Judge's Corner

Article Index

Summary Judgment Motions - To File or Not to File? The Honorable Danielle J. Hunsaker, Washington County Circuit Court, Jason Kafoury, Kafoury & McDougal, and Joel Mullin, Stoel Rives, LLP (April 2019)

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)

Judge Deanne L. Darling, Circuit Judge
Clackamas Juvenile Court

(January 2015)

ORCP 68 Attorney Fees - when, why and how to seek them

Please know that while your trial is going on - it has all my attention- but when it is over- I am off to the next issue. By the time your attorney fee application rolls in - I likely have dealt with as many as 100 other cases and yours is a memory- and maybe a dim one. If you had a theme in your case- you would be well served to remind the judge of it in your application. It would also serve you well to spend some time discussing the issues in the case. If fees are discretionary in the granting (not the amount which is always discretionary) - I suggest you at least discuss it at the end of the case and see if the judge has an indication of the direction he/she will be going. I do not think the trial judge can deny a party the right to file the Rule 68 statement, but you need to discuss with your client the value of incurring the expense to prepare it.

As always, reading the rule is a good place to start. There have been changes in the past few years and more are pending adoption as I type this. This article is not intended to cover everything about the process but rather to remind you of the critical phases. These are pleadings and there are nondiscretionary time lines. If a hearing is desired it must be requested in the heading. It is helpful if an estimate of time is included. Even though the rules implies that only an objector can request a hearing I believe most judges would grant a hearing to anyone who requests it. But if you request it - it is imperative to have a good reason for the hearing.

The facts, statute or rule that provides the basis for attorney fees must be pled. It is also a good idea to check that the ORS citation is still accurate. A failure to state the above cannot be cured once the hearing or trial has commenced. No denial of the right to fees is needed as the rule says the claim is deemed denied.

File (i.e. - DELIVER to the clerk's office) the original statement with the court with the proper certificate of service within 14 days of the entry of the judgment that forms the basis for the fee request. Submitting a copy of the statement and an original form of judgment to the trial judge is recommended. If objections are filed they need to be specific. If findings are required the request for them must appear in the title of the statement (on the right hand side in caps or bolded is a good idea) or the court is not obligated to make them. Declarations are a good idea and wonderful place to do more than just restate the factors- as evidence of the factors is needed. If you have requested findings- submit them to the court. Judges do not have to create them- we just have to find them. If they are submitted it will speed the process- and the judge can accept whichever ones apply to the evidence presented.

When submitting your claim for fees - be sure to be specific about the time spent on each claim if there is more than one. This is especially important if no right to fees exists on some of the claims. Do not be greedy or overstate the time spent. If you had a fee agreement - attach a copy so there is no question about the hourly rates. Odds are very good that the judge or the clerk will actually go thru your statement and review the time spent and the tasks performed.

If the right to fees allow for fees incurred in collecting a judgment- the proper method is not to seek a prospective award- but rather to submit a supplemental statement. Changes are pending on this issue and a review of the proposed rule (which could be in effect by July 1, 2015) is recommended.

When handling a personal injury case with low economic damages - like under 15 or 20K- think about not collecting the medicals- or be realistic about the unpaid ones- and omit the insurance paid sums- and using ORS 20.080. In settlement conferences insurance companies worry more about attorney fees on a small dollar case than they do verdicts on the small cases. Everyone is aware of the high cost of experts (doctors) and the economics of trying a case. It can be a great settlement technique.


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