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 Kirsten E. Thompson
Washington County Circuit Court
(April/May 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

Most jurisdictions set a pretrial hearing in criminal and family law cases. They may be called a Case Management, Pretrial, or Status Conference. Whatever they are called they all serve a similar purpose: to bring the parties together in the same location so they can narrow the issues of disagreement, memorialize the areas of agreement, and settle all or part of the pending case.

In Washington County, the Court recently went through a formal reengineering process with the assistance of the National Center for State Courts, and a grant from the State Justice Institute. We knew our pretrial conference system in criminal trials wasn't working as well as we would like (community partners weren't shy about telling us), and we wanted to make things work better. As a result, we met with attorneys from the prosecution and defense bar. We spoke with law enforcement. We judges talked with each other. Don't laugh - when each judge has a busy docket in another part of a large building, or in another building a couple of blocks away, talking with one another can be a challenge. We ultimately conducted three Saturday retreats to discuss this topic. With the assistance of excellent consultants from NCSC, the input we received from our community partners, and our own experiences in the courtroom we adopted a revised case management system. The case management system emphasizes better preparation prior to trial, encourages case resolution at the earliest appropriate point in the case, and results in an appropriate trial setting. The trial itself is less likely to be reset for any reason except good cause. Lack of judicial resources is less likely to prompt a reset.

This process has caused me to take a harder look at the pretrial process in other cases as well. In my opinion there are some takeaway messages for attorneys about how to use the pretrial, non-evidentiary hearing most efficiently.

First - Know your case. When was the case filed? How old are the parties? If the case involves minors, what are their ages? If they are in school, what grades? Are there health or disability issues that will impact the case management or outcome? What is each party asking for from each other and from the Court? It is important to know the legal rules which will apply in the case, but it is also important to be ready to discuss the statistical information about the parties - judges need to have this kind of information in hand to assist the parties at a status conference. Legal rules can only be applied to relevant facts.

Second - If you are the Plaintiff / Petitioner, have you provided all of the required discovery to the opposing party within the statutory deadline? Note the applicable statutes - ORS 135.815 et seq and ORS 107.089 for example. Consider the subject matter of the case, and provide the information which you know will be requested and required for the opposing party to make an informed decision about how to proceed. Likewise, if you are the Defendant / Respondent, have you provided the reciprocal discovery you know you are required to provide? Litigants often seem to think that the Judge has all of this information. As attorneys, you know that the details of the case are in the attorneys' hands.

If the parties have not exchanged discovery by the time of the pretrial or status hearing, these issues can be brought up with the court, and often they can be solved by setting a stipulated date to provide the missing documentation. If the necessary records are in the hands of a third party, then subpoenas and protective orders can be discussed. There are Supplemental Rules which outline how these matters are supposed to be handled. Take some time to read the rules, and ask questions of local practitioners about process. Uniform Trial Court Rule 6.010 contains the basics on conferences in civil proceedings. Chapter 6 of the SLR for each county is the place to look for local protocols. A good example is SLR 6.013 in Washington County. These court rules are a great resource for figuring out the nuts and bolts of how to do things.

Third - if you are the Plaintiff/ Petitioner, have you made an offer to the opposing party that would allow the case to be settled? There are a number of statutory provisions in ORS Chapter 135 and 107 regarding plea and settlement discussions, which need to be considered. In criminal Case Management Conferences there is a problem if a late offer is communicated to defense counsel; leaving inadequate time for review with the defendant. Often the Defendant has difficulty (for whatever reason) in getting in to meet with the defense attorney. Sometimes setting an additional Case Management Conference in a short but reasonable time frame can clear up discovery; give time for a real review of the offer made by the State; and bring about a voluntary case resolution. If the discovery is available, and brief, an attorney can have a quick review with a client in the jury room, or cafeteria and avoid the need for a reset. In either event, a more appropriate trial date can be selected when the parties are better prepared. A case should not proceed to trial unless the parties have the opportunity to prepare, and make reasonable efforts to resolve the case voluntarily.

This principle is equally true in Family Law Cases. In recent months I have begun explicitly asking the questions: Petitioner, "Have you made an offer to settle?" Respondent, "Have you responded to the offer with a yes, a no, or a counteroffer?" In a surprising number of cases, there have been no real settlement discussions between the parties. Since the parties are spending their own, often limited, resources on litigation, it is important to get the settlement discussions started. Many times the trial judge is able to assist with an issue or two to help the parties to resolve the case once the conversation is started.

Fourth - if you have all discovery complete, you know your case, and you've exhausted your settlement options, be ready to set and stick to a reasonable trial date. Oregon has had standards for timely case disposition since 1990 for criminal cases, and 1991 for domestic relations cases. Your case will be set for trial according to those standards, and your assigned trial judge or the presiding judge will likely deny any reset request which put the case outside of those standards. This makes all of the preparation you have been doing in steps one through three doubly important.

 

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