Judge's Corner

Article Index

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 Edward J. Jones, Circuit Judge
Multnomah County Circuit Court

(December 2014)

Difficult questions must be answered before they are asked

Whoever created this adage would have been a good trial lawyer, because he understood how to overcome bad facts. And dealing with bad facts is at the heart of trying cases. Because every case has its weaknesses, and success is often a matter of coping with the difficult questions those bad facts provoke.

One all-to-often observed strategy is to simply ignore the bad facts and make no attempt to answer the difficult questions. So jury selection and opening focus only on the lawyer's case, without any mention of any problems. This strategy would work better except for the existence of opposing counsel, who loves those bad facts and loves to have the chance to reveal them.

A small, but real, step up is the "you heard it from me first" strategy. And these people are on the right path. The jury does need to hear it from you first. If you have spoken about the case and not mentioned it, you will be suspected of concealing it. Yet merely stepping up and promptly acknowledging the problem is far from enough. That addresses the credibility issue, and confirms your fairness and commitment to justice, but it fails to deal with the "badness" itself. For that there needs to be an explanation. The challenge is providing an explanation which doesn't sound like an excuse. And every explanation which follows an accusation smells like an excuse, regardless of whether the accusation comes from your opponent or out of your own mouth.

An effective explanation needs to happen before the accusation is made. The answer needs to be provided before the question gets asked. Remember those wonderful moments in law school when a question was asked in class and you KNEW THE ANSWER? Maybe you didn't put your hand up, but it felt good. You need to recreate that moment for your jurors. Give them the pleasure of hearing a bad fact and realizing, as they hear it, that they already know all about it.

So how do you explain what you are not allowed to mention? Since you cannot acknowledge the accusation, the specific facts which rebut or explain the weakness in the case need to presented to the jury for some other reason. The explanation needs to be embedded in your account of the facts but must appear to be directed toward some other issue.

While achieving a "pre-explanation" is a worthy goal, there is more that can be done. Ideally, the account provided doesn't just plant the explanation, it also uses the "bad" facts to advance the case. Rather than ignoring the bad facts, or merely identifying them or even pre-explaining them, rely on them. Incorporate them into your account of the case. Make them into evidence that supports your theory of the case. At that moment, they are no longer bad facts.

In his book, "Trying Cases to Win" Herbert Stern summarizes this approach thusly:

"It is of the highest importance that the jury not only hear your explanation before they hear your adversary's accusation, but that they hear it your explanation without being aware that it is an explanation. They must never hear from you that there is any such accusation."


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