Category: Judge’s Corner

The Honorable Youlee Yim You, Circuit Judge Multnomah County Circuit Court

Why do discovery motions have such a bad rep? Do judges really hate them so much? What can we do collectively, as judges and attorneys, to improve the process so it is more efficient? Here are some of my thoughts. I am interested to hear others.

1. Take the extra time to truly meet and confer.

Very frequently judges will be in the middle of a motion hearing when an attorney from one side will say to the other side, “Oh, I did not realize that is what you were asking for,” or tell the judge, “That is different from what opposing counsel told me he/she wanted.”

To avoid this from happening, consider picking up the phone and calling opposing counsel rather than using email. Email exchanges, while convenient in many instances, are no substitute for a true conversation. (And to the extent you do email, keep in mind that whatever you say is in writing – forever. You can expect your snarky comments will be included in any future discovery motion that is made.)

2. Winnow your requests.

When drafting your discovery motion, consider what you really need and whether you can winnow your requests. For judges, 35 requests mean 35 separate decisions, which is a daunting and time consuming task. While it is a judge’s job to make lots of decisions every day, we certainly suffer from decision fatigue.

Also consider carefully the scope of what you are asking for. When you tailor your request to something reasonable you don’t run the risk of a judge outright rejecting your entire request on the basis that it is overly broad and burdensome.

3. Come to the hearing prepared to negotiate.

If you have filed an extra-large discovery motion with me, expect that I will first send you into the jury room with opposing counsel before we hold any hearing. I find it is often helpful for counsel to sit down and discuss the issues. Sometimes attorneys tell me they have resolved the entire motion, and other times they tell me they have resolved at least a portion of it.

4. Suggest an informal discussion with the judge.

In Multnomah County, cases are assigned to individual judges after a motion is filed. If you have been assigned to a judge for motions, consider asking opposing counsel if he/she would agree to a quick informal meeting with the judge to resolve the issue. You might be able to resolve the matter early on without causing your client to incur fees.

5. Think twice about requesting fees.

Speaking of fees, arguably what judges dislike more than discovery motions are motions for attorney fees filed in conjunction with discovery motions. Consider the odds of getting attorney fees before you go to the added time and expense of filing such a motion.

The Honorable Katherine E. Tennyson, Circuit Judge Multnomah County Circuit Court

Early on in my legal career, I heard a lawyer say that the biggest mistake made in trials to a judge is the failure to prepare those trials with as much care as trials to a jury. After 12 years on the bench and many, many court trials, I agree wholeheartedly with that sentiment. There is no doubt that it is a professional privilege to preside over a well tried case. There is also nothing more embarrassing than an unprepared lawyer with a client counting on that lawyer to let their voice be heard. The four steps below are a guide to the most effective presentation and ultimately, the best outcomes.

KNOW YOUR JUDGE

Whole seminars focus on jury selection; when lawyers want to know about a judge, they invite discussion on a public listserve. A better plan might be to do a little research into your judge’s legal background, to observe your judge actually presiding over a case other than yours and to locate any information your judge has posted on the court’s website or through a local bar association about preferred trial practices. Careful lawyers also try to find unreported opinions written by the trial judge in similar subject areas. This type of research will let you know the best ways to help your trial judge understand your case. You must be flexible enough in your methods to tailor your message to the judge hearing your case. Lawyers do well to remember that judges’ decisions are only as good as the information we have when we make them and lawyers are responsible for getting us that information in a legally sufficient form.

BE TECHNICALLY COMPETENT

All trials include certain rituals. You must have command of the technical requirements of each of those rituals. Examination of witnesses, offering exhibits and asserting objections all have a rhythm of their own. Good lawyers are not all the same, but all good lawyers know those rituals cold. Not only do they help you look like you know what you are doing, they minimize distractions so that the judge can focus on the information you are presenting. Where possible, stipulate to exhibits as early and as often as you can. The sooner a trial judge has the exhibits, the more able that judge is to listen with an understanding ear to the testimony of the witnesses. If an interpreter is needed, follow the rules to ensure that one will be present and understand how to work with an interpreter to streamline the time interpretation adds to the proceeding.

BE ISSUE COMPETENT

Your trial memorandum will help set the stage for the legal issues the trial presents. It is vital that you know the statutes, case law, or evidence rule upon which you intend to rely. If you are not prepared to give the legal authority for an assertion you make, you may find yourself like a young lawyer I know (me) 30 years ago making a perfectly logical argument (to her) completely contrary to case law (if she’d only bothered to look). Judges hear a lot of different cases in a lot of different subject matter areas. Not only is it your job to make us an expert on your case, the outcome may depend upon it.

