1 Trial Lawyer • Winter 2024 T R I A L Winter 2024 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Motions Practice
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1 Trial Lawyer • Winter 2024 Board of Governors Winter 2024 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-804-0668, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@morselawllc.com, 541-362-4725 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable and promoting a fair and equitable justice system through advocacy and education. Articles I’ve Got No Quit In Me: A cowboy approach to motions to compel Rian Peck .......................................................................................................6 Privileges in Depositions Stephen Brischetto .......................................................................................10 No Safe Harbor: Securing fee awards under fee-shifting STATUTES Robert Le .....................................................................................................14 Motions in Large Trials Emily Johnson, Cody Berne .........................................................................18 On the Offense: Attacking frivolous affirmative defenses & requests for admission responses Ashley Vaughn .............................................................................................. 22 The Beating Heart: You and your appellate lawyer Cody Hoesly ................................................................................................25 Battling the Preemptive Suit with a special motion to strike Elizabeth Savage ...........................................................................................30 Difficult Defense Counsel: Embracing a broader perspective Thanh Tran ..................................................................................................33 Stipulated Protective Orders: Making them work for you Kimberly Weingart ......................................................................................36 Departments President’s Message: Council on Court Procedures and you Rob Kline ....................................................................................................... 2 View from the Bench: A judicial perspective on motion practice Hon. Angela Franco Lucero ............................................................................ 4 Annual Partners .................................................................................................. 17 OTLA Guardians of Civil Justice ........................................................................ 28 Comp Corner: Motions in workers’ comp Julene Quinn ................................................................................................ 41 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab ...................................................... 42 Officers President Rob Kline President-elect Melissa Bobadilla Secretary-Treasurer Brent Barton Parliamentarian Rob Beatty-Walters Immediate Past President Blair Townsend District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Tim Williams — District 2 Rhett Fraser — District 3 Jovita Wang — District 3 Derek Johnson — District 4 Lara Johnson — District 4 Erin Christison — District 5 Diego Conde — District 5 Governors-at-Large Steve Berman Keith Dozier Ronn Elzinga Sonya Fischer Mark Ginsberg Chris Hill Neil Jackson Quinn Kuranz Mona Moghimian Jeremiah Ross New Lawyer Governors Ashley Rosenbaum-DePalo Emily Johnson AAJ Governors Tom D’Amore Nadia Dahab Shenoa Payne AAJ State Delegates Ron Cheng Ryan Jennings Michael Wise OTLA Staff Email, (first name)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Amy Anderson, 503-223-5587 x100 Annual Partner & Development Director, Deputy Political Director Arthur Towers, 503-345-0045 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Education and Communications Director
2 Trial Lawyer • Winter 2024 By Rob Kline OTLA Guardian Most of us want to get involved in something bigger than ourselves. Something where we can make a difference. As you cast around for new opportunities, here's something that may not automatically appear on your radar: The Council on Court Procedures. I encourage you to consider it. Let me tell you why. Thank you, Judge Deady The Council is a unique Oregon institution charged with maintaining the Oregon Rules of Civil Procedure. Although virtually every civil practitioner is aware of the Council, not everyone is aware of exactly what it does, how it does it and the profound impact it has on our ability to seek and obtain justice for our clients. Council on Court Procedures and you From 1862 to 1977, Oregon had a canon of laws called “the Deady Code,” named for Judge Matthew Deady, a lawyer, politician and judge in the Oregon Territory. (He helped establish the University of Oregon’s law school.) Efforts to improve on the Deady Code and create a better civil procedure blueprint can be traced back as early as the mid1920s.1 In 1977, the Legislature created the Council on Court Procedures, finding that “laws relating to civil procedure designed for the benefit of litigants which meet the needs of the court system and the bar are necessary to assure prompt and efficient administration of justice in the courts of the state[]” and that “[n]o coordinated system of continuing review of the Oregon laws relating to civil procedure now exists.” ORS 1.725. The Council was tasked to “review the Oregon laws relating to civil procedure and coordinate and study proposals concerning the Oregon laws relating to civil procedure advanced by all interested persons.” Id. How it works The Council consists of 23 volunteers: one Supreme Court justice, one Court of Appeals judge, eight trial court judges, 12 attorneys “broadly representative of the trial bar and the regions of the state” and one public member. ORS 1.730(1). Attorney members are appointed by the Oregon State Bar Board of Governors. Members serve a four-year term and are eligible to serve one additional term. ORS 1.730(4). By 1979, the Council had created Rules 1-64. Rules 65 to 85 followed in 1981, creating the design that became Oregon Rules of Civil Procedure.2 Since the original ORCP, “the primary function of the Council has been to amend the ORCP from time to time whenever the need for, or utility of, amendment is demonstrated.” https://counciloncourtprocedures.org/council-history/. The Council works on a two-year cycle, starting the process by considering proposed rule changes from a variety of sources and distributing surveys to Oregon attorneys inviting suggestions for improvement to the rules. The Council sifts through dozens of ideas and then creates committees to study, debate and craft language of the proposals that are deemed worthy of further action. Once a proposal is approved, it is published for President’s Message Rob Kline
