From the Multnomah Lawyer: Tips from the Bench – Motions

A request that the court enter an order is a motion. ORCP 14. You cannot request the court take an action by email, letter, or telephone call to the court’s judicial assistant. (There are times - a very few - when needs must, as when the lead attorney falls into a manhole on his way to court, and a frantic telephone call is in order, but putting aside a true emergency like that, a motion is called for.)

The judge is being asked to act in your favor, so you need to take the burden of scheduling the motion and supporting it. The rules of procedure (largely in the Local Rules, Chapter 5) show you how.

Filing and Scheduling the Motion
The judge doesn’t even know your motion exists, until you contact him or her. LR 5.015 makes it the responsibility of you, the party requesting some action, to call the judge’s JA (before or when filing a motion) to find out when the judge has time to hear the motion. It is your duty - not the JA’s – to work out a date that works for the opposing party and the court. The judge has to have the courtesy copies well in advance. LR 5.015 (6) provides:

”The moving party shall deliver a courtesy copy of the motion to the assigned motion judgment and serve parties on the date the motion is filed with the court. ...” [Emphasis supplied.]

The rule is the same for the response and reply. If the judge for the motion changes, it is up to you as the advocate to get copies to the new judge. Don’t assume the courtroom staff will do this.

Pay attention to the Local Rules! UTCR, 21.070 provides that “The court may require that a filer submit...a copy of the document that was filed electronically...” UTCR 21.070(1) (a). Multnomah County does require that. (LR 5.015(6)). Don’t be one of those irritating people, lawyers or their staff, who resist court rules because (they argue) the judge can look up the memoranda for herself. This wins no respect for your grasp of law and procedure.

Some motions can be presented ex parte; some motions cannot be filed electronically; and some motions don’t need to be argued because the parties stipulate.LR 2.501 provides a lengthy list of matters that cannot be filed electronically - regardless of stipulation. Look through this list and check back as needed. It includes such things as a second continuance of UTCR 7.020 (LR 2.501 (1)(i), motion to reschedule summary judgment hearing (LR 2.501 (1) (j)), or consent judgment (LR 2.501 (1)(u)).

Some things can’t be settled by the parties by stipulation. LR 5.165 provides the basis and process for protective sealing orders. You must file a motion showing the statutory authority for sealing, the reasons for protecting the documents from view, and a description of the documents in question. Don’t expect a stipulated protective order to be signed if it contravenes the court’ s powers in this respect. You cannot expect to alter the court’s docket by a stipulation. You need to ask the court to reschedule and the court may require a scheduling conference. LR 7.025.

Presenting the Motion in the Best Light
Assuming you have provided the courtesy copies, make them useful to the court. Make memoranda as brief as is consistent with an effective statement of your position and authority. Brevity takes time and effort to achieve, but the longer argument may lose or obscure the main point and tax a busy judge’s attention.

State facts only when necessary to understand the motion. Don’t make a ‘jury argument,’ asking sympathy for your client, or attacking morals of the other party (or worse, the other attorney). You may be emotionally involved, but the judge is not, and will not rule based on this. The judge may only be skeptical of legal arguments wrapped in emotional ones.

Lead with strength. If you have a statute or controlling case on your side put it up front. Don’t bother with weaker points or pad the brief with string cites for the well-known standards for Rule 21 motions or summary judgment motions. Trust the judge to know the basics. The court is forming an opinion of your position as he or she reads. Make the motion compelling from the beginning.

Limit your cases to those you can discuss in detail. If there is one that decides it, stick with the one. If you haven’t read a case - from the first to the last page - the court can’t be bothered to do it, so don’t cite it. 

Be scrupulously accurate in your description of the cases and relevant facts. The judge will read the important cases (as will your opponent). If you are inaccurate about them, your ship is already sinking.

Give the court copies of anything from the file that the court needs to see in connection with the ruling. Do not require the court to research the case file to check the complaint or an earlier ruling - make it easy for the judge.

When you argue your motion, summarize the points - don’t read the memorandum at the judge, or read a long quotation. Vanishingly few lawyers give a good dramatic reading of a court opinion. Summarize the holding and trust the court to be able to read.

The best argument consists of a brief (headline-like) summary of the points made and a pithy statement of the very best response to the opposing arguments, leaving time for the court’s questions. When the court has a question, answer it -whether you like the answer or not. No one wins them all, but this approach makes it clear you know your trade, and that counts over time.

The Order
After the oral ruling, you have to get it in writing. An oral pretrial ruling is not effective until it is signed and entered. Barone v. Barone, 207 Or 26, 294 P2d 609 (1956).You must circulate a proposed order before submitting it. UTCR
5.100. Do this promptly and be sure the order gives the specifics of what the court orders - not “plaintiff ’s motion was granted,” but “defendant must provide documents described in paragraphs 7 and 10 of plaintiff ’s 2nd request for documents.”

If you are directed to prepare the order, don’t vary or embroider what the court ruled. If in retrospect the judge left some point undetermined, go back to the judge about it - don’t just add it to the order. You appear to be trying to sneak something by a busy judge. The judge allowed you to record the ruling - not add to it. Self-help this way is unethical and gets you a reputation that hurts you for a long time.

Our unchanged rule from paper-filing days still tells you to submit an order with the motion. LR 5.035. Don’t do that for electronic filings except for ex parte motions.(I hope the rule will be changed soon.) Otherwise, the order will pop up in the electronic queue for the judge’s signature prematurely, before argument. If signed it must be set aside later.

My columns have started with quotes I like. This one will end with one, appropriate for motion practice: “If you can react the same way to winning and losing, that’s a big accomplishment. That quality is important because it stays with you the rest of your life...” Chris Evert.

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