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)

The Honorable Mustafa Kasubhai, Circuit Judge
Lane County Circuit Court
(May 2015)

Handling the "Half-se" Hearing

In Lane County where I serve we assign trials to judges on a master calendar system. Very few cases are pre-assigned. On the day I am available and up for trial call I eagerly await my verdict...er, um, my trial assignment and the first question I always ask, "is it a full se, half se or pro se?" A brief explanation. Full se means both parties have legal counsel. Pro se, well that speaks for itself. Half se means one party has legal counsel (in this brief article that means you, the reader) and your opponent is representing himself or herself. I want to know what kind of case I am getting, because each type of case calls on a different skill set, and perhaps a need to draw on an extra reserve of energy, patience and focus.

In a full se case where legal counsel are both prepared and competent, I get to preside as a trial judge in the most classic sense of that role. Pre-trial motions are resolved and any remaining issues are briefed and argued succinctly. Voir dire is conducted with a keen respect to the public's time and the questions really do seem to elicit information that help all of us determine if a potential juror can be fair and impartial. Exhibits are all pre-marked. And when, in the rare instance, there is an evidentiary objection, the attorneys accompany the objection with very brief authority. Oh, and both parties rest their cases in chief well ahead of the promised time. Will someone forward this to the Make a Wish Foundation?

In pro se cases most parties have never been in front of a judge or jury and have very little idea of how the process starts or finishes. I try to conduct the trial in a manner that ensures access to the process to both parties without providing support or legal guidance to either. While there are many differing perspectives and practices as to how involved judges should become in the development of the record, at least when it comes to pro se bench trials, I have decided there must be a minimum amount of evidence I need to satisfy my conscience and conclude whether the parties have carried their burdens.

Ah, but half se cases are more challenging to manage than any pro se case I have had in recent years. Attorneys have a right to present their case without "excessive" judicial involvement. It is unfair, and inappropriate, for a judge to take the pro se "under the wing" and assist him or her. Yet, how can the judge nevertheless ensure a fair degree of access to the legal process? Navigating these waters become even more treacherous in a jury trial. To extend this metaphor, a full se case is like the open sea. On most days it is calm and orderly, predictable. Everyone can get from one harbor to the other without much fanfare. The pro se case is the rocky shore. The hike and rock scrambling can be a workout, and I might never know what I will find in the tide pools, but at least it won't be a 20-foot shark looking to bite my leg off. At the end of a pro se case, I could be exhausted, but if done well, there is satisfaction in knowing the parties' dispute is resolved. Then there is the half se. The half se is the intertidal zone. That place where the seawaters break and waves crash through underwater geology. This is the place where, if all of us are not careful, the tide and current will drag us under.

In the interests of the overall ideal of justice, winning well and winning for the long term, I urge trial attorneys faced with a half se case to proceed with care. Below are several tips you might use to help your case, help your trial judge and perfect your record when you litigate against a self-represented party. Most of the tips below can be reduced to this idea: There is a vast difference between what an attorney can do and what and attorney should do. Appreciate the difference and elect the latter.

1. Get the judge involved as soon as discovery becomes difficult. It is quite common for self-represented parties to miss or ignore deadlines. Responding to a lengthy discovery request is likely overwhelming. Mistrust of you, your client and the legal process generally cause self-represented parties to avoid the process. I have also seen self-represented parties mirror the attorney's requests and serve very lengthy, redundant and overly broad requests. Now both parties are stuck battling each other over what has to be produced. File a motion to compel and also ask for a pre-trial conference if your local rules allow. This should get you in front of a live judge who can set out the ground rules for both parties going forward. If you anticipate needing depositions, then come to the hearing ready to ask the judge for assistance in securing the self-represented party's cooperation. Prepare a scheduling order for the judge's signature. Now you have a road map that binds the parties and with which the judge can hold the self-represented party accountable. If a party refuses to answer questions in deposition, call the court and ask for a judge's guidance and order. Make sure the reporter records the court's instructions in the event you need to ask for sanctions in front of another judge.

2. Always be willing to explore settlement. It is never weakness to be the first to initiate settlement discussions. Self-represented parties might think so, though, and they may have no one to counsel them otherwise. So you should raise it early in the case and often. Do it often so the self-represented party does not consider your settlement interest as tied to a perceived weakness or defeat in either case. For example, if you raise settlement for the first time after the judge denies your summary judgment motion, a self-represented party may no longer be interested in settlement or your values may now be so divergent, settlement is impossible. There are many judges on most courts who will facilitate a prescheduled settlement conference. In Lane County, attorneys are familiar with the judges who regularly schedule settlement conferences and can call their chambers to get the parties in front of the judge before trial. Caveat, many judges, including this writer, are reluctant to preside over half se settlement conferences because of the difficulty of avoiding becoming counsel for the self-represented party. On the day of trial, ask the trial judge if she can get another judge to help settle the case. Other key times to bring up settlement are right before a jury panel is brought in (there is something daunting about actually having to conduct voir dire), at the first recess after opening statements (reflecting for the first time on one's own voice describing the dispute and realizing it sounded better inside one's skull might put settlement back on the table), or after the first party has finished his or her case in chief.

