Many people ask basic things about the courtroom that attorneys take for granted, such as: (1) where do you sit? (2) when do you talk? (3) are you required to stand. I thought I would talk about some common rules and discuss how they actually occur in the business.
1. Proper seating. If you are observing the proceeding you sit in the gallery where there are many seats for people to observe the proceeding. The jurors will sit in the juror box which is generally to the left or the right of the counsel table depending on the courtroom. As an attorney, you sit at the counsel table. If you are representing the plaintiff in a civil matter (or a criminal defendant) you sit near the juror box. If you represent a defendant in a civil matter (or the prosecution in a criminal matter) you sit at the table furthest away from the counsel table. The judge sits up on “the bench”… usually the highest seat in the room. As a witness, you will sit in the witness box near the judge. Also, in the courtroom will be a clerk, a court reporter, a bailiff and/or a court attendant. They are generally seated around the “well”. If you watched Law & Order or some other lawyer show, you are pretty familiar with the well as this is the area that the attorneys make their persuasive argument at the end of the case.
In practice, things are a bit different. First and foremost, in a law and motion hearing, people observing the proceedings will sit just about anywhere, counsel table, juror box and gallery. Frankly, I find it pretty annoying. To me the juror box is for jurors. Not the attorney who wants a little more room to spread out. Second, counsel in law and motion hearings rarely step up to the correct side of the counsel table. I think the attorneys just step to the side of the counsel table that is closer to them.
2. Standing when the judge enters the courtroom. This depends on the judge. In many courtrooms, the judge does not require you to stand. I noticed this to be especially true in Sacramento county. However, in other venues, judges will require everyone in the courtroom to stand when the judge enters. Ultimately, the bailiff will let you know what to do as the judge enters. He, or she, will say either “all rise” or “please remain seated as the courtroom comes to order”.
I will admit that when it comes to this rule I am a little bi-polar. Whenever, I am in a courtroom where you can remain seated, I think that the judge needs to class the joint up a little bit and make us stand. However, when I am in an “all rise” courtroom, I think the judge is a little full of himself/herself. Either way, the judge cannot win with me.
3. Interrupting the Court and/or Opposing Counsel. Probably every court has a rule that prohibits people from interrupting the court and/or opposing counsel. To be honest this is probably one of the least followed rules. And attorneys are the worst violators. Of course the very nature of being an attorney causes you to try to get your point out as loud and as often as possible. Ultimately, attorneys can never admit that they might be wrong… so, if they keep repeating the argument over and over and louder, they believe that the court will ultimately adopt that attorneys’ line of reasoning. As a result, attorneys wind up interrupting everyone during the course of a trial or hearing.
I am not saying that attorneys are intentionally rude. Rather, I think that they cannot help it. Many attorneys are competitive by their very nature and do not want to lose. That is how they became attorneys. Nonetheless, it leads to some rudeness and violation of common court rules.
4. Avoiding Undue Repetition of a Witness’s Answers. One court has a rule that prohibits attorneys from repeating a witnesses answers. I find this rule somewhat comical. I do not find it comical because it is a bad rule. I find it comical because we were taught the opposite in law school. In fact, my trial advocacy professor used to say that if we get a good answer from a witness, try to get the witness to repeat that answer as many times as possible.
5. Scheduling with Opposing Counsel. Generally, you are supposed to consult with opposing counsel before scheduling hearings or depositions. I will be honest, I never follow this rule. I remember early on in my career, I would try to comply with this rule. However, I kept getting the run around from opposing counsel. As a result, now I just set depositions and hearings to benefit my own calendar. Nonetheless, if opposing counsel has a problem with the date, I will generally move the deposition or hearing… provided that they give a firm date that they are available. So, far my practice has worked out well and nobody has complained. So, I don’t feel bad. If I followed this general rule to the letter, I would never get anything done.
6. Conducting Discovery by Agreement. Courts do not want to get involved with discovery disputes. Consequently, lawyers are encouraged to conduct discovery by agreement. In many cases this works fine. However, in other cases, it doesn’t work at all. As a result, you wind up in front of the judge a lot… and unfortunately, the client spends a great deal of money.
Please remember, this is just one attorneys’ take on general courtroom and litigation decorum. I do not mean to mock these general rules as they are put in place for a reason. However, the way they are followed is a bit funny.
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