Conferring on civil motions (reprise)

March 2008
By Hon. John A. Wittmayer, Multnomah County Circuit Court

On February 6, the Court of Appeals issued its opinion in Anderson v. State Farm. Before you file your next civil motion, you should read Anderson and UTCR 5.010.

In Anderson the defendant filed a motion to dismiss. In its motion, the defendant certified it has made a good faith effort to confer with the plaintiff. The defendant later conceded that "a form certificate was inadvertently included" in its motion. However, the defendant argued to the trial judge that its failure to comply with the rule was not material, because to do so would have been futile. The trial court granted the defendant's motion. The Court of Appeals reversed the trial court, ruling that "compliance with UTCR 5.010(3) was mandatory and that, pursuant to UTCR 5.010(1), the defendant's noncompliance precluded the allowance of its ORCP 21 A(3) motion to dismiss." The Court of Appeals ruled that futility does not excuse noncompliance with the rule.

And just a reminder: The "standard form" certificate states that a good faith effort to confer is not sufficient. UTCR 5.010(3) says the certificate will be sufficient if it "states that the parties conferred or contains facts showing good cause for not conferring." You need to certify that you actually did confer, or include in the certificate facts that permit the judge to conclude that you made a good faith effort to confer (e.g, you called the other lawyer, left a message about the purpose of your call, and he/she did not return your call).