OTLA Trial Lawyer Fall 2021

7 Trial Lawyer • Fall 2021 ing PIP and UM/UIM arbitrations to be conducted pursuant to several subsec- tions of UTCR Chapter 13, no circuit court has actually done this!” 7 Taking a breath to collect himself, Pompous continues, “The relevant stat- utes governing this arbitration simply say the proceeding shall be conducted ‘under local court rules in the county where the arbitration is held.’ 8 The UTCR are not local rules, but a state-wide set of rules governing proceedings in circuit courts. UTCR 13, therefore, cannot apply!” he concludes, bringing his face uncomfort- ably close to his Zoom camera. Goodness calmly takes a sip of water before saying, “We do not need to look beyond the terms of the contract. But even if we must, UTCR 13 applies be- cause local rules assume UTCR 13 is the final word on procedure and evidence as they incorporate by reference UTCR 13 and rely upon the same to set procedures for arbitrations within each county. 9 This is why each county’s local rules on arbi- tration are found in their SLR chapter 13.” On camera, Pompous hides his discomfort by loudly drinking a entire mug of coffee. Goodness concludes, “And, on top of all of this, this panel is empowered with the discretion to apply UTCR 13 as a matter of course and this panel, at minimum, should rely upon that discretion to do the same as the purpose of arbitrations is to adjudicate cases efficiently and effectively.” 10 In a last-ditch effort, Pompous offers, “Look, let’s just agree the American Ar- bitration Association’s rules will apply and call it good, okay?” “Absolutely not,” Goodness says. “Under no situation can a private non- judicial organization’s rules be considered ‘local court rules’ as ORS requires.” 11 “We agree!” The panel says in unison. Thus, Goodness carries the day and UTCR 13 will apply in the arbitration. 12 Call in the experts Fast forward to two weeks before the arbitration. Goodness has diligently worked to prepare their client’s case. Fact witnesses have been interviewed, expert reports have been obtained, and all rel- evant documents have been gathered. Goodness is ready to go. Goodness knows that since the arbi- tration is two weeks away, he needs to timely submit his pre-hearing statement of proof (PHSOP). 13 Goodness draws up the PHSOP, describing the evidence he intends to present at the arbitration, before sending it to the arbitrators and Pompous. Goodness also complies with the rules by sending a copy of relevant documents to the arbitrators. The next morning, Goodness comes into the office expecting to see Pompous’s PHSOP. But there’s nothing in his email nor has it arrived by fax. “They must have mailed it,” Goodness says out loud to the office dog, Beans — the sounding board for all of Goodness’s most crucial legal deci- sions. But three days later, no PHSOP has arrived from Pompous. Goodne s s knows tha t UTCR 13.170(1) says PHSOPs are mandatory and Pompous’s failure to submit this in a timely fashion means he could be barred from presenting evidence at the arbitration. Thus, the week of the arbitra- tion, Goodness sends an email to Pomp- ous and the arbitrators informing them he intends to object to any evidence Pompous tries to introduce at the arbitra- tion due to Pompous’s failure to meet this requirement. Soon, Goodness receives an email from Pompous with not one, but two exclamation points in the subject, indi- cating the highest level of urgency. Pomp- ous explains he has been away on a little vacation, and he intends to submit his PHSOP within the hour. Shortly there- after, the statement of proof arrives. Within it, Pompous simply states he intends to rely upon all of the evidence Goodness has outlined in his PHSOP. Pompous also states he intends to submit a report from a known defense doctor. See The Good Stuff 8