Category: Judge’s Corner

The Honorable Eve L. Miller, Clackamas County Circuit Court

Early on in my career as a lawyer, I learned that the key to my success was to keep the courthouse staff happy, especially the judicial clerks and assistants.

Fast forward to more than 30 years later, with 16 years of trial practice and 19 years as a circuit court judge, I still maintain that the way to a judge’s heart is through good behavior in the courthouse. Further, I will tell you that just about everything that goes on in the courthouse or a particular courtroom gets back to the judges AND the judges talk amongst themselves about lawyers who behave badly to staff.

Here are a few important tips we want to share with trial attorneys, especially when you have a case that has been designated as complex and assigned to a particular judge.

Judicial Clerk (JC) PERSPECTIVE:

• Please have all exhibits properly marked.


• If there are multiple defendants, the court will assign each defendant a series of numbers, e.g., defendant 1 is 100-199; defendant 2 is 200-299, etc.


• Provide the clerk with a list of pre-marked exhibits.


• Bring extra exhibit stickers.


• Power point/video and projector/computer needs.


• Do not assume every courtroom is equipped with technology for the lawyer’s laptops and projectors.


• Make sure your audio and computer cords are compatible with the court’s system. If you require a podium or easel with paper, check ahead of time; not every courtroom may be equipped.


• Do not assume the JC is tech savvy and able to hook up or run your equipment.


• Call ahead and meet with clerk to determine what is needed and available.

Judicial Assistant (JA) PERSPECTIVE:

• Keep JA informed by email of newly filed pleadings.


• Call to speak with the JA to determine that judge’s preferences. Some judges want only electronic documents attached to an email; others may prefer paper. Some prefer 3-hole punched in a notebook; others may not.


• Do not email the judge directly unless you have been given specific permission to do so.


• Respond promptly to requests for scheduling dates.


• Designate a legal assistant to obtain potential dates and times for hearings and trial. The designee can then coordinate with the other parties and save the JA from that task.


• Organizational tools/charts are helpful.


• If you need a chart to keep the parties and claims organized in cases with many parties and cross-claims and third-party claims, the judge and staff could use one as well. I am happy to use whatever charts and/or lists you have created if it saves me from having to create my own. For example, in a recent construction defect case involving 19 parties, there were a dozen or more motions for summary judgment and other pretrial motions. One of the attorneys created a detailed summary of the various claims and an indication of which attorney represented each party.

The Honorable Lisa Greif, Jackson County Circuit Court

I have been a circuit court judge in Jackson County since January 2009. In these seven plus years, I have, like many of my colleagues, developed preferences for what I do and don’t like in my courtroom. What follows is a short list of some of my “pet peeves” and “delights.”

DO be on time. If you are going to be late to court, a phone call to one of the clerks or judicial assistants with a heads up is much appreciated. I would program all of the judges’ clerks and/or judicial assistants’ extensions into your cell phone so the numbers are readily accessible. Or, another option is to have another attorney who is going to be in the same courtroom let the judge know your status when the case is called. When I can’t move forward on the docket due to attorneys who are MIA, it is quite frustrating.

DON’T forget to silence your cell phone when you are in the courtroom and please tell your clients to do the same. It’s bad enough when a party, witness, or spectator’s cell phone goes off in the middle of a session (I particularly enjoy the loud rap or heavy metal music ringtones); it’s even worse when it’s an attorney sitting near or at the counsel tables.

DO talk to your clients about how to dress for/appear in court. It can be hard for me to take a person seriously who is wearing a baseball cap, smacking gum loudly, has a Budweiser t-shirt on, or who literally looks like they just rolled out of bed and are wearing pajamas. I don’t need a suit and tie (although, let me tell you, this does stand out), but at least have your clients come to court looking semi-presentable. When I was an attorney, I used to tell my clients to wear what they would to church or to a job interview. Most of the time they showed up looking pretty respectable. Remember that decorum is about aligning one’s conduct and appearance with the matter at hand. Everyone is reminded of the importance of the work we do when your client dresses as if Court were an important matter to him or her.

DO prepare exhibit lists for the judge. Try to show your exhibits to opposing counsel in advance if at all possible and definitely bring a copy for the other side. That way we don’t have attorneys spending court time reading a 50 page document in the middle of a trial or hearing. If you can get your hands on a stash of exhibit stickers, it is very helpful to have them pre-marked. All of these facilitate the introduction of any physical evidence occur in a timely manner.

