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 Henry Kantor
Multnomah County Circuit Court
(September 2016)

Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone)

The last column was written by Judge Eve Miller and was entitled "Managing Multi-Party/Complex Litigation Without Driving Judge's Staff Crazy." I am really glad Judge Miller wrote that article. It provided helpful hints to lawyers so that they and their staff could work with the judge's staff professionally and productively.

My focus is a little different. Over 21 years of managing "Big Cases," I have learned what works and doesn't work in a lot of different areas. Lawyers really can help judges manage the complex cases in a way designed "to secure the just, speedy, and inexpensive determination" of each case, as mandated by ORCP 1B and within the intent of UTCR 7.030 (our uniform trial court rule governing complex cases). And, just as importantly, lawyers can make it difficult for judges to manage complex cases. Here are some pointers on how to do it the right way:

Talk With Each Other. Seriously, talk – in person is best; by telephone is adequate. Letters, emails and texts are no substitute for talking. Serious or detailed disputes resolve best with clear conversation and compromise. Confer by talking even when the court rules don't require it. This will translate to fewer motions and hearings and less stress on your judge.

Pleading Problems. In complex cases, pleading issues rarely mean anything. Don't waste your time. Most claims and defenses will rise or fall naturally without motion practice, especially ORCP 21 motion practice.

Time Estimates. Whether it's a motion hearing or a trial, be thoughtful and practical when estimating how much court time you will need. Talk with each other and remember it's better to finish before expected than to go past the deadline, especially when your judge needs to call the jail to have an inmate transported to the courtroom. The same is true for briefing motions and other legal issues. Last minute extensions of time often create planning problems for judges, who budget their time very differently than do lawyers. For trials, build in time for pretrial motions, jury selection, precautionary instructions, opening statements, instruction conferences, jury instructions, closing arguments and jury deliberations – it's not just about the presentation of evidence.

It's Just Too Much. The average Oregon state court trial judge has limited to no experience managing complex civil cases. It is natural for a judge to feel overwhelmed or even intimidated by 20+ defendants, 10+ lawyers, 15+ claims for relief, 25+ affirmative defenses, dozens of motions and mounds of paper. You need to acknowledge that when appropriate and offer to help in meaningful and professional ways. So, you need to make sure you know your judge's background and experience. If you don't know, politely ask.

Mentor Judges. Whether you know it or not, and whether you suggest it or not, judges routinely communicate with their judicial colleagues about pending cases, especially challenging cases, via telephone, email and instant message. Don't be concerned – this is a good thing. A decent mentor judge is someone with lots of experience. She or he offers support and guidance – but does not tell your judge how to rule. Rather, your judge might be told how other judges have ruled on the same or similar issue, how to construct an effective ruling and where to look for pertinent legal authority. Encourage your judge to reach out to a mentor judge when appropriate. Do not criticize your judge for asking for or receiving help.

It's Been Written Down. There are court decisions, procedural rules, textbooks and articles on 99% of all conceivable issues which can arise in complex litigation. The bible is the Manual for Complex Litigation, published by the Federal Judicial Center and currently in its fourth edition. If you plan to cite to the Manual, consider getting all lawyers in your case to gather $17 (plus shipping) and buy one for your judge. It also is available for free at http://www.fjc.gov/public/pdf.nsf/lookup/MCL40000.pdf/$file/MCL40000.pdf but (sounding old school here) there's nothing like being able to flip right to the key section during a court hearing.

Local Counsel. In many complex cases, lawyers from other states represent one or more parties pro hac vice, with associated local counsel. Tell your out-of-state counsel that local knowledge matters and invite your judge to rely on you. This means you have to be truly involved with and knowledgeable about your case.

Thanks for reading this.

 

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