One member of the Colorado Supreme Court and a pair of trial judges spoke to lawyers on Wednesday about how to comport themselves in courtrooms at all levels of the judiciary, with advice ranging from nuanced lessons in cognitive bias to straightforward admonitions not to eat in court.

“One of the things that happens in the courtroom is this tremendous magnifying glass. Everything you do gets magnified,” said Justice Maria E. Berkenkotter. “If you’re snarky? Uh-uh. Don’t. It hurts your reputation.”

The event took place at the offices of Holland & Hart in downtown Denver and was sponsored by the Colorado Judicial Institute, a nonprofit that advocates for the judiciary. Berkenkotter and Denver District Court Judge J. Eric Elliff spoke about the differences in advocating as an attorney in the trial courts and in the appellate courts.

Berkenkotter told lawyers not to do “the pivot” in her court — responding to a justice’s question by answering a different question entirely.

“You are not a politician. We’re asking you the question for a reason. Sometimes, we’re asking a question and we’re throwing you a lifeline,” she said.

Berkenkotter also disclosed she prepares for oral arguments by reading through case materials and finding “pink elephants.”

“A pink elephant is something you don’t want to talk about. It’s the weak, soft, squishy part of your case,” she described. “When you’re there at oral argument, that’s what we’ll ask about.”

Elliff, likewise, suggested trial lawyers take advantage of the fact that jurors in Colorado are allowed to ask questions during trial. Even though a judge may decline to pose certain juror questions, Elliff pointed out that even unanswered questions give away valuable information about how they are processing the case.

“The question may not be ‘relevant’ under the rules. It may ask for hearsay,” he said. “But that’s what the juror is thinking about. … Sometimes they’ll ask questions I’m dying to know.”

“When jurors are asking questions like that,” added Berkenkotter, a former Boulder County trial judge, “those are their pink elephants. Those are the things they are seeing that don’t fit together.”

Elliff and Berkenkotter touched on the pros and cons of virtual appearances, which exploded during the height of the COVID-19 pandemic. They agreed remote appearances can increase access to justice, particularly for self-represented litigants. But Elliff said they are “really hurting us.”

“It kills the solemnity of the process,” he said.

“We have seen certain types of dockets around the state where there has been an unfortunate erosion of professionalism,” added Berkenkotter.

One criminal defense attorney raised the scenario of an incarcerated client wanting to appear in court by video, rather than being transported by law enforcement, because the client is in an important class in prison and does not want to disrupt their routine. Would a judge hold that against the defendant, she wondered?

“I’m specially assigned in Arapahoe on a case and I’m doing a sentencing next week,” responded Elliff. “It’s exactly that situation. She doesn’t want to come back because she loses all that time she’s built up. That’s OK. I’m fine with that.”

On the subject of appropriate decorum, Elliff mentioned he has a prohibition in every case against gum.

“I added it after I found myself scraping gum off the bottom of the counsel table after trial,” he said. “Don’t chew gum and don’t eat food in the courtroom. I don’t know what has happened in our society that lawyers think, ‘OK, we’re at the lunch break. I’m gonna unpack my bologna sandwich.’ That’s not what the courtroom is for. It’s not for your convenience. It’s for doing justice.”

Berkenkotter elaborated that the solemnity of the courtroom makes it essential for attorneys to know how they are coming across when they speak. She alluded to the fictional characters Eeyore — someone who is emotionally draining and dull — and Tigger — someone who has nervous jitters.

“Think about how you show up in that space,” she advised. Berkenkotter added that trying to crack jokes is “almost never a good idea.”

In a separate presentation, Denver District Court Judge Jon J. Olafson spoke about how lawyers should approach the biases that they may bring to the courtroom and to their work more broadly. He cautioned that sometimes people may make a “flyswatter” comment, not intended to cause offense, that a recipient will see as a “sledgehammer” because it targets a core piece of their identity.

“When you hit people with a sledgehammer, they don’t believe you. When you hit people with a sledgehammer, they don’t trust you,” Olafson said.

He said that in addition to the standard questioning of jurors during jury selection, Olafson gives lawyers extra time for “de-biasing” the jury.

“Social scientists say when people walk into courtrooms, they’re stressful,” Olafson said. “Even for people who are fluent in English, when they hear lawyers and judges talking, it’s a different world.”

He added that jurors’ bias can go down “with judicial intervention.” For example, Olafson told attendees that research suggests people are more receptive to hearing about “cognitive bias” than they are when it is labeled “unconscious bias.” But, he continued, he is still seeking evidence about which tactics are proven to be effective in a courtroom setting.