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)

Making the Most of Short Evidentiary Hearings

The Honorable Daniel R. Murphy, Circuit Judge
Linn County Circuit Court

(August 2014)

In all areas of practice attorneys are called upon to provide sufficient information in a short evidentiary hearing to obtain a ruling. It may be an evidentiary ruling. It may be temporary relief, a protective order, a discovery dispute, and many other pre trial matters that are handled in a short hearing.

Case filings continue to increase while Oregon courts are faced with no more docket time and often less due to staff and judge shortages.

The challenge for attorneys is how to make the best use of this limited time to get before the judge the essential evidence needed to make a good decision. These hearing times can be as little as 30 minutes and often not more than an hour or two. Here are some tips on how to use that short time to be most effective.

  1. Stipulate to as much as you can: Contact opposing counsel as soon as you can and offer to stipulate to facts that are not in controversy in exchange for stipulations that you need.
  2. Maintain Focus on the issues at hand: there is often a temptation to ask questions about every dispute that exists and every complaint your client has, even those that are not relevant to the limited issue before the court. Every minute spent on these irrelevant matters denies you time to offer proof on what is crucial to the limited issue before the court.
  3. Object to irrelevant and redundant questions: even if you carefully limit your inquiry to what is relevant opposing counsel can waste everyone's time with repetitive evidence or long diversions. Be prepared to raise the relevance objection and limit the evidence to what the judge must decide at this time.
  4. Limit Opening statements and closing arguments: there is not sufficient time during a short hearing for long openings and closings. Judges must make decisions based on evidence, not on argument. Consider waiving opening. It is extraordinarily rare that an attorney gains any advantage from an opening statement in short hearing. Limit your closing to 2 or 3 issues - no more than 3 minutes.
  5. Obtain stipulations to documents: time is saved when stipulations to documents are used. Unless you cannot lay the foundation for a document no one should be objecting to it. With a proper foundation it will come in.
  6. Prepare your witnesses: this is especially true of clients who want to tell their whole story and digress. Tell them up front what you are going to ask them. Preferably give them the questions in writing before the day of the hearing so they can be prepared to answer them. If a witness cannot remember events reliably or cannot remember dates, times and places do not ask those questions.
  7. Make sure the facts are available: insure that you are calling the right witness to prove the facts at issue. Does this witness know these facts or is it merely hearsay or supposition? Focus on what is admissible. Ask the witness in advance how they know what they say they know it.
  8. Limit the number of witnesses: you have only a short time. Call only the most essential witnesses to offer the essential evidence the court needs to render a decision.
  9. Make sure a witness is credible: find out about their criminal record in advance. Find out if they have previously testified in the case and what that testimony was. Review depositions if they exist to make sure you do not ask the wrong question and ambush your own case.
  10. Google the Ten Commandments of Cross Examination by Irving Younger. These are golden. Effective cross examination is the greatest challenge for trial attorneys and often the least skillfully done. Short hearings are not discovery opportunities or fishing expeditions. If you do not know the answer likely to be given do not even ask the question - unless you really can impeach the witness. Often the most effective cross examination are these seven words: "I have no questions of this witness".
  11. Almost always call your most important witness first. If you run out of time you have the most crucial evidence in.
  12. Know your judge: if you have not practiced before the judge in the past ask colleagues about the judge. What are the judge's preferences, attitudes about going over time, etc? Irritating the fact finder is never a good strategy.
  13. Offer findings of fact: be prepared to offer the judge written proposed findings of fact and be prepared to amend them as needed. Most judges are buried in work and anything you can do to reduce their work demands is effective. On the other hand do not offer proposed findings of fact that are not supported by the evidence.
  14. Do not overlook possible settlement: good lawyers settle as many disputed matters as quickly as they can and they don't give up on their efforts to settle. Document those efforts carefully - they may be valuable when you seek an attorney fee award.
  15. Be organized: nothing frustrates a judge more than a disorganized attorney. Prepare a trial notebook with an outline of the essential facts you need to elicit. Pre-mark all exhibits in advance (the rules require it) and have a copy available for opposing counsel, the court clerk and the judge. Submit an exhibit list to the judge and clerk in advance.
  16. Have an exit strategy: think about how you will want to proceed if you lose on the initial hearing. This inspires confidence from your client and helps you plan your strategy for trial.

The most effective attorneys in short hearings are those that are well organized, have prepared thoroughly, know what their witnesses know and how they know it, and have planned out the crucial evidence they need to offer while pruning away that which is not essential.

Daniel R. Murphy is the presiding judge of the 23rd judicial district in Linn County, Oregon. He has been on the bench since 1994. He is also the editor of the OSB Family Law Newsletter.

 

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