Colorado Supreme Court Justice Carlos Samour on Nov. 19 shared his advice on professionalism in the courtroom during a CLE presented by the Colorado Hispanic Bar Association and the Denver Bar Association Young Lawyers Division.
The presentation drew from Samour’s experience and observations as a litigator, prosecutor and district court judge in Arapahoe County as well as his time on the state’s highest court. He began his presentation with advice on showing deference and respect toward judges and the court, starting with being on time. If an attorney is late because something unforeseeable comes up, he said, it’s best to acknowledge the tardiness and offer a genuine apology. He also recommended overestimating how long hearings and trials will last.
His next piece of advice: “All rise really means all rise.” Attorneys should stand, stop talking and face the bench when a judge enters or leaves the courtroom. It may seem obvious but, Samour said, “you’d be surprised how many people wouldn’t stand up.” He added that the gesture isn’t about a judge’s ego but showing respect for the court. Samour also emphasized the importance of being courteous not only to judges but to court staff who, he said, “wield a lot of power in the courtroom.”
Attorneys should avoid interrupting judges when talking, Samour said, and do their best to hide their reactions to a judge’s ruling, whether favorable or unfavorable. That means no eyerolls, sighing, head shaking, thumbs up or high fives.
“I used to explain to people that your behavior in the courtroom should be such that a neutral observer who knows nothing about the case and is simply observing the ruling … should not be able to tell who prevailed and who failed,” Samour said.
Samour added that showing deference and respect for the court applies to written submissions as well, and there is no need to take “unwarranted shots” at the court in written filings. Attorneys can and should remain deferential and professional while being persuasive and forceful in arguments. “It’s an adversarial system,” he said. “It’s not an uncivil system. And there’s a big difference between those two.”
Samour’s next few “pearls of wisdom” had to do with treating opposing counsel with respect. Attorneys should avoid interrupting or displaying body language such as improper facial expressions, head shaking or other gestures when they disagree with the other side, he said, and they should also avoid describing opposing counsel’s position using words like “asinine.” Similarly, attorneys shouldn’t address opposing counsel directly during aa disagreement on the record.
Samour went on to address specific courtroom habits, procedures and conduct. He advised attorneys to ask before approaching the bench or the witness stand unless the judge has directed them to do otherwise. He noted some judges don’t want attorneys to ask every time, and they’ll usually make their preference known, but added it’s best to err on the side of caution.
Likewise, attorneys shouldn’t linger at the witness stand for longer than necessary. While it might be necessary to approach the witness to show a document, Samour said, there’s no reason to stay there and continue the cross examination. “Once the purpose of your visit to the witness stand … has been fulfilled, it’s time to go back to the podium,” he said.
The next piece of advice was to be assertive when making objections. Some attorneys, he said, will stand halfway up or interject with words like “Wait!” or “Stop!” Samour said he has observed this type of “reluctant” objection when a lawyer feels that information from a witness or a question from opposing counsel is damaging, “but they couldn’t put their finger on what the basis would be for objection.” Attorneys should stand up without hesitation, he said, say “objection, Your Honor,” and give the legal basis for the objection. “If you don’t have a basis for the objection,” he said, “you shouldn’t be making an objection.”
When addressing a jury, Samour said, attorneys should avoid using phrases like “I think” or “I believe,” which suggest that what is being said is a personal opinion. “Whether it’s opening statement or closing argument, it should be about the evidence,” he said.
“It should be about what’s being presented, and not what you think or what you believe.”
It’s also important to be prepared. Preparation can help make up for a lack of experience, Samour said. “After some years on the bench, I could tell who was winging it, and I could tell who was prepared,” he said. “And I think you convey the wrong message to the judge when you’re not prepared. I think you convey the wrong message to the jury when you’re not prepared.”
Never attempt to misrepresent the facts or mislead a judge, Samour said, adding that while attorneys should do their best for their clients, “you have to avoid any temptation that you may have to engage in gamesmanship or to try to be clever and pull the wool over the judge’s eyes.”
Speaking style matters, too. “Do not attempt to prevent the judge from asking you questions during an argument by speaking fast without ever taking a breath,” Samour said, “no matter how strong your lungs may be.” He added that attorneys should want to hear what questions and concerns judges have so they can address them. Read the judge’s body language, he said, and take breaks to let them ask questions.
Attorneys should also avoid verbosity and repetition and speak clearly and “reasonably slowly,” Samour added, so court reporters can create a good record.
Finally, Samour said a few words on how to maintain professionalism in the age of COVID, when many court proceedings are happening via videoconferencing. He advised attorneys to do their best to minimize on-screen interruptions by pets or kids and to make sure lights, microphones, computers and internet connections are working ahead of time.
“Treat it, to the best of your ability, as a court proceeding with the same solemnity that you would treat a typical court proceeding when you are there in person,” he said.
Samour noted that some attorneys have set up podiums to stand at during video oral arguments. “Not only did it look better [than sitting],” Samour said, “but it just seemed to make the person feel more like they are making an argument in front of the Supreme Court.”