3 Trial Lawyer • Winter 2024 all Oregon bar members to critique. After reviewing all comments, Council members vote on whether to deliver the final amendment proposal to the Legislature. An affirmative vote of 15 members of the Council is required to promulgate ORCP amendments. ORS 1.730(2)(a). ORCP amendments are formally reported to the Legislature at the beginning of each odd-number regular session and go into effect on January 1 following the close of that session. ORS 1.735(1). The Legislature retains the authority to amend, repeal or supplement any of the rules, Id., which it has exercised from time to time. https://counciloncourtprocedures.org/council-history/. As a practical matter, the Legislature has adopted nearly all rules amendments passed by the Council.3 A democratic forum Oregon’s method of modifying rules of civil procedure is uniquely democratic. Unlike most federal and state rule-making authority, which is vested in the highest-ranking judges,4 Oregon’s Council provides a forum for civil practitioners from all parts of the bar to speak frankly with trial and appellate judges about how the existing rules are working and impacting parties, lawyers and the courts. Proposed rule changes are carefully scrutinized by all Council members. Debate over proposed changes can become fervent, spanning many Saturday morning monthly meetings. Out of that process, “ill-advised proposals are screened out[,]” https://counciloncourtprocedures.org/about-the-council/, and proposals are adopted only if they are found to meet the objective of ORCP 1B, “to secure the just, speedy, and inexpensive determination of every action.” An important body Why should you care about the work of the Council? In past years, the Council has rejected proposals that would dramatically impact our members’ ability to seek and obtain justice for their clients. Examples include establishing expert discovery, adopting proportionality in discovery akin to Rule 26(b) of the Federal Rules of Civil Procedure and eliminating the requirement to obtain consent from all parties to add a third party defendant more than 90 days after commencing an action. Here’s where you come in. Scores of OTLA’s brightest and most dedicated members have served on the Council over the years and we owe a great debt of thanks to them for their service. Please consider serving on the Council. We need your ideas and enthusiasm. If you are interested, please reach out to one of OTLA’s current or past members on the Council to learn more. Is the Council not your thing? Worry not! The Oregon State Bar’s Uniform Civil Jury Instructions Committee and Legal Ethics Committee are active committees that make decisions directly impacting your clients and practice. Both committees are always looking for volunteers. If you’re interested, check in with a current or past committee member. OTLA staff and I also are more than happy to point you in the right direction. Rob Kline specializes in cases involving motor vehicle collisions, workplace injuries and sexual abuse. Kline practices as senior counsel at the Johnston Law Firm, 200 SW Market St., Ste. 1900, Portland, OR 97201. He contributes to OTLA Guardians as the Guardians Club level. He can be reached at rob@johnston-lawfirm.com or 503-546-3167. 1 The author wishes to thank and acknowledge the Hon. Susie L. Norby, Clackamas County Circuit Court Judge, for her excellent article, “Ghostbusters Meets Guardians of the Galaxy: Giving Life to the Council on Court Procedures,” The Verdict, 2002, Issue 2, from which much of the history and other information regarding the operation of the Council is drawn. 2 Id. at page 4. 3 Id. at page 5. 4 Id. at page 4.
4 Trial Lawyer • Winter 2024 By Judge Angela Franco Lucero Multnomah County Circuit Court Motion practice is a fundamental tool of litigation and can play a key role in the development of a case. Courts rarely act on their own, so it is up to the parties to move their cases through the litigation process. Motions are designed to ensure that disputed issues in cases are brought to the attention of the court, and are resolved quickly and efficiently, so cases can ultimately be resolved, either through settlement or trial. Motions can affect the nature of the pleadings, discovery permitted to be disclosed, evidence, testimony or even result in a complete or partial dismissal of the case. While any party can file a motion at any stage of the litigation, it does not always mean that you should. Discretion is key. When considering whether to file a particular motion, it is essential to consider the purpose of the motion, how filing that motion will impact the overall strategy of the case and how the court will react to such a motion being filed. What follows are some tips to consider when drafting and filing motions. Be persuasive Persuasive writing is written advocacy. Motion practice is your opportunity, in writing, to convince or persuade the court to rule in your favor. The most View From The Bench Hon. Angela Franco Lucero A judicial perspective on motion practice effective legal writers are those who can present a clear, concise and reasoned argument, supported by law and explained by facts. Persuasive writing makes the court want to rule in your favor and makes it easy for the court to do so. When writing motions, assume the court knows nothing about your case. Remember, no one knows the facts as precisely as the attorneys. You must set out the issues, relevant facts and legal arguments with a clear and concise point of view. Tell the court what relief is sought, together with the motion standard or appellate standard of review. Use and cite the law that most clearly supports your client’s legal argument. UTCR 5.020(1) requires all motions to include a memorandum of law or a statement of authority explaining how any relevant authorities support the contentions of the moving part. Do not avoid contra legal authority, but rather address how that specific authority either does not apply or is not directly on point. Correct use of legal authority is persuasive and bolsters the credibility of the attorney and the integrity of the legal research. Stay focused on your case and why your client should prevail, rather than on why the opposing party should lose. If there are facts that are dispositive to your argument, address them in your motion. Do not wait for your opponent to raise the dispositive facts in their response. This only minimizes the strength of your argument. Do not use rhetorical questions and avoid overly dramatic statements. Such arguments or statements reduce your credibility with the court and fail to progress your