The Honorable Daniel R. Murphy, Circuit Judge, Linn County Circuit Court
In all areas of practice attorneys are called upon to provide sufficient information in a short evidentiary hearing to obtain a ruling. It may be an evidentiary ruling. It may be temporary relief, a protective order, a discovery dispute, and many other pre trial matters that are handled in a short hearing.
Case filings continue to increase while Oregon courts are faced with no more docket time and often less due to staff and judge shortages.
The challenge for attorneys is how to make the best use of this limited time to get before the judge the essential evidence needed to make a good decision. These hearing times can be as little as 30 minutes and often not more than an hour or two. Here are some tips on how to use that short time to be most effective.
- Stipulate to as much as you can: Contact opposing counsel as soon as you can and offer to stipulate to facts that are not in controversy in exchange for stipulations that you need.
- Maintain Focus on the issues at hand: there is often a temptation to ask questions about every dispute that exists and every complaint your client has, even those that are not relevant to the limited issue before the court. Every minute spent on these irrelevant matters denies you time to offer proof on what is crucial to the limited issue before the court.
- Object to irrelevant and redundant questions: even if you carefully limit your inquiry to what is relevant opposing counsel can waste everyone’s time with repetitive evidence or long diversions. Be prepared to raise the relevance objection and limit the evidence to what the judge must decide at this time.
- Limit Opening statements and closing arguments: there is not sufficient time during a short hearing for long openings and closings. Judges must make decisions based on evidence, not on argument. Consider waiving opening. It is extraordinarily rare that an attorney gains any advantage from an opening statement in short hearing. Limit your closing to 2 or 3 issues – no more than 3 minutes.
- Obtain stipulations to documents: time is saved when stipulations to documents are used. Unless you cannot lay the foundation for a document no one should be objecting to it. With a proper foundation it will come in.
- Prepare your witnesses: this is especially true of clients who want to tell their whole story and digress. Tell them up front what you are going to ask them. Preferably give them the questions in writing before the day of the hearing so they can be prepared to answer them. If a witness cannot remember events reliably or cannot remember dates, times and places do not ask those questions.
- Make sure the facts are available: insure that you are calling the right witness to prove the facts at issue. Does this witness know these facts or is it merely hearsay or supposition? Focus on what is admissible. Ask the witness in advance how they know what they say they know it.
- Limit the number of witnesses: you have only a short time. Call only the most essential witnesses to offer the essential evidence the court needs to render a decision.
- Make sure a witness is credible: find out about their criminal record in advance. Find out if they have previously testified in the case and what that testimony was. Review depositions if they exist to make sure you do not ask the wrong question and ambush your own case.
- Google the Ten Commandments of Cross Examination by Irving Younger. These are golden. Effective cross examination is the greatest challenge for trial attorneys and often the least skillfully done. Short hearings are not discovery opportunities or fishing expeditions. If you do not know the answer likely to be given do not even ask the question – unless you really can impeach the witness. Often the most effective cross examination are these seven words: “I have no questions of this witness”.
- Almost always call your most important witness first. If you run out of time you have the most crucial evidence in.
- Know your judge: if you have not practiced before the judge in the past ask colleagues about the judge. What are the judge’s preferences, attitudes about going over time, etc? Irritating the fact finder is never a good strategy.
- Offer findings of fact: be prepared to offer the judge written proposed findings of fact and be prepared to amend them as needed. Most judges are buried in work and anything you can do to reduce their work demands is effective. On the other hand do not offer proposed findings of fact that are not supported by the evidence.
- Do not overlook possible settlement: good lawyers settle as many disputed matters as quickly as they can and they don’t give up on their efforts to settle. Document those efforts carefully – they may be valuable when you seek an attorney fee award.
- Be organized: nothing frustrates a judge more than a disorganized attorney. Prepare a trial notebook with an outline of the essential facts you need to elicit. Pre-mark all exhibits in advance (the rules require it) and have a copy available for opposing counsel, the court clerk and the judge. Submit an exhibit list to the judge and clerk in advance.
- Have an exit strategy: think about how you will want to proceed if you lose on the initial hearing. This inspires confidence from your client and helps you plan your strategy for trial.
The most effective attorneys in short hearings are those that are well organized, have prepared thoroughly, know what their witnesses know and how they know it, and have planned out the crucial evidence they need to offer while pruning away that which is not essential.
Daniel R. Murphy is the presiding judge of the 23rd judicial district in Linn County, Oregon. He has been on the bench since 1994. He is also the editor of the OSB Family Law Newsletter.