Conduct of Trial - Courtroom Decorum for Counsel and Court - Addressing the Judge - Approaching the Bench.
The New York Rules of Judicial Conduct require all judges in the unified court system, except part time judges and administrative law judges, to comply with the rules of judicial conduct. All other persons, including judicial hearing officers, who perform judicial functions within the judicial system must comply with the rules in the performance of their judicial functions.[1]
The Rules of Judicial Conduct direct a judge to require order and decorum in proceedings before the judge.[2] The corollary of this rule is that a judge must be “patient, dignified and courteous” to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. A judge must require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.[3]
The Rules of Judicial Conduct state that a judge must perform judicial duties without bias or prejudice against or in favor of any person,[4] and must accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.
The New York State Bar Association, Code of Judicial Conduct Commentary[5] to this rule states that facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial. Prejudicial behavior includes addressing a lawyer for one of the parties by an honorific title, such as “judge”, senator”“, mayor” or “ambassador” in open court. However, this rule does not prohibit addressing a lawyer who appears in his or her capacity as a public official by the title of the office in which he or she appears, such as “Attorney General,” “District Attorney” or “Solicitor General.” [6]
It is customary for counsel to rise when addressing the judge and to address the judge as "Your Honor”. The judge is usually referred to as "judge”, "Your Honor" or "The court.” For example: "If the court please."
Court personnel, such as courtroom clerks, court officers and court reporters should be given due respect.
Counsel should remain behind the bar at the front of the courtroom and should request permission to have a discussion with the judge and counsel off the record, or to approach the bench at the sidebar for a conference. For example:
(By Counsel). “Your Honor, may we go off the record?"
(By Counsel) “Your Honor, may we approach the bench?"
(By Counsel) “Your Honor, may we have a sidebar conference?”
Counsel should dress in proper business attire giving due consideration to local custom. It is disrespectful for counsel to chew gum, read a newspaper or bring food or drinks into the courtroom, unless approved by the judge.
[1] 22 NYCCR 100.6 (A). To the extent that any provision of the Code of Judicial Conduct as adopted by the New York State Bar Association is inconsistent with any of these rules, these rules prevail. 22 NYCCR 100.6 (E).
[2] 22 NYCCR 100.3 (B)(2)
[3] 22 NYCRR 100.3 (B)(3)
[4] 22 NYCRR 100.3 (b) (4). New York State Bar Association, Code of Judicial Conduct, Comment [3.13] [3B (7)] states, in part: A judge should encourage and seek to facilitate settlement, but the judge should not take any action or make any comment that might reasonably be interpreted by any party or its counsel as (a) coercion to settle, or (b) impairing the party’s right to have the controversy resolved by the court in a fair and impartial manner in the event settlement negotiations are unsuccessful. In matters that will be tried without a jury, a judge who seeks to facilitate settlement should exercise extreme care to avoid prejudging or giving the appearance of prejudging the case.
[5] New York State Bar Association, Code of Judicial Conduct is authoritative and parallels the provisions contained in the Rules of the Chief Administrator of the Courts, 22 NYCRR part 100. References to Part 100 are included. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules and has not been adopted by the Chief Administrator of the Courts.
[6] Code of Judicial Conduct as adopted by the New York State Bar Association Rule 3.2, Comment 3B (4).
The New York Rules of Judicial Conduct require all judges in the unified court system, except part time judges and administrative law judges, to comply with the rules of judicial conduct. All other persons, including judicial hearing officers, who perform judicial functions within the judicial system must comply with the rules in the performance of their judicial functions.[1]
The Rules of Judicial Conduct direct a judge to require order and decorum in proceedings before the judge.[2] The corollary of this rule is that a judge must be “patient, dignified and courteous” to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity. A judge must require similar conduct of lawyers, and of staff, court officials and others subject to the judge's direction and control.[3]
The Rules of Judicial Conduct state that a judge must perform judicial duties without bias or prejudice against or in favor of any person,[4] and must accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.
The New York State Bar Association, Code of Judicial Conduct Commentary[5] to this rule states that facial expression and body language, in addition to oral communication, can give to parties or lawyers in the proceeding, jurors, the media and others an appearance of judicial bias. A judge must be alert to avoid behavior that may be perceived as prejudicial. Prejudicial behavior includes addressing a lawyer for one of the parties by an honorific title, such as “judge”, senator”“, mayor” or “ambassador” in open court. However, this rule does not prohibit addressing a lawyer who appears in his or her capacity as a public official by the title of the office in which he or she appears, such as “Attorney General,” “District Attorney” or “Solicitor General.” [6]
It is customary for counsel to rise when addressing the judge and to address the judge as "Your Honor”. The judge is usually referred to as "judge”, "Your Honor" or "The court.” For example: "If the court please."
Court personnel, such as courtroom clerks, court officers and court reporters should be given due respect.
Counsel should remain behind the bar at the front of the courtroom and should request permission to have a discussion with the judge and counsel off the record, or to approach the bench at the sidebar for a conference. For example:
(By Counsel). “Your Honor, may we go off the record?"
(By Counsel) “Your Honor, may we approach the bench?"
(By Counsel) “Your Honor, may we have a sidebar conference?”
Counsel should dress in proper business attire giving due consideration to local custom. It is disrespectful for counsel to chew gum, read a newspaper or bring food or drinks into the courtroom, unless approved by the judge.
[1] 22 NYCCR 100.6 (A). To the extent that any provision of the Code of Judicial Conduct as adopted by the New York State Bar Association is inconsistent with any of these rules, these rules prevail. 22 NYCCR 100.6 (E).
[2] 22 NYCCR 100.3 (B)(2)
[3] 22 NYCRR 100.3 (B)(3)
[4] 22 NYCRR 100.3 (b) (4). New York State Bar Association, Code of Judicial Conduct, Comment [3.13] [3B (7)] states, in part: A judge should encourage and seek to facilitate settlement, but the judge should not take any action or make any comment that might reasonably be interpreted by any party or its counsel as (a) coercion to settle, or (b) impairing the party’s right to have the controversy resolved by the court in a fair and impartial manner in the event settlement negotiations are unsuccessful. In matters that will be tried without a jury, a judge who seeks to facilitate settlement should exercise extreme care to avoid prejudging or giving the appearance of prejudging the case.
[5] New York State Bar Association, Code of Judicial Conduct is authoritative and parallels the provisions contained in the Rules of the Chief Administrator of the Courts, 22 NYCRR part 100. References to Part 100 are included. The Commentary, by explanation and example, provides guidance with respect to the purpose and meaning of the Canons and Sections. The Commentary is not intended as a statement of additional rules and has not been adopted by the Chief Administrator of the Courts.
[6] Code of Judicial Conduct as adopted by the New York State Bar Association Rule 3.2, Comment 3B (4).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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