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Judges have more discretion to control an attorney’s appearance in the context of a jury trial. A California court upheld a trial judge’s authority to request that a female attorney remove an inappropriate hat. In that case, the trial judge merely requested, in front of the jury, that the attorney remove the hat because it was a distraction to the jurors. The attorney moved for a mistrial based on the judge’s suggestion. The reviewing court noted: “Parading a freakish hat before a jury could only be characterized as pure exhibitionism and courtroom exhibitionism indulged in by either men or women lawyers is a type of aberration which merits only disapproval.” People v. Rainey 224 Cal. App. 2d 93, 97 (1964). Similarly, a New York case upheld a trial judge’s order that an attorney, who was also a Catholic priest, remove his clerical garb before appearing before the jury in a criminal trial. The attorney, who represented the defendant, contended that the trial judge’s order violated his First Amendment right to free exercise of religion. The appellate court noted that the guarantee of a fair trial is so fundamental, that the court’s order must be upheld and to do otherwise would potentially subject the defendant to religious prejudice. LaRocca v. Lane 37, NY 2d 575 (1974).

Attire at Bench Trials and Hearings

Attorneys do not surrender all Constitutional rights upon entering the courtroom and an attorney arguably has more freedom to dress as he or she pleases outside of the jury’s presence. For example, a San Diego Superior Court judge informed a plaintiff’s attorney that he could not appear before the court wearing a turban unless he demonstrated a legitimate reason for wearing it. Absent a showing that the turban interfered with justice in the courtroom, the appellate court granted the attorney’s writ of mandamus permitting him to appear before the judge in the turban, without explaining its purpose. The court commented: “We hold to the belief no person need declare his or her faith, or lack of it, to engage in the practice of law. Courtroom inquisition concerning physical condition or cosmetic appearance is an invasion of privacy.” Jensen v. Superior Court of San Diego County, et al. 154 Cal. App. 3d 533, 541 (1984).

Conclusion

Judges are entitled to require attorneys to dress formally for court appearances and may require that attorneys avoid wearing articles of clothing that distract or interfere with the administration of justice in the court room. Courtroom rules that fall reasonably under these principles appear to commonly be upheld by higher courts. Because courts are governmental bodies, however, that line may be crossed when any courtroom rule restricts an attorney’s ability to wear religious garb, as such a rule may violate an attorney’s Constitutional rights.

Of course, an attorney’s personal taste may be outweighed by the interest of his or her client if the attorney’s appearance may prejudice the client. As most judges require that attorneys dress in business attire in their courtrooms, conservative dress, which may or may not include pantsuits for women, is generally the best way to avoid the wrath of a fashion conscious judge.

The Basics

California judges may impose minimum dress codes for attorneys where an attorney’s attire tends to cause disorder or interferes with the functioning of the court. Jensen v. Superior Court of San Diego County, et al. 154 Cal. App. 3d 533, 541 (1984). Other jurisdictions provide similar rules. For example, Alaska permits judges to enunciate a dress code as long as the dress code is not unreasonable and is not based on matters of personal esthetic taste. Friedman v. District Court, 611 P.2d 77 (Alaska 1980). Courtroom dress codes are rarely challenged and what constitutes a reasonable dress code varies depending upon the circumstances. In California, attorneys have a duty to “maintain the respect due to the courts of justice and judicial officers” under California Business & Professions Code Sections 6068(b) and (f). Failure to properly conduct oneself before the court is punishable by contempt and disciplinary procedures in the form of sanctions or, in extreme cases, suspension. California Code of Civil Procedure, Section 1209.

Many courts follow the dress code set forth in the United States Supreme Court Notice to Counsel, which requires attorneys to appear in “conservative business attire, preferably in a dark color keeping with the dignity of the court.” San Bernardino County Superior Court Rule 1900 uses similar language, applying the standard to attorneys, litigants, witnesses and spectators. Los Angeles County Superior Court Rule 8.2 states: “Persons in the courtroom should not dress in an inappropriate manner such as to be distracting to other or usual sensibilities . . . Attorneys and court personnel should be dressed in accordance with current customs as to their business or work attire.”

In the United Kingdom, barristers (the equivalent of litigators in the U.S.) are required to wear robes and wigs in court, eliminating the need to address fashion faux pas during trial. The British House of Lords addressed the matter of traditional courtroom garb in a series of Consultation Papers which noted that the robes and wigs maintain a “sense of solemnity and dignity of the law” and tended to create a sense of “sameness” amidst barristers, so that jurors may focus on the matters at hand rather than the barristers themselves. In the United States, however, courtroom attire can be a strategic tactic in a jury trial. Attorneys sometimes hire jury and image consultants for advice on how to dress and present themselves in court. In one memorable example, Los Angeles County prosecutor Marcia Clark made headlines with her “makeover” during the infamous O.J. Simpson trial to soften her image before the jury and public.

