Tips from the Bench

July 2009
By Judge Leslie Roberts, Multnomah County Circuit Court.

"First, your return to shore was not part of our negotiations nor our agreement so I must do nothing. And secondly, you must be a pirate for the pirate's code to apply and you're not. And thirdly, the code is more what you'd call "guidelines" than actual rules. Welcome aboard the Black Pearl, Miss Turner."

Barbarossa (Pirates of the Caribbean)

My topic is the trial of complex jury cases. While it no doubt is true that most individuals in practice don't try complex cases frequently, Multnomah County Circuit Court does try them on a regular basis. When the time comes that you have a big case, you want to handle it efficiently and in light of court expectations.

Multnomah County Circuit Court has practices for large civil cases that are "more what you'd call 'guidelines' than actual rules." Knowing the guidelines (and their flexibility) avoids a great deal of trouble, even if you will not be forced to walk the plank in case of error.

There are relevant rules, of course. UTCR 7.030 provides for the designation of a "complex" case on the motion of any party. There are no hard and fast criteria: the case may be complex because of the number of parties, the legal issues, special problems involving discovery, or the length of time it will take to try it. Those factors are not exclusive. If it looks and feels complex, it may qualify.

If the case is designated complex, presiding court will assign it to a judge for some or all purposes. Complex cases are no longer governed by the usual rules of trial scheduling. Trial of complex cases should occur within two years from filing, except when the assigned judge finds good cause to extend that deadline. UTCR 7.030.

The rule takes you that far, at which point guidelines and practices take over. In my court, after special assignment for trial, we set a fairly prompt scheduling conference, in which all the parties will confer and arrive at a schedule for the path to trial. The scheduling conference will also address the dates for further status conferences, and the dates on which the trial will be conducted, unless the trial dates are already determined. Here is a tip: bring your calendar - and that of your essential witnesses and experts - to the conference. (Excuse my stating the obvious - lawyers don't always do this. One might have thought the label "scheduling conference" would have hinted at the usefulness of calendars.)

The topics that may be addressed in the scheduling conference are deadlines for completion of pleadings, addition of parties, motions regarding pleadings, discovery requests, times for depositions, confidentiality orders, resolution of special discovery problems (such as electronic discovery), filing of dispositive motions, exchange of documents, witness issues such as perpetuation or testimony to be taken out of order, and any other issue that could be addressed to advance the case in an orderly fashion. Resolving all those matters in a conference with the judge and all of the parties can bring order to what might otherwise be a frustrating and never-ending round robin of calls and emails to coordinate multiple lawyers' schedules and positions. It is extremely helpful for the attorneys to discuss among themselves, before the scheduling conference, any topics that might be raised during the conference. They can then present tentative agreements on as much as possible, and spend the court's time on matters in dispute.

One advantage of having an assigned judge for a complex case is the advance notice of the particular judges' trial preferences and practices. Our Fridays are, as most lawyers are aware, reserved for long motions, and we do not ordinarily use them for trial; an exception is not only possible, but frequent, in the case of a specially set, long jury trial. In my personal view, the shorter the total time span over which the case extends, the better: jurors prefer it, and any trier of fact - judge or juror - keeps a better grasp of the testimony over a shorter period of time. This sort of individual preference can be discussed with the assigned judge at the scheduling conference.

The compilation of trial practices in the Recommended Practices Manual for Civil Jury Trials (available on the court's web pages) provides general guidelines - but be very aware that they are merely guidelines. They are not code. An individual judge may well disagree with certain statements in the manual, and an individual case may require a departure from guidelines generally followed. It is a good idea to confirm the preferences of the particular judge assigned to your case. One source of information about that judge's preferences is the judge's individual web page, found as a link from the Multnomah County Circuit Court web page. My page, for instance includes a memo regarding practices in my courtroom. Another source for judges' preferences is the MBA Judicial Practices Survey, available at no charge to MBA members at www.mbabar.org/membersection/members.php.

Finally, in adapting to the assigned judge, don't be a stranger in the courtroom. Meet the clerk and judicial assistant and discuss with them what might make their work easier. Make sure you know what courtroom resources are available and what you need to supply, such as projector or video player and television screen. Some courtrooms - mine is a good example - are quite compact. Let us know if you will use large exhibits, movie or PowerPoint presentations, or demonstrations. With enough notice, we may seek a trade of courtrooms for more spacious accommodations. Discuss what files and exhibits you will want to leave in the courtroom during trial, and where to put them. At least include courtroom staff in planning the logistics. Be sure that the equipment you expect to use is available, that the cords are long enough to reach to the electrical outlets, and that the jurors will be able to see what you intend to show them.

Knowing that the jury coordinator had to have advance notice of long jury trials, I felt sure there was an official rule defining counsel's responsibility for the need for extra jurors. I assigned my clerk to locate the rule. This seems a true example of a Multnomah County corollary to the Code of the Brethren. There is no code, but "more what you'd call 'guidelines.'" The jury coordinator reports that, if a jury trial is expected to exceed eight trial days, then the coordinator should be given at least 28 but preferably 42 working days' advance notice of the need to send out additional juror summons to accommodate the request. (This should not be confused with the obligation to notify presiding court, in cases not otherwise specially assigned, at least 30 days in advance of trial if a jury trial is expected to last longer than five days - also one of those non-code guidelines - for pre-assignment for trial.)

The reality is that - regardless of any rule or guideline - the jury coordinator is subject to the practical necessity to send out more than the usual quantity of summons for any long jury case. The longer the trial, the more potential jurors who will be excused based on hardship. Hence, more jurors will have to be called for voir dire to secure the number needed for jury selection. Whether the case is specially assigned or not, it is the responsibility of the lawyers to ensure a timely notice of the need so that additional summons will be issued.

For complex cases, lawyers sometimes wish to have a special panel summoned at least a day prior to the first day of trial, in order to ask jurors to complete a special questionnaire prepared by the lawyers with the court's approval. In theory, such a questionnaire can allow the lawyers to use voir dire more efficiently and effectively. That is patently impossible if the jury coordinator learns of the request too late to prepare and send the appropriate summons. Such a request must be raised with the judge, or if none is assigned, with presiding court, well in advance. There is no benefit in waiting until the last moment; it is better to build in a comfortable margin. The jury coordinator needs 42 days. I would suggest calendaring the request to the judge (with copy to the judge's clerk) for two months in advance of trial.

Finally, I must add a probably futile plea to include serious settlement negotiations in the schedule for the big case (sometime well before the customary period of two to three days before commencement of trial). With that purpose in mind, you may consider asking the assigned judge for a preliminary determination of issues that would assist the parties in valuing the case and thus in reaching a mutually acceptable resolution. It must be obvious that the courthouse steps are a particularly expensive point to reach before agreement. Can someone say, "Parley?"