Category: Judge’s Corner

Judge Lung S. Hung, Circuit Judge, Malheur County Circuit Court

It was May of 2012. I had taken the bench in April of 2012. Prior to taking the bench, I had practiced exclusively as a prosecutor. I had some practical experience in civil litigation as a prosecutor, mostly in the context of juvenile dependencies and civil forfeitures, but there was no doubt my expertise was in criminal law. There I was, one month after taking the bench, presiding over a week-long medical malpractice trial.

Experiences like mine are not uncommon. In October of 2013, 18 months into my judicial career, there were 191 judges in the State of Oregon. 49 of those judges had not been on the bench for 3 years. That means there was a 25% chance if you, as a civil litigator, appeared before a judge in Oregon you would not be appearing before what I would consider a “seasoned” judge.¹

As previously covered in Judge Tennyson’s September 2014 article, “Court Trials – A Jury of One,” it is important to know your judge. This is particularly true with a new judge. Learning as much as possible about any judge’s background is going to help you in your powers of persuasion. With a new judge, you may also be dealing with a person who is still figuring out his or her “style” on the bench. An opportunity to build a long, mutually respectful relationship with a judge and educate that judge in an area of the law in which you have expertise is before you. Here are my tips for how to accomplish this goal.

Know the Judge

History Find out what areas of the law the judge practiced prior to taking the bench. Good sources of information include the Governor’s announcement of the judge’s appointment, the judge’s insert into the voter’s pamphlet and the judge’s page on judgepedia.org. These sources will give you the basics. This information will let you know if you are appearing in an area of the law that is in the judge’s “wheelhouse” or an area where an opportunity for education exists.

Attorneys Talk to members of the local bar in which the judge presides. They can provide invaluable observations of how the judge handles his or her courtroom. If they have appeared before the judge on your specific issue, they can probably give you an opinion how best to present your arguments. In addition, OSB listservs are frequently used as a source to obtain practical information about judges.

Judicial Staff Ask the judicial staff what areas of the law the judge regularly presides over. Is the judge a jack of all trades or presides almost exclusively in one area of the law? Ask the staff if they have any hints on appearing before the judge. Chances are the staff member you are talking to has been through several judges and can advise you on subtle differences in style.

Introduce yourself I always appreciate when attorneys introduce themselves and tell me a little about them. Depending on the circumstances, this can be done prior to your hearing or right after the hearing has been concluded. Those who have taken the bench know that the job can be isolating. A handshake and an introduction go a long way in building a judge’s trust in your professionalism.

Convince the Judge

Court of Law A judge is sworn to uphold the law. A new judge might not be familiar with the area of the law you are asking him or her to uphold. If you have such a judge, it cannot be overstated how important a memorandum of law submitted prior to your hearing is. A memorandum of law allows you to set the stage. It clarifies what decisions have to be made. A memorandum of law is not the time to argue your case. Argue your case in your motion, your attached affidavits, in your trial memorandum to which the memorandum of law is a separate section of, and at your hearing. Keep the memorandum of law, as much as possible, to citations and quotes of relevant statutes and case law. If your memorandum of law is complete, concise and absent the chatter of arguments, a trial judge will have it open and sitting before him or her during the hearing and refer to it often while writing his or her opinion.

Court of Equity Judges want to do the right thing. We want to be fair. The right thing, first and foremost, is for the judge to do what the law requires. Chances are, though, if you are before a judge at a contested hearing, the law itself is not as black and white as to decide the issue. If a judge’s discretion is going to come into play, do not ignore the equity argument. Point out to the judge why this issue is important to your client. Point out to the judge why this issue is important to the class your client is in. If you have some legislative history showing why a particular statute was put into place or why it was amended, point it out. A judge that has never decided a particular issue cannot simply default to consistency, but will be deciding the right thing for the first time.

Decorum If you do not have any history with a new judge, this is not the time to relax your courtroom decorum. Even if other attorneys who may have appeared frequently before the judge are less formal in the hearing prior to yours, you have not developed that relationship yet. This will be the judge’s first impression of you, make it the best. Stand even if others sit. Keep your composure even if others do not. Treat all witnesses with respect even if you think they are lying through their teeth. A new judge may not understand that opposing counsel always takes an unreasonable position. A new judge may not understand that this area of the law is so well settled that you cannot believe you are even at this hearing. This is not your time to grind the axe. Make your presentation and arguments in a professional manner and build a relationship with the bench that will serve you well.