DON’T forget to brush up on character/prior bad acts evidence. I think a lot of attorneys (and judges) struggle with this area of the law. I had a pretty awful criminal trial my first year as a judge involving Measure 11 sex offenses. I allowed some prior bad acts evidence to come in against the defendant and the case was ultimately reversed by the Court of Appeals. I still wish I had ruled differently (yes, even judges perseverate about decisions they make).

DO submit trial or hearing memorandums when appropriate. I don’t handle any jury trials in my current caseload of juvenile, probate, domestic relations, and treatment courts, so I make all of the decisions in the cases that come before me. It’s great to know what is at issue, get a condensed history of prior court proceedings, and be referred to the pertinent statutory provisions and case law. I have come to appreciate the memorandums and find them to be very effective “road maps.”

DON’T object just for the sake of making an objection. Does it harm your case or your client? Then don’t object. When I preside over trials with veteran lawyers, they hardly ever seem to object to the evidence. The overuse of objections drives judges (and juries) crazy in my opinion. And when you do make an objection, stand up and clearly say “objection” and then follow immediately with the basis for the objection. Finally, don’t argue with the judge or overreact if you don’t agree with the ruling. Simply saying “thank you, your honor” is greatly appreciated.

DO know your judge. Is he/she an evidence guru? How formal is he/she in the courtroom? Does the judge enjoy humor from time to time? Are there any quirks you need to know about? Ask other attorneys who regularly appear before the judge for tips in advance. I have also seen attorneys post questions about judges on some of the e-mail list serves (OWLS, OSB sections, etc.). Just be careful to not reply to the entire list publicly, as judges are on these lists too. If you have time, go watch the judge in session to observe for yourself his/her mannerisms, personality, etc. As an attorney, I often went to visit with the judge after a trial or hearing to get feedback. This proved to be quite helpful for future cases. In my county, the judges have an open door policy. We all enjoy chatting with the lawyers and getting to know them better. The judges I work with are happy to give an attorney who comes by our offices an honest assessment of his/her court presentation.

And lastly, DON’T overlook the importance of professional courtesy and respect. And, not just towards the judge. Courtesy and respect should also be extended to opposing counsel, the other parties, witnesses, and court staff. You are not going to make a good impression on me if you are belittling other people in the courtroom or if you are rude and condescending to my clerks or judicial assistant. If you are cordial and maintain an appropriate demeanor, it will go a long way.

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.

The Honorable Judge Richard Barron, Presiding Judge, Coos/Curry County Circuit Court

ORCP 52 A and ORS 136.070 generally govern requests to postpone a trial. They require that such requests be for good or sufficient cause. ORCP 52 B specifies what the court may require if the postponement relates to a lack of evidence and ORS 136.080 allows a court to require the requesting party to agree to the taking of a deposition of a witness as a condition precedent to allowing the postponement. Each statute and rule relating to postponements gives the court discretion to allow such postponements and set terms for allowing such postponements. In civil cases one of those terms may be requiring the requesting party to pay the expenses of the opposing party caused by the postponement. ORCP 52 A. All requests for postponement are discretionary with the court.

UTCR 6.030 sets forth the procedure for requesting a postponement of a trial and sets forth what a motion to postpone must contain generally and in specific types of requests. All motions to postpone must be in writing. UTCR 6.030(1). The court is not required to hold a hearing on a motion to postpone and can summarily decide such motions. UTCR 6.030(5) and (6).

It would be very helpful to the courts if parties followed the statutes and rules governing requests to postpone trials. Postponements delay the resolution of a case and mean the court is continuing a case as a pending case along with new cases being filed. It is not a situation courts want to occur.

In civil cases parties often file what are entitled “Stipulated Motions to Postpone a Trial.” The court is not a party to any such stipulation and, as such, does not have to allow the postponement of a trial. Parties can file a stipulated motion to postpone by stipulation under UTCR 6.030(4). This rule has been in effect for more than 25 years. It requires that a motion to postpone a trial be filed at least 28 days prior to the current trial date and that the new trial date be within one year from the filing of the complaint in civil cases. The motion has to be signed by the attorneys of record and state that the attorneys have advised their clients of the stipulation and that the clients agree to the postponement. Finally, the motion must set forth the current and proposed trial dates, and state that the proposed trial date is available on the court’s docket. Since stipulated motions for postponement that are being filed rarely contain the information required by the rule, it appears that the rule is not being consulted before a stipulated motion to postpone is filed.

