A GUIDE TO THE BASICS OF LAW PRACTICE
10TH EDITION, 2004
Chapter 3 – Part I
YOUR ROLE AS AN ADVOCATE – IN COURT
The Honorable David Hittner and
Judge, U. S. District Court
Southern District of Texas
I. COURTROOM ETIQUETTE
In the era of the so-called “Rambo litigator,” it
is not surprising that courtroom etiquette has
become a more rare commodity than in the
past. As a licensed lawyer thrust into this
atmosphere, you may believe that you must
abide by these tactics. The problem, however, is
that judges expect all attorneys, including the
inexperienced ones, to adhere to certain basic
standards of conduct. Whether in state or
federal court, there are several fundamental
principles and rules of court etiquette that will
generally apply in all jurisdictions and, in most
cases, before any judge. This chapter highlights
general recommendations to familiarize you
with acceptable standards of practice, provide
practical suggestions for court appearances and
pleadings, and outline the basic rules of
courtroom etiquette. While substantive rules of
law and procedure are essential to the
preparation and trial of any case, this chapter
focuses on the intangible aspects of preparing
and presenting a case to the court and jury.
II. DEVELOPING A GOOD
REPUTATION
One key to a successful trial practice is to
develop a good reputation. In dealings with the
judge and other attorneys, reputation may mean
the difference between a satisfying or stressful
experience, or even the difference between
success and failure. In many instances, you will
have only your reputation upon which to rely.
In those cases, if the judge trusts you, he or she
will allow you more flexibility than would
otherwise be the case. A reputation for honesty,
integrity, accountability, respectfulness, and
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The Honorable Lamar McCorkle
Judge, 133rd District Court
Harris County, Texas
fairness may take years to develop, while a poor
reputation may be earned quickly and can be
incredibly difficult to rehabilitate. “A broken
reputation is like a broken vase—it may be
mended but it always shows where the break
was.” Henry Wheeler Shaw. Most attorneys
underestimate the impact that a negative
reputation can have on their careers. You
should be aware that judges often discuss
“problem” attorneys among themselves. Thus,
a victory gained at the price of acompromised
reputation is pyrrhic at best.
Not only is your reputation integral to
successful practice before judges but also to
relationships with other lawyers. Attorneys owe
each other “courtesy, candor, cooperation, and
scrupulous observance of all agreements.” The
Texas Lawyer’s Creed. Ill feelings between clients
should not influence your professional conduct
and do not excuse vindictive or retaliatory
practices. Keep in mind that there will always
be a later case that could invite “reciprocity” by
that same opposing counsel. To quote a well-
known political adage, “What goes around,
comes around.”
Fortunately for the profession, recent years
have marked an increased emphasis on civility
among attorneys. Brent E. Dickson & Julia
Bunton Jackson, Renewing Lawyer Civility, 28
Val. U. L. Rev. 531 (1994); Marvin E. Aspen,
The Search for Renewed Civility in Litigation,
28 Val. U. L. Rev. 513 (1984). Civility between
adversaries is an important component in
building a positive reputation. You should
cooperate with opposing attorneys to resolve
legal disputes; you should view the court as the
solution of last resort. Many state and federal
 A GUIDE TO THE BASICS OF LAW PRACTICE
10TH EDITION, 2004
courts require a certificate of conference,
indicating that counsel have conferred in a
good faith attempt to resolve the dispute but
failed to do so. This requirement should not be
taken lightly, for underlying it is the recognition
that many disputes can and should be resolved
without court involvement.
III. THE DAMAGE FROM UNETHICAL
CONDUCT
Not only may unreasonable and unethical
conduct damage your reputation as a lawyer,
but it may also exact a financial cost.
Increasingly, courts are imposing various
sanctions for frivolous filings, vexatious
litigation, obstructing discovery, and
unnecessarily multiplying litigation. A court
may impose sanctions against an attorney, his
or her clients, and even against a law firm, if
appropriate. See Fed. R. Civ. P. 11; 28 U.S.C.
§1927; Tex. R. Civ. P. 13; Nasco, Inc. v.
Calcasieu Television, 501 U.S. 32 (1991) (stating
that a court may sanction an attorney pursuant
to its inherent powers even if an attorney’s
conduct does not fall within the ambit of Fed.
R. Civ. P. 11 or 28 U.S.C. §1927). If an
opposing attorney has engaged in sanctionable
conduct, you should bring it to the court’s
attention by filing the appropriate motion.
Pointed and heated letters exchanged between
adversaries, with copies to the judge, are
generally regarded by members of the judiciary
as directed to them, not to the opponent.
Nor should you mislead the court in any
written or oral presentations. Such conduct may
breach legal ethics, violate the procedural rules,
and expose you to sanctions. Perhaps most
important, if you engage in such maneuvers you
may never regain credibility with that judge.
