Ken Broda-Bahm At this point, I will wager that we’ve all seen the hilarious video from the 394th Judicial District Court of Texas, where an attorney, unable to remove a filter that changes his face into a cat’s, nonetheless confirms that he is prepared to go forward, and solemnly pledges to the court, “I am not a cat.”
It is nice that the video crossed the boundary from “legal humor,” to “universal meme,” but the cat filter hasn’t been the only challenge in online settings. A recent ABA Journal article shares stories of worse peccadillos, including lawyers or clients smoking cigars, drinking, falling asleep, and even appearing in a bikini during online hearings. The broader point, of course, is to take care in how you present, even when technological tools for presentation have changed.
In a courtroom or in a court’s “Zoom room,” decorum still matters. And when we say, “decorum,” I think it is important to define it. While popular expectations might call to mind a stuffy or stilted formality, in reality what the legal process calls for is a particular range and motivation for communication.
Courtroom attorneys are used to those expectations, but for parties, witnesses, jurors and others who are visiting the space infrequently or for the first time, I think it is useful to spell out what we mean. So in this post, I would like to suggest a few principles designed to give additional concrete meaning to this vague notion of decorum.
I think it comes down to three messages that those participating in the legal process should deliver to themselves upon entering, or upon logging in:
I Understand This Is Special and Sacred Space
When witnesses ask what they should wear to go to court, I will often say, “You don’t need to look like a lawyer, but you should look like you are going somewhere special.” While norms of formality in American have loosened quite a bit in recent years, it used to work to say, “Dress as though you are going to church,” and once you are there, “act like you are in church.” Of course, in a way, you are.
The courtroom is a civil altar to the ideals of equal justice. In an older courtroom, everything — the high ceilings, wood paneling, and generally hushed atmosphere — contributes to that setting. Even when litigators and others are in an online space, it is important to preserve that solemnity in some ways. What is really going on is that the court is saying, “We expect a narrowed range of communication in this setting.” Because it isn’t a setting where everything matters, it is a setting where evidence, facts, and the law matter, and other ingredients — non-verbal reactions to what is taking place on the stand, for example — are out of place.
I Am Fully Attentive
In the sacred space of a courtroom, what is tolerated least is wasting time. Now, for anyone who has spent a fair amount of time in courtrooms, that might feel off, since a lot of time can go by simply waiting for things to get started. However, once a judge is present, and once a jury has been brought in, then the message needs to be that it is all business. Despite some necessary delays, attorneys, parties, and witnesses need to convey that they are present, prepared, and paying attention at all times.
In an online setting, that can have some additional challenges. After all, you are in your home or office instead of in the courtroom, and you are looking at a monitor, or monitors, that may contain other information. Still, it is critical to remind yourself to be just as attentive as you would be if you were sitting face-to-face with the judge or jury. Focus your eyes on the camera — not just the screen, but the green-dot of the camera itself — because that is how a viewer will perceive you as looking at them.
I Am Attuned to the Court’s and the Jury’s Needs
Ultimately, what creates the formality and solemnity of a courtroom or a legal process is the purpose or the function of a court. It isn’t simply a social setting where decisions are made. It is a setting where decisions are made in a particular way. That particular way involves basing decisions, not on popularity, or power, or passions, but on the soundness, the rationality, and the legality of the decision. Everything is done for the benefit of a logical and grounded decision. That is an idealization, of course, but it is an ideal worth aiming at. We don’t need to look beyond the recent election, and the riots of January 6th, to remind us of what happens when repeated assertions substitute for evidence, or when violence tries to substitute for process.
So the ultimate mindset that underlies legal demeanor and decorum, in a courtroom or online, is the mindset that says, “I am here to play my part in that special purpose.” That means giving the decision-maker, the judge or the jury, what they need in order to make a clear, sound, and rational decision.
For the attorney who appeared with a cat filter, for example, as funny as it was, it is still commendable that he was able to convey the three critical messages that the judge was looking for: 1. I am working on the problem, 2. I am prepared to go forward anyway, and 3. I am not a cat.
Ken Broda-Bahm is a senior litigation consultant with Holland & Hart. See his profile online here.
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