While this article is intended as a guide primarily for the individual who has been arrested or issued a summons to appear in Court on criminal charges, the rules of courtroom dress and etiquette apply to all litigants. Whether you are appearing as a criminal defendant in something like an assault, robbery, DWI or drug case, or you are a Plaintiff or Defendant appearing in a family law or other civil matter, there are some basic “unwritten” rules to follow for your appearance in Court, and breaking them can get even civil litigants into trouble.
- BE ON TIME. This one is not exactly “unwritten.” Being on time for Court is required. Being late can result in your arrest on a charge of contempt or “failure to appear” depending on the jurisdiction. I have seen a warrant be issued for individuals who failed to appear in the first few minutes of the docket call. There is no “grace period.” If your case is called and you are not there, you are in trouble. Your attorney being present is not a substitute for you being present. Plan to arrive an hour early so that if there is traffic, no parking, a long line to get in, or if you forget something in the car and have to go back to the parking lot (it happens, often)—you will still be on time for Court.
- KNOW BEFORE YOU GO. Make sure you know the requirements for entry into the courthouse. These include but are not limited to dress code, ID requirements, and electronic device policies. If you do not satisfy the requirements for entry, you can be cited for non-appearance. If your attorney forgets to go over these requirements with you before Court, call and ask your counsel, their office staff, or the court clerk. You can also check the court website. Every court is different—not all federal courts follow the same rules, nor do all courts or levels of court within a state or locality, so don't assume you know the rules.
- COVID-19 RESTRICTIONS AREN'T ALL THE SAME. You must find out the restrictions applicable to your Judge, not just the courthouse, before your court date. Most courthouses are requiring masks for entry, but different courtrooms have different requirements. Some Judges have plexiglass in front of the bench and around podiums, counsel tables, etc. and may therefore allow you or your counsel to remove your mask. Others rely solely on social distancing measures while others require that a mask to be worn at all times, the use of hand-sanitizer upon entry, temperature checks and more. Some Judges do not allow spectators to sit in their courtroom so that there is room for litigants and counsel to sit at an appropriate distance from one another. At the very least, bring a mask with you and make sure it is one you can wear comfortably all day if necessary.
- DRESS TO IMPRESS . . . THE JUDGE. Dress in what would be considered a “traditionally” professional manner. Business attire is not just for the White Collar defendant or civil litigant. Everyone appearing in Court should dress appropriately. A suit (pants or below-the-knee length skirt for women) is best, with a nice, clean, plain dress shoe. If you wear a man's suit or sport coat, you should always wear it with a tie. Low-cut, revealing, or especially short items of clothing are not appropriate for Court. Jeans and shorts are not only inappropriate, but some courts deny the wearer entry and even consider it a non-appearance. Your criminal court appearance is not the time or place for making any kind of “statement” through your attire. If you are troubled by the idea of a particular dress code, speak with your attorney before the Court date and get on the same page. Follow your attorney's advice on this! Your outfit should indicate that you are taking the process seriously, that you respect the Judge, and that you are intimidated enough to dress to meet the court's standard, not your own.
- REMEMBER THE 5TH AMENDMENT. If you are appearing without counsel at an initial appearance/arraignment, DO NOT say anything other than the answers to the Court's very narrowly tailored questions. These questions will be limited to those that are procedurally required and should NOT seek to elicit any information from you about the allegations of fact leading to the charges. You will normally only need to answer whether 1) you understand the charges against you and 2) whether you are going to hire counsel or need counsel appointed for you. Do not read too much into either question. The Judge is not asking if you understand why you are charged with a particular offense or if you understand the legal theories under which you have been charged. The question is actually, “Do you understand that these are the charges against you?” Your answer should be a simple “Yes, Your Honor,” or “No, Your Honor.” DO NOT try to argue your case. Nothing you say at this stage of the case can help; it can only hurt. Save it for your consultation with counsel who can speak on your behalf when appropriate.
- LET COUNSEL SPEAK FOR YOU. When you are appearing in court with your attorney, allow your attorney to do all the talking—not only with the Judge, but also with witnesses, opposing counsel, co-defendants' counsel and court security. This rule should apply at the defense table and throughout the proceedings, including during recesses and adjournments, both inside and outside the courtroom. Do not interrupt or talk over your attorney while they are speaking in court. Attorneys choose their words wisely, phrasing their questions, responses, and argument to elicit the response or inference most favorable to you. If you do not understand something your attorney is saying on your behalf, wait until they sit down to discuss it or exchange notes. If it is necessary to immediately correct a factual error, however, you should gently touch counsel's arm and indicate that you need to confer. Your counsel will ask for “the court's indulgence,” and you may then confer briefly and quietly before your counsel continues. Do not speak out, “No, that's not right,” shake your head, jump up out of your seat, etc.
- KEEP IT BOTTLED UP . . . IN COURT. In court, you MUST internalize your reactions. It is not the time to “let it all out.” Rest assured, you will not like everything the Judge says. You won't even like everything your lawyer says, and you especially won't like what the prosecution and their witnesses have to say about you in a criminal trial. When a jury is present this is crucial, but it is also important in hearings before the Judge. Refrain at all times from making faces, sighing, scoffing, laughing, or speaking out when someone says something with which you disagree. Maintain composure and if you must, write down your reaction on a notepad—calmly.
- PAY ATTENTION!! Stay engaged. Having to sit by, not speaking for hours, days, weeks, or months while your liberty stands in the balance, is difficult. But do not “check out.” It may feel as if you are at everyone's mercy—the lawyers, the Judge, the jury. But you are still in control of the impression you will continue to make from the beginning of the case to the very end. Sit up straight in the chair. Listen carefully. Look at the person who is speaking. Confer with counsel as appropriate and necessary. Take notes.
- DON'T REPRESENT YOURSELF. If you are facing jail, you have the right to counsel. It is not always easy to afford counsel and if you do not qualify for court-appointed counsel, it can be tempting to go it alone. Don't do it. Even attorneys hire attorneys when they get into trouble. Even if you are a fantastic public speaker, you have to remember that your attorney is as much a shield as a sword, protecting you from the damage that can be caused by self-incrimination, the admission of improper evidence, and/or missed opportunities to preserve the record for appeal. Don't go it alone.