Category: Judge’s Corner

The Honorable Daniel R. Murphy, Linn County Circuit Court

It cannot be emphasized enough that the better organized attorney in the courtroom will nearly always do better than the disorganized attorney. Judges and juries cannot help but notice how well counsel is organized. Attorneys who are naturally predisposed toward being organized have an advantage here but anyone can learn to organize themselves and exercise some self-discipline when preparing for trial.

Trial Notebook

Nothing impresses less than a manila file folder stuffed full of disorganized documents and an attorney wasting everyone’s time sifting through such a file and mumbling about how “it was just here”. I have seen this many times and the effect is the same each time.

File folders are not for trial! They are for storage of documents. To be organized at trial the practitioner needs to create a trial notebook with sections devoted to the various phases of the trial. This way notes, exhibits and other documents are at your fingertips when needed. The trial notebook can be paper-based or on a computer. I suggest the paper based version continues to be best because you need paper documents to offer into evidence.

How you organize your trial notebook is a personal preference but at the very least each one should include tabbed and labeled sections on:

1. Jury Instructions in writing


2. Voir Dire in Jury Trials


3. Legal Memoranda – read and follow UTCR 6.050 regarding trial memos.


4. Opening Statement


5. Notes for examining your witnesses including, as needed, past recollection recorded; photographs, etc.


6. Notes for cross examining their witnesses including impeachment documents.


7. Exhibits including the original to offer to the court clerk, a copy for the witness, a copy for you, a copy for counsel and a copy for the judge. Exhibits should all be properly marked.


8. Notes on any anticipated motions during trial or difficult evidentiary issues.


9. Closing Argument


10. Any motions or memoranda you intend to file at end of case.

Exhibits

A trial attorney who handles exhibits with confidence and expertise will dominate a courtroom and inspire confidence. An attorney who fumbles with exhibits, has to mark them as they offer them, cannot keep track of what number they are on, and otherwise appears disorganized will not impress anyone.

All possible exhibits should be pre-marked with evidence labels and numbered pursuant to UTCR 6.080. If the number of exhibits is large or there are multiple parties counsel needs to confer with the other parties to coordinate the numbering. This should not be left to the morning of trial.

If counsel is rusty on laying foundations it would be wise to put a cheat sheet in the trial notebook for how to lay the foundation for exhibits, especially certain records and photographs.

Witnesses

It is very important that counsel prepare for witnesses and prepare witnesses in advance of trial.

Counsel should talk to all witnesses prior to trial and make sure counsel understands what the witness knows from personal knowledge (unless there is a clear exception to the hearsay rule that applies). Counsel should never rely on what their client tells them a witness knows or can testify to.

To avoid cumulative and redundant testimony counsel needs to know in advance and prepare for what the witness can testify to.

Witnesses should also be told about courtroom procedure. They need to know what to expect, where to go, how the swearing in process works, etc. They should be told when to report to the courthouse, where to go in the courthouse and the importance of remaining available until excused.

Counsel must have a reasonably accurate estimate for how long their portion of the trial will take. To determine this counsel must prepare direct examination carefully and know how long each witness will be on the stand. At best counsel must estimate how long cross examination will take.

For multiple day trials the estimation of how long witnesses will take on the stand becomes even more critical because witnesses must be scheduled. The best way to irritate a judge or a jury is to announce mid-day that you have run out of witnesses and ask for a recess until the next day.

Know Who You Will be Working With

If counsel has not tried a case with a particular attorney on the other side before they should speak to others who know that attorney to get an idea of the attorney’s style in the courtroom. Halfway through opening statement is not a good time to start learning about your adversary’s style.

Even more important counsel must know the preferences of the judge. If counsel has not appeared before a particular judge for trial before it is important to speak to attorneys who have to learn the judge’s preferences and quirks. It is also wise to speak to the judge’s judicial assistant in advance, the one who sits in court with the judge. The judicial assistant can provide very valuable information about what the judge prefers.

An experienced trial judge can tell in two minutes if counsel has prepared for trial in advance or if they first looked at their file the morning of trial. It is painfully obvious. Though juries may not be as astute they quickly learn which attorney in the courtroom has prepared and which has not. You do not want to be the one they decide has not prepared.

