What you CANNOT say in court. Obscene Language From A Lawyer Is NOT Tolerated.
Terrible Language! Obscenities in Court! BAD Courtroom Behavior.
Twice in Boulder Courts. In over 45 years of courtroom practice, 7000 court appearances, I have been censored and chastised by two justifiably respected Judges. Two times! And for the same reason. I’ve said that if you learn from someone elses mistakes you are lucky. Usually I need to make a mistake twice to learn from it. No one ever said, “You learn from your mistake.” The expression is ” You learn from your mistakes.” I learned this lesson! I hope.
My mistakes were separated by several years and close to a thousand court appearances. . One District Court Judge, Richard McClean, and one County Court Judge, David Torke interrupted my cross examinations to critically comment on my choice of words. Both Judges, filling one of their judicial ethical responsibilities to educate lawyers without being pedantic, sarcastic without being cutting, and generally without embarrassing the lawyer in Court in front of their client. Each was so perfect in their corrections that the precise words have stuck with me for decades. They were both so amazing, so hysterically funny in their delivery that to this day I wonder if they were lying in wait, knowing I’d repeat my error.
My gut is clear that Judge Torke shared his handling of my obstreperous behavior, and that Judge McClean was lying in wait. If so, I made the days of both judges, if not their entire months. I’m still telling this story, and I suspect that they are too. Both delivered their brilliant rebuke perfectly straight faced.
I learned after these two schoolings, Lawyers absolutely cannot say “pissed off” in court. You heard it. Pissed off. It is simply not a phrase permitted in a courtroom. I suppose “that really pisses me off” would also be a banned expression. Justification does not matter. Threaten or hurt the dog, marry the daughter, and go from there, and pissed off to describe the mother is still forbidden. 
Justified Fury! Reasonable Anger! Sure! Just Not “Pissed Off.”
Boulder County Court Judge David Torke, a truly fair and brilliant jurist, with his calling me out, was not to be challenged. His opinion was in fact reiterated by the Boulder District Court, Judge Richard McLean presiding in this felony court. . A lawyer on the record simply cannot say”pissed off”).
The District Attorney used the words “penis”, “vagina,” and “intercourse,” without interruption, and the DA had just started! With NO interruption and with NO scolding. I was of course defense counsel for the citizen-accused. The DA had not yet gotten to the knife part of the case, the part that I was concerned with. I was shocked by the horror of their obscene, pornographic outburst, in the guise of direct examination of their own witness with their prurient inflammatory choice of words! The Judges merely continued taking notes, without even looking up or starting to breath hard.
When I asked the District Court (felony court) witness complainant “were you pissed off?” in an attempt to ingratiate myself to the witness with this casual familiarity, I was interrupted, deprived of my answer and of my connection with the witness when the Judge interrupted. Judge McClean with an expression of childish innocence, inquired. “Mr. Frieling, Perhaps that is some scatological term with I am unfamiliar?” Sorry Your Honor. I’ll rephrase.
Upon asking a witness in Judge Torke’s courtroom was he was “pissed off,” Judge Torke interrupted my flow, snapping me out of the zone. “Mr. Frieling, surely with your fine education, you have a wider vocabulary than that.” I loved Judge Torke. He performed our wedding. That did not piss me off. “Sorry Your Honor, I’ll rephrase.”
After being censored, I of course thanked both of these venerable Judges for the valuable lesson. In all honesty, I gratefully received the lesson, wanting , as always, to do a better job, and to continue to effectively avoid being embarrassed in court in front of my clients.
“Thank you Judge, I’ll rephrase my question,” I did not call the ACLU about the violation of my free speech rights. Even Dr. Hunter S. Thompson, Fear & Loathing, never legitimized “pissed off.” Of course his court appearances were not as the attorney but as the Defendant.
I offer the following alternatives to “pissed off” in the hope that we shall banish, in perpetuity, this abomination of phrasing from proper courtroom English.
“Mr. Complainant (Prosecution Witness) being crossed by me, “when my client, Mr. Defendant, had a shotgun to your wife’s head, having just shot your dog, raped your cat, and married your daughter, were you perturbed? Were you mad? Angry? Incensed? Enraged? Were you attacking, acrimonious, or irked? How about irritated, livid, seething, furious, explosive, or peeved? It’s true, is it not, that you were violent, riled, warlike, vindictive, and sore? Would it be fair to say that you were feeling hostile, miffed and venomous? Judge, would you please remind this witness that he is under oath? In fact, you were garrulous, raging, bellicose, obstreperous, and obnoxious, weren’t you? No? You deny all of this? What then were you feeling? What? You say you were “pissed off?” I’m not sure I hear that. Would you please repeat that for the record?
“Mr. Frieling!” Yes your Honor.
Lenny Lensworth Frieling
No animals were injured in the writing of this blog. None were really threatened.
Shared knowledge is power.
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