September 05, 2018
Author: W. Stephen Nixon
Organization: Jackson County Courthouse
A judge is a lawyer who has a different responsibility than a lawyer who is acting as an advocate. Understanding that difference in responsibility is key to being successful in litigation. Judges are governed by the Code of Judicial Conduct, in addition to certain, but not all, of the provisions of the Code of Professional Responsibility that governs lawyers who are acting as advocates. In order to understand how to be successful in litigation it is important to read and understand the provisions of the Code of Judicial Conduct, which are contained in Rule 2 of the Rules Governing The Missouri Bar And The Judiciary. Time does not permit a comprehensive review of Rule 2, but it is must reading for any attorney who practices law in the field of litigation. However, the first paragraph of the Preamble describes the role of judges in a fairly comprehensive way, to wit:
 An independent, fair and impartial judiciary is indispensable to our system of justice.
The United States legal system is based upon the principle that an independent,
impartial, and competent judiciary, composed of men and women of integrity, will
interpret and apply the law that governs our society. Thus, the judiciary plays a central
role in preserving the principles of justice and the rule of law. Inherent in all the rules
contained in this code are the precepts that judges, individually and collectively, must
respect and honor the judicial office as a public trust and strive to maintain and enhance
confidence in the legal system.
Judges bring with them the experience that they have had in the practice of law. They do not become all-knowing just because they have undertaken the role and duties of judge. It is up to the trial bar to educate judges about the law of their case, and about the legal principles that that will be involved in the pretrial and trial aspects of the case.
Missouri has a well-established public policy that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public unless otherwise provided by law. Mo. Rev. Stat. § 610.011.1 The legislature provides that to accomplish this open policy, provisions of the Sunshine Law are to be construed liberally. Mo. Rev. Stat. § 610.011.1 It is somewhat unusual for a cause of action to be founded in public policy. Most causes of action recognized in Missouri arise under the common law. It is important to make sure that the trial judge understands very early in the case that a claim brought pursuant to the Missouri Sunshine Law is a claim founded in public policy, and that the duty to provide such records upon proper request is to be liberally construed. Great Rivers Envtl. Law Ctr. v. City of St. Peters, 290 S.W.3d 732, (Mo. Ct. App. 2009).
The common law gave access to public records only where the citizen could show that the purpose of inspection was to vindicate a private or public right. State ex rel. Conran v. Williams, 96 Mo. 13, 8 S.W. 771, 773 (1888). The legislature then enacted §§ 109.180 and 109.190 to open all state, county and municipal records kept under statute or ordinance to personal inspection \"by any citizen of Missouri\" – a privilege not to be refused \"to any citizen. Whatever vestige of a common law interest to enable inspection lingered in Section 109.180 and 109.190 was swept away by the enactment of the Sunshine Law [§§ 610.010 through 610.120]. That chapter defines a public record as any record retained by or of any public governmental body [§ 610.010 (4)] and then directs that the public records shall be open to the public for inspection and duplication [§ 610.015] -- subject only to the enumerated exceptions of § 610.025.
WHAT DOES A TRIAL JUDGE EXPECT FROM ATTORNEYS?
In my 13 years as a circuit division trial judge in Jackson County, MO, I do not recall any judge taking the position that the judge did not rely upon trial counsel as the primary source for the law applicable to each case in question. I recall many discussions with my colleagues on the bench in Jackson County, and statewide, where disappointment was expressed in situations where the trial counsel in a case did not effectively educate them on the substantive and procedural issues that applied to a case. The circumstance of those conversations was not to be critical of the bar, but to express frustration that the judge was not getting the information that the judge felt was necessary to assist the judge in fulfilling the duties of the judge and the noble purpose described in the Preamble to Rule 2.