argument. Professionalism matters It is important to remember that professionalism matters, not only in the courtroom, but in your written motions as well. The court expects all attorneys to conduct themselves with the utmost professionalism. Do not attack the parties, opposing counsel, judges or any other person in your written motions. Personal attacks are not persuasive. Personal attacks waste time and only serve to cast the insulting attorney in a negative light. There is no quicker way to lose credibility with the court than to resort to personal attacks. Judges universally dislike attorneys using motions to insult, belittle, ridicule, or make snide remarks or comments about the parties, opposing counsel, or the court. Regardless of who initiated the personal attacks, such language has no place in pleadings, motions or any other legal documents. When a motion contains personal attacks, do not be tempted to respond in kind. Instead, take the high road. The court will notice your restraint and professionalism. The importance of conferral UTCR 5.010(1) and (2) provide that
5 Trial Lawyer • Winter 2024 the court will deny any motion made pursuant to ORCP 21 and 23, except for a motion to dismiss: (a) for failure to state a claim; or (b) for lack of jurisdiction, and any motion pursuant to ORCP 36 through 46, unless the moving party, before filing the motion, makes a good faith effort to confer with the other parties concerning the legal issues in dispute. In accordance with the Multnomah County Judges Civil Motion Consensus Statement, judges have held that good faith conferral requires the parties to have an actual conversation either in person or on the phone regarding the disputed legal issue. Generally sending text messages or email does not constitute adequate conferral. Following conferral, the moving party is then required to file a certificate of compliance with the rule at the same time the motion is filed. UTCR 5.010(3). Despite UTCR 5.010, the court is repeatedly presented with motions that require conferral, and in which the parties have yet to meaningfully confer. The conferral requirement is designed to promote frank discussions between the attorneys in an attempt to resolve issues by agreement, or to at least narrow and focus the areas in dispute before judicial intervention is needed. Attorneys should strive to be cooperative, practical and sensible, and should seek judicial intervention only in particular situations that implicate truly significant interests. While not all issues in dispute will resolve during the conferral process, proper conferral greatly helps to highlight the main areas of contention, which in turn allows the court to focus on the issues that matter. While not all motions require conferral, it is good practice for attorneys to confer on all motions before filing. Likewise, attorneys should also confer on motions once all briefing has been filed with the court. Often parties can narrow the issues in dispute once the parties are fully aware of each side’s legal position on any given issue. Be timely Prior to filing a motion, attorneys need to be aware of all filing deadlines and any other rule that may impact the court’s ability to hear the motion. It is imperative the attorneys file their motions early enough to allow for the hearing on the motion to be scheduled and heard by the court. Generally, once a motion is filed, the motion will not be heard by the court for approximately five weeks. Pursuant to UTCR 5.030(1), an opposing party has 14 days from the date of service or filing of the motion to file a formal response to the motion. The moving party then has seven days from the date of service or filing of the response to file a reply memorandum. UTCR 5.030(2). Depending on scheduling availability, the court will then at a minimum require one to two weeks from the close of the briefing to review bench copies of the briefings and prepare for the hearing. Once a motion is filed, it is incumbent on the attorney for the moving party to contact opposing counsel and the court to get the hearing on the motion scheduled. There is no mechanism in place to alert the court or the assigned judge in a particular case that a motion has been filed. If the parties do not contact the court for scheduling, the motion will not be heard by the court. If a moving party has filed a motion within two to three weeks of the scheduled trial date, the moving party must also file a motion for an expedited hearing. In filing a motion for an expedited hearing, the moving party must establish that there is good cause or a sufficient legal basis for the motion to be heard on an expedited manner. The court is likely to deny expedited consideration of (1) motions to compel brought close to trial that could have been brought earlier; (2) motions for summary judgment brought after the time set by rule or order unless with the prior consent of the parties and the court; and (3) motions to amend the pleadings filed on the eve of trial that could have been brought earlier. It is good practice for attorneys to conduct regular status checks or reviews on their files, including a review of the filed pleadings. Neglecting a file will only lead to late-filed motions that will not be well received by the court. Bench copies The motion judge receives no notice that you have filed a motion, response or reply, which is why the Supplemental Local Rules require counsel to serve a bench copy of all briefings when you serve it on opposing counsel. Do not wait until the week of the hearing to provide bench copies. The judge will likely need to start preparation long before then. If a judge does not receive a copy of the material, the hearing may be cancelled. Parties should contact the judge’s judicial assistant to determine in what format the judge prefers to receive the documents — paper or electronic. If lengthy exhibits are submitted in support of any motion, for example deposition excerpts, those portions of the exhibit being referenced should be underlined or highlighted in the judge’s copy. Follow the rules Judges are eager to assist parties in advancing litigation through motion practice. Judges understand the challenges that counsel face, but it is important for attorneys to keep in mind that judges have busy dockets. It is imperative that attorneys follow the rules on timing and professionalism. Failure to comply with issues such as those described will not only hurt your credibility with the court but can also impact the likelihood of success for your clients. Hon. Angela Franco Lucero is a circuit court judge at the Multnomah County Circuit Court located at 1200 SW 1st Ave., Portland, OR 97204. She can be reached at angela.f.lucero@ojd.state.or.us or 971- 274-0640.