¹ It is not a coincidence that at the time of this article, I have been a judge for approximately 3 years.

Judge Karsten H. Rasmussen, Presiding Judge, Lane County Circuit Court

I have lived my entire professional life in the world of risk and risk resolution. Litigation is, after all, one form of risk resolution. It seems axiomatic to write that the goal of risk resolution is finality for the parties. Yet this axiomatic proposition is strangely missing from our discussions about the goals of civil litigation and the specifics of “how to” achieve those goals.

Risk resolution requires that we get to a final outcome – that the risk be resolved. We often seem to forget that final resolution is a gift. This simple, first principle should jump out in any thinking about risk resolution in the context of civil litigation: finality is a gift. It is a gift because it resolves a dispute that is weighing on the parties financially, professionally, personally, and emotionally. As lawyers and judges we need to do a better job of reaching finality and we need to do a better job of doing it in a reasonably efficient and timely manner.

The Gift of Finality

In civil disputes, relatively small matters can weigh down a case, making it harder for the case to reach resolution. In discovery, the question most often asked seems to be: do I have all the documents I asked for? Every single one? Perhaps the question ought to be: do I have the discovery I need to move the case forward to the next stage? Or, do I have enough discovery to explore settlement?

In motion practice, the question often seems to be: was the conferral on the ORCP 21 motions adequate under UTCR 5.010? If not, maybe we should litigate THAT! Or, the question is: how many motions can I file against this pleading? Perhaps the better question is: would any of the Rule 21 motions I could file actually assist me in defending my client?

My general thought is this: keep your eye on the prize. Yes, your client wants to win, but your client also needs answers to questions that led to the litigation in the first place. There is a value to getting those answers by getting to resolution one way or the other.

The gift of finality is that the parties get answers which they need in order to move forward in their lives or businesses or both. Sometimes we overvalue process and undervalue finality. Our desire to “get it right” – a natural desire for all justice-loving lawyers and judges – sometimes causes us to lose sight of the gift of finality.

This creates a problem – or what we might call a riddle – the riddle of legal finality:

Timeliness is a Justice Function

Oregon Circuit Courts do many things to facilitate finality. For those of you who file cases in Lane County, you know that we use a “master calendar” (in which we assign most cases to a judge on the morning of trial) rather than assigning each case to a judge when it is filed. And, you probably also know that most cases filed here are tried or otherwise resolved within 11 months of filing. This is how it works.

First, we try to find consistency where we can so that the public, and particularly the bar, knows the range of likely outcomes to any number of disputes. For example, we have one civil motions judge. This means that a practitioner, if she is paying attention, already knows the likely outcome of a motion to prevent an out-of-county ORCP 46 medical exam (it will likely be denied). In this example, greater predictability means that fewer such motions will be filed at all. In turn, this means fewer judge resources taken away from trial availability.

Second, we endeavor to further the gift of finality by having meaningful trial dates within 11 months of filing and sooner in domestic relations cases.

A “meaningful” trial date means a date certain on which a judge will be available to try your case. For us, this is our primary goal. It is not acceptable to burden the parties and the lawyers with trial set-overs when the parties and lawyers are prepared, have witnesses present and prepared, and have prepared and paid experts, for example. It is very rare that we set a case over due to lack of judicial resources.

We try our cases on the date originally set for trial. We work hard to maintain our ability to try cases on the date set for trial because timeliness is a justice function.

Third, we try to operate with the “fewer touches is better” rule. That is, touching a file fewer times is likely to result in a case getting to resolution sooner. Touching a file more times is likely to get a case to resolution later. Perhaps this is the antithesis of the judicial management model in which more judicial management is often viewed as better. I am skeptical that more judicial management is necessarily better.

