By Dr. Ken Broda-Bahm:
Last week, the once and potentially future President of the United States was threatened with ejection from a courtroom because he could not control his verbal and non-verbal responses to the proceedings. As reported in the New York Times, Donald Trump was sitting in a Manhattan courtroom as a jury heard evidence on defamation damages in a suit brought by E. Jean Carroll, a writer who has already convinced a previous jury that Trump assaulted her in a department store dressing room in 1996 and then defamed her when she shared the story. Reportedly, Trump was overheard sighing loudly, and commenting on the “witch hunt” and “con job” he perceived as Ms. Carroll was testifying. With the jury on a break, one of the Plaintiff’s attorneys cited these comments along with the fear that the jury could overhear them. The judge, in response, spoke to Mr. Trump: “I hope I don’t have to consider excluding you from the trial,” and Trump replied, “I would love it.”
For the rest of us, that might likely be considered contempt of court. In the course of a contentious case, you might feel, as Mr. Trump certainly does in this case, that what is happening from the bench, the lectern, or the witness box is outrageous. In theory, there’s a chance that a judge and jury might accurately read your emotional response and agree with you. But that chance is minuscule. What is vastly more likely is that you’ll be viewed as rude, out of control, and exactly the kind of person who should be considered guilty or liable. In Trump’s case, what is probable is that he is playing to an audience other than the judge or the jury — a political base that seems to relish his pugnacious attitude and agree that his many prosecutions are really persecutions. But for literally every other litigant — and, time will tell, perhaps for this one as well — defiance of courtroom decorum is pretty bad strategy.
When I’m advising clients on how to behave while seated at counsel table, I emphasize three goals.
You’re Calm and Non-reactive
Keep your cool and don’t react to what you’re hearing. Calmly watch, but keep your verbal and non-verbal responses to yourself. That means no shaking your head, no rolling your eyes, and no muttered responses. Your affect should be like you are listening to a fascinating museum lecture, and not like you’re rooting for or against a sports team. Any juror looking at you — and they will look at you — should not see any signs of you being surprised, irritated, upset or excited.
You’re Attentive and Respectful
What the jurors should see when looking at you is that you are paying attention. Controlling your emotional response doesn’t mean being flat and affectless, but the tone you convey should just be the tone of someone who is carefully taking it all in. You may disagree with what jurors are hearing at the moment, and your side will get a chance to address that. But jurors need to see that you respect the process, because that means that you respect them as well.
Your Communication at the Table is Minimal
Courtrooms often have odd acoustics, and it can be possible to overhear something that one side feels is being privately shared at counsel table. Plus, at least some jurors believe that they’re lip readers. And even if whispered conversations aren’t intercepted, they can still look like stress or pressure: If you react to testimony by urgently whispering a reaction to your attorneys, the jurors now have reason to see that testimony as more important. The same goes for passing notes: If you’ve got something counsel needs to know, wait a full minute, and then write it down to discuss later when the jury isn’t there.
Above all, the goal is to be in control of the full spectrum of what you are communicating anytime you are within the judge’s or the jury’s view. In Trump’s case, the judge’s diagnosis sets the stage for more conflicts in the still ongoing trial: “You just can’t control yourself in these circumstances, apparently.”
____________________
Other Posts on Courtroom Decorum:
- Remember in Court, If You’re in View, Then You’re on Stage
- Preserve Decorum (in All Courtroom Contexts)
- Don’t Let Your Virtual Voir Dire Become a Circus
____________________