6 Trial Lawyer • Winter 2024 By Rian Peck OTLA Guardian “It doesn’t matter how many times you get knocked down. All that matters is that you get up one more time than you were knocked down.” — Roy T. Bennett There’s one fight scene in Yellowstone that often comes to mind when I think about what it feels like to be a civil rights lawyer. For those who haven’t watched the fictional show, Yellowstone centers on an old Montana ranching family and the (often morally bankrupt) measures they take to maintain power and control over their land. To solidify their unified stance against outside enemies, they uphold strict rules for those who work and live on the ranch. Rip, the ranch foreman, enforces one of those rules, “There’s no fighting on this ranch. You want to fight somebody, you come fight me.” In Season 4, Rip’s second-hand man, Lloyd, finds himself jilted when his love interest shucks him off in favor of a younger ranch hand, Walker. After several episodes of Walker rubbing it in Lloyd’s face, Lloyd loses sight of the rule and stabs Walker in a fit of rage. The next day, Rip takes both men to the bullpen and has the other ranch hands and day workers crowd around. He forces Lloyd and Walker to take turns trading blows until only one man is left standing. The two spar for over an hour. But Lloyd, fueled with the stubbornness of a cowboy and the indignity of a broken heart, “has got no quit in him.” Bloodied and swollen, Lloyd stands bowlegged and proud as his much younger opponent lies in the dirt, defeated. When Rip enters the bullpen, Lloyd assumes it’s to congratulate him for his win. Rip walks up to Lloyd, hugs him, and tells him he loves him. He then rears back and punches Lloyd three more times, sending Lloyd to his knees. Lloyd — bless his soul — then stands back up, nurses his wounds and broken ego, and gets back to work on the ranch. In the bullpen In civil rights cases — and especially in police misconduct cases — the government’s attorneys can often feel like the Walker to our Lloyd. Just like the younger and stronger Walker, the government brings to the bullpen a team of attorneys, unlimited resources and, most often, the benefit of years of legal precedent that has eroded civil liberties and allowed police to break the rules with impunity. Civil rights lawyers, if they have any chance, must be like Lloyd — we must have “no quit” in us. But even in those times when we remain the last ones standing in a knockdown, drag out fight, judges can walk into the bullpen, just like Rip, and deliver a few more blows just for good measure. The question for us then is whether we can find it within ourselves to stand back up and fight the next fight. In a case down in Medford, OTLA members Alicia LeDuc Montgomery and Michelle Burrows1 have done just that. Their client, John Malaer, is paraplegic and uses a motorized wheelchair. He is suing the City of Medford, Jackson County and several law enforcement officers in federal court for wrongfully arresting him after his wheelchair battery died, and he was left stranded on a public sidewalk. Rather than taking him home or calling him a cab, officers taunted and jeered at him and then arrested him for disorderly conduct. Once they arrived at the Jackson County jail, Medford police officers looked on as sheriff’s deputies shoved Malaer’s head between his legs and slapped him across the face. Later, sheriff’s deputies would Rian Peck A Cowboy Approach to Motions to Compel I’ve Got No Quit In Me:
7 Trial Lawyer • Winter 2024 strip him naked and leave him lying on the cold jail floor without a wheelchair. He was forced to drink water from the toilet because he could not reach the sink and was denied his medications and medical catheters. After Malaer was released from jail, he wound up in the hospital nearly septic. Malaer filed a complaint with the Medford Police Department that resulted in an Internal Affairs investigation. In the complaint, Malaer named the sergeant in charge of his transport and supervising the arresting officers as an individual to be investigated. The department thought it would be a good idea for that same sergeant to conduct the Internal Affairs investigation into himself and his direct reports. Days later, he sent Malaer a letter saying that his investigation had “exonerated” himself and all other Medford police officers of wrongdoing. In that letter, he claimed that he had interviewed all officers involved. In depositions, however, each officer involved denied being interviewed as part of an Internal Affairs investigation. Without evidence The City of Medford refused to produce the Internal Affairs Narrative Report during discovery. Based on the court’s request to raise discovery disputes informally rather than engaging in motions practice, the plaintiff’s counsel submitted an informal motion to compel the city to produce the IA Report. The city resisted, arguing that a provision of Oregon’s public records law, ORS 181A.674(3),2 exempted the IA Report from disclosure. The court reviewed the IA Report in camera. After doing so, it concluded the city was not required to produce the IA Report because the city had told the court — without evidence — that it had produced all of the same information to the plaintiff in discovery. Thus, the city was “entitled to keep the inner workings of their internal affairs investigation confidential” to “encourage candor and diligence in future investigations.”3 While the court still had that issue under advisement, LeDuc Montgomery learned that several third parties — the Jackson County Sheriff’s Office, Jackson County District Attorney’s Office, the Oregon State Police and the Klamath Falls District Attorney’s Office — all received copies of the IA Report. She subpoenaed the entire file and not just the IA Report. When the city learned of those subpoenas, it instructed the third parties not to produce the IA Report in response to the subpoena. But it forgot to tell the Klamath County District Attorney. Not discoverable In a conferral with the plaintiff’s counsel, the