Tools that are available to assist a judge in understanding the law of the case, include, but are not limited to the following:
1. A well drafted petition, answer or other responsive pleading.
2. An early case management conference that includes, but is not limited to:
a. A well drafted statement of the case
b. A summary of particular legal principles that apply to the case that the trial judge may not be aware of.
c. A discovery plan
d. A cutoff date for disclosure of experts
e. A cutoff date for discovery.
f. A proposed trial date.
g. A proposal of a timeline for filing and resolving dispositive motions
h. A schedule for submitting deposition designations to be read or shown as video evidence at trial. This should be done in advance of the day trial is scheduled to begin.
i. A schedule for submitting motions in limine. This should be done in advance of the day trial is scheduled to begin.
j. Establishing how trial exhibits will be numbered.
k. A schedule for submission of a proposed witness list to the Court Reporter so that all names can be put into the Court Reporter’s database ahead of the trial. This greatly assists the Court Reporter.
l. A schedule for submitting a trial exhibit list.
m. A schedule for filing proposed jury instructions. It was my preference to have a discussion regarding anticipated jury instructions well before the jury was selected. This often assisted me in conducting the trial.
n. A discussion about the timing of mediation. I used to include a date by which mediation must be concluded in my case management order, which I established based upon input from counsel at the case management conference.
3. Scheduling mediation.
4. Filing appropriated pretrial motions and trial briefs.
5. Pretrial conference or subsequent case management conferences as required by the case.
WHAT CIVIL COURT JUDGES WANT YOU TO KNOW
Top Ten Factors That Contribute To An Attorney’s Success In The Courtroom
1. Know the case law that supports each of your theories of recovery or defense before you file the pleading that asserts your theories of recovery or defense. For hearings and conferences with the Court provide a copy of your most important cases with the pertinent language highlighted.
2. Prepare your anticipated jury instructions before you file your case.
3. Meet with your opposing counsel early in the case to discuss a pre?trial plan for preparation of the case that addresses, at a minimum, completion of discovery, disclosure of experts, completion of necessary depositions and filing of dispositive motions.
4. Come to the initial case management conference prepared to discuss the anticipated length of trial, alternative trial dates, mediation/alternative dispute resolution opportunities and the plan the parties have discussed for preparation of the case for trial.
5. File a Privilege Log using the form on the Division 5 section of the 16th Judicial Circuit Home Page, and comply with the mandate of State ex rel. Atchison, Topeka and Santa Fe Ry.Co. v O’Malley, 898 S.W.2d 550 (Mo.banc 1995), when raising issues of privilege or work product.
6. Meet with opposing counsel to discuss and agree, when possible, on foundation issues for documents, and work with opposing counsel to prepare a common list of exhibits using the Court’s requested Exhibit List form that is on the Division 5 section of the 16th Judicial Circuit Court Homepage. Also, discuss issues related to the scheduling of witnesses so that there is no down time in trial and so that witnesses do not have to sit around excessively waiting to testify.
7. Adhere to the Tenets of Professional Courtesy adopted by the KCMBA at all times. A copy of the Tenets of Professional Courtesy is on the Division 5 section of the 16th Judicial Circuit Court Homepage.
8. Follow the Guidelines For Courtroom Decorum for Division 5 which are posted on the Division 5 section of the 16th Judicial Circuit Court Homepage.
9. Check Case.Net to find out whether or not motions have been ruled before calling the division. This includes motions for continuance. The text of all orders prepared in Division 5 or submitted in Word format by e?mail to the Division Law Clerk Kate Webber are posted on Case.Net at the moment they are signed by the Judge.
10. Schedule a pretrial conference to be held at least a week before trial to take up issues such as ruling objections in video depositions, motions in limine, etc.
Top Ten Hindrances That Attorney’s Can Overcome In Order To Be Successful
1. Failure to be respectful of the Court’s time and witness time when scheduling hearings and trials. The Court has a large case load and expects reasonable estimations of time that will be necessary for conferences, hearings and trials. Witness should not have to sit unnecessarily for extended periods of time. In turn the Court should be respectful of your time by considering your commitments and conflicts when scheduling meetings, hearings, conferences and trials.
2. Failure to abide by the Tenets Of Professional Courtesy adopted by the KCMBA, a copy of which is available to counsel and parties on the 16th Circuit Homepage under Division 5.
3. Failure to check Case.Net to verify whether or not a motion has been ruled before calling the division. This includes motions for continuance. Division 5 posts all rulings on motions, including motions for continuance, on Case.Net, at the same time the Judge signs the order.
