Tiplet: Proposed Judgments and Orders

Questions about submitting proposed judgments and orders under UTCR 5.100? Wondering what notice you have to give to the other side?  Here is a handy-dandy reference from Multnomah County’s Family Law Court, published by the Professional Liability Fund.

While this was written with family law practitioners in mind, it’s a useful resource for any practitioner.  Here are a few highlights:

What does UTCR 5.100 require?

With few exceptions, you must provide notice to the other party before submitting a proposed order or judgment. If the other party is self-represented, you must also include notice of the timeframe that party has to object. If you receive objections, you must attempt to resolve them.  Additionally, every proposed order and judgment must contain a Certificate of Readiness telling the Judge why the document is ready for judicial signature and setting out the status of any objections received.

Why do we need UTCR 5.100?

There are three main reasons why proposed orders and judgments must be processed according to this rule:

  1. Documents requiring judicial signature are routed separately through the court’s electronic case management system.  Segregating proposed orders and judgments is efficient and speeds up the signing process.
  2. There is no system which allows the court to “hold” documents waiting for time periods to pass prior to judicial signature.
  3. Pro se litigants need proper notice.

What is the notice period under UTCR 5.100?

“When the other side is represented, the drafter must wait 3 days, plus an additional 3, before submitting the document to court. When the other side is self-represented, the drafter must wait 7 days, plus an additional 3. The “3 extra days” requirement derives from ORCP 10B, which was modified by the 2015 Oregon Legislature to apply the 3-day extension to service by email, fax, and electronic service instead of just posted mail. UTCR 1.130 applies ORCP 10 to time periods set by the UTCRs.”

Other FAQs

Four pages of answers await here for practitioners.  Get answers to questions like:

  • What are the situations where a statute or rule authorizes submission [of a proposed order] without notice?
  • Can I combine my Certificate of Readiness with a Certificate of Service?
  • Is the Certificate of Readiness filed as a separate document, or somehow incorporated into my proposed order of judgment?
  • Does my Certificate of Readiness have to set out the address at which I served the other party with the copy of the proposed order/judgment?
  • Does this rule apply to Motions to Postpone?

Keep in mind that in some instances UTCR 5.100 is either unclear or does not explicitly address all situations.  This makes the FAQ re UTCR 5.100 in Multnomah County Family Court a very valuable reference.

All Rights Reserved – Beverly Michaelis – 2018

 

 

Asked and Answered: Oregon eService Questions

Last Wednesday’s Oregon eService CLE generated a lively discussion and some interesting questions. Here are a few that might interest you:

What is my date of filing?

  • The court considers a document submitted for an electronic filing when the electronic filing system receives the document.
  • If the court accepts the document for filing, the date and time of filing entered in the register relate back to the date and time the electronic filing system received the document. When the court accepts the document, the electronic filing system will affix the date and time of submission on the document.

For example: Assume you have a statute of limitations that runs on Wednesday, June 6, 2018.  You eFile on Wednesday, June 6, 2018.  Your document is received by the system on Wednesday, June 6, 2018.  On Monday, June 11, 2018 the court clerk reviews your filing and ACCEPTS it.  Your filing date is June 6, 2018.  The delay in processing your filing is disregarded.  Thanks to relation back, your filing is timely under UTCR 21.080(3)-(4).

Where do I find the entry date in the Register of Actions?

When interpreting the Register of Actions, refer to UTCR 21.060(3):

The following apply whether or not a document is electronically filed with the court:

(a) For the purpose of ORS 7.020(1) and (2), the date that a document was filed displays in the date column of the register of actions for the case in the court’s electronic case management system.

(b) For the purpose of ORS 7.020(2), entry occurs on the date an event is created in the register of actions. (Emphasis supplied.)

The entry date is what matters.  Always refer to the CREATED DATE field.

How does the 3-day rule in ORCP 10 apply to eCourt cases?

Thanks to Donna Van Eaton, paralegal extraordinaire with the Law Offices of Melinda M. Brown, we know that nothing has changed.

The 3-day count should start on the date your document was eFiled or submitted, i.e., the date on your Certificate of Service.  Here is the background:

ORCP 10 was last updated by the Council on Court Procedures (CCP) in 2014. The first draft of the amended rule did not refer to electronic service (January 29, 2014).  Five versions later, it was explicitly added (September 6, 2014).  The drafts and final amended rule are available to view here.