The better you prepare for trial and the more organized you appear the better impression you will make on both judges and juries and the more effective you will be in presenting evidence and argument. To be an effective litigator you must inspire confidence and trust. A lack of organization does not inspire confidence or trust. Spend the time you need to prepare well. It pays off greatly in many ways.

The Honorable Lindsay Partridge, Marion County Circuit Court

In December, 2014, Marion County courts converted to Odyssey including juvenile court where I preside. Over the last two years, I have witnessed many positive changes from the implementation, but Odyssey has created some new challenges as well. The purpose of this article is to highlight my observations about the impact on Odyssey in juvenile court – and in particular during court proceedings. The thoughts that follow are mine alone – and perhaps are subject to criticism due to my ongoing challenge to adapt to technological changes.

The Upgrades

Storage. As advertised, Odyssey greatly reduced physical storage needs. This benefit will become even more significant into the future – ask yourself where would all the papers files become stored in 2035 if the courts didn’t convert? Additionally, court staff can take their physical therapist off their speed dial as Odyssey has relieved staff of the daily duty to gather voluminous files, transfer files to the bench and refile after court. In juvenile court this change is particularly beneficial. In the past, one child’s case could produce a paper file a foot thick as it contained all documents covering their entire childhood. A single file and case number contained all petitions and associated documents regardless of the number of dependency or delinquency petitions filed from birth to majority. With Odyssey a click of a mouse now enables the judge to access the same information.

Access to information. Juvenile court judges now can access more complete information about parties. The information may relate to other juvenile court cases involving the parents, criminal matters and domestic relations cases. In addition, Odyssey allows a judge to access statewide information much easier than in OJIN. Odyssey also allows the court to review actual documents relating to cases. Such information provides a judge an opportunity to gain a more complete picture of a family and to coordinate case planning with other juvenile court judges.

Electronic notes. Attorneys may not be aware that Odyssey contains a provision known as Judge Edition. Judge Edition allows judges to make notes about each court event – either during or after the court session. Of course, judges could make notes under the paper file system, but one problem was the legibility of such notes. Let’s just say that perhaps only the medical profession has worse handwriting than the legal profession. (I confess Mrs. Miller from second grade would be aghast to see my handwriting today). Judge Edition allows for organized and legible information for a judge in the future to get a quick feel for the history of a child and family. This aspect is extremely beneficial as a child may be subject to a number of legal proceedings over their childhood and many different judges may preside over various court events affecting the child. The ability of a judge to look over the history of the child’s legal events places the judge in a better position to make decisions.

Needs Improvement

Odyssey is S * * L ** O ** W. In a race between the tortoise and the hare – Odyssey comes in a distant third. A juvenile docket often consists of many cases scheduled back to back during the same court session and requires the judge to efficiently move through a number of cases in a given amount of time. The court’s ability to process cases efficiently requires prompt access to information like pending petitions, prior judgments and notes in Judge Edition. Under the Odyssey system, cases often are delayed in court while the court waits for case information to load. The delay is more pronounced if multiple cases are associated with the same family or individual. The delay results in parties staring at the judge, while the judge is held hostage by a spinning wheel of death on the computer screen.

Multiple case numbers. A significant difference between juvenile court cases and other court case types is the length of time a child or family is involved with the court system. It is common for a child to have a court proceeding that dates back a decade or more from the current court event. Judges often preside over cases where children who first came to juvenile court as a dependent ward later become the subject of delinquency petitions. Prior to Odyssey, each child had a single case file and a single case number during their entire childhood. The judge had one file that contained all information regarding the child – regardless of the number of dependency or delinquency petitions.

Odyssey requires the court to assign a new case number each time the state files a new dependency or delinquency petition. Additionally, in a dependency case involving multiple siblings, each sibling has a different petition and case number. Matters often get further complicated because various siblings may have different parents (usually fathers), and different parents may have separate petitions. Therefore, a judge could review a case that could include in excess of 10 case numbers.

In order to access all the previous notes for the children in Judge Edition, Odyssey requires the court to group the cases together electronically. In attempting to access case data in open court, the judge must wait for Odyssey to load all cases. During a court session, this delay brings the court docket to a screeching halt. Additionally, dealing with multiple petitions and multiple case numbers requires the judge to bounce from case to case to review petitions and other documents. Switching between cases again delays court proceedings as everyone waits for Odyssey to make the new information from a separate case magically appear on a computer screen.