4. More than one person talking at a time and interruptions of opposing counsel, a witness or the Court is not appropriate or effective. The Court Reporter can only take down one person speaking at a time. The Court is interested in what each attorney has to say on all issues that are brought to the attention of the Court, either in trial or in conferences. Talking over someone else does not strengthen your client’s position.
5. Failure to identify and designate experts early in the case so that issues regarding experts can be resolved well before the trial begins.
6. Failure to mark exhibits before the day trial begins and marking exhibits using A, B, C, or 6A, 6B, 6C, etc. All exhibits should be marked with numbers, not letters. It does not matter that exhibits are not offered in chronological order, and it does not matter that there are gaps in the numbers for exhibits. The parties should advise each other of the approximate number of exhibits that each party will mark for trial, and leave sufficient numbers unused to accommodate use of exhibits not already marked. Copies of all exhibits should be provided to opposing counsel.
Opposing counsel should always have an opportunity to review exhibits before they are offered into evidence. Copies of exhibits should also be provided to the Court before they are the subject of testimony, especially in trials to the Court.
7. Failure to provide the Court and the Court Reporter with an Exhibit List using the Court’s preferred form which is available to counsel on the 16th Circuit Homepage and failure to provide the Court Reporter with a Witness List on the Court’s preferred form which is available to counsel on the 16th Circuit Homepage.
8. Failure to provide the Court with an electronic version of proposed orders or judgments, either by e-mail attachment, on a floppy disk or CD, in MicrosoftWord format.
9. Filing of motions for summary judgment, motions to dismiss or other dispositive motions when there is no serious legal and factual basis to believe that such a motion will be granted. Filing voluminous exhibits and deposition transcripts with no summary and designation of the important references that the court needs to consider in ruling the motion.
10. Failure to research and brief the court, in advance of trial, on complex or obscure legal issues that must be addressed in the case. Trial counsel should always know the law applicable to his/her case better than the Court.
PRETRIAL TACTICS THAT KEEP THE CASE MOVING
Bring Issues Regarding the Law to the Attention of the Judge Early.
The law regarding available remedies applicable to cases brought pursuant to the Missouri Sunshine law are created by statute, and the statutory remedies are in addition to those provided by any other provision of law.
610.027. Violations -- remedies, procedure, penalty, purposeful violations – validity of actions by governing bodies in violation -- governmental bodies may seek interpretation of law, attorney general to provide
1. The remedies provided by this section against public governmental bodies shall be in addition to those provided by any other provision of law…
The statutory remedies that are available in Sunshine Law cases are set forth in Section 610.027, RSMo, and other sections contained in Chapter 610. Those remedies are discussed in depth in other materials provided by the other presenters in this program. The statutory remedies are very likely unfamiliar to many trial judges.
It is useful to a trial judge to receive a brief setting out the precise remedies that are being requested and the source of law that permits that remedy. It is recommended that this be done at an early case management conference so that there can be a face-to-
face conversation about this aspect of the case. This will affect the case management plan adopted by the Court, and the timing of hearings and the trial on the merits.
The law regarding burden of proof and the burden of going forward with evidence in Sunshine law cases is also created by statute, and is substantially different than in most civil litigation.
610.027. Violations -- remedies, procedure, penalty, purposeful violations – validity of actions by governing bodies in violation -- governmental bodies may seek interpretation of law, attorney general to provide
…2. Once a party seeking judicial enforcement of sections 610.010 to 610.026 demonstrates to the court that the body in question is subject to the requirements of sections 610.010to 610.026 and has held a closed meeting, record or vote, the burden of persuasion shall be on the body and its members to demonstrate compliance with the requirements of sections610.010 to 610.026…
The nuances of the burden of proof, the burden of going forward with the evidence and the burden of persuasion is very likely to be unfamiliar to many trial judges. Again, it is very important to educate the trial judge about these burdens early in the case. There should also be a pretrial discussion of these legal issues because the order of witnesses, and who is calling the witnesses, will definitely be affected.
