March 01, 2016

Opening Statement: Seven Tips on How to Behave in Court

Steven Weiss

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Most of us remember something that happened the first (or maybe second or third) time we appeared in court that would not have happened had we been a little more experienced. For some, it is something significant like making an admission. For others, it is something small that may not have any real impact on the case but that signaled to the judge and opposing counsel that you were a rookie. For me, it was winning a routine motion in Illinois state court and starting to leave the courtroom after the judge ruled in my favor. The bailiff came running after me and told me that I had to draft an order for the judge to sign. I went back into the courtroom, approached the judge’s clerk, and threw myself on her mercy. Luckily, the clerk was kind and showed me a sample order that I was able to copy and submit to the judge. (This story may seem alien to the vast majority of you who practice in states where the court writes the order or the parties submit a joint draft.)

Here are a few tips that I hope will prevent you from being embarrassed in court. They are directed primarily toward non-trial court appearances—presentation of motions, status hearings, and the like.

Speak First (Except When You Shouldn’t)

The general rule of thumb when appearing in court is that, if possible, you should try to be the one who explains the status of the case to the judge. That allows you to describe the case how you want it described and to control the direction of the discussion. What’s the best way to speak first? Be last to the podium. If the other side gets there first, they typically introduce themselves on the record. Then, when you get there, you can state your name and go directly into the status report. Two big exceptions. If you are appearing on the other side’s motion, it is often considered impolite for you to try to speak first. Some judges will even reprimand you for doing so. Second, some judges are just ornery. They disagree and argue with whatever any litigant has to say. If you have one of those judges (which you can determine by asking other practitioners or sitting through part of the call), let the other side go first. The general rule for those judges is to say as little as possible and speak only when asked a question by the judge.

Don’t Interrupt the Judge or Opposing Counsel

The judge is the judge. Don’t get him or her mad by interrupting or being impolite. Never interrupt the judge, even if she has her facts wrong or is just plain wrong. You will have your chance after the judge is done. Opposing counsel is just another attorney, but most judges don’t like the lawyers interrupting each other. They really don’t like it when you interrupt opposing counsel to say, “that’s not true.” Again, you will have your chance when the judge is finished. In addition, you should rarely direct your comments to opposing counsel. You should be speaking to the judge. If opposing counsel says that you produced documents later than permitted, explain the circumstances to the judge, rather than responding to opposing counsel. If opposing counsel asks you a question, usually you should say nothing unless the judge asks you to respond.

If the Judge Is Making Your Argument for You—Shut Up

The best argument in court is the one where you don’t have to say a word. Opposing counsel makes a motion and presents their argument to the judge. The judge then questions opposing counsel and makes many of the same arguments that you would make. Unless the judge asks you to respond, keep quiet. Lawyers like to hear themselves speak, but if the judge will do it for you, you are much better off. I have seen judges say to counsel, “I have already made up my mind in your favor. Are you trying to change my mind?”

Work It Out

There are very few parts of the job that judges dislike more than discovery disputes. That’s why the Federal Rules, and most state rules, require that the parties actually confer on discovery disputes before filing motions, and require that the lawyers certify what they did to try to resolve the issue before asking the court for assistance. Many judges and magistrates take a “pox on both your houses” approach to discovery disputes. Often, neither side is happy with the result. Try to work it out before you go to the court. Save the motions to compel and motions for sanctions for serious violations.

Assume Every Motion Will Be Decided the First Time Up

Each jurisdiction has different rules on how it deals with motion practice, and state and federal courts frequently have different approaches to motions. Some courts have an automatic briefing schedule and you do not appear in court until argument on the motion. Other courts rule exclusively on the written papers and hear no argument. In still other courts, a motion is presented to the court, at which time either a briefing schedule is set or the judge deals with the merits of the case at presentment. If you are in that type of a jurisdiction (as are both federal and state courts in Illinois), always be prepared to argue the merits of the motion, even if you expect that the judge will be entering a briefing schedule.

In Illinois, there is a growing number of judges who try to rule on motions, particularly discovery motions, as soon as they are presented, even without opposing pleadings. You never know when the judge will have read the initial motion and will want to rule without further briefs. Be prepared, rather than being embarrassed by sending someone to court who knows nothing about the case and enabling the other side to argue and prevail on the motion with minimal resistance.

Research the Judge

When you are assigned a judge, do some research. Unless you already know the judge well, find out what you can about the judge’s background and history as a judge. How long has the judge been sitting? Have there been significant decisions by the judge? Research whether the judge has any reported decisions on the issues in your case. Talk to other lawyers who have practiced before the judge. Most bar associations publish evaluations of the judges. And, most importantly, read any local rules or other special requirements of your judge. In federal court, each judge’s preferences and rules are typically posted on the judge’s website. In some courts, there are local rules or orders that apply to certain courts. Make sure you know all of those rules and that you follow them. Finally, talk to someone who has practiced before your judge. Some have very strange practices. There is one federal judge who believes that leaving overcoats in the courtroom, rather than in the closet, is disrespectful. He starts every court call by directing all the lawyers to hang up their coats. One time, he stepped off the bench and hung up the coat of someone who was too scared to identify himself. Know the judge.

A Couple Tips on Trials

I tried to keep these tips limited to non-trial court appearances because trial tips are a whole different article. However, I could not resist at least a couple tips about trials. First, if you say during opening statements that you will prove something at trial, make sure you do so. Judges and juries pay attention to the opening statements. Saying that you will prove something and then not doing so at trial is a disaster. You lose credibility with the judge or jury, and you allow opposing counsel to focus on a few facts that, true or not, you did not prove at trial. Second, use leading questions any time you can. You can not only control the subject matter and scope of the question and answer but also use the words with the connotations you want. Use leading questions if you can, and try to phrase them in a way that “yes” or “no” are the only possible responses. Some witnesses have trouble saying yes or no. Leading questions often make those witnesses appear to be evasive.

Steven Weiss

The author is with Honigman Miller Schwartz & Cohn, Chicago, and is chair of the Section of Litigation.