December 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Amended pleadings in civil litigation

You are defending a civil case and plaintiff seeks to file an amended complaint. Or, you are representing plaintiff, and defendant seeks to file an amended answer. The proposed amendment represents a significant departure from the previous posture of the case, and, the case is almost a year old, and is set for trial in 30 days. How often has this happened to you?

After a responsive pleading is filed, “a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” ORCP 23A. So, as a practical matter, what does it mean to say “when justice so requires?”

In argument on a late motion to amend, the party opposing the amendment should be prepared to tell the court what he/she would have done differently to prepare the case for trial had the proposed amendment been included in the pleadings earlier. Simply asserting that the late amendment is “prejudicial” without more will almost never be enough to convince a judge not to allow the amendment. The party seeking to amend should be prepared to tell the judge why that party is so late in seeking the amendment.

If the motion to amend is very close to the trial date, you might expect the motion judge to conditionally allow the amendment, i.e. allow the amendment only if the presiding judge also grants the opposing party’s trial set-over request. With this approach, late amendments allow adverse counsel sufficient time to deal with the moving of the goal posts, but if the case is very old and the presiding judge will not re-set it, the case proceeds on the previous pleadings.

Family law - “one judge, one family”

For years, Multnomah County has been a “one judge, one family” county, to the extent possible. This means that once a judge hears a matter on a case (or involving a family) that lasts an hour or more (i.e., a “significant substantive contested hearing”) that judge assumes responsibility for all future hearings involving that family.

This approach has the benefit of continuity. When a judge hears the temporary child custody or parenting time matter, it is usually better for the litigants if the same judge later hears the trial, and after hearing the trial, the same judge hears modification motions.

When seeking modifications after a General Judgment, lawyers should remember to check to see if there is a “judge of the case,” i.e. a judge who has assumed responsibility for all future matters in that case. If there is a “judge of the case,” all modification paperwork can be routed directly to that judge, and hearings can be scheduled directly with the judge’s office. This usually will mean that a hearing can be set more quickly than if there is not a “judge of the case.”

“Blakely fix” trials - estimating how long your criminal trial will take

The world of criminal litigation has changed dramatically since the United States Supreme Court issued its opinion in Blakely v. Washington, 542 US 296 (2004). In Blakely the Supreme Court ruled that a criminal defendant has a right to a jury trial on almost any fact in dispute that affects the sentence that may be imposed and that the state must prove such facts beyond a reasonable doubt. Blakely and its progeny have eliminated an upward departure from a presumptive sentence found in sentencing guidelines based on aggravating factors absent either a waive by the defendant or a jury trial on those factors with proof beyond a reasonable doubt.

In response to Blakely, the 2005 Oregon Legislature passed what is commonly known as a “Blakely fix.” Senate Bill 528 (Or Laws 2005, Ch 463) establishes a procedure for notice from the state to the defendant that the state intends to seek an upward departure from the sentencing guideline presumptive sentence, and for a jury trial on those issues, subsequent to the jury verdict on the “guilt phase” of the case.

This change in the law can have a substantial effect on how long a case will take to try if the state is seeking an upward departure sentence. For instance, if you thought your felony drug case jury trial would take one or two days to try on the guilt phase, you need to consider how long it will take to have the same jury hear a contested trial on the alleged aggravating factors if the defendant is found guilty in the first phase of the trial. You should factor this possibility into your estimates whenever you report ready for trial.