By The Honorable Earl G. Penrod

LAW ENFORCEMENT PERSONNEL ARE aware of the importance of being respectful in court not only in actions but also in words. For example, in many courts, it is considered polite and proper for witnesses to use “yes sir/no sir” or “yes ma’am/no ma’am,” when responding to questions. Law enforcement witnesses are normally aware that calling attorneys by their first names during testimony will likely demonstrate an unacceptable informality and lack of decorum. Further, witnesses understand that in virtually all courtrooms, it is appropriate and respectful to refer to the judge as “Your Honor” or “Judge Smith,” without regard to gender.

However, referring to or responding to attorneys during testimony may cause some unexpected difficulty for witnesses under certain circumstances, such as when gender specific designations or references are utilized. Even an experienced and conscientious witness is well advised to be alert to the potential pitfall of identifying or referring to attorneys while testifying. The issue may develop because, unlike judges and law enforcement officers, attorneys are not necessarily referred to by title, position or function. In some courts, lawyers are addressed as Counsel or Counsellor, but such gender neutral terms are not used everywhere and in some courts, are used only by the judge or the attorneys.

As a general but not ironclad rule, a witness is not likely to experience an issue when using “sir” or by referring to a lawyer as “Mr. Smith.” However, using “ma’am” and/or referring to an attorney as “Miss Smith,” “Ms. Smith” or “Mrs. Smith” can be a bit more problematic as those designations are not universally accepted nor uniformly defined and understood. Furthermore, even if a witness intends the “Ms.” designation to indicate neutrality regarding the attorney’s marital status, it is not always easy for the listener to hear whether the witness is saying “Ms.” or “Miss,” which may be interpreted as somewhat condescending or less respectful. And, although the witness may not intend offense or disrespect, the credibility of the witness may be negatively impacted by the perceived slight.

The issue of “Miss vs. Mrs. vs. Ms.” does not arise often in court and when it does, it may result in little more than a brief, awkward exchange between the attorney and witness. However, a thoughtful witness can avoid the issue entirely simply by being sensitive to it in advance.

Tip to testify: Consider in advance how best to refer to attorneys of different genders during testimony.

The Honorable Earl G. Penrod is a Judge of the Gibson Superior Court in Indiana.

This article originally appeared in the April 2016 issue of The LEL.