WHAT SHOULD JUDGES do to uphold professionalism in their courtrooms? That was the topic of the Professionalism Committee CLE at the NHBA Midyear Meeting this year, and a panel of NH judges from all levels of the courts responded with reasons why they believe restraint in the use of their authority is essential.

The judges' consensus was that unprofessional or aggressive conduct is rare in NH practice and that when it does occur, they feel it prudent to use no more force or judicial authority than necessary. In general, the judges said the more attention they called to themselves, the worse it was for the handling of the case. And several judges shared insights into the subtle or behind-the-scenes ways they signal their displeasure at borderline conduct.

The panel included US District Court Judge Stephen McAuliffe, NH Supreme Court Justice Linda Dalianis, retired Superior Court Chief Justice Walter L. Murphy, Superior Court Marital Master Alice Love, and Merrimack District Court Justice Clifford Kinghorn.

"We do a lot about this; you just don't always see it," said McAuliffe, who enumerated an escalating list of responses he considers for anything from "sharp" practice to unprofessional conduct that does not rise to an ethical violation.

Judge Murphy said his most reliable technique left a memorable impression with wayward attorneys but left no trace in the written record. Lowering his glasses and lowering his gaze, Murphy treated the audience to "The Look" a brief but penetrating glare.

Justice Dalianis recalled a pivotal moment in her judicial career when a defendant, in the mid-1980s was openly insolent. "It was at a bail hearing and the defendant was not represented by counsel. I asked the defendant what he would like to say, and he looked at me and said, 'Hi, Linda, baby.'" Dalianis said that, as the only woman on the superior court bench at the time, she knew that whatever she did would be closely watched.. "I knew it would be very important how I handled this, so I counted to three, and then spoke softly. 'You don't have to call me 'Your Honor'; you don't have to call me 'Judge'; but you will not call me 'Linda.' If you do, you will be in direct criminal contempt, and any sentence for contempt will be added consecutively to whatever sentence you might receive.' He then said, 'I didn't mean to be disrespectful, Judge,' and we proceeded on." Dalianis said that her measured response restored decorum and avoided undue emphasis on the incident.

In her role as an appellate judge, Dalianis said she occasionally is annoyed by unnecessary, incendiary language in briefs. "Using a tone that is shrill and vituperative means you run the risk that your tone will distract the judge from your arguments," she said.

McAuliffe, as well as other judges on the panel, reiterated their belief that unprofessional behavior is rare in NH courtrooms. "It occurs only sporadically, [and] routinely it is the same lawyers," he said, although there are "very occasionally good lawyers who 'pop off' either in court or in briefs where pleadings get 'chippy.'"

McAuliffe's hierarchy of responses, in ascending order of severity of the offending conduct and if it is being repeated, is:

Level 1 - Forget it;

Level 2 - Don't forget it. "I might bring the lawyer to sidebar, and say, in effect, "You are being a jerk." (McAuliffe said one lawyer answered him: "I know judge; I can't help it.")

Level 3 - After the case is over, have an "informal chat" with the lawyer.

Level 4 - Informal "rat." "In those cases where I don't think a conversation (level 3) will do any good, I may give a call to a senior partner at the lawyer's firm after the case," McAuliffe said.

Level 5 -Motion for sanction.

Level 6 - Referral to the Ethics Committee.

Dealing with pro se litigants who test or exceed the bounds of propriety require somewhat different handling, and the judges pleaded with the attorneys in the audience to understand both the difficult role the judges play and the perceptions that are created when they do step in. "Understand our plight," said McAuliffe. "When a self-represented litigant gets 'lawyered' [confronted by technicalities], they get more acerbic."

"The best way is to cooperate with them, let them know that a deadline is coming up, and don't file for default if they are two days late," McAuliffe urged. "Don't make the court step in to preserve their day in court. If they are getting tripped up by all the rules, then I have to become the teacher, and that is never good for you as the lawyer on the other side."

McAuliffe told attorneys to keep in mind that a more effective and enduring way to succeed against the pro se litigant is to win on the merits. "If they file a meritless case, gather your facts and instead of filing a motion to dismiss, file a summary judgment motion," he said.

The Professionalism Day CLE program is available online, or on videotape or audiotape from the NHBA CLE Department. Call 224-6942 or visit the NHBA CLE page for more information.

Retired Superior Court Chief Justice Walter Murphy was one of several NH judges discussing how they handle misbehavior in court at a CLE held at the Midyear Meeting last month.

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