Judge's Corner

Article Index

Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)

Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)

The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)

Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)

A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)

Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)

20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)

Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)

Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)

Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)

Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)

Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)

Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)

Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)

Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)

Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)

How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)

Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)

Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)

Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)

What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)

Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)

Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)

The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)

The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)

ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)

Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)

Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)

Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)

Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)

Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)

Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)

Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)

Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)

Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)

The Honorable Judge Richard Barron
Presiding Judge, Coos/Curry County Circuit Court
(March 2016)

Postponements

ORCP 52 A and ORS 136.070 generally govern requests to postpone a trial. They require that such requests be for good or sufficient cause. ORCP 52 B specifies what the court may require if the postponement relates to a lack of evidence and ORS 136.080 allows a court to require the requesting party to agree to the taking of a deposition of a witness as a condition precedent to allowing the postponement. Each statute and rule relating to postponements gives the court discretion to allow such postponements and set terms for allowing such postponements. In civil cases one of those terms may be requiring the requesting party to pay the expenses of the opposing party caused by the postponement. ORCP 52 A. All requests for postponement are discretionary with the court.

UTCR 6.030 sets forth the procedure for requesting a postponement of a trial and sets forth what a motion to postpone must contain generally and in specific types of requests. All motions to postpone must be in writing. UTCR 6.030(1). The court is not required to hold a hearing on a motion to postpone and can summarily decide such motions. UTCR 6.030(5) and (6).

It would be very helpful to the courts if parties followed the statutes and rules governing requests to postpone trials. Postponements delay the resolution of a case and mean the court is continuing a case as a pending case along with new cases being filed. It is not a situation courts want to occur.

In civil cases parties often file what are entitled "Stipulated Motions to Postpone a Trial." The court is not a party to any such stipulation and, as such, does not have to allow the postponement of a trial. Parties can file a stipulated motion to postpone by stipulation under UTCR 6.030(4). This rule has been in effect for more than 25 years. It requires that a motion to postpone a trial be filed at least 28 days prior to the current trial date and that the new trial date be within one year from the filing of the complaint in civil cases. The motion has to be signed by the attorneys of record and state that the attorneys have advised their clients of the stipulation and that the clients agree to the postponement. Finally, the motion must set forth the current and proposed trial dates, and state that the proposed trial date is available on the court's docket. Since stipulated motions for postponement that are being filed rarely contain the information required by the rule, it appears that the rule is not being consulted before a stipulated motion to postpone is filed.

Before a motion is filed requesting a trial be postponed, parties should attempt to see if there is some way in which a postponement can be avoided. For example, when a witness may be unavailable, the parties may agree that a summary of witness's testimony may be used in place of the witness appearing at trial. The parties might also agree that certain documents are admissible without a foundation witness who may be unavailable.

Many years ago the State-Federal Judicial Council met and decided that if two cases are set in different courts at the same time, priority goes to the case first set and not the oldest case. With that said, UTCR 6.030(3) sets forth what information must be in motion and UTCR 6.040 provides a procedure for resolving the conflict. It is best not to schedule different matters in different courts at the same time.

Parties should not create their own need for a postponement. Most, if not all, courts consult with the parties before a trial date is set. In criminal cases the consultation may be while the parties are in court and in civil cases the consultation may be in requests sent by the court to the parties asking them to choose a trial date and notify the court. When the trial date is chosen by the parties, hopefully, they already know the availability of their witnesses. If they do not, it is incumbent on them to immediately contact the witnesses that are necessary for the trial so that if a witness is not available, a motion to postpone the trial date can be quickly filed. Parties should not expect a postponement to be allowed when they wait a long period of time to check on the availability of witnesses, especially if they wait until shortly before the trial. Witnesses, even experts, should receive a subpoena. A court may not postpone a case when a witness decides not to appear and has not received a subpoena.

Also, parties should not delay the time for completing discovery and use that as a basis to request a postponement because they want to engage in settlement negotiations after the date set for trial, file what they believe is a dispositive motion after the time set forth in the rules, or want to complete discovery, but do not have sufficient time before the date set for trial. Discovery should be completed in a timely manner so a trial can proceed as scheduled. If a party is not receiving discovery as required and allowed by the rules, it is not unreasonable or unprofessional to file a motion to compel early in a case. Filing a motion to compel late in the case and requesting a postponement because discovery is not complete may not be a basis for the court allowing a postponement.

If a case clearly needs to be set after one year from the date of filing in a civil case, UTCR 7.020(5) and (6) provide a procedure for making such a request and that procedure should be followed rather than requesting a postponement after a trial date has been set. The great majority of cases can be tried within one year of the date of filing and the parties should work to make sure they comply with that timeline. In this regard, in civil cases, the earlier the parties can agree on a trial date the better for the court and the parties. For example, allowing lengthy extensions to file pleadings may mean the parties have to find a trial date within one year of filing the case after several months have passed. If that happens or the parties agree on a date 11 months after the case is filed may mean the parties cannot take advantage of UTCR 6.030(4), mentioned above, if they want to file a stipulated motion to postpone.

Parties should also understand that in smaller courts setting a case for more than a week takes up court time and requesting a postponement means, in some cases, that court time is wasted and that the case, if it has to be postponed, will possibly be set many months into the future. It is not easy to just set a case over for a short period of time.

Finally, parties need to know that the Chief Justice in January 2015 adopted as two of the guiding principles of the Oregon Docket Management Initiative that "the court controls the pace of litigation" and "the court creates and maintains expectations that events will occur when they are scheduled." These principles apply to trial dates and are very relevant to requests for postponements.

 

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