May 2006 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Requests for production - pay attention to the deadline

In civil litigation ORCP 43A allows a litigant to serve on another litigant a request for production, seeking whatever documents the requesting party thinks appropriate. ORCP 43B sets forth the procedure for these requests, and provides that the request shall specify a reasonable time for a response.

In my experience, counsel receiving a request for production often takes a casual approach to the “deadline” for production set forth in the Request. This is a big mistake. ORCP 43B provides that one receiving such a request must comply, unless that party objects before the time specified in the request. While this is usually not much of a problem, when a later dispute arises about the scope of the request, if no objection was made before the deadline in the request, one loses the opportunity to object to the scope. I have frequently granted motions to compel production of things that may have arguably not been subject to production when no timely objection was made.

Practice tip: When you need more time to respond to a request for production, agree with the requesting lawyer to an extension of the deadline that was set out in the request. And confirm that agreement with an email or a letter so there will later be no misunderstanding about it. That way, if you later need to object to any specific request, you will not have lost your opportunity to object.

Motions to compel production

When adverse counsel has not responded to your request for production, when is the right time to file a motion to compel production? How many times have you felt like you were “strung along” by adverse counsel, with repeated promises to get you the documents you requested long ago? And now you find yourself up against a trial date, and there may not be enough time for your motion to compel before the trial date.

Practice tip: After a reasonable extension, when the other lawyer is not objecting to what you have requested, and you just need to be able to depend on a deadline for production, you might consider a stipulated order compelling production, which would include whatever deadline you and the other lawyer agreed upon. This approach would avoid a motion to compel, with all the delays associated with the motion process. Then, when the deadline in the stipulated order compelling production has passed, without production, you will be in a position to take whatever next step you think appropriate.

I also suggest that if you think you have to file a motion to compel production, you not wait so long after repeated assurances have gone unfulfilled. You should file your motion to compel at least as early as receive notice of the first trial date. This will give you the time necessary to avoid the last minute rush as a more realistic trial date approaches.

Diagrams and charts - visual aids for the jury in trial

Too often in trial a lawyer will ask a witness to move to the easel in the courtroom and draw a diagram for the jury to illustrate the witness’ testimony. While the jury waits, the witness draws the scene, inserts the street names, etc. And too often under the pressure of the courtroom, the witness does a poor job of drawing the diagram. The witness may mislabel streets, get the direction arrow wrong, or simply forget important details.

The solution to this is for you to have a good diagram prepared before you get to the courtroom. You can show it to your witnesses so they can verify for you in advance that your diagram is accurate. All your witnesses can usually use the same diagram, which help to avoid inadvertent errors.

The same principle applies with numbers you may wish to write on the easel during opening statement or closing argument. Many of you may not have the best handwriting, which is even more troublesome when you are trying to write the numbers on the easel with a lot of people watching. I can’t tell you how many times I have seen lawyers make math errors on the easel in front of the jury. The solution to this is just like the solution to the need for a good diagram of the scene: prepare it before you get to the courtroom.