June 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Questions from jurors to witnesses during trial

Trial lawyers in both civil and criminal litigation should be prepared for questions from jurors directed to witnesses during trial. It is very common for lawyers to be surprised at the beginning of a trial to learn that the trial judge permits jurors to ask questions.

Juror questions to witnesses had its genesis in Multnomah County years ago in the Court of the late Judge Robert P. Jones. Judge Jones felt strongly that the opportunity for jurors to ask questions during trial was important to help the jurors understand the evidence. This idea has gained momentum in recent years both in Oregon and nationally. Don’t be caught by surprise about it.

In 2001, ORCP 57B was amended to include a new ORCP 57B(9), which provides as follows: “With the court’s consent, jurors shall be permitted to submit to the court written questions directed to witnesses or to the court. The court shall afford the parties an opportunity to object to such questions outside of the presence of the jury.”

Trial judges are not of “one mind” about allowing jurors to ask questions. Some judges allow juror questions in civil cases only, and some allow juror questions in both civil and criminal cases. Some judges do not allow juror questions at all. For those judges who allow juror questions, procedures for receiving and allowing juror questions vary widely.

You should obtain from the MBA a copy of the 2005 Judicial Practices Survey prepared by the MBA Court Liaison Committee. The survey, completed by each judge in Multnomah County, is a treasure-trove of useful information about the practices and preferences of each of our 38 circuit judges. Included in the survey is a section about the practices of each judge regarding juror questions.

Expressions (facial and otherwise) of disagreement with rulings

Have you ever seen adverse counsel make an obvious facial expression or body-language expression of disagreement or disgust with a judge’s ruling? Have you ever done this yourself? Has your client or an adverse litigant done this in your presence? You might not see this, but judges see it all too often.

It seems obvious that lawyers and their clients should never telegraph their disagreement with a ruling after it is made. While lawyers have a legal obligation to make their record and advocate for their clients, after the judge rules, professionalism requires that you never evidence your disagreement by your expression or body language.

UTCR 3.150 requires all persons in the courtroom to “refrain from visibly or audibly reacting to the verdict in a manner which disrupts the dignity of the courtroom. UTCR 3.040 requires lawyers to “advise their clients and witnesses of the formalities of the court....”

Depositions - judicial help with problems

During depositions if you believe adverse counsel is asking inappropriate questions, you should not hesitate to appropriately assert your position. As a last resort, if your best efforts to resolve the situation are not successful, you should seek an immediate ruling from a judge. In Multnomah County, just telephone the Presiding Judge’s office (503.988.3846) and tell Judge Koch’s Judicial Assistant or Clerk that you need a ruling on a deposition question. If Judge Koch is not available, his staff will try to locate a judge for you immediately.