Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, August 6, 2018

Maintaining a proper demeanor

When I teach oral advocacy, I often talk to students about maintaining an appropriate attitude from the moment they walk into the courthouse.  I tell them a story about attorneys who, unbeknownst to them,  insulted the chief judge of one federal appellate court who was trying to help them find a courtroom.  The chief judge, naturally, was not in his robes, and the attorneys obviously had no idea who they were talking to.  I also talk to them about maintaining an appropriate demeanor inside the courtroom.  There should be no eye-rolling or crazy facial expressions while opposing counsel is speaking.  They should also avoid distracting mannerisms while at counsel table (or at the podium).  

Last week, Judge T.S. Ellis III had to counsel some real lawyers on this issue as well in the Paul Manafort trial.  According to the National Law Journal, Judge Ellis scolded "both sides for rolling their eyes or making funny faces."  Judge Ellis told the attorneys to "'Rein in your facial expressions,'" calling their use of expressions "'inappropriate.'"

I find Judge Ellis's admonition interesting (and refreshing).  While facial expressions do very little to persuade a judge in a bench trial or an appellate argument, I have always thought attorneys were given a bit more leeway in a jury trial, like the Manafort trial.  But, it sounds like Judge Ellis,  as the National Law Journal put it, is not "shy about controlling the courtroom" in this case. I suspect that Judge Ellis is doing all he can to avoid the trial becoming a political circus.  I appreciate his admonition to the lawyers, and I plan on using it as an example this fall when I talk to my students about oral argument.

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