September 2004 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

It’s back....

After a hiatus of about four years, Tips from the Bench returns to the Multnomah Lawyer. Circuit Judge Robert P. Jones wrote this column for several years, up until 2000. Since Judge Jones’ retirement, the column has not appeared. Judge Jones practiced law in Portland for 27 years before he became a judge in 1979. He was a trial judge for 22 years after that. I cannot hope to fill the large void left when Judge Jones was no longer able to write this column, but I hope that the bar finds some useful tips in this new version of Tips from the Bench.

I have been a trial judge for eight and one-half years. I practiced law for 23 years before that. My practice included criminal, family law, and civil litigation. I represented both plaintiffs and defendants in tort litigation.

When Judge Jones wrote Tips from the Bench, he included tips about litigation generally, with a special emphasis on civil litigation. Because the bulk of the litigation in this Courthouse is not civil litigation, I intend to touch on criminal law and family law as well as civil law.

Be here on time and ready to go

Your motion or trial is scheduled for a specific time, not “about 9 a.m.” The judge will appreciate it if you are here on time and ready to go. If you need time to talk to opposing counsel about stipulations or settlement, get here early. If you are going to be late for some unavoidable reason, call and let the trial judge know what the problem is. I remember fondly the lawyers who are courteous enough to call if they are going to be late.

And if you need your client or your witnesses to be here, they too need to be here on time. Please remind your clients and witnesses that early in the morning and early in the afternoon the lines to pass through Courthouse security are pretty long. They should allow enough time to be in the courtroom on time.

Identify yourself for the record in court

Sure you know the judge, and sure, the judge knows you. You have appeared before her/him lots of times. But sometimes names “escape” us, even for people we know. Set the judge at ease by saying your name. Even if the judge knows your name, the “record” does not. We use electronic recording for the record, and if you don’t tell the recording who you are, no one else will. And if you thought the matter deserved to be recorded (and you paid the fee), then you should also tell the record the name of the case and the subject of the court hearing, e.g., motion to dismiss, trial, etc. The deputy district attorneys are trained to do this every time, but the civil and family law lawyers do not do it very often. It is always helpful to the judge.

Written submissions for motions

Why do you prepare written memoranda for the trial judge? Why do you use your valuable time and your client’s money to prepare written submissions? The only reason to do so is to convince the judge of the merits of your issue.

So, if your goal is to convince the judge, why do you submit written materials at the last minute? Why do you FAX long memoranda to the judge late enough in the day that you know it will arrive here after 5 p.m. or bring written materials to court with you at the time set for the hearing?

If you want to give your memoranda the best chance to be effective, get it to the judge early enough to make a difference.

The judge’s staff is important to the judge

I selected the people I work with. I value them, and I like them. They are very useful to me. You, too, should see them as useful to you. When you act inconsiderately to the judge’s staff, you should expect the judge to learn about it. It would be inappropriate for me to say that I hold it against lawyers who are rude to my staff - I hope I don’t - but judges are only human.