Tips from the Bench

Little Things

by Judge Leslie Roberts

Multnomah County Circuit Court

 

"It's the little details that are vital. Little things make big things happen." John Wooden

 

It would be good if everyone who practices in Multnomah County Circuit Court were well-versed, and refreshed, on the applicable minutia of filing and service and their periodic revisions. Some practitioners do stay current on rules - but many do not. Yet the little things can trip you up in really big ways.

Particularly in the changing environment of eCourt, knowing the new rules and refreshing your grasp of the old ones will prevent embarrassing and costly errors.

 

Motions

There is no point in a motion if it is never heard. To have a motion heard, the movant is responsible for calling the assigned judge's chambers to set the motion. Otherwise, nothing happens. My poor judicial assistant has heard the outrage and bluster but it is the attorney who fails to know the rule who is at fault. My staff has no notice a motion has been filed unless the lawyer contacts us. The local rule covers setting motions, and in detail. It is the job of the moving party - no one else. Supplementary Local Rules for the Circuit Court of the State of Oregon for Multnomah County (February 1, 2015) 5.015.

 

Judge Copies on Paper

The omission of judge copies, delivered to the judge's chambers, is more than discourtesy: it is a violation of rule. Suppl. LR 6.015. That hasn't changed with eCourt. Unless a specific judge has said that email service is permitted or preferred, you provide written copies. (See the appropriate judge's web page through the Multnomah Court web portal (go to "Quick Links" - Judges) I don't allow email. My web page points this out.) The same requirement is part of Supp. LR 5.015 (6). The responding party must deliver a judge copy of the response or reply. Supp. LR 5.017. Merely filing the response is not the "delivery" of a "copy" to the judge.

In the case of trial documents, the judge copies must be provided (on paper except for judges who wish it otherwise) by noon the judicial day before trial. Supp. LR 6.015

In my court, if you haven't given me a copy of your memorandum, you can't expect me to read it. Why bother to write it?

 

Orders after Ruling

In the era of paper, you might file a proposed order at the same time as filing the motion. The judge got the motion at the same time and would not be misled to sign the order before the hearing. Those days are now past.

Orders can be presented for signing only after the ruling on the motion (unless otherwise ordered by the court). Similarly, judgments and orders must be circulated before submitted. UTCR 5.100.

The logic of this is based on how Odyssey (eCourt) operates on the court side. Documents for a judge to assign appear in the judge's "queue" - a web page with a succession of documents to sign. The queue typically contains only the order or judgment - not any supporting material. Unless the order or judgment itself recites when it was heard there is no way to tell on the face of it, whether it is ripe for signature. The judge must research the file to figure out whether the proposed order reflects a ruling is filed prematurely. Thus the rule requires that an order be presented "after" the ruling.

This year, a new rule is in effect; an out-of-cycle change made to UTCR 5.100, requiring a certification as part of the judgment attesting that the judgment has been properly circulated (as is required, now, for orders) and is ready for signature by the judge. It is also a good idea to indicate within an order the date of the hearing. We do not see the cover letter that might have that information.

 

Ex Parte

Some motions, although they may be presented ex parte, nevertheless cannot be presented electronically; they must be presented conventionally. Supp. LR 2.501. (Ex parte motions go to the presiding court, or its designee. If a judge is specially assigned to hear all motions whatsoever, such as the foreclosure panel judge, that judge is the designee for ex parte motions.)

Motions that can only be presented conventionally include 25 civil types of matters, and four types of criminal motions, plus 16 types of domestic relations matters. Know that exceptions exist and make sure that your motion can be submitted electronically. If you don't, your order should not be signed.

I won't list all the affected motions, but some I've returned unsigned because submitted online include a motion for writ of assistance (to enforce a previous judgment), a motion for disbursement of funds, and a motion for reinstatement of a case after Rule 7 dismissal. (Such a motion is dubious, anyhow, since a dismissal is a judgment for the opposite party; see ORCP 71.) Be sure your motion is not on the list in Supp. LR 2.501 before submitting it electronically.

 

Service of Summons and Complaint

Service of process is covered by ORCP 7. Perhaps young lawyers struggle with its details, or rely on non-lawyers like agents for service of process or secretaries to get service done correctly. This can be an error with serious consequences. A default judgment does not bind a party never served.

The most frequent error I see in foreclosures is fumbled service on "all parties wherever situated who claim an interest" in the property or "unknown heirs." You cannot serve unknown people without an order of the court because you don't know the "address of the defendant." The rule specifically describes only one method for the court to allow: publication. ORCP D(6). The court has authority to allow a different method or methods; but originality could result in later challenge to the judgment. Alternate methods must be reasonably calculated to give actual knowledge of the litigation. For instance, posting on the property is exceedingly unlikely (as compared to a commercial publication) to reach a lienor, or to notify an heir who was unaware that great-aunt Harriet had passed away.

I assure you that substituted service in these cases is a total waste. It requires service at the defendant's residence; and obviously, you don't have that for persons "wherever situated." (Seemingly, process servers will reliably turn in invalid service on "persons unknown claiming rights etc." by pointless substitute service.)

Similarly, special rules govern service on a decedent. You can't serve a dead person by substituted service on a 'co-tenant' of a dead person. (It has been tried.) You could serve the heirs if you just need to reach real property (it passes directly to heirs at law). ORS 115.305-115.325 tells you how to present a claim against an estate.

 

Conclusion

Don't rely on non-lawyers or familiar practice to know the details of procedure. That carelessness will cost your motion, your argument, or your judgment. "Little things make big things happen."