September 2007 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Uniform Trial Court Rules changes

Effective August 1, the Uniform Trial Court Rules have been revised. They are available online at www.ojd.state.or.us/programs/utcr/utcrrules.htm.

The change that will affect most litigation lawyers is contained in Rule 5.100. This rule has for years required that when a lawyer submits a judgment or order to the court, it must be either served on opposing counsel not less than three days prior to submission to the court, or accompanied by a stipulation as to the form by opposing counsel, or mailed to a pro se litigant not less than seven days before submission to the court, or presented in open court with the parties present. These requirements remain unchanged.

The change is that when you submit a judgment or order now, unless presented in open court or on stipulation, you must send to the court along with the judgment or order a certificate describing the manner in which you complied with the requirement to send a copy in advance to counsel or a pro se litigant. This must be done in every case, except for uncontested probate or protective proceedings or for judgments following hearings on petitions for review of drivers’ privileges suspension order, UTCR 10.090.

Attorney Reference Manual changes

For years this court has annually prepared and updated an Attorney Reference Manual, which has been available for sale to the bar. The manual has been updated for 2007, and will no longer be printed. You can download the manual at www.ojd.state.or.us/mul/index.html. Click on “about the court” and select Attorney Reference Manual in the drop down menu. The manual contains 16 useful forms, which will from time-to-time be updated.

Conferring with each other on civil motions

We are continuing to see many civil motions bearing inadequate certifications as required by UTCR 5.010(3). UTCR 5.010(1) requires you to make a good faith effort to confer with the opposing party on all ORCP 21 and 23 motions (except for motions to dismiss for failure to state a claim or for lack of jurisdiction) and on all discovery motions pursuant to ORCP 36-46.

It is not adequate compliance with the certification requirement of UTCR 5.010(3) for you to simply state that you made a “good faith effort to confer.” This is a legal conclusion for the court to draw from a proper certification. UTCR 5.010(3) says the certification is sufficient if it states either that the parties conferred (this means you talked to each other) or contains facts showing good cause for not conferring (like you left messages and counsel never called you back).

The purpose of the rule is to avoid unnecessary civil motions, with their cost to your clients and the court. Very frequently at the time of a hearing on a civil motion (after the judge has read the materials and prepared for the hearing) counsel are able to agree on a resolution in the courtroom. This could frequently have been accomplished earlier, at a savings to everyone involved, had counsel actually had a meaningful discussion in advance of filing the motion. You should expect your motion to be denied if the certificate is absent or insufficient.