From the Multnomah Lawyer: Tips from the Bench – The Times They Are A-Changing
As we rush into this century’s “Roaring 20s,” make our New Year’s resolutions, and prepare for the move into the new Central Courthouse later in the year, I thought it would be appropriate to reflect on how litigation and courtroom decorum have changed over the course of our careers. Gone are the days when nearly every professional person in the courtroom was a white male, when women litigators were required to wear skirts in court, and live human court reporters were the standard way to record court proceedings.
Our courtrooms are now more diverse than ever in more ways than ever, and that is a good thing. We serve an ever-evolving population of citizens of Oregon, and we are making every effort to keep up by adapting the way we do things to accommodate everyone. When litigants appear before us, we want to ensure that they are treated respectfully, that we refer to them by their preferred pronouns, that we provide our services in a language they understand, and that our courtrooms are as accessible as they can be. We are learning how to recognize our own implicit biases to ensure we are cognizant of them and addressing their impact on our interactions with those who appear before us.
Other changes are reflected in expected courtroom decorum. Many judges no longer require counsel to request permission to move about the courtroom during voir dire, opening statements, witness examination, and closing arguments. Many judges no longer require the removal of head coverings, and UTCR 3.010(1) allows head coverings if they are required by an individual’s religion. And, thank goodness, women can wear pants. UTCR 3.010(2).
Some changes, however, are not welcome, such as the perception that litigators are increasingly exhibiting less than professional behavior toward (perhaps just the newer members of) the bench. Judges do compare notes about the behavior of the attorneys appearing before us, good and bad. We of course welcome lawyers to zealously and forcefully advocate for their client’s legal position, but not at the expense of professionalism. Many of us have observed advocates in our courtrooms pulling faces, shaking heads, rolling eyes, and even verbally reacting to our rulings. UTCR 3.150, requiring that all persons present in the courtroom refrain from visibly or audibly reacting to a verdict in a disruptive manner, is instructive - if you shouldn’t do it in response to a verdict, you shouldn’t do it in response to a ruling. Keep in mind the judge is doing her job and making the best decision she can in that moment. Rather than angrily challenging the judge or questioning her ability or knowledge of her job, counsel may find it more effective to identify your most persuasive legal authority and/or factual support for your position, provide it to your judge for her consideration, say “Thank you, your Honor,” and sit down. If you “wholeheartedly disagree” with a ruling or believe that “no other judge in the entire history of the State of Oregon has made such a ruling,” or think your judge has not done their job, the appellate courts of Oregon are happy to entertain your appeal.
Judges expect civil, professional treatment of others in the courtroom as well. Judges notice how litigators appearing before them treat the judge’s staff, opposing counsel, witnesses, and the attorney’s own support staff such as associates and technicians. Inappropriate things judges have seen occur include demanding that the judicial clerk make copies, needlessly haranguing a witness after receiving a warning from the bench, dismissing or admonishing associates during their argument, and throwing shade at opposing counsel during motion arguments. While thankfully rare, these behaviors do not make a good impression on the court and do more to harm than help your case.
Still more changes are just around the corner. When we finally relocate to the new courthouse in July 2020, we will experience many changes in how we do things. Some of the highly anticipated changes include state-of-the-art technology in every courtroom with two large wall-mounted monitors for videoconferencing and evidence presentation, powered HDMI plug-ins at the counsel tables, amplified sound, and vastly improved acoustics. Attorneys will have access to small client counseling rooms at the back of each courtroom. In-custody defendants will no longer be brought through public areas of the courthouse, but will instead be brought through secure elevators to holding cells between the courtrooms. A new courthouse resource area through which the public and attorneys can access court records, forms and other information will make navigating the system easier. Spacious jury rooms will make jury service more comfortable, every courtroom will have 14 seats in the jury box, and all courtrooms will have fully accessible witness and jury boxes.
As we enter the new “Roaring 20s” let us embrace those changes that advance the causes of justice, access to justice, and the improvement of the legal profession. Let us reject and discard those changes that result in discord, denial of justice, and degradation of the profession.
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