IV. THE TEXAS LAWYER’S CREED
In addition to the standards of acceptable
behavior governed by the sanctions, rules and
community standards of practice, the Supreme
Court of Texas and the Texas Court of
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Criminal Appeals have endorsed a creed of
expected standards of practice and behavior.
The Creed governs relationships between
attorneys and their clients, opposing counsel,
and the courts. As mentioned in other chapters,
you will find The Creed after the Introduction
to this Volume. In addition, there are local and
specialized creeds such as those adopted by the
Houston and Dallas Bar Associations, the
Texas Trial Lawyers, and the Texas Association
of Defense Counsel. The United District Court
for the Northern District of Texas articulated
the expected litigation standards for that district
in a judicial opinion. See Dondi Properties
Corp. v. Commerce Savings & Loan Ass’n, 121
F.R.D. 284, 286-89 (N.D. Tex. 1998). You
should familiarize yourself with the Creed and
with other standards of conduct adopted by the
local bar association where you are practicing.
V. ADDITIONAL “RULES OF COURT”
A. Know the Local Rules
In addition to building and maintaining a good
reputation, you should always familiarize
yourself with the court and judge to whom your
case has been assigned. There are various ways
to prepare. Judges often maintain manuals
indicating their own preferences for courtroom
procedure and attorney conduct. If a judge does
not maintain a personal procedure manual,
refer to the local rules or local bench books of
the court before which you will be practicing.
Another valuable source of information about a
particular judge’s preferences is the judge’s
court staff. The court staff may include a
courtroom deputy, case manager or
coordinator, law clerks, court reporters, court
clerks, and bailiffs. Each of these individuals
has different responsibilities related to
managing the judge’s docket and courtroom
decorum. You will need to determine which
individual is best suited to answer certain
questions; however, before approaching any of
these individuals, you must ascertain the judge’s
policy on attorney contact with the staff.
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10TH EDITION, 2004
Contacting a member of the court staff in
violation of a judge’s order is an ex parte
communication. Usually the courtroom
coordinator/case manager is available to answer
questions from the public, but many judges do
not permit law clerk contact with the public.
Finally, you may find the judges themselves to
be a source of invaluable information. Judges
often are willing to answer specific questions
during motion hearings, scheduling
conferences, and pretrial conferences on their
particular courtroom practices. Do not be
afraid to ask judges about their preferences
regarding courtroom procedure.
B. Treat Court Staff with Courtesy and
Respect
Treat the court staff with courtesy and respect
at all times. All too often, attorneys misdirect
their frustrations at these individuals. Not only
is it unfair to abuse the court staff, but
invariably, the judge quickly learns of rude or
abrasive conduct. If you engage in it, you will
suffer consequences from the judge and/or the
staff member, either directly or subtly.
Additionally, do not attempt to ask the court
staff any legal questions. Usually these
individuals are not attorneys, and they cannot
practice law or give legal advice. Again, any type
of ex parte communication should be avoided.
C. Dress Appropriately
You also need to note several specific
guidelines for courtroom etiquette. First, always
dress appropriately. “Clothing that distracts or
offends is, to some judges, a breach of etiquette
because it undermines the serious, professional
atmosphere of the proceedings.” Catherine T.
Clark, Missed Manners in Courtroom Decorum, 50 MD.
L. REV. 945, 1001 (1991). Appropriate dress
indicates your respect for the court. When in doubt,
opt for conservative attire. In addition, encourage
your clients and witnesses to appear neat and well
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groomed. Often, the physical appearance of
attorneys, clients, and witnesses will make a lasting
impression on the judge and will significantly affect
the jury.
D. Maintain Respectful Demeanor
When appearing before the judge in the
courtroom, maintain a formal and respectful
demeanor. The correct way to address the judge
in the courtroom is “your honor.” Always stand
when addressing the court, including during
arguments and objections. Judges usually
require you to obtain permission from the court
to approach the bench, the witness stand, or
standing exhibits. Do not address opposing
counsel directly, but rather convey all
objections through the judge. At the conclusion
of a hearing or day of trial, you should ask to be
excused by the court.
If a judge conducts a less formal courtroom, he
or she may advise that certain formalities are
not required. However, absent such specific
guidance, always observe all these formalities.
You should be respectful not only toward the
judge but also toward witnesses, jurors, and
opposing counsel. Always address others in
court by their titles (Mr., Ms., Dr., etc.) and last
names. Maintaining composure with hostile
opponents or witnesses rather than resorting to
sharp retorts or childish remarks will earn you
the respect of both judge and jury. Also, do not
hesitate to concede a point to opposing counsel
or to the judge, especially when such a
concession will not hurt your side. You must
master the skill of disagreeing without being
disagreeable. Politeness is a constructive way to
convey sincerity and professionalism to a judge
or jury.
