[MONTH] [YEAR] “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Your Honor, may I approach the witness?

How many times have you said that yourself in Court, or heard another lawyer say it? In the state courts of Oregon, UTCR 3.050(3) was changed in 1991 to provide that the parties must “...be allowed to move freely about the courtroom during trial unless otherwise instructed by the court.” There was a debate in the Uniform Trial Court Rules Committee in 1991 about this rule change, and the need for the trial judge to be able to control the courtroom and protect witnesses. Nothing in this rule deprives the trial judge of control. The trial judge remains free to require you to ask permission.

I surveyed our Multnomah County Circuit judges and discovered that only one judge requires that you ask permission. That one judge uses a small courtroom and often has pro se litigants, so that one judge feels it maintains a better atmosphere to require permission.

Suggestion: In state court ask the clerk or the judge in advance if you need to ask permission to approach the witness. In federal court, you must ask for permission. So, don’t forget which courthouse you are in (as if that were possible).

But a reminder: with electronic recording for the record in state court, if you wander from the microphone on counsel table, you risk not having your voice “on the record.”

Peremptory challenges and alternate jurors in civil trials

ORCP 57 D(2) governs the conduct of peremptory challenges of jurors. In civil trials with a 12-person jury, plaintiff gets three peremptory challenges, and defendants share three peremptory challenges. If alternate jurors are selected, ORCP 57 F governs the number of alternates and the number of additional peremptory challenges. If one or two alternates are selected, each side gets one additional peremptory challenge, to use against the alternate jurors only.

Think about how this works: You get three peremptory challenges as to the 12 regular jurors, and each side, therefore, gets to “control” 25% of the jury. But as to the two alternates, each side gets one peremptory challenge, and therefore has “control” of 50% of the alternates, who presumably are less apt to decide the case than are the regular jurors.

Why should you have less control of the regular jurors than you do of the alternates? Tip: If you are going to have two alternates, you might stipulate to having four peremptory challenges each, which you are free to use against any of the 14 jurors.

Courthouse security - getting into the building on time

Any of you who have come to the courthouse first thing either in the morning or the afternoon have noticed how long the lines are to go through security upon entering the courthouse. The Multnomah County Sheriff operates security for the courthouse. It is not controlled by the court.

Members of the OSB may apply for and receive a “Court ID Card” from the sheriff’s office to bypass security and enter through the employee entrances. The “Expedited Court Access” program is operated by the concealed handgun licensing section of the sheriff’s office (note the irony of that) from the sheriff’s facility at the Hansen Building, 12240 NE Glisan St in Portland. Telephone 503.251.2417.

You have to take your completed application form and the fee to the Hansen building with photo identification. This service is available only on Wednesdays from 8:30-10:30 a.m. and 1-2 p.m. The current fee charged by the sheriff to lawyers for an ID card is $125. The cards are good for three years and may be renewed upon payment of a $125 renewal fee.

You can download the application form and the instructions from the sheriff’s Web site at http://www.co.multnomah.or.us/sheriff/chlunit.htm#access.