Before a motion is filed requesting a trial be postponed, parties should attempt to see if there is some way in which a postponement can be avoided. For example, when a witness may be unavailable, the parties may agree that a summary of witness’s testimony may be used in place of the witness appearing at trial. The parties might also agree that certain documents are admissible without a foundation witness who may be unavailable.

Many years ago the State-Federal Judicial Council met and decided that if two cases are set in different courts at the same time, priority goes to the case first set and not the oldest case. With that said, UTCR 6.030(3) sets forth what information must be in motion and UTCR 6.040 provides a procedure for resolving the conflict. It is best not to schedule different matters in different courts at the same time.

Parties should not create their own need for a postponement. Most, if not all, courts consult with the parties before a trial date is set. In criminal cases the consultation may be while the parties are in court and in civil cases the consultation may be in requests sent by the court to the parties asking them to choose a trial date and notify the court. When the trial date is chosen by the parties, hopefully, they already know the availability of their witnesses. If they do not, it is incumbent on them to immediately contact the witnesses that are necessary for the trial so that if a witness is not available, a motion to postpone the trial date can be quickly filed. Parties should not expect a postponement to be allowed when they wait a long period of time to check on the availability of witnesses, especially if they wait until shortly before the trial. Witnesses, even experts, should receive a subpoena. A court may not postpone a case when a witness decides not to appear and has not received a subpoena.

Also, parties should not delay the time for completing discovery and use that as a basis to request a postponement because they want to engage in settlement negotiations after the date set for trial, file what they believe is a dispositive motion after the time set forth in the rules, or want to complete discovery, but do not have sufficient time before the date set for trial. Discovery should be completed in a timely manner so a trial can proceed as scheduled. If a party is not receiving discovery as required and allowed by the rules, it is not unreasonable or unprofessional to file a motion to compel early in a case. Filing a motion to compel late in the case and requesting a postponement because discovery is not complete may not be a basis for the court allowing a postponement.

If a case clearly needs to be set after one year from the date of filing in a civil case, UTCR 7.020(5) and (6) provide a procedure for making such a request and that procedure should be followed rather than requesting a postponement after a trial date has been set. The great majority of cases can be tried within one year of the date of filing and the parties should work to make sure they comply with that timeline. In this regard, in civil cases, the earlier the parties can agree on a trial date the better for the court and the parties. For example, allowing lengthy extensions to file pleadings may mean the parties have to find a trial date within one year of filing the case after several months have passed. If that happens or the parties agree on a date 11 months after the case is filed may mean the parties cannot take advantage of UTCR 6.030(4), mentioned above, if they want to file a stipulated motion to postpone.

Parties should also understand that in smaller courts setting a case for more than a week takes up court time and requesting a postponement means, in some cases, that court time is wasted and that the case, if it has to be postponed, will possibly be set many months into the future. It is not easy to just set a case over for a short period of time.

Finally, parties need to know that the Chief Justice in January 2015 adopted as two of the guiding principles of the Oregon Docket Management Initiative that “the court controls the pace of litigation” and “the court creates and maintains expectations that events will occur when they are scheduled.” These principles apply to trial dates and are very relevant to requests for postponements.

The Honorable Judge Suzanne Chanti, Lane County Circuit Court Judge

Litigation is the process of resolving conflict through the justice system. That is what lawyers who call themselves litigators do. The sine non qua of litigation is the jury trial. Yet, many litigators have never tried a case to a jury and many more have had so few jury trials that they have been unable to efficiently and effectively build on those experiences. Consider the state court statistics for 2001: In that year, statewide, 43,444 filed civil cases (excluding small claims, domestic relations and FED cases) terminated. Of those, 1097 terminated by trial. Of those trials, 701 were tried to a court and 396 were tried to a jury. In 2011 the number of terminated civil cases totaled 70,797. Of those cases, 880 were terminated by trial. Of those trials, 709 were bench trials and 301 were to a jury. Statistics for the intervening years are similar and there is no reason to think that the percentage of cases tried to a jury has increased in the past five years. ¹

A lot has been written about the disappearing jury trial. Some people think that the lack of civil jury trials is, on balance, a positive change. Indeed, despite the historical importance of the civil jury trial to the justice systems of many countries, including England, today those countries have essentially abandoned the practice. The United States remains the only country in the world where the right to a civil jury trial is guaranteed. Even with that right, it is clear that the vast majority of filed cases settle. Settlement is a more cost effective alternative to trial, it gives the parties certainty and, in some cases, earlier resolution. Even so, it seems to me that some cases, even some cases that are settled, would be better resolved through a jury trial.

