The Honorable Katherine E. Tennyson, Circuit Judge Multnomah County Circuit Court
Early on in my legal career, I heard a lawyer say that the biggest mistake made in trials to a judge is the failure to prepare those trials with as much care as trials to a jury. After 12 years on the bench and many, many court trials, I agree wholeheartedly with that sentiment. There is no doubt that it is a professional privilege to preside over a well tried case. There is also nothing more embarrassing than an unprepared lawyer with a client counting on that lawyer to let their voice be heard. The four steps below are a guide to the most effective presentation and ultimately, the best outcomes.
KNOW YOUR JUDGE
Whole seminars focus on jury selection; when lawyers want to know about a judge, they invite discussion on a public listserve. A better plan might be to do a little research into your judge’s legal background, to observe your judge actually presiding over a case other than yours and to locate any information your judge has posted on the court’s website or through a local bar association about preferred trial practices. Careful lawyers also try to find unreported opinions written by the trial judge in similar subject areas. This type of research will let you know the best ways to help your trial judge understand your case. You must be flexible enough in your methods to tailor your message to the judge hearing your case. Lawyers do well to remember that judges’ decisions are only as good as the information we have when we make them and lawyers are responsible for getting us that information in a legally sufficient form.
BE TECHNICALLY COMPETENT
All trials include certain rituals. You must have command of the technical requirements of each of those rituals. Examination of witnesses, offering exhibits and asserting objections all have a rhythm of their own. Good lawyers are not all the same, but all good lawyers know those rituals cold. Not only do they help you look like you know what you are doing, they minimize distractions so that the judge can focus on the information you are presenting. Where possible, stipulate to exhibits as early and as often as you can. The sooner a trial judge has the exhibits, the more able that judge is to listen with an understanding ear to the testimony of the witnesses. If an interpreter is needed, follow the rules to ensure that one will be present and understand how to work with an interpreter to streamline the time interpretation adds to the proceeding.
BE ISSUE COMPETENT
Your trial memorandum will help set the stage for the legal issues the trial presents. It is vital that you know the statutes, case law, or evidence rule upon which you intend to rely. If you are not prepared to give the legal authority for an assertion you make, you may find yourself like a young lawyer I know (me) 30 years ago making a perfectly logical argument (to her) completely contrary to case law (if she’d only bothered to look). Judges hear a lot of different cases in a lot of different subject matter areas. Not only is it your job to make us an expert on your case, the outcome may depend upon it.
DEVELOP INSIGHT COMPETENCE
This area is more nuanced than the others and probably requires more adverse experiences to develop than some lawyers would like to admit. In any case, it is important to get a clear view of what is actually “driving the train” of the dispute. In some cases, especially those involving family disputes-business, probate or divorce-the reason for the dispute has little to do with the law. As a result, the solution for that case may not be a trial at all. It is up to the lawyers of the case to understand what method of dispute resolution may best fit the case and use the abilities granted you by RPC 2.1 to get your clients to use that method.