Judge's Corner

Article Index

Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)

Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)

The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)

Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)

A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)

Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)

20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)

Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)

Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)

Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)

Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)

Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)

Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)

Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)

Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)

Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)

How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)

Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)

Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)

Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)

What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)

Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)

Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)

The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)

The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)

ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)

Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)

Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)

Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)

Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)

Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)

Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)

Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)

Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)

Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)

Judge Karsten H. Rasmussen, Presiding Judge
Lane County Circuit Court

(February 2015)

The Gift of Finality
One PJ's Perspective

I have lived my entire professional life in the world of risk and risk resolution. Litigation is, after all, one form of risk resolution. It seems axiomatic to write that the goal of risk resolution is finality for the parties. Yet this axiomatic proposition is strangely missing from our discussions about the goals of civil litigation and the specifics of "how to" achieve those goals.

Risk resolution requires that we get to a final outcome - that the risk be resolved. We often seem to forget that final resolution is a gift. This simple, first principle should jump out in any thinking about risk resolution in the context of civil litigation: finality is a gift. It is a gift because it resolves a dispute that is weighing on the parties financially, professionally, personally, and emotionally. As lawyers and judges we need to do a better job of reaching finality and we need to do a better job of doing it in a reasonably efficient and timely manner.

The Gift of Finality

In civil disputes, relatively small matters can weigh down a case, making it harder for the case to reach resolution. In discovery, the question most often asked seems to be: do I have all the documents I asked for? Every single one? Perhaps the question ought to be: do I have the discovery I need to move the case forward to the next stage? Or, do I have enough discovery to explore settlement?

In motion practice, the question often seems to be: was the conferral on the ORCP 21 motions adequate under UTCR 5.010? If not, maybe we should litigate THAT! Or, the question is: how many motions can I file against this pleading? Perhaps the better question is: would any of the Rule 21 motions I could file actually assist me in defending my client?

My general thought is this: keep your eye on the prize. Yes, your client wants to win, but your client also needs answers to questions that led to the litigation in the first place. There is a value to getting those answers by getting to resolution one way or the other.

The gift of finality is that the parties get answers which they need in order to move forward in their lives or businesses or both. Sometimes we overvalue process and undervalue finality. Our desire to "get it right" - a natural desire for all justice-loving lawyers and judges - sometimes causes us to lose sight of the gift of finality.

This creates a problem - or what we might call a riddle - the riddle of legal finality:

How much process is desirable for a justice system? Or, as a more junior judge on my Bench puts it - 'when is enough, enough already?' Process cannot be endless, because justice cannot only be about access to the front door of the courthouse, it must also be about exiting the courthouse.

Timeliness is a Justice Function

Oregon Circuit Courts do many things to facilitate finality. For those of you who file cases in Lane County, you know that we use a "master calendar" (in which we assign most cases to a judge on the morning of trial) rather than assigning each case to a judge when it is filed. And, you probably also know that most cases filed here are tried or otherwise resolved within 11 months of filing. This is how it works.

First, we try to find consistency where we can so that the public, and particularly the bar, knows the range of likely outcomes to any number of disputes. For example, we have one civil motions judge. This means that a practitioner, if she is paying attention, already knows the likely outcome of a motion to prevent an out-of-county ORCP 46 medical exam (it will likely be denied). In this example, greater predictability means that fewer such motions will be filed at all. In turn, this means fewer judge resources taken away from trial availability.

Second, we endeavor to further the gift of finality by having meaningful trial dates within 11 months of filing and sooner in domestic relations cases.

A "meaningful" trial date means a date certain on which a judge will be available to try your case. For us, this is our primary goal. It is not acceptable to burden the parties and the lawyers with trial set-overs when the parties and lawyers are prepared, have witnesses present and prepared, and have prepared and paid experts, for example. It is very rare that we set a case over due to lack of judicial resources.

We try our cases on the date originally set for trial. We work hard to maintain our ability to try cases on the date set for trial because timeliness is a justice function.

Third, we try to operate with the "fewer touches is better" rule. That is, touching a file fewer times is likely to result in a case getting to resolution sooner. Touching a file more times is likely to get a case to resolution later. Perhaps this is the antithesis of the judicial management model in which more judicial management is often viewed as better. I am skeptical that more judicial management is necessarily better.

As an example, one of my colleagues is very adept at the "fewer touch" rule as it relates to temporary relief in domestic relations cases. When a case comes to her from our Monday Show Cause docket for a hearing on temporary access or parenting time, the first thing she asks is: what is your trial date? If the attorneys or parties do not have one she sends them to calendar to get one. If the Respondent has not filed a Response, and hence the case is not "at issue" and therefore not able to be set for trial, then she requires a Response be filed then and there so a trial date can be chosen. We set trials quickly, so after these quick preliminary discussions, a trial date is usually set within 2 or 3 months of the temporary hearing now in front of my colleague. After the trial date is chosen, the next question my colleague asks is: so this temporary order only covers the next (say) 60 days? This approach forces the case towards final resolution, and it makes the temporary access/parenting time hearing less significant to the final outcome of the case, resulting in a higher likelihood of resolution of the temporary matter in front of the judge and in less expense to the parties.

Fourth, we do not set status conferences in civil cases or domestic relations cases unless the case is pre-assigned to a judge. Most cases are not pre-assigned in our court, so this means that in our court we do not expend judicial resources on interim matters unless we cannot avoid it. The reason for spending less time on interim matters is that this allows the court to keep the focus of judicial resources on the one thing only judges can do: try cases to resolution.

Effectively, we practice differential case management. In the civil litigation context, there are cases which need judicial management. My view is that these are the exception, not the rule. In fact, we have a saying: if you designate a case as complex, you will only succeed in making it more complex.

Essentially, then, by focusing on bringing a case to a final resolution - by setting and keeping timely trial dates, downplaying interim matters, and providing increased predictability - we effectively focus on finality at all stages of a case.

Of course, we have many dockets that are not "finality" dockets, if you will, in other words dockets that are, by definition, interim in nature. I am not saying that no process is the best form of due process. I am saying, though, that when we focus too much on process and on judge management, we lose sight of the thing we do best - giving the gift of finality to those who come to us for it.

I would encourage practitioners to collaborate in our quest for efficient and just resolution of cases. In Lane County, you can do that by reserving motions for complex case or commercial court designation for those cases you think would truly benefit from more time and more "touches" with the same judge. In all of our trial courts, you might simply shift your focus to the "prize" of finality. Remember that, as an attorney and an Officer of the Court, zealous advocacy for your client must be balanced with the overarching goals of the justice system - efficient, just, and final dispute resolution.

 

Oregon State Bar Litigation Section
Copyright © 2007-2015, All rights reserved

info@osblitigation.com
Web page design and hosting by Appaloosa