Category: Judge’s Corner

The Honorable Benjamin Bloom, Jackson County Circuit Court
Focusing (with good reason) on presenting the best argument or submitting the best brief, newer lawyers occasionally overlook valuable practice tips. This is one Southern Oregon judge’s ideas for improving a lawyer’s presentations.

An evidentiary hearing may be your client’s first appearance in court. A good first impression is important. In addition to preparing your client for trial, tell him or her how to dress. That way you can be sure that your client leaves the pajama bottoms or offensive tee-shirt at home. At the same time, attorneys should come to court dressed properly. There are many unrepresented parties in court, and they are all watching the attorneys to see how you are attired.

Instruct your clients and witnesses not to chew gum in court. I find gum chewing very distracting and inappropriate. At the same time, make sure that cell phones (yours, your client’s and your witnesses’) are turned off.

At the start of an evidentiary hearing, tell the court what you want. It is always helpful to let the court know the requested relief right at the start so that we can place parameters on the hearing.

With regard to motion practice, new attorneys should always remember to stand when addressing the court. I am amazed at how frequently attorneys forget that they should stand when addressing the court. Again, the public is watching how the Bench and Bar interact. If we do not show each other respect, how do we expect the public to have faith in the process?

When submitting oppositions to motions, parties should not refer the court to the record without specifying a specific location. It is not reasonable to expect the court to comb through a hundred pages of exhibits to find the particular point in dispute.

As we transition to e-court, if you file a document within 72 hours of a hearing, do not expect the court to have reviewed or even to have seen the document at the hearing. Always provide a courtesy copy for the court to ensure that the judge has had opportunity to consider the brief.

Finally, use the word “clearly” sparingly in briefs and argument and skip the word honestly. If it is so clear, then why are we having a hearing? If you occasionally state, “honestly, judge,” am I to assume you are not telling the truth the other times?

The Honorable Jodie Mooney, Lane County Circuit Court

Motions in limine are often over-used and frequently ineffective. Some lawyers include everything from soup to nuts – whether they need to or not. The motions take time and potential jurors already unhappy to be missing work are made to wait even longer before voir dire can begin. To avoid frustration and unnecessary delay, each motion should be carefully considered before it is included.

Historically, motions in limine were not favored. Nielsen v. Brown, 232 Or 426, 430, 374 P2d 896 (1962) (the procedure of attempting to ‘suppress’ testimony before a witness is called to the stand is not to be commended). Although OEC Rule 104 tells us that, when the interests of justice require it, preliminary questions concerning the admissibility of evidence are to be determined by the court, you still won’t find the word “limine” anywhere in the Oregon Revised Statutes. Current case law supports such motions. But keep in mind that they are supported as a mechanism to further efficiency and justice. State v Foster, 296 Or. 174, 674 P.2d 587 (1983) (the “motion in limine” provides a legal procedure to flush out problems before a jury is contaminated with the evidence. The old cliché, “you can’t un-ring a bell,” still applies).

Think hard before filing:

• Are you simply asking the court to exclude all irrelevant evidence? or all hearsay statements?
• Are you seeking to exclude evidence beyond the scope of the pleadings?
• Are you filing motions that are not seriously in dispute (i.e. – re insurance) or that seek to exclude evidence that your opponent does not intend to offer?
• Are you using a template that pre-dates your Bar number by more than 3 years? Can you reduce the number of motions to less than ten?

And, then, think a bit more:

• Have you spoken with opposing counsel to determine any objections?
• Have you narrowed the scope to specific and identifiable statements or evidence?
• Which motions really matter to your case? Or, do you really think that the potential evidence would be so unfairly prejudicial that the judge should rule before hearing any evidence?
• Have you got your list of motions down to less than five?

Then file your motions.