Tips from the Bench (part 2)

December 2010
By Judge Marilyn Litzenberger, Multnomah County Circuit Court.

The second in a series of two articles discusses the new expedited civil jury trial offered in Multnomah County. Last month's article dealt with what the new expedited designation is and preliminary matters in obtaining the designation. This month's article discusses the unique procedures after an expedited civil jury trial designation has been obtained.

Questions and Answers: The Expedited Civil Jury Trial

Question 7: How will the trial date be determined?

The trial date will be established at the initial case management conference conducted by your trial judge. The trial must be held no longer than 120 days after the presiding judge has signed the order identifying your case as an expedited civil jury trial. Under the rules, the trial date may not be continued because of a party's failure to request or respond to discovery, although sanctions may be imposed for a party's failure to provide discovery in a timely manner. It is contemplated that once a trial date is established, that date will not be changed absent extraordinary circumstances. A firm trial date gives litigants confidence their trial will take place on that date and allows them to schedule witnesses well in advance of trial so that witness scheduling conflicts are avoided.

Question 8: What happens during the initial case management conference?

The assigned judge will meet with trial counsel for the parties and address the following issues unless the parties have resolved the issues previously: (1) trial date; (2) agreements with respect to discovery (number of depositions, requests for admission, etc); (3) how pretrial disputes will be handled in advance of trial; and (4) time or other limitations on the voir dire process. The court will also establish a date for a trial management conference.

Question 9: How is discovery limited by the default provisions if we cannot agree otherwise?

First and foremost, discovery is limited only after you have obtained the presiding court's order designating the case as an expedited civil jury trial. Further, the default provisions apply if you do not agree to a different discovery plan. By default, the rule permits each side to take two depositions, serve one set of requests for production and one set of requests for admissions. These discovery requests must be served no later than 60 days before the trial date and discovery must be completed no later than 21 days before trial.

Question 10: What happens at the trial management conference?

The trial management conference is intended to resolve evidentiary issues, motions in limine, pleading issues and generally any matters that can and should be resolved before prospective jurors are called to the courtroom for voir dire. For a more complete list of potential issues please read "Multnomah County's Recommended Practices for Civil Jury Trials" (posted on the court and MBA Web sites). By holding a trial management conference prior to the date set for trial, the parties will benefit from the court's preliminary rulings, which will impact the presentation of evidence and may narrow the issues for trial.

Question 11: Why are pretrial motions limited, does that include motions in limine, and do I have to file a motion to file a motion?

No, you do not have to file a "motion to file a motion." The judges on the expedited civil jury panel expect to be able to resolve pretrial problems that arise during discovery on an expedited, streamlined basis. If one party believes it is necessary to file a motion to narrow the legal or factual issues before trial, that motion can be brought to the trial judge's attention during the initial case management conference. Motions in limine are not prohibited; in fact, they are encouraged as a means of narrowing the factual issues that will ultimately be presented to the jury. The types of pretrial motions that are limited are generally those directed to the sufficiency of the pleadings under ORCP 21 and for summary judgment. If the pleadings in your case need work it is best to resolve those issues before you ask that your case be considered for treatment as an expedited jury trial. While the expedited civil jury program is not limited to cases that would otherwise be transferred to mandatory arbitration, it is expected that the cases designated will be ready or nearly ready for trial, as framed by the pleadings.

Question 12: How many jurors will decide the case?

The rule provides for a jury of six. Several members of the bar have questioned the wisdom of agreeing to a six-person jury when their client would otherwise be entitled to a jury of 12 and a verdict based on the decision of three quarters of those jurors. Some people feel that it will be more difficult for the party with the burden of proof to prevail with a six-person jury, which requires five votes (more than the three-quarters required by law). Others believe that a 12-person jury is more likely to give a compromise verdict, resulting in lower damages for the plaintiff. Some have asked whether the parties could stipulate to a different number of jurors - perhaps eight (with a verdict based on six out of eight votes). Those questions raise valid concerns, but are the number of jurors more important than the potential alternative of not having jury trials at all? It is the collective wisdom of the community, reflected in the jurors seated to hear your case, that is the foundation of our justice system. Under our adversarial system, every time you submit your dispute to a fact finder, whether that be a jury of six, 12 or one (the judge), there is a risk that you will not prevail. That is the nature of our justice system, but experience with juries proves time and time again that jurors reach the right results after thoughtful consideration of the evidence presented to them.