Tips from the Bench

May 2009
By Judge Stephen K. Bushong, Multnomah County Circuit Court.

Requests for Admission

Effective use of requests for admission can streamline your case for trial. Ask opposing counsel to admit the authenticity of documents you intend to offer as exhibits at trial, and to admit that medical charges and other items of damages were necessarily incurred and are reasonable in amount. Use requests for admission to establish background and other facts that are not really in dispute, and summarize the admitted facts in a requested jury instruction. Then you won't need to spend trial time laying the foundation for the admission of evidence or proving facts that have already been admitted. And if the other side fails to admit the truth of the matter without good reason, you may be entitled under ORCP 46 C to recover expenses, including attorney fees, incurred in making the required proof.

Expedited Motions

The expedited motion hearing process should be used only if there is a true emergency requiring immediate action. Generally, an approaching trial date does not justify an expedited hearing on discovery or other motions that could have been filed earlier in the course of the litigation. To request an expedited hearing on a civil motion, present a Petition for Expedited Motion Hearing (Attorney Reference Manual, form 05-28A) to the designated judge for expedited civil motion ex parte matters (currently, expedited hearing requests are heard by Judge Marshall at 11:30 a.m.). If the request for expedited hearing is allowed, a judge will be assigned to hear the motion on an expedited basis. Counsel must then contact the assigned judge for a hearing date and time. A motion praecipe is required. Copies of the motion and supporting materials should be delivered to the assigned judge's chambers as soon as possible.

Responses to MBA Member Questions

What is the procedure for appointing a guardian ad litem?

Under ORCP 27, a minor or incapacitated person who is a party to a civil action is required to appear by a guardian ad litem appointed by the court if a conservator or guardian has not previously been appointed. Ordinarily, an order appointing a guardian ad litem should be entered before the minor or incapacitated person appears in the action. If uncontested, such an order may be obtained by presenting an ex parte motion for appointment of a guardian ad litem, accompanied by a supporting affidavit and a proposed order. If the pleading to be filed on behalf of a minor or incapacitated person is the original complaint, counsel will need to explain when requesting an order appointing a guardian ad litem that a case number has not yet been assigned because the complaint has not yet been filed.

What is the procedure for obtaining an order to show cause? What do judges expect at a show cause hearing?

An order to show cause - typically, to show cause why a preliminary injunction or provisional process should not issue or a receiver should not be appointed - may be obtained at ex parte. Counsel should present a proposed Order to Show Cause with supporting documents, along with a Motion for a Show Cause Hearing and Order setting the hearing (Attorney Reference Manual, form 05-27). Ordinarily, the show cause hearing will assigned from the Thursday call docket for hearing on Friday. At show cause hearings in my courtroom, I generally allow each party to make a brief opening statement. I then give the party seeking a preliminary injunction, provisional process or a receiver an opportunity to offer any additional evidence supporting the claim (they do not need to re-submit evidence they previously filed in support of the motion for order to show cause). The party opposing relief may then offer evidence in opposition. Depending on the case, I may allow some limited rebuttal evidence. Witnesses may testify at the show cause hearing, or parties can submit deposition excerpts or affidavits in lieu of live testimony. The parties will then be given an opportunity for closing argument. Parties are encouraged to streamline their presentations and submit evidence and argument in writing as much as possible to minimize the length of the show cause hearing.