Tips From the Bench

by Judge Marilyn Litzenberger

Multnomah County Circuit Court


This column addresses two common mistakes attorneys make before and during a civil trial. Those mistakes concern examining witnesses and amending pleadings.


Witness Examination

Witness examination is an art; it takes practice. Many attorneys focus on the challenges associated with cross-examination, particularity with experts and fact witnesses that have not been deposed. Direct examination is "easier" because lawyers or their staff have had an opportunity to prepare the witnesses they intend to call to prove their client's claims or defenses. Sometimes the advance questioning takes place as an interview, other times it occurs before a discovery deposition taken at the opponent's or another party's request.

Unfortunately, when an attorney's preparation for direct examination is given lower priority or attention, the opportunity to really convince the trier of fact is lost. Asking leading questions of your witness does not give the fact-finder a chance to get to know the witness, to assess what the witness really knows about the matters incorporated in their testimony, or to "hear" the witness' side of the story and what the witness observed in his/her own words. Taking this approach dilutes the value (weight) of the witness' testimony in the fact-finder's mind. It is important to let the witness tell his/her story, not the attorney's version of the limited facts the attorney perceives are needed to establish a prima facie case to avoid directed verdict.

Not infrequently, lawyers who appear in the courtroom to try a case adopt a discovery deposition style of questioning when examining their own witnesses. This is especially true when the case is tried to the bench. Lawyers seem to convince themselves that a judge will want the evidence presented in an abbreviated manner; therefore, they ask leading questions so that they can quickly wrap up the trial. Discovery depositions used to be a tool for finding out what fact witnesses might know about an event or a transaction or some other aspect of an alleged claim or defense. Open-ended questions were the normal method of obtaining that information. Nowadays, it seems that primary purpose frequently gives way to a different style of questioning - leading, argumentative - and the primary purpose is to structure the deposition as evidence designed to set up a motion for summary judgment. The tactic of summarizing the deponent's prior responses in a leading question has become the norm, and that tactic is rarely challenged by an objection. As a result of the way discovery depositions are conducted in current practice, lawyers carry over that style of questioning and technique to trial.

Asking leading questions of your own witness generally is not permitted under OEC 611 [ORS 40.370]. Of course, if no objection is made, the impermissible style of examination will continue. We all know the reasons lawyers do not want to make objections before a jury, but those reasons make less sense when a case is tried to the court. Judges, like lay jurors, like most human beings, will find your testimonial evidence more reliable (and thus give it more weight) if the questions you frame during direct examination include prompting the witness to explain why the witness knows what he or she is testifying about. In fact, in some cases, "foundational" questions may take longer to establish than the brief facts needed to prove a claim or defense. If you want a trier of fact (whether it be a jury or a judge), to find your witness' testimony just as persuasive as you have come to believe it, take the time to ask the witness the same questions in the courtroom that you asked during your interview or during your preparation for trial. Remember the facts you needed to extract from the witness before you decided to take the case or decided to identify that person as a witness for trial, and don't overlook those facts when the witness testifies in the courtroom.

One more word about preparation: Do this work far enough in advance of trial so that the witness tells his/her story to the fact-finder from start to finish and does not overlook pieces of the puzzle when testifying, because he/she has just related them to you. Instead of connecting the dots, witnesses jump from A to E without relating B, C, and D. Forgetting key facts can impact the reliability of the witness' testimony. Without those "foundational facts" the witness is not as convincing.

This type of testimonial omission can also happen when a witness is called to testify as part of an offer of proof made outside the presence of the jury. After the court rules on the offer of proof, the witness is expected to relate the same testimony in front of the jury, but they sometimes forget or may make an unconscious leap because they know everyone in the room (except the jury) just heard them explain why or how or when. Your detailed list of questions for examination of the witness will help you keep the witness (and you) from forgetting what the witness has unintentionally left out of his/her testimony.


Leave to Amend Pleadings

UTCR 5.070 (1) requires a party moving for leave to file an amended pleading to attach the proposed pleading to the motion in a format that shows the proposed changes. If the court grants the motion for leave to amend, the moving party must then take the additional step of actually filing the amended pleading. Counsel should not assume the proposed amended complaint attached to its motion for leave to amend will be filed by court staff or deemed filed when the motion is granted; it is not. The amended pleading you file must be in the form approved by the court. Once the court has approved the proposed pleading, you are not free to make additional amendments unless the court's order granting leave to amend provides otherwise. Keep in mind, if the court has granted your opponent's motion to dismiss, the case cannot proceed until an amended complaint has been filed.

                Best practices in Multnomah County assume your pleadings are in order before the case is called for trial assignment (the "call" date). You should not be reporting ready for trial if they are not. Amendments to conform to the evidence are not the appropriate procedure to "fix" a complaint or answer that should have been amended after discovery. Amendments to conform to the evidence are allowed only "when issues not raised by the pleadings are tried by express or implied consent." ORCP 23B. It may be obvious, but amending to conform to the evidence is not appropriate as a motion in limine because no evidence has been submitted and it is not possible for the court to determine if any issue has been tried by express or implied consent.