express that thought by saying, “That’s really bad!” Or if something’s really cool, you say, “That’s hot!” Foreigners who have studied Formal English have a lot of trouble understanding local slang. If you’re from the neighborhood, then there is no problem.
If you want to communicate with someone from another neighborhood, then you use Formal English. Slang is too volatile and localized for communication with folks from other geographical locations. Formal English, because it is widely taught, is the best way to communicate with a stranger.
If you want to communicate with the court, then you use King’s English, also called the Language of the Court or the Language of the Law. It is a separate language and should be studied as such. Changes in meaning can take as long as 300 years, so it is useful for referencing precedent. Law schools do not really teach the idea that it is a separate language. Consequently, even attorneys can make crucial language errors. Judges attend special classes (called seminars) where they can be apprised of the real game. If you want to know what a word means in the courtroom, look it up in “Words and Phrases,” a multi-volume dictionary at the law library. Other useful works are Corpus Juris, American Jurisprudence, and California Jurisprudence.
A useful exercise is to start at the beginning of the U.S. Constitution and look up each new word in the legal reference books. You will be amazed at how differently parts of the Constitution will read when you become aware of the full legal meanings of words. Even prepositions and conjunctions have been battled over in the courts.
Court relations out of court
There are many opportunities for contact with court personnel outside the courtroom environment. The two most frequent situations are when you file papers with the clerk and when you have contact with the opposition.
Whatever the situation, look your best and be your best. If someone wants to scrap with you, just pass the opportunity by. Your case is in court, and that’s where the fight will be…. all according to the rules. I always give them a friendly greeting. And I always am courteous to them, regardless of their behavior. I learned this from the Buddhist leader in southeast Asia. Here’s the story:
Back in the 1970’s and 1980’s the Buddhist monks were very upset with the local government. To make their point they would from time to time douse themselves with kerosene and ignite themselves. This great suicidal act encouraged by the Buddhist leader was a major embarrassment to the local government.
Normally, the local government had a simple solution for dealing with its enemies. It simply kidnapped and executed them, usually around midnight. As far as the neighbors knew, the victim simply was gone the next day, never to be seen again. However, the Buddhist leader, who everyone knew was behind the suicides, was never touched. He went about the country without the usual bodyguards that normal leaders of the country had. People marveled that he was so troublesome to government and so unprotected and that nothing happened to him personally. Though there was no definite answer, the speculation was that he was untouched because EVERYONE liked him. The Buddhist leader was so likable by both friends and enemies that no one really wanted to kill him, despite the trouble he was causing.
The lesson to be learned here is that it is important how you conduct your battle. Do it with friendliness and courtesy. Even if your enemy would not hesitate to stab you in the back, treat him (guardedly) as your friend. Let him be the uncultured fool.
If the court clerk refuses to file your papers because of some incorrectly perceived error, then do it her way as long as you suffer no significant loss of rights. If you can’t see your way to do it the clerk’s way, then simply ask the clerk to “FILE ON DEMAND.” Normally that stops all argument but save that for last. Usually, the clerks know what they are doing and if you do things their way you will increase the probability of winning. If push comes to shove, you can still file a motion with the trial court for mandamus under 28 USC 1361 if you are the plaintiff, or with the appellate court if you are the defendant. At all times be friendly, even trade jokes. You never know when that may pay off behind the scenes. More than once I have seen court personnel do mysterious turnarounds when I thought I would never get them convinced to do things my way.
Remember, the opposition is human, too. They will make their mistakes. Of course, you will take advantage of their mistakes. But always be fair, friendly and courteous.