May 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Bankruptcy - one of several defendants is in bankruptcy

Your plaintiff is suing two or more defendants, and one of the defendants goes into bankruptcy while your case is pending. 11 USC Section 362 creates an automatic stay of your state court litigation against all defendants, not just the bankrupt defendant. UTCR 7.050 authorizes you to apply to state court for an order severing the bankrupt defendant, so you can proceed with your case against other defendants, who are not in bankruptcy. Until you move to sever the bankrupt defendant, the automatic stay is effective to prevent any action in your case against any defendant.

Audio-visual equipment in the courtroom

Are you planning to use audio-visual equipment in the courtroom for your trial? You need to plan ahead to make sure your needs can be accommodated in the courtroom. Many of our courtrooms are too small to handle everything you and the other lawyers in your trial plan to use.

If your needs are as simple as a television and a VCR to show the jury a deposition video, check with the courtroom clerk to see if the clerk has the equipment readily available, so you might not have to bring your own. If you plan to use more extensive equipment, have your technician call the judge’s judicial assistant or clerk right away after the case is assigned to the judge, and arrange to visit the courtroom before the day of trial to make sure your equipment will fit in the courtroom.

You should also coordinate your equipment needs with the other lawyers in your trial. The judge is unlikely to allow each side to bring their own duplicate equipment to the courtroom. You should expect to share the equipment to minimize the clutter in the courtroom.

Your technician should arrange with the judge’s clerk for a time to set up your equipment in advance of the time you will be using it. Tell your technician to plan to use gaffer’s tape to tape electrical cords to the floor in the courtroom - not duct tape. Duct tape leaves residue on the carpet when it is removed.

Evidence - Family Law cases - the rules of evidence apply

I am constantly amazed how often lawyers fail to object in family law trials. The Oregon Rules of Evidence do not just apply to civil and criminal jury trials. The Rules of Evidence also apply to family law trials. Inadmissible evidence comes in without objection in almost every trial because the lawyers don’t object.

Negotiating or starting trial?

Your case is assigned for trial to start at 9 a.m. You and your client show up outside of the courtroom a couple of minutes before 9, and the other lawyer and her client show up shortly after you arrive. You “set up” your materials at counsel table to get ready for the trial to start. The clerk asks both lawyers to come into the judge’s chambers for a brief conference before starting trial. Does this pattern sound familiar?

I almost always invite the lawyers into chambers to talk about any pre-trial motions, motions in limine, scheduling, etc. I conclude these conferences by asking the lawyers if they have completed their settlement negotiations. It amazes me how frequently the lawyers will look at each other, shrug, and say it might help if they talked a bit before we start trial.

Most judges will allow the lawyers an opportunity to negotiate before starting the trial. But if the case is assigned to start trial at 9, how long is reasonable? I am sure most of you have been talking to each other about settlement before the morning of trial. Should we just start the trial at the