Summary Judgment Motions - To File or Not to File? The Honorable Danielle J. Hunsaker, Washington County Circuit Court, Jason Kafoury, Kafoury & McDougal, and Joel Mullin, Stoel Rives, LLP (April 2019)
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 Lung S. Hung, Circuit Judge
Malheur County Circuit Court
The New Judge on the Block
It was May of 2012. I had taken the bench in April of 2012. Prior to taking the bench, I had practiced exclusively as a prosecutor. I had some practical experience in civil litigation as a prosecutor, mostly in the context of juvenile dependencies and civil forfeitures, but there was no doubt my expertise was in criminal law. There I was, one month after taking the bench, presiding over a week-long medical malpractice trial.
Experiences like mine are not uncommon. In October of 2013, 18 months into my judicial career, there were 191 judges in the State of Oregon. 49 of those judges had not been on the bench for 3 years. That means there was a 25% chance if you, as a civil litigator, appeared before a judge in Oregon you would not be appearing before what I would consider a "seasoned" judge.1
As previously covered in Judge Tennyson's September 2014 article, "Court Trials - A Jury of One," it is important to know your judge. This is particularly true with a new judge. Learning as much as possible about any judge's background is going to help you in your powers of persuasion. With a new judge, you may also be dealing with a person who is still figuring out his or her "style" on the bench. An opportunity to build a long, mutually respectful relationship with a judge and educate that judge in an area of the law in which you have expertise is before you. Here are my tips for how to accomplish this goal.
Know the Judge
History Find out what areas of the law the judge practiced prior to taking the bench. Good sources of information include the Governor's announcement of the judge's appointment, the judge's insert into the voter's pamphlet and the judge's page on judgepedia.org. These sources will give you the basics. This information will let you know if you are appearing in an area of the law that is in the judge's "wheelhouse" or an area where an opportunity for education exists.
Attorneys Talk to members of the local bar in which the judge presides. They can provide invaluable observations of how the judge handles his or her courtroom. If they have appeared before the judge on your specific issue, they can probably give you an opinion how best to present your arguments. In addition, OSB listservs are frequently used as a source to obtain practical information about judges.
Judicial Staff Ask the judicial staff what areas of the law the judge regularly presides over. Is the judge a jack of all trades or presides almost exclusively in one area of the law? Ask the staff if they have any hints on appearing before the judge. Chances are the staff member you are talking to has been through several judges and can advise you on subtle differences in style.
Introduce yourself I always appreciate when attorneys introduce themselves and tell me a little about them. Depending on the circumstances, this can be done prior to your hearing or right after the hearing has been concluded. Those who have taken the bench know that the job can be isolating. A handshake and an introduction go a long way in building a judge's trust in your professionalism.
Convince the Judge
Court of Law A judge is sworn to uphold the law. A new judge might not be familiar with the area of the law you are asking him or her to uphold. If you have such a judge, it cannot be overstated how important a memorandum of law submitted prior to your hearing is. A memorandum of law allows you to set the stage. It clarifies what decisions have to be made. A memorandum of law is not the time to argue your case. Argue your case in your motion, your attached affidavits, in your trial memorandum to which the memorandum of law is a separate section of, and at your hearing. Keep the memorandum of law, as much as possible, to citations and quotes of relevant statutes and case law. If your memorandum of law is complete, concise and absent the chatter of arguments, a trial judge will have it open and sitting before him or her during the hearing and refer to it often while writing his or her opinion.
Court of Equity Judges want to do the right thing. We want to be fair. The right thing, first and foremost, is for the judge to do what the law requires. Chances are, though, if you are before a judge at a contested hearing, the law itself is not as black and white as to decide the issue. If a judge's discretion is going to come into play, do not ignore the equity argument. Point out to the judge why this issue is important to your client. Point out to the judge why this issue is important to the class your client is in. If you have some legislative history showing why a particular statute was put into place or why it was amended, point it out. A judge that has never decided a particular issue cannot simply default to consistency, but will be deciding the right thing for the first time.
Decorum If you do not have any history with a new judge, this is not the time to relax your courtroom decorum. Even if other attorneys who may have appeared frequently before the judge are less formal in the hearing prior to yours, you have not developed that relationship yet. This will be the judge's first impression of you, make it the best. Stand even if others sit. Keep your composure even if others do not. Treat all witnesses with respect even if you think they are lying through their teeth. A new judge may not understand that opposing counsel always takes an unreasonable position. A new judge may not understand that this area of the law is so well settled that you cannot believe you are even at this hearing. This is not your time to grind the axe. Make your presentation and arguments in a professional manner and build a relationship with the bench that will serve you well.
1 It is not a coincidence that at the time of this article, I have been a judge for approximately 3 years.