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 [email protected] or 971- 274-0640.
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