city agreed the best route for them was a motion to quash rather than defending a motion to compel, a crucial fact omitted from the briefing to the court and one which ultimately was compelling to the court. The city moved to quash the subpoenas, this time via a formal motion with briefing. Apparently recognizing that Oregon’s public records law does not apply to discovery in federal litigation, the city argued that the IA Report was not discoverable under a judicially created Official Information Privilege.4 The Official Information Privilege, in short, is a qualified privilege that asks courts to weigh the government’s interests in keeping police internal investigations secret against the plaintiff’s interest in receiving the document in discovery. Misapplying the legal standard — which requires the party claiming the privilege to make a “substantial threshold showing”5 for keeping the documents secret — the court granted the motion to quash because the plaintiff had not “identifie[d] a current compelling litigation interest in the IA Narrative Report.”6 Later, after telling the plaintiff’s counsel that they had no documents in response to the subpoena, and after the See A Cowboy Approach p 8
8 Trial Lawyer • Winter 2024 subpoena had been quashed, the Klamath County District Attorney’s Office surprisingly produced the IA Report to the plaintiff. The plaintiff immediately informed the city of receipt of the report in a formal status report. In response, the city filed a fiery motion to require destruction of the IA Report and to prohibit further use of the record, accusing the plaintiff’s counsel of “flagrant bad faith” and “callous disregard of responsibilities,” and asking the court to impose “a severe sanction.”7 With no evidence or supporting sworn declaration, the city alleged the plaintiff’s counsel had essentially tricked the Klamath County District Attorney’s Office into giving them the IA Report, despite the court’s order quashing any portion of the subpoena that requested it. The city asked the court not only to order the plaintiff’s counsel to destroy the record, but also to dismiss the case as a sanction for “fail[ing] to obey” the court’s order. But the court’s order had not instructed either party to notify Klamath County that the subpoena had been quashed. The plaintiff’s counsel consulted an ethics attorney and submitted a response to the city’s motion, supported by detailed declarations with dozens of exhibits, describing the timeline of events and how the IA Report had inadvertently ended up in their possession. Yet, during what I can only imagine was the most uncomfortable hearing of their lives, the plaintiff’s counsel were given little room to talk while the city and the court laid into them for intentionally violating the court’s order. When LeDuc Montgomery was afforded the opportunity to speak, she asked the court to review their response and declarations — which cited actual evidence — and compare it to the city’s unsupported assertions before reaching a final decision. After the hearing, Burrows wrote a letter to the court adding further color and background on the issue. The court immediately deemed this a motion for reconsideration and re-opened the issue. The truth prevailed In an eight-page opinion and order, the court not only denied the city’s motion to require destruction, but also reversed itself, “reconsider[ing] the discoverability of the IA Narrative Report.”8 The court began its opinion by recognizing: “Plaintiff’s counsel did not violate any court order or professional standard by inadvertently obtaining” the IA Report. The court then concluded that, contrary to its previous opinion and order, all ten factors under the Official Information Privilege weighed in favor of disclosure. What is more, the court also concluded the city had waived any privilege that existed over the report by providing copies of it to a third party. And though the court reserved ruling on admissibility at trial, it acknowledged that the IA Report would be the only way to impeach the investigating officer’s testimony with his own inconsistent statements. The city, having suffered a mighty blow in the third round on the issue, responded by filing a formal apology to the court and plaintiff’s counsel into the record. It also caught the attention of civil rights watchdogs National Police Accountability Project, ACLU of Oregon and Oregon Justice Resource Center, who recently filed a motion to intervene to unseal misconduct records in the case, represented by OTLA member Ashlee Albies. Dust off and try again There are many things we can learn from the “little motion to compel that could” in Malaer. First, consider whether any third parties may have the documents you’re after. Subpoena them before you litigate a motion to compel. Maybe you’ll get the documents without having to resort to motions practice. But even if you don’t, knowing beforehand whether the documents have been disclosed to third parties can increase your chances of success. And, if your subpoena is quashed, clarify who has the obligation to notify third parties. Second, ask questions during depositions that will help make your record about why the documents you’re seeking are crucial to your case. If you can, wait until after depositions and you’ve made your record to move to compel production. If, however, you need to litigate a motion to compel before depositions, include in your motion a request that the court allow leave to reconsider its ruling after you’ve had the opportunity to further develop the record through depositions. Third, if your case concerns a matter of public interest, engage with that aspect of the case early. Several public records statutes and balancing tests consider the public interest as a factor in the decision A Cowboy Approach Continued from p 7