As an example, one of my colleagues is very adept at the “fewer touch” rule as it relates to temporary relief in domestic relations cases. When a case comes to her from our Monday Show Cause docket for a hearing on temporary access or parenting time, the first thing she asks is: what is your trial date? If the attorneys or parties do not have one she sends them to calendar to get one. If the Respondent has not filed a Response, and hence the case is not “at issue” and therefore not able to be set for trial, then she requires a Response be filed then and there so a trial date can be chosen. We set trials quickly, so after these quick preliminary discussions, a trial date is usually set within 2 or 3 months of the temporary hearing now in front of my colleague. After the trial date is chosen, the next question my colleague asks is: so this temporary order only covers the next (say) 60 days? This approach forces the case towards final resolution, and it makes the temporary access/parenting time hearing less significant to the final outcome of the case, resulting in a higher likelihood of resolution of the temporary matter in front of the judge and in less expense to the parties.

Fourth, we do not set status conferences in civil cases or domestic relations cases unless the case is pre-assigned to a judge. Most cases are not pre-assigned in our court, so this means that in our court we do not expend judicial resources on interim matters unless we cannot avoid it. The reason for spending less time on interim matters is that this allows the court to keep the focus of judicial resources on the one thing only judges can do: try cases to resolution.

Effectively, we practice differential case management. In the civil litigation context, there are cases which need judicial management. My view is that these are the exception, not the rule. In fact, we have a saying: if you designate a case as complex, you will only succeed in making it more complex.

Essentially, then, by focusing on bringing a case to a final resolution – by setting and keeping timely trial dates, downplaying interim matters, and providing increased predictability – we effectively focus on finality at all stages of a case.

Of course, we have many dockets that are not “finality” dockets, if you will, in other words dockets that are, by definition, interim in nature. I am not saying that no process is the best form of due process. I am saying, though, that when we focus too much on process and on judge management, we lose sight of the thing we do best – giving the gift of finality to those who come to us for it.

I would encourage practitioners to collaborate in our quest for efficient and just resolution of cases. In Lane County, you can do that by reserving motions for complex case or commercial court designation for those cases you think would truly benefit from more time and more “touches” with the same judge. In all of our trial courts, you might simply shift your focus to the “prize” of finality. Remember that, as an attorney and an Officer of the Court, zealous advocacy for your client must be balanced with the overarching goals of the justice system – efficient, just, and final dispute resolution.

Judge Deanne L. Darling, Circuit Judge, Clackamas Juvenile Court

Please know that while your trial is going on – it has all my attention- but when it is over- I am off to the next issue. By the time your attorney fee application rolls in – I likely have dealt with as many as 100 other cases and yours is a memory- and maybe a dim one. If you had a theme in your case- you would be well served to remind the judge of it in your application. It would also serve you well to spend some time discussing the issues in the case. If fees are discretionary in the granting (not the amount which is always discretionary) – I suggest you at least discuss it at the end of the case and see if the judge has an indication of the direction he/she will be going. I do not think the trial judge can deny a party the right to file the Rule 68 statement, but you need to discuss with your client the value of incurring the expense to prepare it.

As always, reading the rule is a good place to start. There have been changes in the past few years and more are pending adoption as I type this. This article is not intended to cover everything about the process but rather to remind you of the critical phases. These are pleadings and there are nondiscretionary time lines. If a hearing is desired it must be requested in the heading. It is helpful if an estimate of time is included. Even though the rules implies that only an objector can request a hearing I believe most judges would grant a hearing to anyone who requests it. But if you request it – it is imperative to have a good reason for the hearing.

The facts, statute or rule that provides the basis for attorney fees must be pled. It is also a good idea to check that the ORS citation is still accurate. A failure to state the above cannot be cured once the hearing or trial has commenced. No denial of the right to fees is needed as the rule says the claim is deemed denied.

File (i.e. – DELIVER to the clerk’s office) the original statement with the court with the proper certificate of service within 14 days of the entry of the judgment that forms the basis for the fee request. Submitting a copy of the statement and an original form of judgment to the trial judge is recommended. If objections are filed they need to be specific. If findings are required the request for them must appear in the title of the statement (on the right hand side in caps or bolded is a good idea) or the court is not obligated to make them. Declarations are a good idea and wonderful place to do more than just restate the factors- as evidence of the factors is needed. If you have requested findings- submit them to the court. Judges do not have to create them- we just have to find them. If they are submitted it will speed the process- and the judge can accept whichever ones apply to the evidence presented.