Effective and zealous representation does not
require antagonistic, uncivil, hostile,
obstructive, or obnoxious behavior; nor does it
require attribution of bad motives, disparaging
personal remarks, smirking or snickering,
slamming books, or the like. Such conduct
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10TH EDITION, 2004
always is perceived as unprofessional and often
is viewed as a sign of weakness in a case.
Other basic rules of courtroom etiquette that
should always be observed, are, surprisingly,
frequently breached. You, your clients, and
witnesses should never chew gum in the
courtroom. You should show exhibits to
opposing counsel and the judge prior to
handing them to a witness, and you should try
to position large exhibits so that the judge as
well as the jury can see them. During
presentation, you should not turn your back to
the judge if at all possible. An oft-forgotten rule
of courtroom etiquette is that attorneys should
not talk at the same time or try to speak over
each other. This practice may jeopardize an
accurate record and will undoubtedly annoy the
judge and the court reporter.
You should also avoid distractions in the
courtroom, including unnecessary talking,
eating and drinking, or shuffling of papers.
Beepers and cellular phones should be silenced
during courtroom appearances.
E. Do Not Argue With the Judge
When you appear in court, you should not
argue with the judge. If the judge rules against
you, to continue to argue or contest the ruling
will rarely change the judge’s mind and
generally will serve only to irritate the judge.
The professional approach is to state the
objection (thereby preserving any error for
appeal), accept the judge’s ruling, and move on.
You should also avoid embarrassing a judge
when the court is not as familiar with a certain
area of the law as you are. Obviously, the
attorneys in a case will be more conversant with
the details of law and facts related to their
particular case than will be a judge working on
hundreds of different matters. When a situation
arises where the judge is not already aware of
certain facts, cases, or fine points of law, you
may helpfully inform the judge without
appearing patronizing. For example, you might
40
begin the sentence with, “As the court is aware,
. . .”
From the jurors’ perspective, the judge is the
wisest person in the room. If jurors suspect you
of disrespect toward the court, you will
undoubtedly offend and alienate them as well as
the judge. Jurors also tend to believe that the
judge is correct, fair, and impartial. Indeed,
jurors will notice seemingly minute details in
the courtroom. Thus, you should note their
facial expressions and should avoid sarcasm
and displays of annoyance. Any breach of
courtroom etiquette may result in the jury’s
perceiving you as arrogant and unprofessional.
F. Be Prompt
Promptness for courtroom appearances is
essential. Even a delay of a few moments may
anger the judge or result in a hearing being
passed. If you are scheduled to appear in court,
and you have a conflict or unexpected delay,
you should contact the court coordinator as
soon as possible to notify the court and
opposing counsel. Contact all witnesses in
advance and give them precise instructions
concerning when and where they are to appear.
Once in the courtroom, be prepared when
called upon—exhibits and notes should be
neatly organized and arguments presented
concisely. Most courts have crowded dockets.
Thus, you should limit your arguments to what
is absolutely necessary to assert your position.
In trial, attempt to streamline your cases as
much as possible. Not only does a concise and
clear presentation demonstrate to the judge that
you are considerate of the court’s time, but it
will earn the appreciation of jurors. For
example, you need not present three witnesses
when one will effectively make the same point.
Judges repeatedly hear a particular complaint
from jurors: that the attorneys beat a point into
the ground and patronize juries with redundant
testimony.
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10TH EDITION, 2004
G. Be Brief
The same principle applies to written motions
and pleadings. An issue that can be fully
addressed in a five-page motion does not
require a thirty-page brief. The longer the
written pleading, the less likely that it will
receive a thorough reading. Often the greater
the length of the presentation, whether written
or oral, the stronger the message to the judge
that the attorney’s position is legally or logically
weak.
VI. CONCLUSION
This chapter has touched on a few rules of
courtroom etiquette and standards for legal
practice. It is by no means comprehensive, but
it identifies some of the more important aspects
of a successful courtroom practice. As an
attorney, you should always abide by the rules
of professional conduct and keep in mind the
Texas Lawyer’s Creed. “[C]ivility is to the
courtroom and adversary process what
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antisepsis is to a hospital and operating room.
The best medical brains cannot outwit soiled
linen or dirty scalpels—and the best legal skills
cannot either justify or offset bad manners.”
The Necessity for Civility: Remarks of the
Honorable Warren E. Burger, 52 F.R.D. 211,
215 (Opening Session—American Law
Institute, May 18, 1971).
Observing a few basic rules of civility and
courtroom etiquette will give you, as a new
lawyer, a reputation for professionalism and will
earn you the respect of judges, attorneys, and
clients with whom you come into contact.
Creating a positive first impression with a judge
is a valuable achievement for new practitioners
in our honored profession.
Authors’ Note: The authors wish to
acknowledge Houston attorneys Taryn Y.
Sonik, Vanessa Clem, and Leslie Henry for
their assistance in the preparation of this
chapter.