9 Trial Lawyer • Winter 2024 By Kirc Emerson OTLA Guardian As trained problem solvers and issue spotters, attorneys gravitate to helping their clients with all sorts of issues. It’s likely part of the reason why many people became an and to make sure the client is fully informed of the risks. Kirc Emerson represents plaintiffs in legal malpractice cases, and specializes in figuring out complex legal issues on all kinds of matters. He is a partner in the firm Allegiant Law, 100 SW Main St., Ste. 400, Portland, OR 97204. Emerson contributes to OTLA Guardians at the Rising Star level. He can be reached at kirc@richardsonwang.com or 503-517-8202. 1 Most of the case law in Oregon surrounding comparative fault defenses professional malpractice relate to medical malpractice actions. See, e.g., Son v. Ashland Cmty Healthcare Servs., 239 Or App 495 (2010); See also Gardner v. Oregon Health Sciences Univ., 299 Or App 280 making framework. News coverage, public commentary and third parties can help demonstrate the need for disclosure. Finally, in the words of the late Aaliyah, “If at first you don’t succeed, dust yourself off and try again.”9 Sometimes, our pride in being a collegial bar in Oregon (which is a good thing, don’t get me wrong) can cut too hard the other way, and can make us forget that we are, in fact, adversaries in an adversarial system. There are fights where we know we are right, but it may take us a few tries to prove it. In those moments, find your inner Lloyd. Pick yourself up from the dirt of the bullpen, dust yourself off and try again. Rian Peck is a civil rights lawyer, focusing on criminal defense and police and government misconduct. They contribute to OTLA Guardians at the Rising Star level. They have their own practice, Visible Law LLC, at 333 SW Taylor St., Ste. 300, Portland, OR 97204. You can reach them at 503-773-0103 or rian@visible.law. 1 Burrows is no longer counsel of record on the case. 2 ORS 181A.674(3) provides: “A public body may not disclose information about a personnel investigation of a public safety employee of the public body if the investigation does not result in discipline of the employee,” subject to the exceptions outlined in ORS 181A.674(4). 3 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Opinion and Order on In Camera Review (ECF 159), at *3 (D. Or. Dec. 2, 2022). 4 Kerr v. United States District Court, 511 F.2d 192, 197 (9th Cir. 1975). See also Estate of Bui v. City of Westminster Police Dep’t, 244 F.R.D. 591, 595-96 (C.D. Cal. 2007) (discussing factors to analyze for Official Information Privilege). 5 Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987). 6 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Opinion and Order on Motion to Quash (ECF 169), at *3 (D. Or. Feb. 24, 2023). 7 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Redacted Motion to Require Destruction and Prevent Further Use (ECF 222), at *4 (D. Or. May 17, 2023). 8 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Opinion and Order on Motion to Quash (ECF 206), at *1 (D. Or. Apr. 11, 2023). 9 Aaliyah, Try Again (2000).
10 Trial Lawyer • Winter 2024 By Stephen Brischetto What is on your list of most irritating deposition behaviors of opposing counsel? Here is mine: (1) a witness who “clarifies” their testimony after a break requested by their counsel; (2) attorneys who interrupt to say they don’t understand my question; (3) attorneys who direct a witness not to answer a question but do not assert a privilege; and (4) attorneys who make a short objection to a question and then say, “you can answer the question if you recall.” The question for every attorney conducting depositions is when to approach the court to seek an end to this conduct. Hall v. Clifton Precision, 150 FRD 525, 1993 US Dist LEXIS 10782 (ED Penn 1993 July 30, 1993) is an excellent place to start if you are considering a Stephen Brischetto motion for a protective order to deal with these kinds of issues. The facts in Hall are relatively simple to digest. In Hall, the defense counsel noticed the plaintiff’s deposition. Prior to the deposition, the plaintiff’s attorney requested a copy of the documents the defense counsel intended to use in the deposition and the defense counsel declined the request. At the commencement of the deposition, the defense counsel explained the deposition process to the plaintiff and the plaintiff’s counsel interjected telling the witness, “anytime you want stop and talk to me, all you have to do is indicate that to me. Hall, supra, 1993 US Dist LEXIS 10782 at 5, During the deposition, the plaintiff’s counsel interrupted the questioning twice, first to confer with his client about the meaning of the word “document” and next seeking a break to read and confer with the lawyer’s client about a document the defense counsel presented in the deposition. At this point, the parties called the court and the court ordered the deposition adjourned until the question of the attorney client discussions could be resolved. Id. After convening a hearing, the court issued an order governing the conduct of oral depositions for the balance of the case. The court found authority in FRCP 26(f) to “set limitations on discovery” and manage discovery to prevent abuse of the process, in FRCP 30(c) to limit the scope of a deposition to prevent depositions from being conducted in bad faith and in FRCP 30(a)(2) &(3) to compel a deponent to give more complete or less evasive answers. Hall, supra, 1993 US Dist LEXIS 10782 at 5. Based upon these three procedural rules, the Hall court set forth nine guidelines governing the conduct of depositions in the case, and an opinion and order explaining the guidelines. The court’s guidelines control what the court described as “off the record” and “on the record” coaching. Under the Hall court’s guidelines, the court directed the deposing the attorney to begin the deposition by instructing the witness to “ask deposing counsel, rather than the witness’s own counsel, for clarifications of any word, questions or documents presented during the course of the deposition” and directed the witness to abide by these instructions. Hall, supra, 1993 US Dist LEXIS 10782 at 9. Subsequently, the court set forth limitations on the behavior of counsel defending depositions and their clients. Off the record The most significant provisions of the court’s opinion and order governs conferences between attorneys and the deposed client during the deposition and during recesses — “off the record” coaching. The Hall court prohibited conferences between witnesses and their lawyers both during the deposition and during recesses (including coffee breaks, lunch recess and evening recess) except for a Privileges in Depositions
