The decline and fall of court appearance decorum

As COVID-19 forces counsel to make remote court appearances, an inadvertent casualty of the pandemic is that some attorneys are not observing time-honored professional etiquette and traditional practices of appropriate conduct and dress.

From the first day of law school, it is ingrained in lawyers that legal proceedings are serious matters where respect for the judicial process, the court and counsel is maintained and that distracting conduct or attire diverts attention from rational discourse. Respect is affirmed by professional court actions and garb.

While the Los Angeles County Superior Court has adopted a modified "business casual" attire policy for remote appearances, recent experience indicates that some attorneys believe that courts have abandoned all pretense of formality in dress and conduct and almost "anything goes." For them, the adage "just showing up is 90% of the game" is adequate when they call in for a remote appearance. Such attorneys fall into various categories.

Dressed for Success: It is understandable that lawyers have hunkered down at home during the pandemic and some have mothballed their formal wardrobes. But a relaxed dress standard does not justify some attorneys appearing in rumpled polo shirts or t-shirts, as if they have just rolled out of bed.

One wonders what the client of one video-appearing lawyer would have thought about the quality of his representation if he had known that his attorney worn a Dos Equis beer T-shirt conspicuously punctuated with holes. For that matter, the word should get out to lawyers who think that colorful Hawaiian shirts are acceptable court apparel.

At the other end of the spectrum, there is the gentleman barrister who announced his appearance splendidly outfitted in a conservative-looking suit jacket, crisp button-down white shirt and a striking red striped tie. Before the camera turned off, he rolled his chair back from his desk to reveal that he was not wearing pants and was decked out in boxer shorts.

Dog Days: More than one judge has been stunned to open the line for a remote appearance only to have an enthusiastic dog respond with a startling "Bark! Bark!" Such canine eagerness sometimes continues for an entire proceeding.

Sip and Slurp: After many remote appearances, we have learned that it is easier to follow the arguments of attorneys who aren't nervously picking up a coffee mug every 12 seconds to be reinvigorated with a little more java. For some, the imperative sip-sip-sip of finishing a $4 cup of Starbucks seems more important than arguing a demurrer.

One lawyer countered with a shot across the opposing counsel's bow by finally telling him that the constant up-and-down "weight-lifting" of his coffee cup was outright annoying. But at least that attorney did not have to contend with the sound effects of lawyers who assert their constitutional right to guzzle their brew in large, noisy gulps emitted directly into a video camera.

The Snacksters: No attorney would dream of spreading out a meal on the counsel table in a courtroom, sit down and eat. So why do some have no hesitation about finishing breakfast or indulging in a mid-morning snack during a video court appearance? Can't they pause long enough to finish their client's vital legal business before resuming their munching? There are too many instances to mention of counsel contently leaning into a video camera while gnawing on a plumb bagel, with or without cream cheese is uncertain, or chowing down on other delightful delicacies while addressing the court. Some lawyers embarrassingly have had their mouths so full that they could barely respond to a question.

One case that particularly stands out is the attorney on video who was listening to the oral argument between other counsel while holding a large ripe banana. He meticulously peeled off the skin, one side after another, and, bite-by-bite, methodically chewed on each tasty morsel with obvious satisfaction. The challenge for the judge was to avoid focusing on the banana demolition derby at the expense of missing the salient points of the ongoing argument. A tough one.

Road Runners: It has been said that there are attorneys who practice law by cellphone while driving around town. By noon, they've made enough calls and billed enough time for a week so that they can hit the golf course.

Even if such stories aren't to be believed, driving-while-appearing does happen. But it is hardly conducive to making an effective remote court appearance. The tell-tale sign of this practice is the din of traffic, which can short-circuit everyone's ability to hear. When the court suggests quieting the background racket, counsel have been known to matter-of-factly say something like "I'll shut the window" or "This is a busy part of town." Lawyers should appreciate that the court and opposing counsel have set aside calendar time for important purposes, not an attorney's convenience.

Multitaskers: One's hat must be off for those who can accomplish more than one task at a time. Nonetheless, judges and others are driven to distraction when video-appearing counsel incessantly bang away on their cellphones as court business is conducted.

Are cellphone-wielding attorneys keeping notes on the proceeding? Doubtful. One surmises that they are either catching up on their texting or engaged in the heat of battle of a video game. In-your-face texters drive people nuts. And they never share the importance of their texting or who's winning in the video game.

Mess Makers: One wonders how counsel who appear on video with their desks piled high with paper and bric-a-brac can ever keep things straight. To say the least, such sights are disconcerting. Those who appear drowning in a sea of stuff do not seem to realize that they are not sending the best message to the court or others.

A person's surroundings are a suggestion of who they are. Offering a neutral, non- distracting environment for a video appearance can go a long way towards promoting a good image for the judge and other counsel. It also looks professional and ultimately can lead to better case results.

Cave Dwellers: Perhaps not everyone has a friend good enough to tell them that the poor lighting on their remote video appearance makes it difficult to see them through the dark haze. But a fair number of attorneys could be told that they have been making video appearances where they can be recognized on camera as no more than murky profiles.

Someone should whisper in the ears of the "attorneys of darkness" that there is a cheap fix for this shadowy problem. For the cost of less than a tenth of a billing hour, one can buy a small desk lamp specifically designed for Teams or Zoom calls that will allow an attorney to stand out and shine as the center of attention.

Oblivious to the World: Counsel should be acutely aware of their immediate surroundings when they dial in for a court appearance. There have been myriad odd situations in remote proceedings where the attention has shifted away from the appearing attorney to unusual indoor or outside backgrounds, interesting or bizarre artwork, ringing cellphones and other persons interrupting.

In one instance, an exacerbated judge looked behind the kitchen table where counsel had set up his computer and saw piles of dirty dishes in the sink and on a countertop. The immediate thought was "Yuk. How disrespectful. If I could, I'd come right over and clean up your act." Being judicious, the judge refrained and said nothing. Such circumstances can be avoided with a little thoughtfulness and planning.

No remote appearance ever will be the same as stepping forward to the counsel table and announcing readiness to a court. This surely is the future for many court appearances. But common sense dictates that counsel should do their very best to ensure that their remote appearances are as "court-like" as possible.

For their clients' interests and their own professional benefit, attorneys should strive to make remote court appearances really count. This requires thinking twice about the true meaning of the expression "making an appearance." 