Conferring with each other on civil motions

September 2007
By Judge John Wittmayer, Multnomah County Circuit Court

We are continuing to see many civil motions bearing inadequate certifications as required by UTCR 5.010(3). UTCR 5.010(1) requires you to make a good faith effort to confer with the opposing party on all ORCP 21 and 23 motions (except for motions to dismiss for failure to state a claim or for lack of jurisdiction) and on all discovery motions pursuant to ORCP 36-46.

It is not adequate compliance with the certification requirement of UTCR 5.010(3) for you to simply state that you made a "good faith effort to confer." This is a legal conclusion for the court to draw from a proper certification. UTCR 5.010(3) says the certification is sufficient if it states either that the parties conferred (this means you talked to each other) or contains facts showing good cause for not conferring (like you left messages and counsel never called you back).

The purpose of the rule is to avoid unnecessary civil motions, with their cost to your clients and the court. Very frequently at the time of a hearing on a civil motion (after the judge has read the materials and prepared for the hearing) counsel are able to agree on a resolution in the courtroom. This could frequently have been accomplished earlier, at a savings to everyone involved, had counsel actually had a meaningful discussion in advance of filing the motion. You should expect your motion to be denied if the certificate is absent or insufficient.