Oregon State Bar Bulletin — NOVEMBER 2009

Oregon’s Vanishing Civil Jury Trial
Innovative Program Provides Needed Courtroom Experience
By Janine Robben

Aukjen Ingraham specializes in civil commercial litigation. So it’s not surprising that her first jury trial involved a business transaction.

What was surprising, however, is that the transaction was between a prostitute and a customer; that Ingraham tried the case not as an associate but as a deputy district attorney and that her opposing counsel, Matt Donohue — also a commercial litigator — was working as a public defender at the time.

Ingraham and Donohue were among the first participants in a program that is giving civil lawyers badly needed courtroom experience by allowing them to “intern” as prosecutors or public defenders while on assignment from their regular civil practices.

For these civil lawyers, the typical misdemeanor-deputy district attorney experience of being assigned several trials for the same day, and meeting the witnesses for all of them simultaneously — and on the day of trial — is as unfamiliar as appearing before a jury.

“It’s a great experience for these people to come in and learn that the seeming chaos that is our criminal justice system really does work,” says Multnomah County Senior Deputy District Attorney (DDA) Jeff Howes, who coordinates the program for that office. “But I didn’t realize how important it is until I heard Judge (David) Brewer say, ‘These folks are going to be the next generation of judges, and they won’t be as experienced as they should be without having tried cases themselves.’”

The program is the brainchild of an ad hoc, statewide committee started by several members of the Oregon chapter of the American College of Trial Lawyers who were concerned about the trend away from trying civil cases to juries. Court of Appeals Judge Brewer is a member of the committee.

From its beginning in Multnomah County in September 2008, the program has expanded into Clackamas and Deschutes counties.

So far, 15 lawyers have participated as DDAs or public defenders in those three counties, and other counties are considering becoming involved.

“While that accomplishment may sound modest,” says committee member Daniel “Dan” Skerritt of Portland, “in 10 years we will have around 200 lawyers with a much-stronger comfort level with actual trial work than we otherwise would have.” 

In Multnomah County, interns who choose the DA’s office spend at least one month there four days a week, doing the same misdemeanor casework that any new DDA would handle during that time period. Interns at the PD’s office are there for longer periods but split their time between their regular jobs and their internships as they follow their assigned PD cases from beginning to end.

“Our sense is that the total time commitment between the two programs is roughly the same,” says Skerritt.

In either case, he says, the interns lack — as one quipped to him — “the time to over prepare” their cases.

The internship program consists of a three-way partnership between a civil lawyer, his or her firm and a public agency.

The ideal participant, says Skerritt, is a lawyer who has “some background to make him or her more valuable to the DA and the public defenders and who the firm feels is committed to them before they invest the resources of having him or her diverted from paying work.”

“I’d been at Tonkon Torp for six years,” says Caroline Harris Crowne, who participated in the program as a Multnomah County DDA. “I had done bench trials and arbitrations on my own, and had second-chaired jury trials, but what I really yearned for was the chance to do a jury trial on my own, getting to talk to jurors at voir dire. At the DA’s office, I had six trials in three weeks, four of them with juries.”

For Donohue, his trial against Ingraham was the first case he’d tried alone.

“I didn’t sleep a wink the night before,” says Donohue, who had seen numerous jury trials as a federal law clerk in New York and had worked for another firm prior to joining Markowitz Herbowitz Glade & Mehlhaf in Portland in 2006. “By the third one I had at least calmed down.”

Donohue handled about a dozen PD cases from start to finish, including two others that he tried to juries. 

“PDs are under time pressures similar to DDAs,” he says he learned from those experiences. “But there are additional obstacles on our side. There are often facts you have to be creative with and clients who need extra attention.” 

“The DDAs were not only collegial, they were helpful,” says Donohue. “I often found myself in a jam over criminal procedure. If no one else was around, I’d end up asking the DDA.”

Harris Crowne says that she was “astonished at how much I was treated as part of the team. I came in with a couple of new hires and was treated exactly the same.”

“There’s a tremendous benefit to this program,” she says. “Talking to jurors from so many walks of life; meeting your witness right before trial... That’s tremendously beneficial to those of us who have practiced the art of preparation.”

The second partner in the three-way partnership is the civil law firm.

Pendleton lawyer W. Eugene “Gene” Hallman, the ad hoc committee’s chair, says the program offers firms advantages over having their associates learn trial practice from doing arbitrations or attending trial advocacy colleges like the National Institute for Trial Advocacy (NITA).”

“The problem with programs like NITA is, they’re all false,” says Hallman. “Nobody’s going to cry over the result if you screw up, except maybe you.”

The third partner, a public agency, benefits from the program as well.

“We truly like this program,” says Multnomah County Chief Deputy DA Rodney “Rod” Underhill. “Quite simply, we can use the bodies. And we can give them the full flavor of what’s going on; let them sink their teeth into cases.”

But, while the purpose of the program is to give civil lawyers some trial experience and public law firms some extra hands, participants believe that the public and the bar as a whole benefit as well. 

“The bar is separating: those who try jury trials are in prosecution or defense, those who don’t are in civil,” says James “Jim” Hennings, the recently retired head of Metropolitan Public Defender Services in Portland. “We can’t have that. This is a way to cross-fertilize.”

“Another thing you should mention.” says Ingraham, who works for Cosgrave Vergeer Kester in Portland, “is this program is really fun. A lot of thinking on your feet and going as fast as you can.”

Another civil-attorney-cum-DDA from the same firm, Glenn Robles, puts it perhaps a bit more cynically.

“There’s nothing quite as exhilarating” he says, “as stepping out of a sentencing and being told to follow two police officers down the hall for another trial.”

Janine Robben is director of the Oregon Crime Victims Law Center. She has been a long-term contributor to the Bulletin.

© 2009 Janine Robben

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