The lack of jury trials in Oregon has significant detrimental consequences to our justice system. This is not the time for me to detail the importance of jury trials to the health of our justice system, our form of government and our communities. In any event, I could certainly offer no better insights on this score than those made by Justice Brewer in his essay on Access to Civil Justice in the July 2015 Judge’s Corner.

Today I focus on the importance of trial experience to the litigator. I then offer some suggestions on how litigators might try more cases.

Lawyers And Their Clients Would Benefit From Trying More Cases

We know from our own life experiences that good health requires exercise. Additionally, people learn by doing and most of us subscribe to some form of the old adage, practice makes perfect. Those same principles apply to jury trials. When jury trials are few and far between, the trial skills of lawyers and judges are not sufficiently exercised to keep those skills in robust health. When lawyers rarely try cases, trials become more about learning anew than honing skills built over time.

Trial experience makes a lawyer a better litigator-by a lot. Trials teach lawyers what is important in a case. They force lawyers to focus on what is essential and what is distracting. Trials teach priority and order. Trials teach lawyers how to take a deposition, what discovery is important, and how to use the rules of evidence better than any CLE. Trials greatly enhance lawyers’ ability to think on their feet and to feel comfortable in the courtroom.

Lawyers with little trial experience may settle cases rather than go to trial because they are afraid of trying a case. Settlement amounts may reflect that inexperience rather than the true value of the case. What is more, lawyers who do not try cases may not get the settlement offers they would get if their opponent believed they would take the case to trial.

Additionally, past verdicts provide information about what a jury is likely to do in a case. The fewer jury verdicts, the less meaningful the information. Without that information, the estimates about damages, especially noneconomic damages, may be wholly divorced from current community standards. A lawyer who has a history of trial experiences has more confidence when it comes to valuing a case because the lawyer has better information to draw from, including a better sense of how the case’s strengths and weaknesses would play out during trial.

In those rare cases when a case does go to trial, it is often because the case is particularly difficult, because a lot is at risk or because of the client’s needs and expectations. This is the time when quality trial experience is most needed. Obviously, a lawyer with little or no trial experience in this situation is at a distinct disadvantage.

Finally the fewer civil jury trials there are, the less experience the judicial system has with civil jury trials. The judicial system needs to be well practiced in handling civil jury cases to assure that the process is efficient and effective. The better the case is tried, the more positive affect the trial will have on our justice system overall and, of course, the more likely clients and jurors will be satisfied with their experience and leave the experience with a high regard for our judicial system.

All of this is to suggest that you consider trying more cases. Here are a few suggestions on how you might do that.

1. Consider using the expedited jury trial process allowed under UTCR 5.510

The expedited jury trial process has a number of features that allow lawyers to try cases more quickly and less expensively. The parties must agree to the expedited designation. Such a designation exempts the case from mandatory arbitration. The process is designed to limit costly discovery. Absent agreement, after the case is designated, each party may take no more than two depositions and serve no more than one set of requests for production and one set of requests for admissions. The case is tried within four months to a jury of six. This process gives lawyers a great opportunity to hone their atrophied or nascent trial skills. The process affords litigants, especially in small stakes cases, the opportunity to have their day in court and the benefit of a jury decision in their case. It gives interested parties valuable information about community standards with respect to certain types of cases. It does all of this while substantially limiting the cost of litigation.

2. Litigate wisely with an eye toward trying the case efficiently.

If your case is not appropriate for the expedited jury process, consider cutting the expenses of the case down to the essentials and taking the case to trial. The cost of litigation can be reduced by skillfully limiting discovery. Take measured steps regarding what depositions must be taken and what discovery must be had. Consider not deposing all or any of the major players in your opponent’s case (In doing so you save money and may also benefit by not educating the witness about your concerns). If the other side wants more discovery than you think it is entitled and that discovery doesn’t hurt you, provide it instead of incurring fees fighting over it. In other words, don’t contest issues that you could contest but that don’t matter much. Don’t take action because you are worried you will look weak if you don’t. Work the case up on your side. Do an excellent job developing your witnesses and your evidence from sources not in control of the other party. Then try the case. Forty years ago this was a common practice and many of Oregon’s most experienced litigators can recount great successes doing just that. Look for cases where you think this strategy might work, and take the risk.

