October 2004 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Professionalism does not define a minimum standard

The criminal laws set minimum standards to avoid criminal prosecution. The Disciplinary Rules set the minimum standards to keep our license to practice law. Professionalism is something way beyond the Disciplinary Rules - it is not just meeting the minimally acceptable Disciplinary Rules to keep your license to practice law.

In recent years, bar leaders and law schools have made an effort to bring the issue of professionalism to our attention. The MBA Professionalism Award is the most prestigious award the MBA makes each year. The list of those lawyers who have received this award is a “Who’s Who” of our legal community. Other bar groups have made similar awards, and encourage professionalism in our ranks.

Various bar groups, including the MBA, have worked hard on professionalism statements, and definitions of professionalism. And while professionalism may be difficult to define, we all know it when we see it. And we all can easily recognize conduct that is unprofessional. The judges all know who is and who is not professional. When a case is assigned the first thing judges want to know is, “who are the lawyers?” Not, “what kind of case is it?” Because the professionalism of the lawyers defines the quality of the experience we all have in court. It defines who we are, as members of the bar and to the public.

It is easy to be professional when things are going well. But the true measure of all of us is how we act when the going gets tough. Please think about this.

Stipulated orders in criminal cases

The civil and family law bar accepts as routine the notion that for an order to be “stipulated” means that the document itself bears the signature of the litigants or their lawyers before it is presented to the judge. In criminal cases, the lawyers usually just agree orally, and then one of them submits an order with some reference that it is “stipulated.” Lawyers should never do this, and judges should never sign such orders. Without the stipulation either on the record in court or shown by signatures on the proposed order, it looks a lot like an order presented by one side only, without the agreement of the other side.

Motions in limine - don’t abuse them

Motions in limine are valuable tools, but they are greatly over-used by lawyers. How is it useful for you to move in limine to prevent the other party from injecting insurance into your auto accident case? What does that motion accomplish?

Talk to the other lawyer. If you have any real reason to think the other lawyer is going to attempt to inject something that is improper into the trial, then move in limine against it. But don’t expect the trial judge to rule on motions in limine when you have no specific reason to think the issue will come up.