When submitting your claim for fees – be sure to be specific about the time spent on each claim if there is more than one. This is especially important if no right to fees exists on some of the claims. Do not be greedy or overstate the time spent. If you had a fee agreement – attach a copy so there is no question about the hourly rates. Odds are very good that the judge or the clerk will actually go thru your statement and review the time spent and the tasks performed.

If the right to fees allow for fees incurred in collecting a judgment- the proper method is not to seek a prospective award- but rather to submit a supplemental statement. Changes are pending on this issue and a review of the proposed rule (which could be in effect by July 1, 2015) is recommended.

When handling a personal injury case with low economic damages – like under 15 or 20K- think about not collecting the medicals- or be realistic about the unpaid ones- and omit the insurance paid sums- and using ORS 20.080. In settlement conferences insurance companies worry more about attorney fees on a small dollar case than they do verdicts on the small cases. Everyone is aware of the high cost of experts (doctors) and the economics of trying a case. It can be a great settlement technique.

Judge Edward J. Jones, Circuit Judge, Multnomah County Circuit Court

Whoever created this adage would have been a good trial lawyer, because he understood how to overcome bad facts. And dealing with bad facts is at the heart of trying cases. Because every case has its weaknesses, and success is often a matter of coping with the difficult questions those bad facts provoke.

One all-to-often observed strategy is to simply ignore the bad facts and make no attempt to answer the difficult questions. So jury selection and opening focus only on the lawyer’s case, without any mention of any problems. This strategy would work better except for the existence of opposing counsel, who loves those bad facts and loves to have the chance to reveal them.
A small, but real, step up is the “you heard it from me first” strategy. And these people are on the right path. The jury does need to hear it from you first. If you have spoken about the case and not mentioned it, you will be suspected of concealing it. Yet merely stepping up and promptly acknowledging the problem is far from enough. That addresses the credibility issue, and confirms your fairness and commitment to justice, but it fails to deal with the “badness” itself. For that there needs to be an explanation. The challenge is providing an explanation which doesn’t sound like an excuse. And every explanation which follows an accusation smells like an excuse, regardless of whether the accusation comes from your opponent or out of your own mouth.

An effective explanation needs to happen before the accusation is made. The answer needs to be provided before the question gets asked. Remember those wonderful moments in law school when a question was asked in class and you KNEW THE ANSWER? Maybe you didn’t put your hand up, but it felt good. You need to recreate that moment for your jurors. Give them the pleasure of hearing a bad fact and realizing, as they hear it, that they already know all about it.

So how do you explain what you are not allowed to mention? Since you cannot acknowledge the accusation, the specific facts which rebut or explain the weakness in the case need to presented to the jury for some other reason. The explanation needs to be embedded in your account of the facts but must appear to be directed toward some other issue.

While achieving a “pre-explanation” is a worthy goal, there is more that can be done. Ideally, the account provided doesn’t just plant the explanation, it also uses the “bad” facts to advance the case. Rather than ignoring the bad facts, or merely identifying them or even pre-explaining them, rely on them. Incorporate them into your account of the case. Make them into evidence that supports your theory of the case. At that moment, they are no longer bad facts.

In his book, “Trying Cases to Win” Herbert Stern summarizes this approach thusly:

“It is of the highest importance that the jury not only hear your explanation before they hear your adversary’s accusation, but that they hear it your explanation without being aware that it is an explanation. They must never hear from you that there is any such accusation.”

Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Circuit Judges, Marion County Circuit Court

A judicially hosted settlement conference is mediation with a judge. Normally, the same rules apply. The terms “settlement conference/judge” and “mediation/mediator” are used interchangeably in this article. Criminal cases aside, there are basically two types of mediations: money cases (the prayer seeks monetary compensation) and relationship cases (divorce, probate, employment, property line disputes, etc). JAMS (Judicial Arbitration and Mediation Services) defines mediation as “A process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences.” In the context of the litigated case, this means that the neutral assists in the resolution of some or all of the issues in the parties’ case.

