The Honorable Kirsten E. Thompson, Washington County Circuit Court
Most jurisdictions set a pretrial hearing in criminal and family law cases. They may be called a Case Management, Pretrial, or Status Conference. Whatever they are called they all serve a similar purpose: to bring the parties together in the same location so they can narrow the issues of disagreement, memorialize the areas of agreement, and settle all or part of the pending case.
In Washington County, the Court recently went through a formal reengineering process with the assistance of the National Center for State Courts, and a grant from the State Justice Institute. We knew our pretrial conference system in criminal trials wasn’t working as well as we would like (community partners weren’t shy about telling us), and we wanted to make things work better. As a result, we met with attorneys from the prosecution and defense bar. We spoke with law enforcement. We judges talked with each other. Don’t laugh – when each judge has a busy docket in another part of a large building, or in another building a couple of blocks away, talking with one another can be a challenge. We ultimately conducted three Saturday retreats to discuss this topic. With the assistance of excellent consultants from NCSC, the input we received from our community partners, and our own experiences in the courtroom we adopted a revised case management system. The case management system emphasizes better preparation prior to trial, encourages case resolution at the earliest appropriate point in the case, and results in an appropriate trial setting. The trial itself is less likely to be reset for any reason except good cause. Lack of judicial resources is less likely to prompt a reset.
This process has caused me to take a harder look at the pretrial process in other cases as well. In my opinion there are some takeaway messages for attorneys about how to use the pretrial, non-evidentiary hearing most efficiently.
First – Know your case. When was the case filed? How old are the parties? If the case involves minors, what are their ages? If they are in school, what grades? Are there health or disability issues that will impact the case management or outcome? What is each party asking for from each other and from the Court? It is important to know the legal rules which will apply in the case, but it is also important to be ready to discuss the statistical information about the parties – judges need to have this kind of information in hand to assist the parties at a status conference. Legal rules can only be applied to relevant facts.
Second – If you are the Plaintiff / Petitioner, have you provided all of the required discovery to the opposing party within the statutory deadline? Note the applicable statutes – ORS 135.815 et seq and ORS 107.089 for example. Consider the subject matter of the case, and provide the information which you know will be requested and required for the opposing party to make an informed decision about how to proceed. Likewise, if you are the Defendant / Respondent, have you provided the reciprocal discovery you know you are required to provide? Litigants often seem to think that the Judge has all of this information. As attorneys, you know that the details of the case are in the attorneys’ hands.
If the parties have not exchanged discovery by the time of the pretrial or status hearing, these issues can be brought up with the court, and often they can be solved by setting a stipulated date to provide the missing documentation. If the necessary records are in the hands of a third party, then subpoenas and protective orders can be discussed. There are Supplemental Rules which outline how these matters are supposed to be handled. Take some time to read the rules, and ask questions of local practitioners about process. Uniform Trial Court Rule 6.010 contains the basics on conferences in civil proceedings. Chapter 6 of the SLR for each county is the place to look for local protocols. A good example is SLR 6.013 in Washington County. These court rules are a great resource for figuring out the nuts and bolts of how to do things.
Third – if you are the Plaintiff/ Petitioner, have you made an offer to the opposing party that would allow the case to be settled? There are a number of statutory provisions in ORS Chapter 135 and 107 regarding plea and settlement discussions, which need to be considered. In criminal Case Management Conferences there is a problem if a late offer is communicated to defense counsel; leaving inadequate time for review with the defendant. Often the Defendant has difficulty (for whatever reason) in getting in to meet with the defense attorney. Sometimes setting an additional Case Management Conference in a short but reasonable time frame can clear up discovery; give time for a real review of the offer made by the State; and bring about a voluntary case resolution. If the discovery is available, and brief, an attorney can have a quick review with a client in the jury room, or cafeteria and avoid the need for a reset. In either event, a more appropriate trial date can be selected when the parties are better prepared. A case should not proceed to trial unless the parties have the opportunity to prepare, and make reasonable efforts to resolve the case voluntarily.
This principle is equally true in Family Law Cases. In recent months I have begun explicitly asking the questions: Petitioner, “Have you made an offer to settle?” Respondent, “Have you responded to the offer with a yes, a no, or a counteroffer?” In a surprising number of cases, there have been no real settlement discussions between the parties. Since the parties are spending their own, often limited, resources on litigation, it is important to get the settlement discussions started. Many times the trial judge is able to assist with an issue or two to help the parties to resolve the case once the conversation is started.
Fourth – if you have all discovery complete, you know your case, and you’ve exhausted your settlement options, be ready to set and stick to a reasonable trial date. Oregon has had standards for timely case disposition since 1990 for criminal cases, and 1991 for domestic relations cases. Your case will be set for trial according to those standards, and your assigned trial judge or the presiding judge will likely deny any reset request which put the case outside of those standards. This makes all of the preparation you have been doing in steps one through three doubly important.