DEVELOP INSIGHT COMPETENCE

This area is more nuanced than the others and probably requires more adverse experiences to develop than some lawyers would like to admit. In any case, it is important to get a clear view of what is actually “driving the train” of the dispute. In some cases, especially those involving family disputes-business, probate or divorce-the reason for the dispute has little to do with the law. As a result, the solution for that case may not be a trial at all. It is up to the lawyers of the case to understand what method of dispute resolution may best fit the case and use the abilities granted you by RPC 2.1 to get your clients to use that method.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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”.
11. Almost always call your most important witness first. If you run out of time you have the most crucial evidence in.
12. 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.
13. 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.
14. 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.
15. 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.
16. 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.

The Honorable Jay McAlpin, Lane County Circuit Court

Most attorneys work hard to present their cases in a way that minimizes the number of times that the trial judge has to get involved with the presentation of their case. They spend time crafting questions to avoid objections and make plans to forego some objections to opposing counsel’s questions to avoid unnecessary judicial involvement. However, litigators risk unwanted intervention from a trial judge when they ask one witness to “vouch” for the credibility of another witness. In these situations, even the most reluctant trial judge may have to intervene; a long line of appellate cases indicate that in certain circumstances a trial judge has an affirmative obligation to sua sponte involve him or herself into an attorney’s case presentation.

What is vouching?

Broadly defined, vouching is one person giving a personal assurance that something is or is not what it purports to be. Most often, in the legal context, the “something” is truthful testimony. Vouching can be a problem in a number of different ways but the appellate case law has primarily focused on variations on one particular scenario: one witness giving personal assurances about the truthfulness or untruthfulness of another witness’ testimony or statements. In 1983, the Oregon Supreme Court expressly held that “in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth. We reject testimony from a witness about the credibility of another witness [.]” State v. Middleton, 294 Or. 427, 438 (1983). The vouching can either be an explicit opinion (“I have no doubt that Witness #2 is telling the truth.”) or an opinion that implies that another witness is either being truthful or not (“I wouldn’t have called the police if I thought that what Witness #2 told me was true”.)

Where do vouching cases come from?

Since State v. Middleton in 1983, the Oregon Appellate courts have decided approximately fifty-four cases that have involved, at least partially, vouching. By my estimation, eighty percent of those cases have been decided since 2008. Of the fifty-four cases decided since 1993, the vast majority (fifty- two by my count) have either been appeals from criminal convictions or applications for post conviction relief from criminal convictions.

The remaining two cases address vouching in civil cases: one addresses it in the context of pretrial summary judgment and the other applies the criminal case law on vouching in the context of a civil trial. In that case the Court of Appeals held that, where vouching case law is based on the Oregon Rules of Evidence rather than constitutional proscriptions, the court can “discern no principled reason why the court’s OEC 403 balancing analysis in that criminal case should obtain different results in this civil case.” B.A. v. Webb, 253 Or. App. 1 (2012). By applying the criminal standard for vouching to civil cases this one case potentially opens civil litigators to a large, rapidly growing and unfamiliar area of case law.

Who is Vouching for Whom?

As mentioned above, the general proscription is against witnesses, either expert or lay, giving opinions about the truthfulness of another witness. The outlying borders of this general prohibition have been suggested but not clearly delineated over time. For example: A witness asserting under oath that they personally are telling the truth may not be improper. State v. Sanchez-Jacobo, 250 Or. App. 621 (2012). Nor may it be improper, in the vouching context, for a witness to testify to the out of court opinion of a non-witness. State v. Brooks, 247 Or. App. 676 (2012) and State v. Odoms, 313 Or. 76 (1992). Even questions asked to one witness about the demeanor or absence of motives to lie of another witness may be acceptable depending on the context. Easter v. Mills, 239 Or. App. 209 (2010) and Alcazar v. Hill, 195 Or. App. 502 (2004). These cases are all fact specific and, as mentioned, are on the border between acceptable and unacceptable. The civil litigator who isn’t aware of the general rule against vouching and its suggested border is placing him or herself at risk.

Sua Sponte

Litigators risk the sua sponte intervention of the trial judge when they stumble onto a vouching issue. In B.A. v. Webb, the Court of Appeals discussed sua sponte intervention by trial courts by first acknowledging that while “the universe of circumstances in which a trial court is compelled to act, in the absence of a motion or objection by a party, is extremely limited,” the circumstance of one witness vouching for the testimony of another in trial clearly “fall[s] within that ‘extremely limited’ universe.” 253 Or. App. at 10 quoting State v. Reynolds, 250 Or. App. 516, 531 (2012).

