July/August 2006 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Professionalism - it is not always the “other” lawyer’s problem

We are all personally responsible for our own conduct. When a lawyer submits a memo to the court asserting that the position of the other lawyer is “absurd,” it is not the “absurd” position of the other side that is unprofessional. The unprofessional conduct is in characterizing the other lawyer’s position as “absurd.” While you may justifiably feel that the other lawyer’s position is “absurd,” you should be satisfied to point out to the court why the position is simply wrong, without characterizing it in such a personal manner.

Lately I have been seeing an increased number of motions to compel production and motions for sanctions in civil cases. While occasionally these motions result from good faith disputes between the lawyers, too often they seem to result from what have become personality clashes between the lawyers. Lawyers should remember that the case is about the clients, not the lawyers. A lawyer who is concerned with professionalism always puts the interests of his/her client first, and ahead of his/her own feelings or ego. I know that is hard, but it is necessary.

Deliver copies of motions to the judge directly

In both civil and criminal litigation, too often the judge does not receive a copy of the motion, memorandum, etc. in time to prepare for the hearing. You should not assume that just because you filed a motion or a response to the other side’s motion, it will be in the court file for the judge to read in time for the hearing.

This is a significant problem in criminal cases, especially in misdemeanors, because we are frequently short-staffed in the file room. Defense counsel in criminal cases should always assume that the motion to dismiss, the motion to suppress, etc. is not in the court file. Counsel should always deliver a copy to the assigned judge at least the day before the hearing is set.

In civil litigation, Multnomah County Supplementary Local Rule 5.015 requires counsel to deliver copies of motions, responses to motions, etc. to the assigned judge.

Be realistic in your estimates of how long your case will take

At daily call the presiding judge needs to know when you report ready for assignment how long your trial will take. The presiding judge needs this information from you as accurately as possible because trial judges are not available for indefinite assignments. We all report to the presiding judge the number of consecutive days we are available for assignment, and the presiding judge tries to match up our availability with the length of your trial. When you report on the expected time needed for your trial, you should report the number of days the entire matter will take, from pre-trial motions (if any), through jury selection, the presentation of all the evidence for all parties, closing argument, etc. It is never sufficient for you to claim you don’t know how long the other side’s case will take. You need to talk to the other lawyer about this in advance of daily call so you will both be prepared to make your best estimate for the presiding judge.