Civility in the Courtroom and the Role of the Judge

Discussion on LinkedIn Family Law Professionals, October 3, 2013

Eileen Fein:
Does anyone else think that as the lack of reason, civility, truth and ethics in our political discourse escalate that those traits filter into our culture generally and show up more in family court?

Philip Marcus:
The attitude and conduct of the judge is crucial. Not all judges are cut out for the high tension and emotional intensity of family cases, and every effort should be made to select for family court those who have some judicial experience and some knowledge, not only of family law but also of the associated fields – mental health and dispute resolution, as well as the necessary emotional balance. A judge who is unwillingly thrust into family court work may get frustrated and may express this by inappropriate behaviour.

The judge can usually calm things down. In my experience, it is useful for the judge to comment, at the first inappropriate outburst, that the court takes into account the conduct of the parties in the courtroom, and specifically point out that conduct under stressful conditions, in the formal framework of a court hearing, is a possible predictor of that party’s ability to cope with the stresses of parenthood.

As to the lawyer, sometimes it is enough to indicate that in this judge’s courtroom, uncollegial behaviour, shouting and abuse by lawyers will not be tolerated. (I have commented in various places that aggressiveness is not an appropriate attribute for lawyers in family proceedings).

When things get out of hand because of a lawyer’s conduct or that of both lawyers, rather than entering the fray  the judge can adjourn the hearing for a few minutes; if all else fails, inviting the lawyers for a talk in chambers is the setting best adapted for a warning that unprofessional behaviour can be the subject of a report by the judge to the Bar Association or other disciplinary authority.

Underlying all this is the power, which should be used sparingly, to commit to prison for contempt in the face of the court; in the case of a party, the threat is usually enough, and for lawyers, such a committal should always be accompanied by a report to the disciplinary body.

The deterioration of respect and increase in verbal violence is a subject for sociological research, but a wise judge will make it clear that the courtroom is a place (maybe the only place, apart perhaps from houses of worship) where civility and politeness are compulsory, not optional.