January Tips

January 2009
By Leslie Roberts, Multnomah County Circuit Court Judge

"Lawyers are the Only Persons in Whom Ignorance of the Law is Not Punished." Jeremy Bentham

Jeremy Bentham to the contrary, lawyers regularly are penalized for ignorance by embarrassment and loss of motions and cases through ignorance of readily accessible rules.

Law schools train us to look to appellate courts for the law. Perhaps that is why lawyers have not formed the habit of looking, first, for statutes and rules. Always start by finding the relevant statutes or rules, and study them. Don't rely on your memory. It may be in error, or things may change. The current, specific provisions are easy to find.

Here are examples of plain rules (or the like) that I have seen lawyers overlook:

When moving to change venue you must include an affidavit that says the one thing the statute indispensably requires: the motion is not for purposes of delay. Without it, the court can't grant the motion.

On a motion for a preliminary injunction, cite the relevant ORCPs, not federal standards: The Oregon rules cover this; federal case law doesn't help where Oregon rules are different.

When seeking to stay a case for arbitration, move for a stay (not dismissal) after first establishing that arbitration has been refused: The Oregon arbitration statutes govern in Oregon court, even for claims under the Federal Arbitration Act. Oregon law allows for a "stay" where arbitration has been refused. ORS 36.625.

When submitting an order or judgment, serve it on opposing parties at least three (count properly where mail service is done) days in advance, and so certify. UTCR 5.100. The court cannot sign the document otherwise. UTCR 5.100(1)(d) is an important exception, applying to orders in open court. If you want the order to be effective immediately, come to argument with a form of order for signature on the spot. Otherwise, you will be stuck with a week's lag time.

When filing a Rule 21 motion or a discovery motion, submit a certificate that confirms that you have conferred with opposing parties or that describes circumstances showing a "good faith effort to confer:" to excuse the conference requirement you must give the court a basis, beyond your own assertion, to agree that the facts disclose a good faith effort to confer. Otherwise the motion must be denied. UTCR 5.010.

When requesting jury instructions, use the current UJCI numbers for uniform instructions: The same principle applies as with court rules even though the UCJI are not rules. There was a major revision of the UJCI in 2005. Review the current instructions and use the current instruction numbers.

Attorneys signed service copies of documents as "Certified True Copy" decades after the rule requiring them to do that was abandoned. That was quaint and harmless - but the requirements listed above, and many others, do not share those qualities. Always review the governing statute or rule.

"If they get you asking the wrong questions, it doesn't matter what the answers are." Thomas Pynchon

In the long run, you are not in court to inform anyone of anything; you are there to be informed -to get an answer that matters to your client. Anything not leading to that answer - or worse, injecting the wrong question - is a waste. Tell the court and jurors exactly what question the case asks and why your presentation (all of it) helps them answer that question.

Don't waste time and everyone's attention on generalized combativeness. It obscures the real issues and annoys everyone.

Don't quibble about who failed to return telephone calls promptly, whether you produced more boxes of paper in discovery, whether your client is an esteemed and skilled contractor (unless relevant), or whether a witness contradicted herself about when she graduated high school. Focus. Connect everything you do to a question the court or jury must answer for you.

Narrow it down to no more than three questions at most. Don't bother with questions that don't matter to the outcome.

"First things first but not necessarily in that order." Dr. Who

An excellent way to fix in your mind the essential questions you need answered favorably is to start trial preparation with your jury instructions and closing argument. In fact, I find it hard to understand how lawyers can prepare a trial without at least the jury instructions. The instructions tell you what it is that the jury will be asking themselves in the jury room, and therefore serves as a perfect blueprint for the evidence you need to assemble and present so that the jury will answer questions the right way. (In court trials, pretend the judge is a jury for this exercise.)

"Always acknowledge a fault. This will throw those in authority off their guard and give you an opportunity to commit more." Mark Twain

There is nothing more endearing in a lawyer than humility. Mistakes or shortcoming in an argument are best faced candidly and addressed. A lawyer who discloses authority contrary to his or her own position and who withdraws defective arguments is a lawyer who has established reliability and integrity. A reputation circulates in our courthouse as in any courthouse, and a good one is the most valuable professional qualification you can earn.