Legal Fashion Police: What Not to Wear in Court

There have been a few amusing stories about lawyers and jurors showing up to court inappropriately attired, and the extent to which judges should be able to dictate what type of clothing lawyers, jurors, witnesses, parties, and spectators wear in the courtroom.

It’s generally accepted that courts do have a legitimate interest in maintaining decorum and civility in proceedings. To this end, they can demand that lawyers show up to court dressed somewhat formally dressed, and refrain from wearing clothing or jewelry that can create distractions. Also, there’s the simple fact that lawyers ought to know better than to show up to court shabbily-dressed.

And courts can also have good reasons for telling non-lawyers, such as witnesses, spectators, jurors, and parties to lawsuits what they can and can’t wear in the courtroom. However, they must tread extremely lightly to avoid creating a thorny constitutional issue. For example, in Cohen v. California, the U.S. Supreme Court ruled that wearing a shirt with profane language written on it, while in a courtroom, cannot, by itself, be a criminal act. That case involved an incident in 1968, where a young anti-war activist went to court wearing a jacket that read “F*** the draft,” for which he was arrested and charged with disturbing the peace. His conviction was eventually overturned by the Supreme Court.

Of course, this involved a criminal prosecution after the fact. If the judge had simply ordered him to remove his jacket, or cover the offending words, the judge probably would have been within his rights to hold Cohen in contempt, especially if the words on his jacket were disrupting the proceedings.

But what about people who show up to court dressed shabbily? Do courts have a right to turn them away? Apparently, the fashion police (also reported here) are on the war path in some courts across the U.S.

Delaware state courts have adopted a rule banning skirts that come more than 4 inches above the knees. A court in Michigan has banned jeans. One woman was turned away from a Delaware courthouse for wearing pajamas.

As someone involved in the legal industry, I absolutely agree that courts should aggressively enforce basic rules dealing with decorum and civility. This should include attire. If you think it’s OK to show up to court, for any purpose, wearing pajamas, chances are you don’t have much respect for the judicial system, and that’s a problem. I’ve said before that, in order for a government to function properly, there needs to be a general consensus that all of its branches are legitimate. Of course, responsibility for this largely rests on the government, which must be responsive to the voice of its citizens while still protecting the rights of individuals and minority groups.

Now, in the scheme of things, showing up to court in pajamas is not a huge deal. It doesn’t directly harm anyone, and doesn’t really affect how justice is administered. But if a significant portion of the population has this attitude, it might show that the court system is not a very well-respected branch of our government, and that’s a problem, considering that it’s often the go-to option for a person who wants to vindicate his or her rights against the other branches of government.

On the other hand, from a legal and practical point of view, the courts can’t force the population to respect their authority simply by imposing a strict dress code. The problem is much more complex than that. And as a matter of principle, I don’t think that the courts should go very far in forcing their opinion of what’s proper on the people they’re supposed to be serving.

That said, just because you might have a constitutional right to do something, that doesn’t mean it’s always in your interest to do it.

If you’re ever in court, for any reason, whether as a plaintiff, defendant, juror, or witness, it’s in your interest to impress upon the judge that you appreciate the seriousness of the proceedings. While, in a perfect world, your appearance and attire should be irrelevant when it comes to how the judicial system operates, with the facts of your case and the relevant law being all that matters, a quick look at the newspaper should let you know that the world we’re living in is far less than perfect. Judges and juries are people, who sometimes evaluate other people based on unfair factors, such as their appearance.

If you’re ever in court, especially as a criminal or civil defendant, you shouldn’t be afraid to ask your attorney about what will be expected of you, in terms of attire and conduct, and follow their advice.

As a general rule, however, the more formally you dress, the more well-received you’re likely to be. It’s a sad fact of life, but it’s a fact nonetheless. Do you think Mr. Cohen scored any points with the judge when he wore that infamous jacket to court? Most definitely not. Now, he was trying to make a political point, and probably didn’t really care about the judge’s opinion of him.

However, most court cases don’t involve the parties trying to make a grand political statement, and if you care about your case ending with a favorable result to you, you should definitely care about the judge’s opinion of you.

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