Don't forget your trial memorandum

December 2009
By By Judge Stephen K. Bushong, Multnomah County Circuit Court.

Trial preparation is a lot of work. Many trial lawyers submit an optional trial memorandum along with their requested jury instructions and verdict forms. Before investing your time (and your client's money) preparing a trial memorandum, consider what you hope to accomplish by submitting it. Unless it is a court trial, don't waste your resources arguing the facts of your case in the memorandum; that is for the jury. Instead, give the judge a brief summary of the facts and focus on the legal framework for your case. Argue the law, not the facts. An effective trial memorandum in a case tried to a jury should (1) persuade the judge to give a particular jury instruction or set of instructions; (2) alert the judge to any disputed or complex evidentiary issues that may arise during the trial; and/or (3) set the stage for anticipated motions for directed verdict. Be sure to deliver your trial memorandum to the judge well in advance of trial if you can, so the judge will have enough time to consider your legal arguments and review the authorities you have cited. If your trial does not present any unique legal or evidentiary issues, you might not need a trial memorandum.

Be careful what you ask for....

Trial lawyers are generally competitive by nature. They like to win when they ask the judge to receive or exclude certain evidence, give a requested jury instruction (or decline to give an instruction requested by opposing counsel), grant a motion for directed verdict, or grant a mistrial. But the goal is to win the case, not the argument. If you "push the envelope" on a particular point and prevail at trial, you might be setting the case up for reversal on appeal. Before testing the limits of the rules of evidence in proffering evidence that might not be admissible (but might have an effect on the jury), consider whether the disputed evidence is really worth the risk of a remand for new trial. Before moving for a directed verdict, or urging the court to give a favorable (but perhaps legally questionable) jury instruction, consider how the issue might look to an appellate court. If you convince the trial judge, but an appellate court sees things differently, you may have to try the case again. Is that in your client's best interests? If you think a mistrial might be warranted, do you really want to start over? If you get what you ask for, you might end up winning the argument but losing the case.

The Vanishing Civil Jury Trial

Are jury trials in civil cases becoming increasingly rare? What, if anything, should lawyers, judges and the court do about this? The answers may found in a report issued November 6, by the Presiding Judge's ADR/Vanishing Civil Jury Trial Committee. The report may be accessed at the MBA Web site, on the Courts page.

Questions from MBA members

Are appearances by telephone disfavored? Do telephonic appearances hurt your case?

Under UTCR 5.050 (2), a court must grant a request for appearance by telephone if the requesting attorney's office is more than 25 miles from the courthouse. The 1987 commentary explains that the court may - but is not required to - grant a request for appearance by telephone if the attorney's office is less than 25 miles away. I would never penalize a party or lawyer for requesting appearance by telephone. Judges understand that lawyers are busy; not every scheduled court appearance justifies the time and expense of coming to the court in person. I also don't think it makes any difference if one party's lawyer appears in person and the other appears by telephone. However, if there is a possibility that testimony or other evidence might be offered at the hearing - a show cause hearing, or hearing on a petition for attorney fees, for example - the lawyer may be at a disadvantage if he or she is not there in person to cross-examine witnesses or review exhibits firsthand.

Why don't judges specialize in hearing certain types of cases, e.g., criminal, civil, dom rel, probate, juvenile, etc.?

Some specialization occurs under our current system. Ten of the court's 38 circuit judges are assigned to family law dockets; those judges hear domestic relations, juvenile, probate and domestic violence criminal cases. We also have judges assigned to handle special dockets such as the DUII Intensive Supervision Program (DISP), the STOP drug court, and the mental health court. We do not have separate criminal and civil dockets assigned to judges that would hear only one type of case, but the presiding judge may specially assign a civil case to a particular judge in advance of trial where appropriate for the efficient resolution of the case.

Personally, I prefer to hear both civil and criminal cases; many judges feel the same way. And as a practical matter, it is necessary for the court to have as many judges as possible available to hear criminal cases due to the number of criminal cases and the statutory and constitutional speedy trial requirements and other deadlines that apply to those cases.

In 2008, the state filed 5,970 felony cases and 18,695 misdemeanor cases in Multnomah County Circuit Court. That averages out to roughly 650 new criminal cases for each of the court's 38 judges. If some judges were specially assigned to hear only civil cases, it would be very difficult for the remaining judges to hear all of the criminal cases and still comply with statutory and constitutional requirements.