Potential for loss of personal connection. In my opinion, an effective juvenile court judge seeks to foster a connection between the judge and parties. Judges must ensure the rights of parties are protected, yet hold parents and youth actionable for their decisions. In many cases, these individuals suffer from substance abuse, past trauma and mental illness. It is important for the judge to encourage and support parents and youth in making needed changes.

This goal is hampered by a judge who constantly stares at a computer screen during court proceedings. Often I must remind myself that acquiring every piece of data may not be as important as demonstrating concern and respect for parties. Judges must remain conscious of the need to meaningfully interact with parties. The integrity of the judicial system requires that participants feel they are heard and respected. Staring at a computer screen like a teenager playing Xbox threatens this duty. The access to information cannot undermine access to justice.

Odyssey has provided judges unprecedented access to information and is a tremendous tool in increasing court efficiency now and into the future. However, we must remind ourselves that access to case data cannot undermine access to justice as we embrace technological change.

The Honorable Curtis Conover, Lane County Circuit Court

In 2010, Chief Justice De Muniz adopted UTCR 5.150 authorizing “expedited civil jury cases.” The rule allows attorneys to designate a case as an “expedited case” which will streamline discovery and motions practice, exempt the case from arbitration and mediation requirements and provide a trial date within four months of the designation. The proponents of the rule anticipated that by using this expedited process, parties could resolve their cases quicker and with less cost.

Presently, however, this program is underutilized. Or perhaps more honestly stated, almost never utilized. In order to encourage the use of streamlined jury trials and respond to the widespread perception of the decline of civil jury trials in Oregon (previously discussed in this and other publications) the Lane County Circuit Court has implemented a streamlined civil jury trial pilot program. The Lane County Streamlined Jury Trial Project seeks to raise awareness of the civil jury trial and, where appropriate, facilitate agreement for streamlined discovery and jury trial procedure.

The purpose of this note is to inform readers of this program and its requirements. Even if you rarely practice in Lane County, several significant provisions deserve particular attention, such as: mandatory inclusion of eligible cases (with the ability to opt-out) and an initial case management conference held shortly after the case is deemed “at-issue.” Other judicial districts have been encouraged to adopt streamlined trial procedures and Jackson County has already implemented a similar program. It is critical for practitioners involved with an eligible case refer to the OJD websites to become familiar with each county’s specific procedures.

Even if your practice does not include eligible cases, litigators in Oregon should be aware of these programs which may benefit clients with relatively small claims and a need for an efficient and cost-effective resolution–as well as the incidental benefit of allowing new (and not-so-new) lawyers a means to gain jury trial experience.

Lane County’s pilot program is currently authorized by a General Order of the Presiding Judge, pending adoption of a supplemental local rule. The program includes civil cases which seek recovery of monetary damages of $100,000 or less and excludes debt collections, foreclosures, domestic relations and cases where a party is unrepresented. Cases which meet the criteria for the Streamlined Jury Trial Project are automatically included in the program and exempt from mandatory mediation and arbitration. The filing party must place in the caption of a pleading (including a claim, counterclaim, cross claim, and third-party claim): “SUBJECT TO STREAMLINED JURY TRIAL PROJECT”.

A party may opt out of the Streamlined Trial Project only by filing and serving a timely notice of removal. Removal is automatic subject to the following:

(i) A plaintiff must file the notice within thirty (30) days of the filing of the action or, if a counterclaim is asserted, within fourteen (14) days of the filing of the counterclaim.

(ii) A defendant or third party defendant must file the notice with that party’s first appearance.

(iii) A party must state the reason for removal in the notice.

(iv) A party may file a motion to remove the case from the SJTP for good cause shown related to a new development that could not have been previously identified.

For each case in the Streamlined Trial Project, the court will set a trial date as provided by UTCR 7.020. Within four weeks of the court issuing the Ready for Trial Notice, each party must provide to all other parties the discovery as required in UTCR 5.150 (4)(a). In addition, no party shall: Take more than four hours of deposition; Serve more than one set of requests for production; Serve more than one set of requests for admission; and File a pretrial motion, including a motion for summary judgment, absent prior leave of the court.

