OTLA Trial Lawyer Fall 2021

9 Trial Lawyer • Fall 2021 be admitted. The only sound in the room is that of Pompous’s wheezing breath. It is clear Pompous did not know this rule. Pomp- ous fumbles out an argument that arbi- trations are meant to be informal and their purpose is to find an efficient adju- dication of the issues and that purpose is met with the admission of this letter. 18 Goodness simply replies that the rules, even for an efficient and informal pro- ceeding, are still the rules. The panel agrees. Thus, Goodness has removed one of Pompous’s two witnesses from play. Goodness then presents his case in chief. He does this effectively and effi- ciently. Pompous has only one live wit- ness — his biomechanical engineer. By the time direct and cross examination have been completed, a few holes have appeared in this expert’s testimony. Thus, Pompous does his best on re-direct to close the same. After finishing, one of the arbitrators begins to say, “I have a few questions for the expert.” Pompous, recognizing that holes have remained, objects to this, arguing the arbitrator is not a party to the arbitration and cannot question the witness. 19 The arbitrators look at one another with be- musement before the swing arbitrator kindly points out the rules clearly give arbitrators the power to question witnesses. Chastened, Pompous quietly retreats and the arbitrator asks his ques- tions. The holes, by the end, remain. Conclusion Folks, these are just some of the evi- dentiary issues that can arise in our PIP or UM/UIM arbitrations. The critical point is we must be vigorous in maintain- ing that UTCR 13 applies in the arbitra- tions we participate in. This is almost universally acknowledged, but there re- main carriers and defense attorneys who will push the argument that UTCR 13 does not apply. These arguments and attempts must be fought. UTCR 13 is a wonderful mechanism for the efficient and effective resolution of our clients’ cases. It is what allows us to argue and fight on small and mid-range value cases. It is what allows our clients to have “their day in court” (even if the courtroom is a conference room or Zoom meeting and the trial is an arbitration). Ensure UTCR 13 applies in your case and then read the small set of rules that apply. 20 Mastering and following these rules will help you quickly (and in a cost-effective manner) carry the day for your client. Just like Goodness did in this case. Aaron Reichenberger is an attorney at the Rosenbaum Law Group where he focuses on helping injured people. Reichenberger contributes to OTLA as a Guardian at the Sustaining Member level. Rosenbaum Law Group is located at 1826 NE Broadway, Portland, OR 97232. He can be reached at aaron@rosenbaumlawgroup.com or 503-288-8000. 1 While this article focuses on the rules in UM/ UIM and PIP arbitrations, the discussion on UTCR 13 is applicable to arbitrations under ORS 36.400(3) and 36.415(1). 2 See UTCR 13.140, 13.150, 13.170, 13.180, and 13.190 (detailing rules for discovery, sub- poenas, prehearing statements of proof, the hearing itself, and the admissibility of docu- ments at the arbitration). 3 Always read the policy. In writing this, I re- viewed policies written by five of the most prevalent auto insurers in Oregon. They all stated that either “state rules governing proce- dure and admission of evidence” or “local rules of procedure and evidence” will apply in the arbitration. In my opinion, each points to UTCR 13 as the relevant rules. 4 See UTCR 1.010(1). 5 ORS 742.505(2); 742.521(1). 6 UTCR 13.010(1)(a), (b). 7 See UTCR 13.010(2). 8 ORS 742.505(2); 742.521(1). 9 See, e.g, Multnomah County Circuit Court Supplemental Local Rule 13.025(2); Clacka- mas County Circuit Court Supplemental Local Rule 13.091; Marion County Circuit Court Local Rule 13.095. 10 See, UTCR 13.100(3) (giving arbitrators “con- siderable discretion” in conducting hearings); ADR in Oregon (OSB Legal Pubs 2019), § 11.1 (discussing the widely accepted premise that in an arbitration the parties have submitted the issue to a person whose judgment is trusted, and therefore it is for that person to determine how to address evidentiary issues); and UTCR 13.180(1) (stating arbitrations “shall be infor- mal and expeditious”). 11 UTCR 13.180(1)(a), (b). 12 Putting this issue in context, the overwhelming majority of carriers and defense attorneys ac- knowledge UTCR 13 applies. Furthermore, as discussed above, arbitrators under any set of rules are granted great authority and discretion. As a result, even in the face of an unlikely suc- cessful argument that UTCR 13 doesn’t apply, the arbitrator can still simply decide to use UTCR 13 as their North Star. Regardless, while UTCR 13 likely applies to your PIP or UM/UIM arbitration, the safest course may still be for plaintiff’s counsel to confirm with opposing counsel in writing at the start of a PIP or UM/UIM arbitration process that UTCR 13.010(2) applies to their case. 13 See UTCR 13.170(1). 14 UTCR 13.170(1)(a). 15 See, e.g., UTCR 13.010(3), and 13.140 (giving arbitrators tremendous latitude to compel or deny the production of discovery depending upon several factors). 16 See UTCR 13.190(1)(a); (2)(a)–(f ). 17 UTCR 13.190(2)(f ). 18 UTCR 13.180(1)(a), (b). 19 UTCR 13.180(2) (granting the arbitrator the power to question witnesses). 20 See UTCR 13.140, 13.150, 13.170, 13.180, and 13.190.