Courtroom attire is an important consideration for attorneys, who must balance self-expression with the need to “maintain the respect due to the courts of justice and judicial officers.” The next entry will address the legal and Constitutional implications of dress code restrictions in the context of jury trials, bench trials and hearings.

Carriers transporting household goods within California are subject to numerous regulations promulgated by the California Public Utilities Commission (“PUC”), including obtaining a proper permit to operate their business and maintaining adequate insurance (public liability/property damage, cargo, and worker’s compensation). (1) There is a lot at stake for carriers that do not comply with PUC regulations. Failure to comply may result in monetary and criminal sanctions, such as a $500 fine for each offense, (2) and in the case of a continuing violation, each day’s continuance is considered a separate and distinct offense subject to accruing fines. (3) Willful violations result in a misdemeanor, punishable by a maximum fine of ten thousand dollars ($10,000) or by a maximum imprisonment sentence of one year in county jail, or both. (4) The PUC has the power to investigate claims, conduct administrative hearings, refer cases to the district attorney for prosecution, and file injunctions against offending carriers to cease operation. (5) Carriers should be prudent and proactive by implementing business procedures to ensure compliance, rather than risk these sanctions. We therefore offer the following reminders for best practices to ensure compliance with PUC regulations.

1. Obtain a permit to operate business.

If a carrier transports used furniture and personal effects to or from a residence, between points in California, it must obtain a household goods carrier permit. (6) The process is relatively easy and requires completion of an application and a $500 filing fee. To obtain an application and specific requirements, contact the CA PUC License Section at (800) 877-8867 or licensing@cpuc.ca.gov.

2. Comply with insurance requirements.

Carriers of household goods must maintain adequate insurance so long as they are engaged in the business of transporting such goods. It is wise to comply with these insurance requirements, as failure to do so can result in a PUC order to cease operation and carriers will be liable for injuries and damages resulting operation of business.
The PUC requires minimum liability protection of $250,000 for bodily injury to or death of one person as the result of a single accident; $500,000 for bodily injury to or death of more than one person as the result of a single accident; and $100,000 damage to or destruction of property other than the property being transported as a result of a single accident; or a combined single limit in the amount of not less than $600,000. *7* The minimum cargo insurance coverage is $20,000 per shipment. (8) Carriers that hire employees must also maintain on deposit with the PUC evidence of workers’ compensation insurance covering all of its employees. (9)

3. Provide Customers with the Important Information For Persons Moving Household Goods (within California) Booklet.

This booklet was prepared by the PUC to offer guidelines and recommendations to customers for moving, and to explain the obligations of moving companies to their customers. The PUC requires that carriers of household goods provide the booklet without charge to persons planning to move between points in California. Carriers can comply with this PUC requirement by either (1) providing the booklet to the customer at the first in-person contact; (2) mailing the booklet to the customer (time allowing) if the move was arranged and confirmed by mail or telephone and no in-person contact is made prior to the day of the move; or (3) obtaining the customer’s assurance that he received it from some other source. (10) Regardless, the customer must initial a statement, on the Consumer Protections or Waivers section of the Agreement for Moving Services Form, indicating that the customer has received the booklet either from the carrier or some other source. (11) If the carrier does not ensure that the customer has the booklet, he is eligible for a $100 refund from the carrier.

As a rule-of-thumb, a carrier should always provide the booklet to the customer and obtain an acknowledgement of receipt. These are small measures that can significantly reduce future litigation, as the customer is more likely to read the booklet if it is given to him, purchase additional insurance, and follow proper procedures for filing claims and declaring items of exceptional value. The customer cannot plead ignorance because the information is clearly articulated in the booklet and he has signed an acknowledgment of receipt for the booklet.

4. Advise customers to purchase additional insurance and to declare exceptional items.

Carrier rates include only basic protection against possible loss or damage at 60 cents per pound per article. For example, if a laptop computer weighing 10 pounds is lost or damaged, the customer can only recover $6.00 for the computer (60 cents x 10 pounds), (12) which, to the customer, can hardly feel like sufficient compensation for a computer that probably cost more than $600.00. Despite not purchasing additional insurance, the customer can still seek restitution by filing a negligence claim against the carrier in civil court. To prevent this type of litigation, it would be prudent to recommend the purchase of additional insurance, such as:

• Actual cash value protection, which covers the depreciated value of the customers’ goods and is determined by the cost of the item new, its age, its condition when received by the carrier, and the value declared;

or

• Full value protection, which covers the full replacement costs of any lost or damaged item.

It is important to note that if the customer does not declare items of extraordinary value (such as antiques, art objects, and gold or silver articles) and the items are damaged, he is not protected for the full value regardless of the level of insurance purchased. In that instance, the customer will likely sue the carrier for the full value of those items in civil court under a theory of negligence. The liability exposure may be high; a houseful of antiques can add up to tens of thousands of dollars or more. To prevent any problems with claims for losses and to prevent future litigation, advise the customer to purchase additional insurance, declare exceptional items, and sign an acknowledgment of information, regardless of whether additional insurance is purchased.