11 Trial Lawyer • Winter 2024 See Privileges p 12 limited exception. Hall, supra, 1993 US Dist LEXIS 10782 at 7. The Hall court reasoned that a lawyer has a right, if not a duty, to prepare the client. But once a deposition begins, the right to counsel is tempered by the underlying goal of discovery: to get to the truth. Once witnesses take the stand, they are on their own. Hall, supra, 1993 US Dist LEXIS 10782 at 7. The prohibition against private conferences applied to both conferences requested by the lawyer and those requested by the client. Id. When conferences between the witness and lawyer occur during the deposition or during recesses in violation of this guideline, the court found such conferences are not covered by the attorney client privilege at least as to what the attorney said. Thus, the court described these conferences as ‘fair game’ for inquiry by the deposing attorney to ascertain whether there was coaching and, if so, what. Id. At n. 7. The Hall court found that private conferences between an attorney and a client are permissible during a deposition for the limited purpose of deciding whether to assert a privilege. When such a conference occurs, the conferring attorney should place on the record the fact that the conference occurred, the subject of the conference, and the decision reached as to whether to assert a privilege. Hall, supra, 1993 US Dist LEXIS 10782 at 8. Next, the Hall court stated that when an attorney presents a document to a witness in a deposition, the attorney is entitled to have the witness, and the witness alone, answer questions about the document. The witness’s lawyer should be given a copy of the document, but the court ruled that the witness and lawyer may not confer about the document before the witness answers questions about the document. If the witness does not recall having seen the document or does not understand the document, the witness can ask the deposing lawyer for more information, or simply testify to a lack of knowledge or understanding. Hall, supra, 1993 US Dist LEXIS 10782 at 7. On the record After addressing “off the record” coaching, the court turned to the subject of “on the record” coaching. The court stated that: [a] deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. Hall, supra, 1993 US Dist LEXIS 10782 at 6. The court noted that most objections, such as those grounded in relevance or
12 Trial Lawyer • Winter 2024 Privileges Continued from p 11 materiality are preserved for trial and thus need not be made. As for those objections that are waived if not made, they should be stated “pithily.” Hall, supra, 1993 US Dist LEXIS 10782 at 9. The court noted that a, “favorite objection or interjection of lawyers is, ‘I don’t understand the question, therefore the witness doesn’t understand the question.’” The court held that a lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition and “counsel are not permitted to state on their record their interpretations of questions, since those interpretations are irrelevant and often suggestive of a particularly desired answer.” Hall, supra, 1993 US Dist LEXIS 10782 at 8 n. 10. The court stated that the rules of trial testimony precluded lawyers from interrupting testimony to make statements at trial and the same rules should apply in depositions. The court specifically prohibited comments on the record or off the record that might suggest or limit a witness’s answer to an unobjectionable question. Hall, supra, 1993 US Dist LEXIS 10782 at 9. During the break The Hall decision is not an outlier by any means. A number of courts have adopted parts or all of the deposition guidelines set forth in Hall. BNSF Ry Co. v. San Joaquin Valley RR Co, 2009 US Dist LEXIS 111569 at 3-4 (ED CA Nov 17, 2009)(citing Hall, precluding counsel from conferring during breaks except to discuss a privilege and awarding sanctions against counsel who made suggestive objections and some suggestions appeared in witness’s testimony and who took unscheduled break when a question was pending); United States v. Morris, 212 FRD 418, 2002 US Dist LEXIS 9173 at 5 (DCDC May 17, 2002)(holding deponent and counsel have no right to confer except to determine existence of privilege and prohibition may extend to breaks, lunch or overnight but if break is longer court must balance considerations); Plaisted v. Gelsinger Med Cnr, 210 FRD 527, 2002 US Dist LEXIS 19842 at (MD Penn October 15, 2002(adopting Hall guidelines for Middle District of Pennsylvania and holding guidelines remain in effect after amendments to the Federal Rules of Civil Procedure); Vestin Realty Mortg, Inc. v. Klass, 2010 US Dist LEXIS 113555. (SD Cal October 25, 2010)(adopting “Clifton Order” upon finding inappropriate deposition conduct) There is a line of cases that state the Hall court’s prohibitions on conferrals went to far. The leading case on point is in re Stratosphere Corp Securities Litigation, 182 FRD 614, 621 (D Nev 1998). The Stratesphere court agreed with the goal of preventing coaching but found the Hall court’s requirements too strict. The Stratosphere court held: This court will not preclude an attorney, during a recess that he or she did not request, from making sure that his or her client did not misunderstand or misinterpret questions or documents, or attempt to help rehabilitate the client by fulfilling an attorney’s ethical duty to prepare a witness. So long as attorneys do not demand a break in the questions, or demand a conference between questions and snawers, the court is confidential that the search for truth will adequately prevail.