Golden Rules:

1. Mediation should be voluntary (the concepts of “mandatory” and “mediation” are inconsistent).
2. Mediation should be with a mediator or judge selected by the parties – the neutral that the parties believe will have the best chance at success.
3. With rare exception (e.g. Child or Elder Abuse), mediations are confidential; the neutral receives ex parte information from each attorney (the mediation statement).
4. The trial judge (or any neutral who might make a material ruling) should not act as mediator.

How does the practitioner best prepare for the mediation?

1. What do I include in my mediation statement?
   • Name of the case, the date and location of the mediation, who you represent and who will attend, the name of the assigned trial judge and any trial date.
   • Give a brief statement of the facts, claims and law, and a history of negotiations, if any. What is the short version of the theory of your case? The opposing case?
   • List the key issues to be resolved. Whether there are relationship issues.
   • Has discovery been completed? Will there be any dispositive motions?
   • Any problems you perceive in processing the case? For example, personality issues with counsel, sticky legal issues (drunk driver), anticipated evidentiary questions which might make a difference or differing factual versions of the case?
   • The pleadings (maybe…?)
   • Consider a pre-mediation conference with the mediator. (This is an ex-parte proceeding).
   • Anything that might make a difference.
2. What should I do in preparation for mediation?
   • Study the facts and law.
   • Make sure necessary parties will be present or obtain permission otherwise. And any helpful parties (i.e. – lienholders) are available by phone.
   • Prepare and deliver your mediation statement at least two days before the session.
   • Spend time with client and prepare them for the mediator and the process:
     • Explain the process and the mediator and her role – include an expectation that the mediator may play devil’s advocate (don’t be tempted to think that the mediator is against you or supporting the other side).
     • Discuss risks, ambiguities and costs of continuing litigation.
     • Prepare the client for the tough questions which may be asked.
     • Discuss the reasons why a bottom line or take it or leave it, is not something to be decided before the mediation. Try to focus on the future, not the past.
     • Explain that you are not really talking to the mediator, but to the other side.
     • Allow more time than you think. Be patient.
     • Try to allow for a little trust in the process.
     • Think “back and forth”.
     • Try to listen to what the other side is saying.
     • Think options.
     • Their first offer may be quite different than the best offer received.
     • At least one purpose is to find out the best offer of the other side.
   • Bring your file.
3. Does my client really need to be there in person?
   • Plaintiff – YES. (We know about skype, it works for some things, but does not work for effective communication with a person you don’t know well).
   • Defendant – Insured, no. If insurance representative, ask the Plaintiff’s counsel to stipulate, then maybe not a problem particularly if it is a representative that the mediator has dealt with before. On the other hand, why would an insurance representative not want to be there and get firsthand information especially when the Plaintiff will be saying why didn’t they care enough to even show up?
4. How much should I let my client talk during mediation?
   • For a Plaintiff, why would you want your client to be hidden or reclusive? Don’t you want your plaintiff/client to show that they can be a “star”? Besides, most of the value assessment from the carrier comes from the plaintiff herself. Don’t you want an “extra” assessment from your mediator to throw in the mix?
   • The client needs to participate for their own reasons. They may feel a need to speak out. They may actually “adopt” this process as theirs (if they actively participate).
   • What are some of the characteristics of the best mediation advocates?
     • Good preparation & planning (actually devote time to this and time with your client). Knowledge of the subject matter (facts and law).
     • Patience.
     • Develop and consider options. Often this follows asking questions to get at the needs and reasons behind the opponent’s position. Ask yourself what the other person will think you are saying if you give a particular offer or demand. Is it what you want to say?
     • Deal with your own weaknesses (as well as your strengths).
     • Take the high ground. Treat the other person with respect, even as you argue with their position. In other words, “…be tough on issues, but treat people with respect and dignity”.
5. Mistakes made by attorneys in mediation:
   • Insufficient preparation including a helpful statement to the mediator.
   • Insufficient preparation of clients.
   • Failing to advise client of a weakness in the case.

J. Paul Getty, Founder of Getty Oil, said his father once told him, “You must never try to make all the money that’s in a deal.  Let the other fellow make some money, too, because if you have a reputation for always making all of the money, you won’t have many deals.”