September 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Reinstatement of Dismissed Family Law Cases

Family law cases are frequently dismissed for a variety of reasons - only later to have the parties, or one of them, seek reinstatement. The Petitioner may have delayed having Respondent served, or the parties may be trying to reconcile, or struggling over the terms of a settlement. Chief Family Law Judge Elizabeth Welch has announced a new policy on reinstatement of dismissed family law cases.

Effective immediately, after a family law case is dismissed, it may be reinstated only under the following circumstances: 1.) on the joint request of the parties; or 2.) upon presentation of a Stipulated Judgment; or 3.) on the request of the Petitioner if the Respondent has not yet been served. If it was dismissed for failure to serve the Respondent, it will only be reinstated if the reinstatement request is within one year of the date of filing.

Amended Judgments in Criminal Cases

It is not unusual in criminal cases for defense counsel, the DA’s office or court staff to discover an error or unintended entry in either the form “Temporary Sentencing Order” that is prepared in the courtroom by the clerk, or the printed Uniform Criminal Judgment that is prepared subsequent to sentencing. It has been common practice in this courthouse for years to correct such errors when the printed Uniform Criminal Judgment is prepared or prepare an Amended Judgment later. These changes have usually been made without a subsequent hearing, and without the Defendant’s consent or waiver of his/her right to be present. It may now be clear that this practice is not appropriate.

On July 27, 2005, the Court of Appeals issued an opinion in State of Oregon v. Mathew Jacobs. One of the several issues on appeal in Jacobs was the authority of the trial judge to sign an “opinion and order on sentencing” that was not what the trial judge announced in open court with the Defendant present. The Court of Appeals reaffirmed the long-standing principle that a defendant in a felony criminal case has the right to be present for sentencing, and that the sentence must be announced in open court in the defendant’s presence. ORS 137.030(1). See also State v. Bonner, 307 Or 598, 600 (1989).

The DA’s office should expect any changes to the sentence that are not announced in open court with the defendant present are subject to challenge on appeal. Defense counsel may expect negligence claims, bar complaints, and post-conviction relief proceedings if the defendant is subject to a written judgment that varies from what was announced in open court. The current forms used for felony sentences require counsel to review and initial the form. Counsel should be sure it is correct when counsel initials the form.

If I knew as a lawyer what I now know as a judge…

I have often thought that lawyers and judges could do their jobs better if they “walked a mile” in the shoes of the other. Of course, judges have had some experience as lawyers - or at least we hope so! But few lawyers get the chance to serve as judges.

In my nine years on the bench, I have seen many things in court and in written submissions from lawyers that I used to do as a lawyer - things I have learned as a judge are not very helpful. A few suggestions:

• Get your written materials to the judge early enough to be read by the judge.


• Keep your written materials short and to the point.


• Use headings in bold type in your memoranda.


• Don’t string citations - give the judge the best case that supports your position. Quote from the cited case in your memorandum.


• Rarely rely on cases that are not from the Oregon Supreme Court or the Oregon Court of Appeals, and attach copies of out-of-Oregon cases when you must cite those cases.


• Pay the hearing fee before the time set for the hearing if you want to be on the record.


• Show up on time and call the judge’s office if you will be delayed. If you are tied up in another court, ask the clerk there to email the clerk where you are going to be late.


• Don’t object to testimony just because you might have a valid objection - think about whether the testimony is harmful to your case and only object when necessary.


• Don’t treat the lawyer on the other side of the case like the enemy. He or she is probably just doing his/her best for their client, just like you are.


• Don’t expect judges to sort out conflicts in your calendars when you argue about a new date for a trial or a deposition. It is up to the lawyers to work this out or at least clarify the issues before appearing before the judge.


• Be realistic about how long your matter is going to take in court. Other people have cases too, and they deserve to be able to predict when it will be their turn.


• Talk to the other lawyer and stipulate to as much as possible. Narrow the issues the judge must decide to those issues about which you have a legitimate dispute. This approach will save money for your clients and allow more time to concentrate on what is really important.


• Talk to each other about settlement before you arrive at the courthouse for the hearing or trial.