March 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

ADR for civil cases

Multnomah County Supplementary Local Rule 7.075(2) requires that the parties...”sign and file, within 270 days from the filing of the first complaint or petition in the action, a certificate...indicating that the parties have participated in...ADR….”As a case ages, Presiding Judge Dale Koch will not set-over a trial date that puts the new trial date over a year after the case is filed unless the parties have complied with this rule. Please note that SLR 7.75(2) requires that the certificate must say that you “have” (past tense) participated in ADR. This does not mean that you are planning to do it, or that you have discussed it. Tip: Do not file your ADR certificate until ADR has actually occurred.

Read the rules annually

We have many layers of rules that govern litigation: the Oregon Rules of Civil Procedure, the Uniform Trial Court Rules and the Multnomah County Supplementary Local Rules. And these rules change from time to time.

There are amazing things in the rules - just waiting to be discovered and used by the lawyer who reads the rules. You should read through them at least annually, just to refresh your recollection and to discover changes.

Is your client or witness in the custody of the sheriff?

It is not unusual in criminal cases for litigants or witnesses to be in custody. The DDAs and the criminal defense lawyers routinely deal with getting these people to the courtroom, and dressed in non-jail clothes, if necessary. But it happens in civil cases, too. And the civil bar is not used to handling this. Tip: when this happens in your case, call a criminal defense lawyer and find out how to accomplish it.

Because the sheriff does not house many prisoners here in the courthouse, your in-custody person needs to be transported. To do this, he/she must be on the sheriff’s “transport list.” Call your judge’s judicial assistant to get this done - and the earlier you call, the more apt it is to get done in time.

It takes a court order for the sheriff to allow your in-custody person to change from jail clothes to regular attire for court. Just present a “clothing order” to your judge ex parte the day before you need the person in court. Take the signed “clothing order” and the clothes to the jail facility in the courthouse and the sheriff will take care of the rest. You are responsible for providing the clothing.

Exhibits - get them organized ahead of time

It is nothing new that judges want lawyers to pre-mark their exhibits before trial. You should all be doing this. You should also show your exhibits to opposing counsel well in advance and identify those exhibits about which there are objections.

There is no reason to establish a foundation making an exhibit admissible if there is not going to be an objection to the exhibit. It is a waste of time for all of us. Exhibits about which there will be no objection can then be received into evidence on stipulation at the beginning of the trial. We can then spend our time on issues about which there may be some controversy.

And while you are talking to each other to identify which exhibits can be admitted on stipulation, you can make sure you are not both going to be offering the exact same document. This happens a lot in family law trials, when both sides offer the income tax returns and other financial documents.