No matter how many legal shows you have seen on television, the courtroom is likely to feel like a foreign place, with rules of behavior all its own. Learning a bit of etiquette in advance will help ease your worries about making a gaffe.
When your case is called. Go forward and have a seat at the table in front of the judge called the counsel table. The space between counsel table and the judge’s bench is called “the well”, and you are expected to stay out of that area.
If you have not already been sworn, remain standing to be sworn by the clerk. If you have objections to taking an oath, tell the clerk that you would like to “affirm” instead of swear and when the words of the oath are stated, simply state, “I affirm.”
Addressing the judge. Most judges would rather be addressed as “Your Honor” rather than “Judge Smith”. And when replying in disagreement with something the judge just said, avoid the phrase “With all due respect…” because most judges know that means the speaker doesn’t feel very respectful.
Your job at the hearing is to convince the judge to give you the order you are seeking. It is not to get out the whole speech you wrote in your script and recited several times in the shower that morning. Most importantly, don’t interrupt.
Arguing your case before a judge has nothing in common with arguing anything else in the world. There are arguments in life you win by just repeating over and over again why you are right and not listening to anything your opponent says. And there are arguments you can win by being louder and more forceful than the other side. These tactics never work when you are arguing your case before someone sitting in a black robe at a desk that is elevated above the floor you are standing on and who is called “Your Honor”.
Judges appreciate persuasive arguments, but they want to be able to control your method of delivery and to be able to ask questions in the middle of your speech to be sure they understand your position.
Judges in divorce courts have probably heard the issue you are addressing several times in other cases. And they normally have some idea of what they consider the most important points on that issue. Some will remain stone-faced during your presentation, not giving you a clue about what they are thinking. And some will try to guide you to what they want to hear about. Some parties and lawyers understand the importance of these signals as to what the decision-maker is thinking. Others don’t understand its importance, ignore the judge’s clue, and go right back to the script that they practiced.
For instance, suppose the issue before the court is how much alimony you should have to pay your spouse to maintain the standard of living you had while married. Subjects to be explored are: your capacity to pay, your spouse’s ability to support himself or herself partially or totally, and the marital standard of living. Unknown to you, for example, the judge may have read through the file and already decided the answers to all questions but your spouse’s ability to earn. The judge asks you to tell why you feel your spouse could earn more money by changing to another type of work. You’d never know what was bothering the stone-faced judge mentioned above. But if you ignore the comments of the more talkative judge, you are making a big mistake.
When you are speaking, direct your words to the judge, not to your spouse or anyone else in the courtroom. Arguing with your spouse in court will annoy the judge and damage the strength of your presentation. In referring to your spouse, use his or her last name, such as “Mr. Williams”, or “Ms. Rafinelli”, and speak as respectfully as possible, even if you are describing inappropriate conduct. You want to impress the judge with your reasonableness.
Don’t talk over other speakers. In addition to being extra careful not to interrupt the judge, avoid interrupting anyone who is speaking during your hearing or trial. Not only is it rude, but it also makes it impossible for the court reporter to properly record what is taking place. If two people are talking at the same time, the reporter is likely to stop typing and say something about the problem you are causing. If the reporter’s job is made more difficult by interruptions, the judge is likely to become irritated. This is not to your advantage.
Presenting a document to the judge. There is a little dance you must go through if you want the judge to look at and consider some document or other physical evidence in deciding some issue in your case. This might be last year’s income tax return, the lease on your apartment or your car, or the “goodbye” letter your spouse left when moving out.
Step one: Hand the item to the clerk and say, “Please mark this item as an Exhibit.” The clerk will take it, put a number or letter on it, such as “Exhibit 3”, and hand it back to you.
Step two: Identify the item. For example, you might say: “Your Honor, Exhibit 3 is the income tax return my wife and I filed last year.”
Step three: You say, “I move the item be admitted in evidence.” If the judge says “Granted,” or “Exhibit 3 is admitted in evidence,” you’ve succeeded. If the judge says “Denied,” you’ve lost. And if the judge doesn’t immediately explain why, you might say something politely, such as: “I would appreciate it if Your Honor would indicate why you have denied my offer.” Then perhaps you can repair the problem.
Judge Roderic Duncan presided over thousands of divorce cases over a period of 20 years. The Family Law Section of the California State Bar named him Judicial Officer of the Year. He now teaches family law to law students and new judges. This article has been edited and excerpted from A Judge’s Guide to Divorce: Uncommon Advice from the Bench.