Lawyers and litigants must dress for court in a way that will not detract from the client’s case. What if the attorney’s culture, religion and/or personal preferences dictate a certain mode of appearance that is out of the ordinary? Must a lawyer alter this to conform to ordinary expectations? Or can the attorney with confidence honor his or her preference without prejudicing the outcome for the client?
One example of this dilemma involves Orthodox men who are members of the trial bar. They are faced with the question of whether to remove their yarmulkes when entering a courtroom. The Talmud says that the purpose of wearing a kipah is to remind us of “the Higher Judge who is above us.” Wearing a kipah reinforces the idea that God is always watching.
A dilemma for observant trial lawyers occurs in situations in which the client’s credibility is going to be stridently attacked by the defense. If the client is going to be painted as a fraud, for example, should the lawyer remove his kipah? If the judge, jury or arbitration panel might reasonably conclude that the client’s case is fraudulent, what might they conclude about the lawyer who presented that case? Might this not reinforce anti-Semitic stereotypes suggesting that Jews are dishonest in business and Judaism promotes dishonesty? If so, does this not suggest a situation when removal of the skullcap would be mandated?
Also at stake is whether there would be a chillul Hashem — if the jury were to conclude that the frum lawyer is dishonest, that could create contempt for the One Above, from whom the lawyer draws guidance.
One important factor is the location of the litigation. In Philadelphia, one can reasonably hope that a person’s religious or cultural leanings would not prejudice the judge or jury against the lawyer and/or his client. But what about a trial in the middle of the state? A judge or jury in a rural area could view an overtly Orthodox Jew with cynicism if not outright prejudice.
If the lawyer sincerely believes the kipah will prejudice the judge or jury against his client, his professional responsibility requires that he remove the kipah. Jewish law is lenient in this regard. It permits the lawyer to remove the kipah if there is a legitimate concern that the kipah would prejudice the jury against the client.
But the harder question is determining whether that prejudice truly exists, or whether the lawyer is simply uncomfortable with looking different in front of his colleagues. This is perhaps particularly difficult for an attorney who adopts an Orthodox lifestyle mid-career. His newly displayed piety may draw particular attention because of the dramatic change in appearance.
On the other hand, some jurors and judges might assume that a religious attorney would be especially scrupulous about honesty. Perhaps an Orthodox Jew may score credibility points with some judges, jurors and arbitrators. If so, this would favor keeping the cap on. Since we can never truly know what others are thinking, this ends up as a case-by-case judgment call. General principles provide guidelines, but one’s gut feeling may trump those principles.
An important part of becoming a successful litigator is honoring your own personality by being true to yourself when trying cases. Judges, jurors and arbitrators know artifice. They see through the cynical lawyer who attempts to appear empathetic. If something seems unnatural or deceptive, that can’t be good for the client.
Should the kipah-wearing trial lawyer just let the chips fall where they may? That is the conclusion I ultimately came to when I became a fully observant Jew at the age of 36. I chose to wear my kipah in court, except when I am trying a case in a rural venue or when my client will be attacked as a fraud. I am who I am, and I believe my clients are best served when I remain true to myself.
This article appeared in the Jewish Exponent on December 18, 2014.