13 Trial Lawyer • Winter 2024 In re Stratosphere Securities Litigation, supra, 182 FRD at 621. Several courts follow the Stratosphere holding that conferrals may occur during breaks but that opposing counsel may not demand breaks in questions or between questions and answers to confer unless to determine the existence of a privilege. See, Murray v. Nationwide Better Health, 2012 US Dist LEXIS 120592 at 4 (CD Ill Aug 24 2012); McKinley Infuser, Inc. Zdeb, 200 FRD 648, 650 (D. Colo 2011); Ecker v. Wisconsin Central Ltd, 2008 US Dist LEXIS 121200 (ED Wisc 2008). Some suggestions for conducting depositions: 1) There is no reason for not using Hall in Oregon Circuit courts. ORCP 36C(1), 39E(1) and 46A(2) give state courts the same authority to manage discovery as federal courts have under the federal rules. 2) Consider bringing the Hall opinion and order with you to depositions. If you are in a deposition with an opposing counsel who is only occasionally engaging in improper behavior, consider showing counsel the Hall opinion in a break, off the record, before taking any additional action. If you are in a deposition with an opposing counsel who is engaging in a pattern of improper behavior AND if you feel like it is affecting the witness’s answers consider adjourning the deposition to seek a protective order from the court. 3) At the beginning of your deposition don’t tell the witness or opposing counsel that they can take a break whenever they want. Rather, set a schedule of a morning break, a lunch break and a time to end the day just like what occurs in court. 4) If opposing counsel requests an unscheduled break consider objecting to the break. If opposing counsel takes the break, the questions to ask the witness are: Did you talk to your counsel during the break, what subjects did you discuss, and, if the subjects are ones raised in the deposition, what did counsel say? At this point, you will likely get an instruction not to answer but you have framed the issue of private conferrals for resolution by the court. Conclusion Attorneys often tolerate improper deposition conduct out of a belief that the courts will not intervene. The lesson I take from Hall is that judges will intervene when they see a party abusing the deposition process. Of course, they won’t intervene if we don’t ask them to. Stephen Brischetto is a solo practitioner who practices in the areas of employment and civil rights law in federal and state court both trials and appeals. His office address is 1500 SW 1st Ave., Ste. 1000, 97201. He can be contacted at slb@brischettolaw. com or 503-223-5814.
14 Trial Lawyer • Winter 2024 By Robert Le OTLA Guardian A jury trial in June 2022 showed my co-counsel and I that it can be well worth pursuing even uncertain attorney fee claims in order to improve your clients’ total recovery. Jaime and John had almost finished the drive from their home in Boise to a planned outdoor adventure in northeast Oregon’s Minam State Recreation Area on June 3, 2017, when a young man coming the other direction crossed the centerline and hit them at high speed. The crash shot them towards the cliff to their right. They hit the guardrail a split second later, rolled at least one and a half times, and began a skid, upside down. The scraping sound was deafening. All John could think of was please don’t let the scraping sound stop. As long as the Robert Le car was scraping on something that meant it hadn’t gone off the cliff. The car came to rest in the middle of the highway, 109 feet from the impact point. John was afraid of what he would see when he looked over at Jaime. When Jaime knew the car had stopped, she smelled smoke and prepared to jump into action. Hanging upside down she first had to get the seatbelt to release. After she released the seatbelt, she fell. The glass went unnoticed during her first two doctor visits. She kicked at the door as hard as she could. It finally flew open. They got out. The car was not on fire after all. It was just the smoke from 12 airbags deploying. John and Jaime could see down the highway to where the other car had come to a stop. It was an older car, with one airbag. John thought there was no way the other driver could have survived. He asked Jaime to wait there. But as he walked toward the other car John saw its door open. They sat with Curtis, the other driver, for almost an hour trying to keep him from going into shock while they waited for a sheriff to arrive, eventually followed by paramedics. Jaime was more badly hurt than John. No broken bones, but she suffered neck, back, shoulder and hip injuries, and a concussion. She went through extensive treatment for her injuries but was still suffering in the years that followed. This was hard for Jaime, once a professional cyclist, whose friendships and enjoyment of life centered around outdoor activities like mountain biking and backcountry skiing. Even years later, John said that instead of him trying to keep up with Jaime, like before, she would try to ride or run with him but they couldn’t go out for long. She would pay for the activity and be in a lot of pain the next day. Jaime also couldn’t focus well and hardly slept at night because of her right shoulder and right hip pain. Both shoulder and hip had labral tears that her treating orthopedic surgeons said might need surgery. The couple tried almost a dozen mattresses and kept the one that worked best. But even at the time of the trial, five years later, she would awaken dozens of times and average only a few hours of sleep per night. She delayed surgery so she could continue to care for their infant nephew, who brought her joy even as he became a toddler and too big for her to carry. The claim My co-counsel, Matt Kirkpatrick, and I filed a lawsuit against USAA, Jaime’s and John’s insurance company, because it denied their PIP and UIM claims and treated them so poorly. It was not the treatment they had expected from USAA. Jaime’s father had been in the military and she had USAA insurance her whole life, paying premiums herself for 20 of her 39 years. But USAA started denying No Safe Harbor SECURING FEE AWARDS UNDER FEE-SHIFTING STATUTES
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