3. Always put a settlement on the record. It is easy to put the settlement on the record when both parties are already in the courthouse. So there is no excuse for not doing it. In one recent incident, an attorney and the self-represented party reached a settlement after I stepped out of the courtroom. The self-represented party notified my staff that the parties reached an agreement, but the attorney had left before I could insist on putting the settlement on the record. A week later I learned that the self-represented party backed out of the deal. If the parties reach a settlement away from the courthouse, contact a judge immediately and find out if there is a time that day to put the settlement on the record. If you cannot secure the assigned trial judge, call the presiding judge's chambers for assistance. Judges will help make it happen.

4. Avoid boilerplate language just about everywhere. Forms are a blessing. They contain the universal and collective wisdom of all the lawyers who had to deal with all the possible ways things could go wrong long before your parents were even twinkles in their parents' eyes. But in the case you are dealing with right now, do you need all of it? Not likely. The self-represented litigant may take one look at the discovery request with all its subparts and decide it would be impossible to comply. If you want discovery, form a request that accounts for the opposing party's ability to succeed in getting you what you want. Simpler discovery requests are easier for a judge to enforce. Consider also the settlement agreement and release. Strike a balance between covering all the bases that really need to be covered and evoking paranoia. I have had several settlements almost go sideways when the self-represented party decides he is giving up too much when he waives his right to make any claim against your client's descendants... seven generations removed (this last part was a slight exaggeration).

5. Help the judge ensure a just playing field. The judge and a jury will be observing and evaluating your behavior more than you might think. This tip (along with #6 and #7 below) most clearly reflects back on the theme of knowing the difference between what you can do and what you should do, and electing the latter. After jury trials I go back to the jury room to talk with the jurors about the trial. Jurors regularly comment on the attorney's conduct in trial. Both good and bad. It is painfully clear to judge and jury when an attorney is, well, being a jerk. I cannot think of a case where it ever really helps your client when you, the trial attorney, act badly even when the self-represented party might be a jerk, too. I have noticed that where a party may prevail on liability, for example, damages seem to be directly correlated to the parties' and attorney's behavior--the lower you go, so goes damages. Courtroom decorum does foster justice and fairness. For example, if the following does not materially undermine the merits of your case or defenses, then cooperate with calling witnesses out of order, do not object to telephonic testimony, share demonstrative exhibits and charts, and if the self-represented party cannot seem to find a document and is slowing down testimony, then share your copy. In most cases there is no need and absolutely no value to your client in humiliating the unrepresented party. This is especially true if your client and the opposing party have a business, community or familial relationship that needs to be preserved. Please, please, please resist the temptation to flex your litigation ego. Even if your client wants you to go after the other side, the judge will remember what happened, or what you failed to do, as your unprofessional choice, not your client's.

6. Object only when you really need to. This is a subpart to #5 above, but deserves special consideration. In sum, self-restraint is a virtue when it comes to evidentiary objections. This is true with all cases, but intemperance with objections in half se cases borders on wicked. What comes to my mind is the attorney who seems to enjoy disrupting and frustrating the unrepresented party with technically appropriate objections, and then without a hint of shame commits the same evidentiary "violations" knowing the unrepresented party may have no idea how to respond. Judges comment on this all the time with each other. That behavior is rarely forgotten. Of course you must make a record, but most objections never need to see daylight. Unrepresented parties will ask witnesses irrelevant and inappropriate questions. Resist objecting to the ones that might start obstructing the flow and rhythm of the trial and do not otherwise hurt your case. Factfinders will become distracted and can lose sight of what you might ultimately be trying to prove. The focus instead becomes the courtroom drama. That drama is invariably a miserable proxy for deciding the case on the merits. So try this imaginary exercise next time you find yourself itching to object. Every objectionable question the unrepresented party makes is a putrid-green, maggot-eyed zombie. Some are coming your way slow, some fast. Some are just walking around in circles eating their fingers. You are our doomed and lonely hero who needs to make it to the end of this B film, and you only have two half-full magazines of ammo (effective objections) left. Make'em count.

7. Prepare jury instructions that include uniform instructions the opposing party should have known to include, but did not. Help the judge make a record that will not be reversed on appeal because of errors that could easily have been avoided at trial. Jury instructions are traps waiting for appeal. The Court of Appeals can reverse a case for an error that no one preserved at the trial court. Because the error was apparent on its face the appellate courts may nevertheless address it on appeal. While ultimately it is the judge's responsibility to instruct the jury, do your part to propose all the relevant uniform instructions that you and the opposing party would use if the opposing party knew better. I am not expecting attorneys to propose special instructions and "advocate" for the opposing party. I may catch all the uniform instructions the unrepresented party would need to present his or her theory of the case to jury, but I also might miss some. Why would you want to risk having to try the case all over again, if you could have aided the judge the first time with a complete and accurate set of instructions? Yes, many unrepresented parties will not appeal, but some do, and some find counsel on appeal. An attorney I respect well, I respect even more after he proposed a full set of jury instructions in a half se trial before me. It confirmed for me he was not looking at the short term jury trial win, but also kept his eyes on the long term finality that comes with a solid record on appeal.

Please accept this normative missive as a judge's perhaps naïve appeal to our better angels. It is an appeal that does not require the trial attorney to compromise the strength of their advocacy. Rather, these suggestions temper that strength with an honor and professionalism that must be extended, not only to others with the license to practice, but unrepresented parties as well. And like a strong steel when tempered well, your advocacy in the courtroom will retain its keen, effective edge long after other brittle metals have failed from misuse.

 

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