5. Follow proper procedures for claims filing and maintain accurate records.

In the course of normal business operations, it is inevitable that items will become lost or damaged during transit. A customer filing a claim for loss or damages must continue to pay the carrier for transportation charges, as the handling and settlement of a claim is distinct from the performance of and payment for the transportation service itself. (13) If a customer does not pay the transportation charges, the carrier is not required to honor the claim.
To file a claim against a carrier, the customer must:

• List separately the lost or damaged items.
• Note the exact amount claimed for each lost or damaged item.
• Provide the date of move, the origin and destination, and the carrier’s order number.

The claim must be filed by the customer, in writing, within nine months after delivery of the goods or within nine months after a reasonable time for delivery has elapsed. (14)

Upon receipt of the claim, the carrier must acknowledge the claim in writing within 30 days and must either pay, decline to pay, or make a firm compromise settlement within 60 days of receipt of the claim. (15) If the carrier delays action for a longer time, it must notify the customer in writing within 60 days of receipt of the claim as to its status, the reason for delay (with a copy to the PUC), and do so again every 30 days thereafter until final action is taken. (16) If the carrier fails to respond to the claim within the time limits and manner described above, the consumer may seek recourse through the PUC, at which time the PUC may file an injunction against the company to cease operation of its business. The inability to operate one’s business results not only in lost revenue, but also the inability to complete contractual shipping obligations with other customers, thus leaving the company exposed to future litigation.

Since the PUC has no authority to compel carriers to settle claims for loss or damage and will not undertake to determine whether the basis for or the amount of such claims is proper, nor will it attempt to determine the carrier’s liability for such loss or damage, most customers will file grievances in civil court. Therefore, a carrier must protect its interest by maintaining all correspondence and claims documentation mentioned above, in case of future civil lawsuits or PUC investigations.

1. Ca. Pub.Util. Code § 5101 et seq.
2. Ca. Pub. Util. § 5313.
3. Ca. Pub. Util. § 5315.
4. Ca. Pub. Util. §5311.
5. Ca. Pub. Util. §§ 5251 and 5259. See also I.04-08-022, Ca. Pub. Util. Com. Slip Copy, August 19, 2004 (2004 WL 1987618).
6. Ca. Pub. Util. Code §5133(a) and (c).
7. See Cal. Pub. Util. General Order 100-M(1) (Adopted December 17, 1993, effective January 1, 1994)
8. See Cal. Pub. Util. General Order 136-C 91) (Adopted July 1, 1992, effective November 1, 1992)
9. Cal. Pub. Utili. Code Section 5135.5
10. Maximum Rate Tariff 4, Item 470.
11. Id.
12. Id.
13. Id.
14. Maximum Rate Tariff 4, Item 92(14). It is important to note that in a civil action, plaintiffs are not strictly held to PUC rules regarding claims filing, such as those articulated above. Rather, the court merely provides deference to this agency’s rules. Therefore, a customer may fail to adhere to any of the PUC rules but still be able to seek recourse for losses in civil court based on theories of negligence, breach of contract, fraud, etc.
15. Maximum Rate Tariff 4, Item 92(15).
16. Id.

Although theoretically an expert could prepare a chart or demonstrative exhibit for use at trial after the deposition, by asking whether the expert has any charts or exhibits he or she intends to use as an aid to presenting expert opinions at trial, two benefits are obtained.  If the materials have already been prepared, they should be presented at the deposition.  If they have not been prepared, a basis for objection will have been created which may aid counsel at time of trial in obtaining time to preview the exhibit, perhaps prepare something in response, or even argue that it should be excluded as not having been disclosed during the deposition.

Just as it is important for the examining attorney to fully inquire about all opinions that an expert intends to offer at trial, it is just as important to pose that question more than once, concluding the deposition with the question: “Are there any other opinions which you have not yet disclosed to us so far in your deposition which you intend to offer at trial.”  Without closing the gate, so to speak, the expert will have free reign to construct new opinions or variations of ones already disclosed in deposition leaving opposing counsel in a much weaker position to interpose an objection when the expert starts to testify as to the new material at trial.  Counsel offering the expert can be counted upon to simply argue that the expert was never asked about the subject matter or didn’t have the opportunity to fully respond to earlier questions seeking all his opinions.

Many, if not all, product liability cases will require some form of expert testimony, whether about the selection of materials, the design and alternatives, or warnings and product literature accompanying sale of the product.  When it comes time to designate or disclose the expert witness, it is important to have a broad enough description of the areas where the expert will offer opinions to permit the expert to fully express opinions without being limited by the objection that the expert was not designated in a particular area of expertise.  Conversely, an expert who attempts to cover too many areas, a “one size fits all” type who offers, for example, opinions on metallurgy, chemistry and warnings all under the guise of “failure analysis” may lose credibility, and risk being disqualified at time of trial from offering testimony in one or more areas about which he or she intends to testify.