3. Be willing to try cases that need to be tried.

If your client is game, don’t be afraid of turning down a settlement offer or demand that seems on the cusp of being unreasonable. Sometimes settling feels wrong but the case is settled because of the costs of trial or because of the fear of losing. Usually the cost of trial and the fear of losing are healthy considerations. Still, I would guess that many lawyers have had the experience of feeling that their client was unhappy with the settlement process, felt the settlement was unfair and regretted not having their day in court. In those cases maybe it is better to try the case. In those cases maybe the client would be more satisfied having a jury decision, win or lose, than feeling forced to settle.

Sometimes a client is willing to go to trial but looks to the lawyer for a recommendation. If the lawyer has no or little trial experience, the lawyer’s own fear about going to trial may interfere with an objective recommendation. If you find yourself in that situation, don’t give into the fear. You can learn a lot by going to court and watching trials. You can learn by asking another lawyer who has trial experience to help you. And you can mitigate some lack of experience by preparing well. If you think you have a good case but are afraid of trying it, take the case to trial. Keep in mind that the trial experience is a long term investment and once you try some cases the fear will be greatly reduced.

Once in a while issues in a case beg to be resolved by the voice of the community. These are the cases brought or defended on principles larger than the monetary value of the case. These are cases where the true value of the case is not in dollars but in the public revelation and resolution of the issue. When your client is willing and it is financially possible, take the risk and try those cases.

4. Take cases with an eye toward trying them.

Consider purposefully taking cases with an eye toward trying them even if that means that you or your firm may lose money on the case and even if that means you have to learn a new area of the law. In my observation one of the reasons lawyers are not getting trial experience is because they are focusing on the cases they believe are most lucrative. That may mean that they take small cases with the intention of settling them quickly or it may mean that they take high value cases with the intention of working them up and settling them for large amounts. Consider purposefully take some cases where it is expected that the case will need to be tried. This might mean that the lawyer takes a case that the lawyer ordinarily would not take. Even if the case does not directly pay for itself, the trial experience will benefit the lawyer for the rest of the lawyer’s career and will also benefit all current and future clients.

5. Take cases through Legal Aid or on another pro-bono basis with an eye toward trying them.

Legal Aid is always in need of volunteer lawyers to represent people who need legal representation and do not have the means to pay for it. Those folks have all sorts of problems that could result in jury trials. Contact your Legal Aid office and let the people working there know that you are particularly interested in representing people with litigation cases that may lead to a trial. Perhaps they have been sued. Perhaps they have a claim that has little financial upside. Perhaps they are involved in a case that is ordinarily tried to the bench but for which a jury trial is allowed. By representing such a person on a pro bono basis through Legal Aid you are providing access to justice to those who are often foreclosed from getting it, and if the case goes to trial, you will get invaluable trial experience.

Similarly, there are public interest law firms and organizations that focus on certain types of law and handle cases that could result in jury trials. Find ones that you are interested in supporting and offer your services. Tell them that you are willing to try cases when the need arises. If you feel you don’t have enough trial skill, tell them that you would like to volunteer your time on a case that is likely to go to trial as a support to the lawyer who will be trying it. Again, this will take time and it will not result in direct financial gain. Nonetheless, the trial experience you get will be of value to you for the rest of your career.

6. Seek mentoring from lawyers who try cases.

There are lawyers who are known for their trial experience and for frequently trying cases. Seek mentoring from those lawyers. Build a relationship and see if you can be of assistance in a trial. If there are lawyers in your firm who are getting ready for trial, ask to work on the case. Ask to second chair the trial, or to be given the opportunity to do one or two direct or cross examinations of a witness. Ask to attend the trial.

7. Make trial experience an important part of your firm culture.

If you are a partner in a litigation firm, do what you can to promote trial experience for your associates and partners who have little trial experience. It may mean assigning a lawyer to second chair a case that includes the lawyer doing substantive work, or assigning a lawyer to conduct a direct or cross examination of a particular witness. Encourage lawyers in your firm to use the expedited jury process, to seek trial experiences by taking cases that are not necessarily your firm’s bread and butter or by doing pro-bono work. The only way lawyers will actively seek to try cases is if they feel that doing so is seen as valuable to the other lawyers in their firm. If lawyers fear that they will be “punished” if they try a case that does not turn a profit or costs the firm money, they are unlikely to take the risk. Gaining trial experience has to be a value in the firm culture. Those who try cases need to be rewarded for gaining that experience. Encourage lawyers to take more cases to trial and structure your evaluations of lawyers in your firm in a way that rewards those efforts even if the case does not turn a profit or costs the firm money.

¹ See, http://courts.oregon.gov/OJD/OSCA/pages/2011statistics.aspx