Communicate With Opposing Counsel About Settlement Early
Early communication with opposing counsel is very important in Sunshine Law cases. The actual remedy being sought may be one that can be accommodated, or, conversely, a civil conversation on whether or not a violation actually occurred, can often clear up misunderstandings. If you do not know opposing counsel personally, consider meeting them for lunch at a quiet place where you can get to know each other and talk about the case in confidence. Discuss the possibility of mediation and what mediators might be agreeable if it appears that mediation will be required.
What is an Attorneys Responsibility For Making A Good Record
The trial judge has the primary responsibility for making the historical record in a case. This includes ruling on all motions, making legal rulings on procedural and substantive aspects of the case, preparing a proper judgment, etc. However, the trial attorney also has a responsibility for making a good record in the case in order to preserve error for review in the event that the case is appealed. The general principle that should govern your efforts regarding making the record is that you should present all issues clearly and concisely so that there is no confusion what you want the Court to rule on. That includes motions, objections, argument, and any other opportunity that you have to present the case. It is outside the scope of this presentation to address the presentation of evidence, other than to note that you must know the rules of evidence and be familiar with practical application of those rules in order to conduct an effective trial. It is also outside of the scope of this presentation to discuss techniques for identifying and preserving error. Over the years there were many instances when attorneys would make objections, then engage in a long discussion about the events occurring in the Courtroom. It was not unusual for the attorneys to go off in some other direction, or for the case to continue before I had an opportunity to rule on the objection.
I viewed that as an abandonment of the objection, and it is unlikely that any error is preserved in that situation unless it can be viewed as plain error, which is not the usual case.
HOW DO YOU CONVINCE THE JUDGE TO RULE THE WAY YOU WANT?
1. Draft a clear petition or responsive pleadings that properly states your cause of action or response.
2. Schedule case management conference as often as you need to discuss important issues, address discovery disputes, establish deadlines, etc.
3. Complete your discovery on time, as early as practical. Be ethical in conducting your discovery.
4. Narrow the issues before trial.
5. Take up as many issues as possible prior to the day that the trial is scheduled to begin.
6. Make clear and concise arguments
7. Present legal authority for your position, most effectively done with one or two statutes or cases that focus precisely on the issue at hand.
8. Be civil at all times. Follow the Tenets of Professional Courtesy.
9. Be timely.
10. Make a complete record when referring to documents, exhibits, people, etc. The Judge does not know the case intimately like you do. Help the Judge in making the record. The result will be that the Judge is more likely to understand your case, and will then be more likely to see it your way when the facts and the law are with you.
STATUTORY PROVISIONS REGARDING PRODUCTION OF RECORDS
The Sunshine Law requires each public governmental body to appoint a custodian of its records and, upon request, make available the custodian's identity and location. The statutory provision is Section 610.023, which reads:
§ 610.023. Records of governmental bodies to be in care of custodian, duties -- records may be copied but not removed, exception, procedure -- denial of access, procedure
1. Each public governmental body is to appoint a custodian who is to be responsible for the maintenance of that body's records. The identity and location of a public governmental body's custodian is to be made available upon request.
2. Each public governmental body shall make available for inspection and copying by the public of that body's public records. No person shall remove original public records from the office of a public governmental body or its custodian without written permission of the designated custodian. No public governmental body shall, after August 28, 1998, grant to any person or entity, whether by contract, license or otherwise, the exclusive right to access and disseminate any public record unless the granting of such right is necessary to facilitate coordination with, or uniformity among, industry regulators having similar authority.
3. Each request for access to a public record shall be acted upon as soon as possible, but in no event later than the end of the third business day following the date the request is received by the custodian of records of a public governmental body. If records are requested in a certain format, the public body shall provide the records in the requested format, if such format is available. If access to the public record is not granted immediately, the custodian shall give a detailed explanation of the cause for further delay and the place and earliest time and date that the record will be available for inspection. This period for document production may exceed three days for reasonable cause.
4. If a request for access is denied, the custodian shall provide, upon request, a written statement of the grounds for such denial. Such statement shall cite the specific provision of law under which access is denied and shall be furnished to the requester no later than the end of the third business day following the date that the request for the statement is received.
