November 2004 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Conferring on Civil Motions

“UTCR 5.010 Certification: I certify that before filing this motion, I made a good faith effort to confer with opposing counsel.”

How many times have you either written this or read it? Does this certification comply with the rule? UTCR 5.010(1) requires you to make a good faith attempt to confer with adverse counsel before filing certain civil motions. UTCR 5.010(3) requires you to certify compliance with the rule when you file your motion.

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.” The “standard language” certification quoted above does not comply with the rule. The certification must either say you actually did confer, or it must contain facts that permit the Court to determine if good cause exists for you not actually conferring.

The Multnomah County Circuit Court Civil Motion Panel recently discussed this rule. The Motion Panel agreed that to “confer” means to actually talk to each other, in person or on the phone. The Motion Panel Judges emphasize that lawyers work things out best when they talk to each other in “real time.” You cannot “confer” via a letter or email. A letter sent from one lawyer to another stating an intent to file a motion if it is not conceded does not establish good cause for not conferring. Even a letter inviting opposing counsel to call and confer before a motion is filed is not sufficient if the moving party does not make a follow-up phone call in an attempt to speak with opposing counsel. Likewise, a phone message that says “please call me about the case,” without specifying the issues to be discussed, is not a good faith effort to confer.

In Nelson & Nelson, 117 Or. App 157, 161 (1992) the Court of Appeals ruled that the certification of compliance with UTCR 5.101 is mandatory. If the certification is absent, the court has no authority to grant the motion. It is reasonable to conclude that if the certification is deficient, the court, likewise, has no authority to grant the motion.

Dissolution of Marriage Trials - Proposed Distributions

When you go to trial on a dissolution of marriage case, each lawyer submits to the trial judge a written “proposed distribution of assets and liabilities.” Reading the submission from wife’s lawyer and comparing it to the submission from husband’s lawyer often makes me think these people are not talking about the same assets and liabilities, or maybe even the same marriage! Each describes assets and liabilities using different names, and each includes or omits assets and liabilities the other has omitted or included. It is very difficult for the trial judge to reconcile these differences.

Suggestion: Get together with the other lawyer and submit a joint document so you are describing the items in the same manner. You should include a column for each litigant to list that litigant’s view of the value of the asset, etc, and you could also include a column with blanks for the trial judge to use as a worksheet. A side benefit of this procedure is that it should also help you to settle your cases earlier.

The Court’s Web site

Our Multnomah County Circuit Court is interested in improving our court Web site to make it more useful to you, your clients and the public. If you have any suggestions about either the content or the format of the web site, please let me know by email at john.a.wittmayer@ojd.state.or.us.