January 2006 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Case assignment in Multnomah County

Do you sometimes wonder why the presiding judge cannot assign very many cases out for trial each morning at daily call? There are 38 judges in Multnomah County and it seems that more than a few should be available, right?

Here is the reality of what the presiding judge has to deal with in terms of judge availability: We average two judge vacancies a year in this county, and it takes about 180 days for the Governor to fill a vacancy by appointment. We are down one judge most of the time due to vacancies. Allowing for vacations, conferences, and CLEs only, on an annual basis we are down about six additional judges, on average. Five judges have full-time assignments that keep them from trial work: the presiding judge, the chief criminal judge, the settlement judge, the intensive DUII docket (DISP) judge and the drug treatment court (STOP) judge. Six judges handle misdemeanors and drug/property felonies full-time and nine judges are assigned to family court. Frequently at least one judge is sitting in the justice center doing arraignments and other criminal matters. This leaves ten judges. But they are not all available each day to start a new trial assigned from daily call, because they are continuing multi-day trials previously assigned, or have other matters set on their dockets. Criminal cases have constitutional and statutory priority, so even fewer judges are available each day to start civil cases.

Lawyers for children

Over half of the family law filings involve persons representing themselves. This often results in judges not receiving adequate information needed to make sound decisions about child custody and parenting time issues (and other issues, as well). To help with this problem, Judge Susan Svetkey and others have put together a program that facilitates appointment of lawyers for children in family law cases. Most of the time lawyers appointed to represent children end up volunteering their time for their clients. It is rare for money to be available to pay these lawyers. These are usually high-conflict cases that involve some combination of domestic violence, substance abuse and/or mental illness. Lawyers are welcome to add their names to the list. Judge Svetkey manages the list, so you should contact her office to do so at 503.988.3060. From time to time, training sessions and informal sessions are available to assist lawyers with this important work. Lawyers participating are providing a very valuable service to not only their children clients, but to the court, as well.

Praecipe needed with all civil motions

What is a praecipe (rhymes with “recipe”)? I checked both my old Black’s Law Dictionary and a regular dictionary. Both had definitions, but neither seemed to fit how we use the word here in Multnomah County.

In Multnomah County Circuit Court motion practice, a praecipe is a document prepared by a lawyer who files a motion. The praecipe contains information about the motion, such as the type of motion, the date and time set for the hearing, the name of the assigned judge and a form of certificate of service on opposing counsel (or pro se litigants). The praecipe is not filed with the clerk of the court. It is, in effect, a “cover sheet,” bearing information about the motion. It lets the judge and the judge’s staff know you are coming for your motion hearing.

SLR 5.015(5) provides that “[t]he original motion praecipe shall be attached to the assigned judge’s copy of the motion, including motions assigned to pro tem judges, and delivered to the assigned judge at the time the motion is filed. A copy of the motion praecipe shall be attached to the service copy of the motion and delivered to all parties. Failure to deliver a praecipe and copy of the motion when required by this rule may result in sanctions as provided by UTCR 1.090, including striking the underlying motion.”

A question has recently arisen about whether our judges are striking motions that come to the judge without a motion praecipe attached, as required by SLR 5.015(5). Practice tip: Don’t put yourself or your client in the position of needing to argue that your motion should be heard despite that you did not attach the required praecipe to the judge’s copy and the service copies of your motion.

Another practice tip: After you call civil calendaring to get a judge assigned and a date and time for your motion, you need to file your motion right away. To delay filing the motion is to squeeze the time limits for the other side in responding to your motion and for you in replying to the response. And don’t call civil calendaring for a judge assignment until your motion is ready to file.