Monday, August 21, 2017

For Dignity and Respect

I got an email last week from a judge. As with many I receive, it was broadcast to other recipients. And, thanks to the beloved "reply all" button, it became a conversation. The subject was essentially professionalism, a topic that is eagerly championed, little understood, and too often provided only lip-service. 

This conversation was about the manner in which some attorneys dress to appear for proceedings at the Office of Judges of Compensation Claims. The discussion was inspired by an attorney appearing for a hearing without a tie or socks. Wardrobe is not a new topic, but it has been suggested to me that there is value both in discussing new topics and in periodically returning to reiterate and reinforce topics that are important. 

In 2016, I wrote about judicial robes in Aspire to Apply the Law Fairly. That post revolved around the Florida Supreme Court's decision to regulate robe wearing, and the various justifications it cited. There are Judges of Compensation Claims that advocate robe-wearing, and others that decry it. For the administrative judges in the OJCC it has always been an option and never a requirement. Similarly, the Supreme Court rule does not mandate robes for constitutional judges, but restricts color and regalia of any robes that are worn. 

Aspire also briefly addressed the issue of attorney attire at proceedings. It noted 
we have seen attorneys appear in shorts and flip-flops sometimes (mediation). 
an attorney appear(ing) at a hearing in shorts and golf shoes. 
an attorney enter(ing) our office and ask(ing) the guard "which one of these people is my client?" 

For a great many, appearing for a hearing or trial without a tie or socks would be unthinkable. The thought would not occur. But, it is not necessarily new. I knew an attorney in the 1990s that regularly avoided socks, and only very rarely wore a tie. He was known for his style, with a fair few comparing him to Miami Vice character "Sonny" Crockett. This attorney was talked about and perhaps even ridiculed for the lack of formality, but not confronted. 

There was precedent for more casual attire. In the 1990s we had judges who rarely wore a tie or jacket. One of whom persistently sported boat shoes without socks. When this judge did wear a jacket and tie, it was the "same" blue blazer and regimental tie every time. Some workers' compensation judge's attire was the subject of conversations. There were those who expressed lack of respect for judge's appearance.  

Conversely, I was honored to know an attorney named John Myrick whose wardrobe flair and panache was legend in the Florida Panhandle. He sported southern classics like seersucker and white bucks. I presided over several trials in which he appeared, a true southern gentleman. He was respectful of witnesses and parties, courteous to all, and an effective advocate as a result. He reminded me of the television character Ben Matlock (starring Andy Griffith). Mr. Myrick's pride in his appearance and preparation were obvious; his professional appearance and demeanor beyond reproach. 

Is the manner of our dress critical to our professionalism? There are those who argue that it is.

In 1989 Brendan Frazier starred in Blast from the Past. It was no blockbuster. I have spent many waking hours appreciating movies, but this one escaped my notice until decades later. It involves a young man raised in a fallout shelter (not a "bomb shelter," as Brendan's character Adam reminds), and emerging into Los Angeles at 35 years old. It is another take on Hollywood's recurring fish out of water trope. Adam emerges to confront our modern world with a not-so-modern personal perspective. The movie pokes some fun at Adam's 1960's values, as other characters, including love-interest Eve (Alicia Silverstone), express curiosity at Adam's thoughts, expressions, and behavior. 

In one scene, Eve discusses Adam with her housemate Troy, and is denying having fallen for Adam. She describes how she "does not fall in love" with men possessing certain attributes, one of which is "perfect manners." Troy's reply is a  great quote:
I asked him about that. He said, good manners are just a way of showing other people we have respect for them. See, I didn't know that, I thought it was just a way of acting all superior. 
That is a valid point. Maybe professionalism is all about showing people we have respect for them. What are our actions communicating to the others involved. When a lawyer appears in a Miami Vice outfit, there are those who will perceive it as being more appropriate for a night of disco-dancing than for a legal proceeding. Though some may perceive it as fashion or flair, others may simply perceive it as sloppy, lazy, or worse. 

Does that mean that attorneys must wear formal wear and judges robes and wigs? Definitely not. But appropriate attire should be the goal of everyone appearing for a proceeding. Lacking a fashion sense myself, I am ill equipped to make fashion statements. I do know the difference between clean and dirty, appropriate and inappropriate however. As I pondered this issue, I did some Googling. 

I quickly found an excellent article on professionalism published in 1987, which featured significant discussion of appropriate dress. Lynda K. Hopewell, Appropriate Attire and Conduct for an Attorney in the Court Room, JOURNAL OF THE LEGAL PROFESSION 12, 187-199 (1987). This article focuses significantly on a Florida case, Sandstorm v. State, 309 So.2d 17 (Fla. 4th DCA 1975), in which a judge and attorney disagreed upon the need for, and later definition of, a necktie. The judge's perspective prevailed.

