The Honorable Henry Kantor, Multnomah County Circuit Court
The last column was written by Judge Eve Miller and was entitled “Managing Multi-Party/Complex Litigation Without Driving Judge’s Staff Crazy.” I am really glad Judge Miller wrote that article. It provided helpful hints to lawyers so that they and their staff could work with the judge’s staff professionally and productively.
My focus is a little different. Over 21 years of managing “Big Cases,” I have learned what works and doesn’t work in a lot of different areas. Lawyers really can help judges manage the complex cases in a way designed “to secure the just, speedy, and inexpensive determination” of each case, as mandated by ORCP 1B and within the intent of UTCR 7.030 (our uniform trial court rule governing complex cases). And, just as importantly, lawyers can make it difficult for judges to manage complex cases. Here are some pointers on how to do it the right way:
Talk With Each Other. Seriously, talk – in person is best; by telephone is adequate. Letters, emails and texts are no substitute for talking. Serious or detailed disputes resolve best with clear conversation and compromise. Confer by talking even when the court rules don’t require it. This will translate to fewer motions and hearings and less stress on your judge.
Pleading Problems. In complex cases, pleading issues rarely mean anything. Don’t waste your time. Most claims and defenses will rise or fall naturally without motion practice, especially ORCP 21 motion practice.
Time Estimates. Whether it’s a motion hearing or a trial, be thoughtful and practical when estimating how much court time you will need. Talk with each other and remember it’s better to finish before expected than to go past the deadline, especially when your judge needs to call the jail to have an inmate transported to the courtroom. The same is true for briefing motions and other legal issues. Last minute extensions of time often create planning problems for judges, who budget their time very differently than do lawyers. For trials, build in time for pretrial motions, jury selection, precautionary instructions, opening statements, instruction conferences, jury instructions, closing arguments and jury deliberations – it’s not just about the presentation of evidence.
It’s Just Too Much. The average Oregon state court trial judge has limited to no experience managing complex civil cases. It is natural for a judge to feel overwhelmed or even intimidated by 20+ defendants, 10+ lawyers, 15+ claims for relief, 25+ affirmative defenses, dozens of motions and mounds of paper. You need to acknowledge that when appropriate and offer to help in meaningful and professional ways. So, you need to make sure you know your judge’s background and experience. If you don’t know, politely ask.
Mentor Judges. Whether you know it or not, and whether you suggest it or not, judges routinely communicate with their judicial colleagues about pending cases, especially challenging cases, via telephone, email and instant message. Don’t be concerned – this is a good thing. A decent mentor judge is someone with lots of experience. She or he offers support and guidance – but does not tell your judge how to rule. Rather, your judge might be told how other judges have ruled on the same or similar issue, how to construct an effective ruling and where to look for pertinent legal authority. Encourage your judge to reach out to a mentor judge when appropriate. Do not criticize your judge for asking for or receiving help.
It’s Been Written Down. There are court decisions, procedural rules, textbooks and articles on 99% of all conceivable issues which can arise in complex litigation. The bible is the Manual for Complex Litigation, published by the Federal Judicial Center and currently in its fourth edition. If you plan to cite to the Manual, consider getting all lawyers in your case to gather $17 (plus shipping) and buy one for your judge. It also is available for free at http://www.fjc.gov/public/pdf.nsf/lookup/MCL40000.pdf/$file/MCL40000.pdf but (sounding old school here) there’s nothing like being able to flip right to the key section during a court hearing.
Local Counsel. In many complex cases, lawyers from other states represent one or more parties pro hac vice, with associated local counsel. Tell your out-of-state counsel that local knowledge matters and invite your judge to rely on you. This means you have to be truly involved with and knowledgeable about your case.
Thanks for reading this.