Tips from the Bench

August 2009
By Judge Marilyn E. Litzenberger, Multnomah County Circuit Court.

New legislation and recent decisions of the Oregon Supreme Court and Court of Appeals generate these "tips" for trial lawyers in civil practice.

Filing Fees - Effective July 1

Hard times. The 2009 Legislature approved new filing fees for circuit courts effective July 1.The current filing fees can be found on each circuit court's webpage.

Now, this was news to me: The court clerk is authorized to collect fees associated with outgoing or incoming facsimile transmissions "as a courtesy convenience for parties, the public or counsel" at the rate of $2 for the first page and $1 for each additional page. It may be less expensive to hand deliver bench copies for the judge or even better yet to use a stamp and the US Postal Service. It will keep them in business a bit longer.

Additional fees go into effect on October 1, including a fee of $50 per party for judicial settlement conferences. It will also cost you $10 to present an order or judgment ex parte.

Statutory Construction - Legislative Intent

Pleading motions frequently raise issues of statutory construction. In State v. Gaines, 324 Or 160 (2009), the Oregon Supreme Court modified the familiar PGE v. BOLI analysis by allowing courts to consider legislative history at the first level of statutory analysis even when the court finds the text and context of a statute are unambiguous. If you are filing a motion to dismiss that turns on how a statute should be interpreted, you may want to include the applicable legislative history in your brief as an adjunct to the cases that have already interpreted the statute or like terms in a similar statute. Under Gaines, courts are free to give legislative history the weight the court deems appropriate. Further insight into how courts weigh legislative history can be found in subsequent opinion by the Court of Appeals in State v. Kelly, 229 Or App 461 (July 8).

For an easy to understand synopsis of the methodology used by Oregon courts to interpret statutes and constitutional provisions, you may wish to consult the helpful chart Justice Virginia Linder prepared and discussed at OLI's recent CLE seminar titled, "The Oregon Constitution: 150 Years in the Making."

Special Jury Instructions

Special jury instructions can help you win your case. The introductory section of the OSB Uniform Civil Jury Instructions handbook includes tips on how to craft special jury instructions. Special jury instructions take time to prepare, especially if they are going to be effective. You can expect opposing counsel to object, so be prepared to explain to the judge why your instruction is a correct statement of the law. Alert the trial judge at the first possible opportunity to your requested special instructions so the judge can begin to familiarize him or herself with the case law that supports your request. If your requested instruction turns on interpretation of a statute, consider submitting legislative history as well.

Summary Judgment Motions

Some lawyers and judges attribute the increasing cost of litigation to the practice of filing summary judgment motions that are rarely granted. Summary judgment can be an effective way to narrow issues for trial, in certain cases. In others, the practice may dispose of the case completely. Contrary to popular belief, about one-third of the summary judgment motions filed are granted and affirmed on appeal. This is not an invitation to file more summary judgment motions, but merely a suggestion to read the case law closely and be alert to when it may be appropriate to seek summary judgment and when it is not. Keep in mind that the distinction between speculation and reasonable inference may be difficult to discern when a claim turns on reasonableness. The evidentiary record in these cases is critical. See, e.g., Brandt v. Tri-County Metropolitan Trans. Dist., WL 2382955 (August 5) and Becker v. Pacific Forest Ind., 229 Or App 112 (June 17).

Attorney Fee Petitions

Last month's decision in Rogers v. RGIS, LLP, WL 2105289 (July 15) reminds lawyers of the importance of keeping detailed descriptions of the hours devoted to prosecuting or defending individual fee-bearing claims. It also affirms a trial court's discretion to award fees based on a contingency agreement where insufficient time descriptions are provided, if the trial court concludes that such a fee would be reasonable.