There is also an excellent Pocket Manual of Courtroom Etiquette published by Hon. William H. Burgess, III, of the Circuit Court in Clearwater, Florida. Both make excellent points about appropriate attire in legal proceedings. The Burgess work makes a number of other excellent points regarding trial practice and professionalism generally, and it well worth the time to read it. Judge Burgess even cites a specific example regarding a sockless Indiana attorney

I have not found that Florida has mandated a dress code. However, the Massachusetts Courts have published a detailed website addressing behavior in legal proceedings. As to attire, it recommends:
Dress appropriately. If you dress inappropriately, you may be asked to leave the courtroom. Appropriate attire, whether as a participant in a case, a witness, or an observer, shows respect for the judge who will be deciding the case. As a general rule, you should think of the courtroom as a formal environment. Dress as you would when going for an important job interview or to church.
It provides more specific advice also

Men: wear shoes with socks; long pants (on pants with belt loops, wear a belt); collared shirt (tucked in) preferably with a tie, with or without a jacket.
Women: wear shoes; a dress, skirt (preferably no more than two inches above the knee) or long pants; a blouse, sweater or casual dress shirt.
And, it provides a list of what not to wear:
shorts, hats, halter or tube top, see-through top, flip flops, clothing that exposes your midriff or underwear, ripped or torn jeans, baggy pants that fall below your hips, clothing with an emblem or wording that promotes illegal or inappropriate activity, clothing that depicts or promotes violence, sex acts, illegal drug use or profanity.
There is merit in all of these suggestions. 

Some tribunals mandate a local dress code. Florida's Second Circuit has a dress code for jurors. The Federal Court in Ft. Myers has similarly published a broad parameter:
When appearing in the courthouse, you must dress appropriately to preserve the dignity of the court. Business attire, such as suits and dresses, is not required; however, more informal attire, such as beach wear or shorts should not be worn
Notice that these, and many similar statements on the Internet, are directed at those who either participate in or just attend legal proceedings. They seem both to be appropriate, and well-intentioned (for the "dignity of the court" or as demonstration of "respect for the judge"). 

Some will find the suggestions unseemly. Why, for example, should men be told to wear socks, but not women? For that matter, why should women be permitted to wear a skirt, but not men? This is not facetious. I knew two young men in a high school debate club that became well known for competing in kilts. 

The gender issue is not new. It is reiterated in a recent protest of school dress code and the "off-the-shoulder" top, which made national news. After several girls were counseled or disciplined this year for such tops, several boys attended school similarly dressed, to "protest sexism against female students." They make several arguments, but one regards the difference between what is permissible there for men versus women. There are questions raised about the propriety of such distinctions. 

It is worth noting that respect is not always an objective process. None of us are "respected" or "disrespected," but instead we individually "feel" one or the other. In other words, respect or disrespect is not necessarily something that needs to be intended. In fact, one's actions or words may mean no disrespect, and yet be perceived as such. In that regard, there is perhaps a conflict between one's intended "expression" by wearing some outfit, and the "perception" by others of disrespect. One might intend a fashion statement by the absence of socks, and yet communicate instead a lack of respect. 

A wise judge once told me that the number one rule of trial practice is to attract attention for the right reasons. The explanation was that an attorney or witness wants the finder of fact (judge or jury) focused upon what is being said, what was felt, what is important. The worst thing, according to this judge, is to distract the finder of fact from what is important. While making a critical point, the speaker wants the judge or jury listening intently, not thinking instead "I wonder why he's not wearing socks," or "I wonder what that stain on her lapel is." 

There is currently no rule as to appropriate dress in Florida workers' compensation proceedings. Should there be? Should there need to be? Should there be a specific OJCC proceeding dress code, with specifics and a statement of purpose as published in Massachusetts? Or, should this system accept that people have different perceptions of fashion, and ignore the resulting feelings of disrespect and lacking professionalism? There is a third alternative, perhaps a rule that simply states that "professional attire is expected and required at all events in the OJCC offices." Such a rule might leave enforcement to the Judge's or mediator's discretion? 

Is it appropriate, as in the high school noted above, to simply send someone home who is not appropriately dressed? In a perfect world participants would perhaps dress appropriately out of respect for the judge, the mediator, their client, or the process. But, perhaps we have reached a point in time where such lofty aspiration cannot be reasonably expected or anticipated voluntarily any longer. Perhaps we have come to the time when decorum, respect and professionalism must be mandated and enforced?

This is a topic upon which I would like to hear from judges, mediators, attorneys, risk managers, adjusters, injured workers and more. What, if any, policy should this Agency have regarding appropriate dress?

UPDATE - 082317 - Shortly after publishing this post, I received a response from an attorney. As it is possible others will respond, those are published here

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