The pleadings are not "settled" and trial is fast approaching

May 2008
By Hon. John A. Wittmayer, Multnomah County Circuit Court

In your civil case you have been through a round or two of ORCP 21 motions, following each of which, there has been an amended pleading. We all know how long it takes to go through each of those processes. And all the while, the case is getting older and older, and the trial date is fast approaching. How many of you have found yourselves needing to file further Rule 21 motions on the eve of trial?

It is frequently pretty easy to deal with simple last minute motions on the day of trial, especially if any ruling can be amended by interlineating a previous pleading. But with more extensive motions, it can be a real problem, especially when adverse counsel needs to respond in detail to the motions, and may need to file an amended pleading after the order. How can these things be done on the day of trial?

UTCR 5.030 gives an opposing party not less than 14 days from service of a motion to respond to the motion. The rule does not contain an exception if you are on the eve of trial.

Tip: If you find yourself in this situation, I suggest you do any or all of the following:

  • Do not mail your motion to the other side. Use a faster mode of service. This will save you the three additional days the other side has to respond pursuant to ORCP 10 C.
  • Ask to have your motion heard on an expedited basis, instead of by the regular scheduling process. (Be aware that in Multnomah County the judges handling expedited motions have, for some time, taken the view that counsel's failure to plan does not constitute an emergency warranting special access to the resources of the court. A motion for expedited hearing is not likely to be granted if you simply weren't paying attention to the calendar.)
  • Ask the judge to shorten the 14 day response time for the other side. UTCR 1.100 allows the court to grant relief from a rule (such as UTCR 5.030) on good cause shown to prevent a hardship or injustice.

Schedule a conference with the presiding judge to deal with the approaching trial date or assignment to a judge for motions.

If all of these things fail, you just might find yourself without the opportunity to have your motions heard, and you may be going to trial on pleadings you believe are not proper.