On March 1, 2018, Griffiths Law Shareholders Elizabeth Bonanno and Tia Zavaras led a roundtable discussion with District Court Judge Gary Kramer as part of the Colorado Judicial Institute’s annual Straight Talk with Judges program. As part of this discussion, Judge Kramer, Ms. Bonanno, and Ms. Zavaras shared the following bits of wisdom with the attorney participants:
An attorney should, above all else, demonstrate civility and professionalism in the courtroom.
The court understands that disputes ending in courtroom litigation are emotionally challenging for the parties. People’s financial well-being is on the line, as may be the well-being of their children. However, it is not to a client’s advantage for an attorney to become emotionally embroiled in the conflict such that the attorney is making personal attacks against the opposing counsel, being discourteous, using colorful language such as “ridiculous” or “asinine,” or becoming mired in small disputes, rather than seeing the forest through the trees. These kinds of behaviors only serve to discredit an attorney’s (and therefore the client’s) argument, frustrating the judge; the behaviors do not result in the goal of highlighting the other party’s misdeeds. The court will be more inclined to believe the client and the client’s position if it is presented in a fact-based, straightforward way that is not mired in personal attacks and minutia. Decide how important an issue is before you bring it to the court and, once you do, present it in a dignified fashion, without slinging mud.
When the other side is in the gutter, take the high road.
When the other side is behaving unprofessionally, it is instinctual to want to defend oneself and one’s position. However, attorneys (and their clients) should keep in mind that the judicial officer presides over many actions, practiced law before taking the Bench, and is generally able to pinpoint bad behavior on his/her own. Often, the court will find unprofessional personal attacks against an attorney or a client to have little merit and will ignore them. If an opposing side is making unprofessional accusations, the best practice is to ask the court: “Would your Honor like me to respond?” If the judicial officer says “yes,” the attorney should provide a measured, professional response without resulting to the low blows of the other side. If the judicial officer says “no,” it means the judicial officer finds the allegations irrelevant and is ignoring them, wanting to move on to more important matters.
Never misstate the facts or the law or mislead the judge.
It is an attorney’s job to present the facts of the case to the court such that the judicial officer may make the appropriate, informed decision. It is not the attorney’s job to change the facts or try to mislead the judge regarding the status of the law; in fact, it is an ethical violation to do so. It is important to prepare clients with the understanding that there will not be “trial by ambush,” and each side’s positions and facts will be well-known to the other side prior to ever entering the courtroom. Open and honest disclosure is not only required in civil cases, but it also promotes settlement as well. If a client desires you to mislead the court or is not willing to provide complete and accurate information, the attorney should not be involved in that case.
Work directly with the opposing counsel to promote resolution.
Because civil litigation cases typically require the exchange of information prior to a hearing (and family law cases, in particular, have a very high standard for full and open disclosure), there is little to no benefit in shutting the opposing counsel out and not engaging in earnest settlement discussions. An attorney should make an effort to pick up the phone and speak with the opposing counsel, or to meet the opposing counsel in person, to establish a professional relationship. It is much more difficult to be unprofessional or needlessly aggressive over the phone and in person, as compared to behind the protections of a computer screen. A client’s funds will be conserved and much of the needless drama of litigation will be relieved if the attorneys have a good working relationship with one another and are able to cut through the unnecessary positioning to delve into the things that matter. Certainly, not all issues will be agreed upon, and the sides will have opposing viewpoints. However, those viewpoints can be maintained in a professional way so that the case moves forward expeditiously. If attorneys are able to reach agreements on less important issues, such as mandatory document production and the like, the bigger issues can receive the attention they deserve.
Family law and civil litigation matters are likely to always have an adversarial aspect to them. Counsel’s civility and professionalism is the expectation from our judicial officers and if we consistently strive to maintain those tenets, we will inherently promote resolution.