Using ORCP 45 requests for admission to establish the authenticity/admissibility of trial exhibits

August 2010
By Judge Stephen K. Bushong, Multnomah County Circuit Court.

Identify the documents you might want to use as trial exhibits well in advance of trial. Do not wait until the eve of trial to begin assembling your trial exhibits; by then, it is too late. As soon as you can identify your potential trial exhibits, serve a request for admissions asking opposing counsel to admit that (1) each document is authentic, and (2) each document qualifies for admission under an exception to the hearsay rule (as a business record, for example).

If opposing counsel refuses to make the requested admissions, you may need to take one or more depositions to establish the authenticity and admissibility of the document (or subpoena one or more records custodians for trial). And then ask the trial court to award the expenses you incurred in making the necessary proof, as provided in ORCP 46 C. Under that rule, the court "shall" award expenses unless the request was objectionable, the admission sought was not important, the opposing party had reasonable grounds to believe that the records were not authentic/admissible, or there were other good reasons for the failure to admit.

If you are on the receiving end of such a request, consider it carefully before responding. Do not automatically object on the grounds that there are more than the 30 requests, including subparts, allowed by ORCP 45 F. Many judges will find good cause for additional requests if they are designed to reduce the expense of litigation and avoid wasting valuable trial time on authenticity and foundation issues that are not really in dispute. Do not automatically deny requests on the grounds that you (and your client) do not know whether a document that appears to be an authentic business record of a nonparty is in fact an authentic business record.

Yes, the rule allows you to avoid a request on the basis of lack of information in some circumstances (see ORCP 45 B), but what are you really accomplishing? Is it in your client's interest to force opposing counsel to depose or subpoena records custodians to establish authenticity and admissibility (thereby risking liability for expenses under ORCP 46 C)? Is that consistent with the standards of professionalism in this community? In my view, it is appropriate to deny such a request only when you have good faith reasons for questioning the authenticity or admissibility of the documents at trial. If you don't plan on challenging the authenticity or admissibility of the document, you should admit the request. And if your only objection is relevance, you should admit that the document is authentic and qualifies for admission under an exception to the hearsay rule and reserve the relevance objection for trial.

Agreeing to reasonable requests for extension - don't forget the judge!

Most lawyers in this community will grant a reasonable request by opposing counsel for additional time to respond to a pleading, motion or discovery request. Agreeing to such requests is expected under our standards of professionalism. But don't forget to notify the judge. If the extension means that a reply brief will be due after the scheduled hearing, the hearing will need to be rescheduled. Even if the extension will not require rescheduling the hearing, the judge may be coordinating his or her workload expecting to receive briefs within the times established by the rules. An agreed extension could affect the judge's ability to fully prepare for the hearing.

Torturing the jury

Sometimes counsel cannot resist the temptation to spar with opposing counsel - or a witness - over some point, no matter how insignificant it may be. When that happens, the lawyers' jousting can take over the courtroom, and the jury seems like an afterthought. Trial lawyers sometimes repeat the same points over and over and over, hoping that the repetition will help the jury "get it." Some call it "beating a dead horse." I call it "torturing the jury." The jury is a captive audience; they are forced to witness the spectacle. Don't torture them with unnecessary sparring or needless repetition. They get it! The most frequent comment I hear from jurors after a civil trial is that they felt like the lawyers were insulting their intelligence by repeating things so many times. Most judges allow juror questions; those questions will let you know if the jury is unclear about something. Pay attention to your jury; don't torture them.