Six weeks after the ready for trial notice is issued, the court will schedule a case management conference with the attorneys. This will be the only pretrial conference required by the court, although the parties may request further conferences with a judge at any time to address discovery or evidentiary issues. At the case management conference, the judge will facilitate the parties’ agreement for streamlined procedures for discovery and trial, including a six or eight-person jury. The conference will also allow the parties to make a discovery schedule if appropriate and, if requested, set an earlier trial date. The underlying purpose of this conference is to provide the parties with the flexibility to achieve an efficient resolution of their case.

Since the implementation in July, 44 cases have been assigned to the program. Several of these cases are currently scheduled for the initial case management conference later this month. No party has yet opted out of the program. Late next year our court will evaluate the effectiveness of this pilot program and consider whether the program should continue. Thus far, both plaintiffs’ and defense attorneys have expressed optimism with this program. We are therefore encouraged that the program can provide the means for litigants to achieve an efficient resolution of their case and for attorneys to develop jury trial experience. Please refer to the Lane County website at http://courts.oregon.gov/Lane/Pages/index.aspx for the complete rule.

The Honorable Ilisa Rooke-Ley, Lane County Circuit Court

Before I became a Lane County Circuit Court Judge six years ago, I was an Assistant Public Defender in Florida and Oregon. As a judge, I have presided over criminal dockets, “ex parte”, civil show cause, FED’s, small claims, traffics, juvenile and tried both civil and criminal jury trials. My current assignment is Treatment Court and Veteran’s Treatment Court. Here are some tips (advice) for both seasoned practitioners and newcomers:

1. If you practice law in Oregon, you will have a client, no matter what your field of practice, whom would benefit from treatment court.


2. If your county has a treatment court, familiarize yourself with the practices and procedures. These courts save lives, families and precious tax dollars.


3. If your county does not have a treatment court, start one. The National Association of Drug Court Professions (nadcp.org) and Oregon Association of Drug Court Professionals (oadcp.org) websites have everything you need to know about what it will take to implement a treatment court.


4. Humanize your client whether during a trial, a settlement conference or placing a settlement on the record. Your client knows when you are rushed, unprepared or not committed to the matter at hand. The justice system, your reputation and your client suffer when you are just going through the motions.


5. When asked for the legal authority of a proposition you are suggesting, do not utter the words, “I know there is a case…but I cannot remember the name … I have no cite…”


6. If you decide to represent someone in a juvenile court matter, learn, understand and use the proper legal terms associated with juvenile court jurisdiction. Talk to other lawyers and staff before you appear to familiarize yourself with the proper procedures.


7. Err on the side of formality. Always. Stand whenever addressing the judge even for a simple “yes” or “no “.


8. Criminal legal issues are frightening and confusing to your clients. Make you sure you address potential consequences of a conviction such as a driver’s license suspension or the lack of ability to leave the state due to probation. Make sure to talk to your client about “Waiver of Indictment” and “Waiver of Dismissed Charges” before appearing before the judge.


9. Prepare your client for the particular judge and her rules. Don’t wait until the Judge admonishes your client for wearing an inappropriate shirt or a hat. Teach your litigant how to address the judge.


10. Court staff are listening and reporting to judges. Court staff are the people you want on your side. Disrespecting a judge’s staff is very concerning and your reputation will suffer.


11. Judges have a Birdseye view of the courtroom. We see your impatience, grimaces and eye rolling. And so does your client. Model professional behavior.


12. If you are representing a party and the other side is pro se, proceed with grace and professionalism. Judges have a duty to report unprofessional behavior and that includes bullying pro se litigants by taking advantage of their lack of knowledge of the evidence code.


13. A “shrug” is never an answer to a question.


14. Dress to win and support your client by making suggestions about his or her apparel.


15. Do not say “my bad” ever.


16. Colloquiums are best left for the judge.


17. Object with certainty AND with basis (“Objection, hearsay” or “Objection, lack of foundation”).


18. “Ex parte” is a court proceeding and pro se litigants will mimic your attitude.


19. Read your yellow books (also known as the Advance Sheets). Stay ahead of the game.


20. Practice the type of law you love and love your practice of law.

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.