Tips from the Bench
What Backpacking Teaches About Handling Cases
by Judge Jerome LaBarre
Multnomah County Circuit Court
In August I was sitting in our campsite at the Three Sisters Wilderness Area when the thought came to me - handling a case in the right way is a lot like a successful backpacking trip. Both involve anticipating lots of details. Both require you to focus on the macro level and the micro level. You must be able to see the big picture as well as the picky details. Realizing that I was nearing my deadline for my Tips From The Bench column, I decided to reduce my thoughts to writing and here they are:
- Go Ultralight. The key to making it through a long backpacking trip is to use the ultralight approach. In law when you get to the trial or hearing, you also must lighten up. Cut to the chase. Get rid of quantity and go for the quality evidence which will allow you to present the winning theme. Reduce the number of exhibits and cut loose unnecessary witnesses.
- Stay Away From Poisonous Plants. You need to stay healthy when you are deep in a wilderness area if you hope to make it out safely. Successfully handling a case means avoiding big mistakes. In situations like cross examination it is easy to have things blow up on you. Lawyers do best when they remember the two basic purposes of cross examination: #1 Minimize the credibility of the opposing witness; #2 Use the other side's witness to establish elements of your own case. And also remember that the best cross examination is usually the shortest.
- Set Up Camp In The Best Place. It only takes a few times of pitching your tent on a slope or right next to a churning stream to realize that you do not want to wake up rolling down a hill or all wet. Choice of forum for your case can be critical. State or federal court? Arbitration vs. litigation? Pre-filing attempts at settlement or mediation? Sometimes where you start has a lot to do with where you finish.
- Take A Guide With You Into Dangerous Places. We once did a sea kayaking camping adventure in a remote fjord in Alaska. It went well because we had along a professional guide. In the big case consider getting assistance from a pro. If the area of the law is new to you, think about bringing in expert help. To determine the best way to present your case you may want to get help from a trial consultant and have a focus group.
- Don't Get Between A Mother Bear and Her Cubs. In the wilderness you must use caution if you confront a wild animal. Remember that the judge, the jury and opposing counsel have feelings that can be triggered by your words and conduct. If you aggravate them you do so at your own peril. Be professional and work hard to keep the lines of communication open.
- Know Which Way You Are Going. You need to know where you are going or you will get lost. Hike with a compass, map and a GPS. In handling a case, your settlement figure needs to adjust to the totality of circumstances that you face at every stage. At trial, if your case is going down in flames - this had better be reflected in the settlement number you give to the other side. Always exchange settlement numbers on the eve of the trial.
- Bring Along "The Essentials." In the 1930s, The Mountaineers, a Seattle-based organization for outdoor adventurers, came up with a list of 10 essentials which must be in your pack to have a safe trip. When you head into a jury trial or arbitration you also need essentials. Here is my list of the 10 essentials that trial attorneys need as they head into battle: 1) Verdict form; 2) Jury Instructions; 3) Trial Brief; 4) Voir Dire plan; 5) Opening Statement outline; 6) Direct Examination outlines; 7) Cross Examination plans; 8) Final Argument outline; 9) Law of evidence references; and 10) Strategy for settlement during trial.
- Plan for All Kinds of Weather. Especially in Central Oregon the weather can fluctuate between extremes and change suddenly. You need clothing and equipment to handle whatever Mother Nature throws at you. Given Oregon's honored "trial by ambush" even in arbitration hearings, a lawyer must anticipate and be ready to deal with a wide variety of circumstances.
Today most cases settle before trial, but you can never be sure which ones. Be prepared!