There is no duty for a public governmental entity to create new records to satisfy a request for public records. This issue was specifically addressed in Jones v. Jackson County Circuit Court, 162 S.W.3d 53, (Mo. Ct. App. 2005). In Jones the Court held:
Section 610.023.2 provides that \"each public governmental body shall make available for
inspection and copying by the public of that body's public records.\" \"Public record\" is
defined as \"any record, whether written or electronically stored, retained by or of any
public governmental body[.]\" Section 610.010(6). In interpreting this definition of public
record, the Supreme Court has held that \"the ordinary meaning of the word retain is 'to
hold or continue to hold in possession or use: continue to have, use, recognize, or
accept: maintain in one's keeping[.]'\" Hemeyer v. KRCG- TV, 6 S.W.3d 880, 881 (Mo.
banc 1999) (quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1938
(1976)). Applying the plain meaning of the word \"retain,\" the definition of \"public record\"
includes only those records--either written or electronic--that are already in existence that
the public governmental body is \"holding\" or \"maintaining\" in its possession…There is
nothing in the definition of \"public records,\" however, that indicates that it includes written
or electronic records that can be created by the public governmental body, even if the
new record could be created from information culled from existing records. The plain
language of the Sunshine Law does not require a public governmental body to create a
new record upon request, but only to provide access to existing records held or
maintained by the public governmental body.
In order to prevail on a public records request, the person or entity making the request must plead and prove three elements. The petition must allege (1) the request for access to a public record; (2) the custodian of records received the request; and (3) the custodian did not respond within three business days thereafter. Pennington v. Dobbs, 235 S.W.3d 77, (Mo.App. 2007).
Governmental entities are entitled to charge fees as set out in Section 610.026, RSMo., prior to producing the records. The statutory language setting for this process reads in pertinent part as follows:
§ 610.026. Fees for copying public records, limitations--fee money remitted to whom--tax, license or fee as used in Missouri Constitution article X, section 22, not to include copying fees
1. Except as otherwise provided by law, each public governmental body shall provide access to and, upon request, furnish copies of public records subject to the following:
(1) Fees for copying public records, except those records restricted under section 32.091, shall not exceed ten cents per page for a paper copy not larger than nine by fourteen inches, with the hourly fee for duplicating time not to exceed the average hourly rate of pay for clerical staff of the public governmental body. Research time required for fulfilling records requests may be charged at the actual cost of research time. Based on the scope of the request, the public governmental body shall produce the copies using employees of the body that result in the lowest amount of charges for search, research, and duplication time. Prior to producing copies of the requested records, the person requesting the records may request the public governmental body to provide an estimate of the cost to the person requesting the records. Documents may be furnished without charge or at a reduced charge when the public governmental body determines that waiver or reduction of the fee is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the public governmental body and is not primarily in the commercial interest of the requester;
(2) Fees for providing access to public records maintained on computer facilities, recording tapes or disks, videotapes or films, pictures, maps, slides, graphics, illustrations or similar audio or visual items or devices, and for paper copies larger than nine by fourteen inches shall include only the cost of copies, staff time, which shall not exceed the average hourly rate of pay for staff of the public governmental body required for making copies and programming, if necessary, and the cost of the disk, tape, or other medium used for the duplication. Fees for maps, blueprints, or plats that require special expertise to duplicate may include the actual rate of compensation for the trained personnel required to duplicate such maps, blueprints, or plats. If programming is required beyond the customary and usual level to comply with a request for records or information, the fees for compliance may include the actual costs of such programming.
2. Payment of such copying fees may be requested prior to the making of copies. Where the request for public records seeks production of electronic records the cost permitted to be charged by the governmental body may include computer programming, if programming is necessary to produce the records. However, Section 610.026.1(2) specifically limits the fee for providing access to public records maintained on computer facilities to include only the cost of copies, staff time, and the cost of the medium used for duplication. In the context of transferring electronic records, the Department incurs these costs based on each request, whether it be for ten or all of the Department's records, rather than based purely on the number of records sought in the request. R.L. Polk & Co. v. Mo. Dep't of Revenue, 309 S.W.3d 881, (Mo. Ct. App. 2010).
It is also important to note that the governmental body has no duty to copy records and provide them to the party requesting the records until the cost of preparing the records for production has been paid. Section 610.026.2 specifically provides that payment of such copying fees may be requested prior to the making of copies.