The type of intervention that a court is required to make depends on the situation. When facing a vouching situation, a trial court is, at minimum, required to stop a question or line of questions prior to a jury being contaminated with the response. If the response comes before the court can intervene a trial judge should, depending on the circumstances, strike offending testimony from the record, instruct the jury to disregard the testimony or even, sua sponte grant a mistrial.

However, like the general rule against vouching, the trial court’s obligation to sua sponte intervene has its limits. For example: A judge may not be required to sua sponte intervene in a line of questioning if there is a “plausible tactical reason why counsel would have chosen not to object.” State v. Lopez-Cruz, 256 Or. App. 32 37 (2013). Immediately after deciding that testimony is impermissible vouching, a trial judge must decide whether counsel’s decision not to object was made in furtherance of a plausible strategy evidenced by a consistent course of action during the trial. State v. Ramirez-Estrada, 260 Or. App. 312 (2013). It appears that “a plausible tactical reason” is more likely to be found in situations where the party hurt by the vouching testimony elicits the testimony themselves. State v. Lowell, 249 Or. App 364 (2012), State v. Hollywood, 250 Or. App. 675 (2012), and State v. Higgins, 258 Or. App. 177 (2013). But a “plausible tactical reason” has been found when foregoing an objection to vouching was consistent with a clear strategy that began with opening statements. State v. Salas-Juarez, 264 Or. App. __, (July 2, 2014). When making the decision to forgo objecting to vouching testimony an attorney should, starting with pretrial and opening statements, make their strategy known to the court.

Due to the wide disparity between the amount of criminal case law and the amount of civil case law regarding vouching many civil litigators may be unaware of the risk they face when eliciting vouching testimony. Litigators who handle cases involving sexual abuse or psychological injuries may be doing their clients a disservice by not being aware of this issue. But, as in all evolving areas of the law, the amount of cases and their relative recentness provides a prepared litigator with opportunities for creative advocacy.

The Honorable Paula Brownhill, Clatsop County Circuit Court

Appropriate jury instructions can help litigators win trials. All too often, however, lawyers wait too late to submit proposed instructions, do not consider how the instructions can help jurors, and do not tell jurors what the instructions mean.

Here are six suggestions to help you win your case with jury instructions.

1. Start work on proposed instructions early in the case.
   As you develop your theory of the case and your trial strategy, figure out which instructions will be most helpful. The charge conference during trial with the judge and opposing counsel is too late to start thinking about jury instructions.
2. Tailor instructions to your theory of the case.
   The law forms the foundation for your trial strategy. You must know the law and advocate for jury instructions that apply to your claims or defenses and your theory of the case. It is powerful to link your opening statement to your closing argument and weave the law, with reference to the judge’s instructions, into your closing argument.
3. Request special instructions when they will help jurors understand the law.
   You are not limited to uniform instructions. Draft special instructions when they will be helpful. Remember to correctly state the law, and be sure your requested instructions are supported by the pleadings and the evidence.
4. Keep instructions short, simple, and easy for a lay person to understand.
   Many of Oregon’s uniform instructions are hard to understand, even for lawyers. Jurors with no legal training often have no idea what many instructions mean. Try rewriting instructions in simple language. The Judicial Council of California approved plain English jury instructions years ago in an effort to help jurors understand the law and apply it correctly. Borrow from California if you want examples of easy-to-understand instructions.
5. File requested instructions with the court and provide a CD to the judge.
   In every jury trial, I give jurors written jury instructions to take with them to the jury room. Unless the judge has a program to print the instructions (and I do not), it takes time to prepare the jury’s version. File your requested instructions at least 24 hours before trial (earlier if required by Supplemental Local Rules), and offer the judge a disc with your requested instructions in Word format.
6. Explain instructions during closing argument.
   The best trial lawyers explain complicated legal principles to jurors during closing argument. Do not read instructions to jurors; paraphrase and explain. For example, in a criminal trial, give jurors examples that show the difference between ‘intentional’ and ‘knowingly’ in terms jurors can understand. If you persuade the judge to give your proposed instructions but jurors don’t understand them, you have not gained much.
7. Keep in mind these general principles:
   • As a general rule, a party in a civil action is entitled to jury instructions on its theory of the case if the requested instructions correctly state the law, are based on the pleadings, and are supported by evidence. Denton v. Arnstein, 197 Or 28 (1952); Cline v. Bush, 152 Or 63, 66-67 (1935).
   • Requested instructions must be correct in all respects. Hall v. The May Dept. Stores Co., 292 Or 131 (1981); Beglau v. Albertus, 272 Or 170, 179 (1975).
   • There is no error by the trial court if the substance of the requested jury instruction, even if correct, is covered by other jury instructions given by the trial court. Kabil Developments Corp. v. Mignot, 279 Or 151, 158-59 (1977); State v. Pedersen, 242 Or App 305 (2011).