February 2005 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Foreign language interpreters in Court

In your civil, criminal or family law case, do you have a client or witness who does not speak or understand the English language well enough? Do you need a foreign language interpreter to interpret the entire court proceeding for your client, or to interpret the testimony of a witness? What are your options for accessing interpreter services?

ORS 45.273 declares it to be the policy of the State of Oregon to provide foreign language interpreter assistance when necessary for court proceedings. ORS 45.275 requires the court to appoint a qualified interpreter in a civil or criminal proceeding whenever it is necessary.

Because interpreters are required to be neutral, you should not expect the judge to allow you to provide your own interpreter. ORS 45.275(1) says that when necessary “[t]he court shall appoint a qualified interpreter in a civil or criminal proceeding....”

In Multnomah County, you need to contact the Court’s Interpreter Services office at 503.988.3515 to arrange for an interpreter. UTCR 7.060 requires attorneys to contact the court four days prior to a proceeding in which a foreign language interpreter is needed to aid the court in scheduling an interpreter.

For court proceedings, interpreters are provided by the court at no cost to the litigants. No fee is charged for this service. Although ORS 45.275(2) may seem to suggest that a fee may be charged for a non-indigent litigant, legislative counsel has interpreted this provision to apply to depositions and other out-of-court matters.

Perpetuation depositions - object or your objection is waived

On December 29, 2004 the Court of Appeals issued its opinion in Evers v. Roder, interpreting ORCP 39 I(6), and reminding litigators that you must object to testimony during a perpetuation deposition or you have waived your right to object. It does not work to wait until after the perpetuation deposition has been completed and then later move the court to strike the testimony.

In Evers, plaintiff’s expert was perpetuated, and testified about the need for future treatment of plaintiff’s ongoing pain. Plaintiff’s expert testified, without objection, that plaintiff would need “medial branch denervation” treatments in the future. Two weeks after the perpetuation deposition, defendant filed a “motion to strike” the testimony, arguing that it was not supported by an adequate scientific foundation. State v. O’Key, 321 Or 285 (1995). The trial court denied the motion to strike.

ORCP 39 I(6) requires that “[a]ll objections to any testimony or evidence taken at the deposition shall be made at the time and noted upon the record...any objections not made at the deposition shall be deemed waived.”

On appeal, defendant argued that there is a difference between an objection to a question and a motion to strike testimony of a witness. The Court of Appeals rejected this argument. The Court of Appeals ruled that “defendant’s failure to object to (or, what amounts to exactly the same thing, to move to strike) [the expert’s] testimony at the perpetuation deposition waived the right to challenge that testimony at the trial.”

Filing documents “under seal”

Article I, Section 10 of the Oregon Constitution requires that “[n]o court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay***.” In State ex rel Oregonian v. Deiz, 289 Or 277 (1980) the Supreme Court broadly interpreted this constitutional provision to permit public and press attendance at juvenile court hearings.

Like court hearings, court files are public records. Any member of the public can look at and obtain copies of the contents of a court file. This is sometimes troubling to lawyers and litigants. Because of this, have you or your client ever felt you needed to file a document “under seal?” This frequently arises with affidavits/declarations and other documents in support of or in opposition to motions for summary judgment. It comes up in other contexts, as well.

The presiding judge reads State ex rel Oregonian v. Deiz broadly, and believes it generally applies to court files, as well. He does not, therefore, routinely grant motions to file documents “under seal,” and the presiding judge does not sign orders directing the clerk of the court to take certain steps or actions with respect to filed documents. That the order is “stipulated” by all litigants does not solve the constitutional problem.

If you believe you have sufficient justification to file a specific document or a specific set of documents under seal, you should be prepared to cite to the presiding judge specific legal authority for your request. Any order from the presiding judge granting your request will likely be very narrow.

If you have obtained an order sealing a file, Multnomah County Supplementary Local Rule 1.165(3) requires that you give written notice of that and a copy of the order to the trial court administrator.

If you have any questions about how these matters are currently being handled, you should call the presiding judge’s staff at 503.988.3846.