Sunday, August 22, 2010

Guide to Players: The court, the judge and the staff

I have written a post of about the kinds of lawyers who practice elder law. I have written a post about the number of lawyers who might become involved in an Oregon guardianship or conservatorship. I have discussed the visitors, professional fiduciaries and other professionals who may show up in a case. It is time to talk about the government agencies.

Government has its hands all over these kinds of proceedings and each arm of the government has a different personality. The important ones are (1) the state courts, (2) the Social Security Administration, (3) the United States Department of Veteran's Affairs, and (4) the Oregon Department of Veterans Affairs. Each of these arms of government has different goals, different procedures, and different attitudes toward disabled elders. We will begin with the court system.


In any Oregon county, guardianships and conservatorships are handled in the probate department of the circuit court. In the larger counties there is one judge assigned to head the probate department. That judge may do all probate matters, or administer the probate department with the help of other judges.

The judges preside over hearings in contested cases. They make rulings on motions and sign the orders that establish a guardianship or conservatorship. It is the judge’s job to make sure the law is followed, and that every person gets a full and fair chance to be heard. There is one local Oregon judge who is fond of stating that she is the last line of protection for the aged and the disabled.

Oregon judges do a good job. Because probate judges somewhat limit their caseload to probate cases, they know the law well and, as far as I can tell, administer justice as well as fallible humans can do. Nobody is perfect and no judge I know claims to be an exception. My experience is, however, that Oregon judges are intelligent, hard working, always prepared, respectful of the litigants, and fair.

Court Staff

If one were to look through probate files at an Oregon courthouse, you might see hundreds of approvals, orders, and other documents which appear to have been examined and approved by a judge, but in fact were not. The courts see the same kind of documents so many times, that the probate staff is often charged with examining the documents, determining their compliance with law, and either approving them directly or recommending that a judge approve them. A probate staff member may either have a stamp with the judge's signature and be authorized to use it, or may bring the matter to the judge with a recommendation—at which point the judge signs off on the matter without really looking at it.

Judges work hard to treat lawyers and litigants with equal respect and courtesy. The probate staff is more willing to play favorites. Lawyers who hang around the probate court a lot and get friendly with the staff have an easier time getting documents signed than those who don't. Lawyers who have dealt honestly and straightforwardly with the court for years will have their requests granted with barely a glance, while those who have been disingenuous with the court, or rude to the court staff, will have a hard time of it.

(If you are considering hiring an Oregon elder law lawyer, ask the potential lawyer the name of the probate coordinator in the county where you are going to file. If he or she doesn't know, move on to somebody who does.)

I had an assistant once who asked me, “is probate law the same in every state?” I answered that probate law has been pretty much the same since Roman days, but we don't get paid the big bucks because we know probate law. We get the big buck because we know the probate coordinators in all the surrounding counties. People are local. So is justice.

There is no trick to dealing with judges and the probate staff. Be honest and forthcoming with the judge. Be courteous and helpful to the court staff. If you can do both those things there should be nothing you need worry about in dealing with a court.

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