After having been on trial for a week and a half and now in the midst of drafting our response to Defendant's Rule 52(c) motion (bench trial)(comments and observations from this trial will of course have to wait until it ends, but as always there are things one always learns – even an old dog like me), I received a very nice email from one of the readers of my blog and it inspired me to take a break and write a new blog post. My son says that I have to invest more time in it, since I have broken the 30k hit mark after having only written approximately 30 posts (me I think that ain't that much when you compare it to the many hot legal blogs out there).
In any event, my reader, in thanking me for the blog, noted that he was from Syracuse and that he appreciated that the tie I wore in my picture on the blog was blue and orange. I promptly responded that the color must have been off because when it comes to courtroom attire, I have, over the years, come to only wear ties with red, maroon and blue. This then reminded me of a recent NYT article I had read just prior to trial [NYT Times Article] interviewing various famous NYC criminal attorneys and how superstitions/rituals played a role in what they chose to wear at trial.
So this got me to thinking - why is it that I always wear the same thing in court be it for a status hearing, argument on a motion, trial (bench or jury) and appellate argument - white button down oxford shirt, dark non-styled/American suit (only small/thin stripes - no gangster wides), and maroon and blue striped ties/or diamond/dotted maroon ties? (NB: with the exception of red and blue ties – I wear them, sometimes, when I am going to do a key cross – a “Mr. Subliminal message” to the fact finder/ witness that “there will be blood” or just a pump up for me – yes it is a little crazy and I don’t always do it, but in the interest of full disclosure I must admit this practice)
So is what I do a superstition or method?
The answer is that it is part method and part respect for the solemnity of what we do - the latter sentiment being one that I have developed over the years of my practice as I have come to understand how important our courts are to the very fabric and defense of our democracy - both in terms of providing a forum for the civil resolution of civil disputes and for the protection of individual rights against a new and ever burgeoning social order/organization that can, in many instances, swallow those rights in large swaths (again I am a civil litigation attorney, so you criminal attorneys may and are certainly entitled to have your own views about the system and whether it is functional or not).
So let's get the solemnity thing out of the way. My wearing only white shirts, dark suits and muted ties is my way of saying that I respect where I am at - my homage to our friends over the pond who still wear wigs and tails.
But it is the method behind my sartorial choices that is the main subject of this post. My dress is a litigation strategy - sure it is not the most important one - but it is a strategy nonetheless. So what is it?
Well - it is not rocket science and I most certainly cannot lay claim to inventing it. But it is an old school approach that I think is worth repeating. I wear what I wear because I do not want what I wear to get in the way of what I am saying. When we are in court, be it in front of a judge or in front of a jury, our message, not who we are or what we wear, should be what is coming through. You don't want to create unwanted or, more important, unintended interference with those who are receiving your message.
Wearing conservative/muted and non-ostentatious clothing best ensures this. Now don't get me wrong - when I play in my blues band (I was a musician in the sixties/seventies - with the hair -when I had it - and all the rest) I perform in clothes that befit the occasion - a nice brim - colorful shirts - cowboy boots etc. In this forum - as a performing musician - the crowd expects this. In fact, when I first came back to performing a few years ago - I came to realize that crowds on average actually reacted better when I would wear my musician's "uniform" - even though my music was essentially the same regardless of what I wore. It was part of the show - part of what they expected a musician to look like. And since, when I am performing my music, my job is to make the audience enjoy the experience, and since I also like the look too by the way, I happily wear this uniform when I play.
So what does this mean when we appear in court? Well, we too are playing to the crowd - only this time it is either a judge or a jury or both. And we must play to what the audience likes.. Sure there are many judges and jurors who might not be offended by the lawyer who wears custom tailored Italian suits, bold and obviously expensive ties, matching kerchief while strutting around in Gucci loafers. But to borrow a saying from a friend of mine, "I sure wouldn't want this guy arguing my death penalty appeal."
To put it another way - it is highly unlikely that any judge or juror is going to be offended by the conservative attire I choose to wear in court (except for one 7th Circuit Judge whom I seem to recall once stated that he preferred lawyers arguing before him to wear white dress shirts as opposed to button down white shirts). But when one comes into court wearing several thousand dollars of clothing, expensive jewelry, or clothing that attempts to make a statement (either bold colors, ostentatious or the like) the chances are that a judge or a juror may be offended - either consciously or unconsciously (which is even worse since you will never pick up on it).
So why do it? Well, Isn't that what we are about - making sure that our client's cases get a fair shake? Shouldn't we save the sartorial splendor to a forum where it will have no potential consequences? Isn't the statement we should be making our client's case and not who we are or how good we look?
Over my thirty two years of practice, I have had the pleasure of co-counseling and trying cases with many of the finest trial lawyers in the country. With few exceptions (and those were leftovers from the prior generation) they followed this rule. I can remember one of them had holes in the soles of his loafers when he raised his feet up on the desk in his office, but he recently got a $226 million dollar verdict (as an aside, he and I both wear Casio watches – because we are workout fanatics – but I also think that fancy watches are a real turnoff – I don’t own one but if you do don’t wear it in court). Another with whom I tried a case and who was our lead trial counsel he wore L.L. Bean stuff with muted earth tones – always does - we obtained a $148 million verdict.
Anecdotal evidence for sure – but I don’t think that it is by chance what these two preeminent trial lawyers wear. If it is not conscious choice maybe it is because it is who they are – natural communicators whose innate personalities eschew the ostentatious.
And maybe that is the larger point here- the great trial lawyers in my view exude directness and honesty. It comes through when they communicate - and fact finders – whether a jury or a judge – can sense that directness and honesty. Draping oneself in expensive or “statement” clothing is a message that says that one feels the need to say something about themselves rather than their case – I am rich, I am cool, I am a rebel, I am wild. And perhaps judges or jurors can sense that – even if it is only on the outer edges of their consciousness. But just for that reason it can become an, albeit undetectable potential interference to your message hitting home.
Frankly, most lawyers probably do what I do, so this post may have been just a commiseration with those of who know this. But heck, it was a nice short diversion from the work in front of me. Back to work now.
P.S. My apologies to the over 50% of women lawyers out there for not discussing, with the same particularity, what I think women should wear. I have enough trouble with my clothes choices, and frankly it would be folly for me venture into what women should wear, particularly since it appears from what I can see that they have far more choices than men. But I think that the spirit of what I have said here should apply equally to women lawyers too – you want to look respectful and not fashionable. There are a few real good role models on the Supreme Court by the way.