Responses to MBA member questions

November 2008
By Stephen K. Bushong, Multnomah County Circuit Court

MBA members have submitted many thoughtful suggestions and questions they would like to see addressed in this column. Here are some of the recent questions and my responses:

What do judges expect at prima facie hearings?

I expect the party to present admissible evidence establishing the right to the relief claimed and the amount of damages they seek. The evidence can include witness testimony - in person, deposition excerpts, or affidavits - and exhibits. I sometimes will ask questions of witnesses to clarify or expand on their testimony. I also expect the lawyer to explain how the evidence fits together to establish the right to relief and the amount of damages sought.

How do judges approach attorney fee petitions? When do we accept or modify the amount claimed? Does the size of the case matter?

Attorney fee awards must be reasonable; what is reasonable in a given case will depend upon a number of factors. If there is no objection to the amount claimed, I may assume that the amount requested is reasonable and award that amount. If there are objections, I review the objections and the factors set forth in ORS 20.075. The amount involved in the case and the results obtained are factors listed in the statute, so the size of the case matters. The OSB's Economic Survey and recent decisions by other judges in this community - both state and federal court - often are helpful to me in determining a reasonable hourly rate.

During a deposition, should attorneys explain the basis for objecting to a question? What if the objection is to the form of the question?

Under the MBA deposition guidelines, explaining the legal basis for an objection is permissible - and desirable - in order to give the questioner an opportunity to re-phrase the question. "Speaking" objections and colloquy between counsel about an objection are not appropriate. "Objection, leading" or "objection, calls for speculation" are appropriate. "Objection, the witness already said X;" or "objection, you're trying to confuse the witness into saying something that she doesn't mean" are not appropriate.

What can attorneys do to build a good reputation with judges and court staff?

Treat all participants in court with respect; remember that court staff may observe your interactions with opposing counsel even after the judge has left the bench. Be prepared; don't waste anyone's time. Submit trial briefs, jury instructions, verdict forms, trial motions to the court in advance of trial and in the appropriate format (many judges want jury instructions submitted electronically). Know the facts and the law that applies to your case; don't overstate or misrepresent either one. Choose your battles carefully; it is not necessary to fight over everything. Resist the temptation to respond unprofessionally when opposing counsel is being a jerk; always take the high road. Argue the case based on the facts and applicable legal standards; do not whine about the tactics adopted by opposing counsel or suggest that you should prevail because the other side has been so nasty throughout the case that they don't deserve to win.