The CCP staff comments accompanying this change point out the intention – which was to treat all forms of service equally and continue current practices:

The amendment of section C continues the allowance of three additional days in computing the time in which to respond following service of a document by mail or by facsimile service without the intention to change the previous practice under Rule 9 F (facsimile service) and this section.  The same three-day extension is now made applicable to documents served by e‐mail and by the newly available electronic service, providing equal treatment of these forms of service and specifying that treatment in one provision.  The description of the additional time in section C is amended to improve clarity without the intention to change the rule’s meaning or operation.  With the establishment of eCourt, the word “paper,” appearing twice in section C, is replaced with “document.”

The 3-day computation starts on the date of submission (date of filing), not the court clerk’s acceptance date.  Keep in mind the goal of the amendment: to equalize the methods of service, preserve operation of the rule, and maintain existing practices. Historically, the 3-day extension provided by ORCP 10 was meant to compensate for possible delays when serving by mail. Extending the same benefit to service by email, fax, or eService may not be necessary, but the rule provides for it explicitly.

Withdrawing as attorney of record in the eCourt era

If you withdraw or the party you represent is dismissed from an action, UTCR 21.100(2)(a) states you “must remove (your) name and service email address as a designated service contact for a party.”  Obtaining a court order permitting your withdrawal will not automatically remove you as a service contact in the Odyssey eFileandServe system.

If you are unsure how to remove yourself as a service contact, get in touch withTyler Technologies:

If you weren’t able to attend Oregon eService, a copy of the program is available to purchase here at a cost of $25 (same as the registration fee).  Your purchase includes a video recording, audio recording, program and supplemental materials, and answers to poll questions. Apply for MCLE credit of 1.25 PS/general MCLE credits by submitting the providing MCLE 6 form.

All Rights Reserved – Beverly Michaelis – 2018

With a special thank you Donna Van Eaton at the Law Offices of Melinda M. Brown.  As Stacy D. Fawver said, “right on.”

 

 

Preserving Mobile Data in Anticipation of Litigation

In a recent post, eDiscovery expert Craig Ball makes the case for routine preservation of data contained on mobile devices. I concur.

The tendency is to dismiss or ignore the degree to which we lean on our smartphones and tablets. We either assume the data is preserved elsewhere or we convince ourselves that mobile devices couldn’t possibly contain anything relevant or unique. Both beliefs are false. Craig’s post is a wakeup call for both law firms and their clients. Consider his key points:

  • Texting has overtaken email as a means of direct and candid communication. No competent business person would never send a letter or email without retaining a copy. The same standard should apply to text messages.
  • Mobile data is accessible and easy to backup using iTunes. (Yes, I know the interface deserves a Rotten Tomatoes score of 0%, but it does work.)
  • Preserving data does not mean it must be produced.

There is much more to this topic, and I encourage you to read the full post.

A Lesson for Lawyers

There is a takeaway for lawyers too. In Oregon, the “client file” includes text messages if they bear on the merits of a client’s position in the matter. This begs the question: are you preserving client texts? If not, look into Zipwhip, which I’ve discussed before. It has many advantages, not the least of which is the ability to save texts as PDFs to the client file.

All Rights Reserved 2017 Beverly Michaelis

Pro Se Adversaries – Tips for New Lawyers

Dealing with a pro se party raises a number of reasonable concerns:

  • The pro se could misconstrue what I say
  • The pro se may regard me as his or her lawyer
  • The pro se could sue me for legal malpractice

Communicate in Writing Whenever Possible

When you communicate verbally, a pro se can misremember your words, misconstrue your meaning, or even deny the discussion occurred.

When you communicate in writing your words are documented.  It becomes impossible to “misremember” or deny what you said.  Yes, written communication can still be misconstrued, but there is less likelihood of this happening.

Use a 3-Way Disclaimer

  • “I don’t represent you.”
  • “I can’t give you legal advice.”
  • “If you have questions, hire a lawyer.”

Every pro se communication should include this type of disclaimer.   If the pro se party later argues you had a lawyer-client relationship or attempts to assert a legal malpractice claim on the grounds that you failed to protect her interests, you will be in a better position to defend yourself.

Be a Broken Record

The 3-way disclaimer must be used every time you communicate with a pro se.  Does it become repetitive?  Perhaps, but that doesn’t matter.  Some pro se adversaries “get it” from the beginning; some “get it and forget it;” some never “get it.”  This doesn’t mean the pro se is purposely trying to make your life more difficult.  But it does underscore the value of redundancy.

Practice Tips Beyond Pro Se Communication

For more tips on how to work with pro se adversaries, peruse the following:

[All Rights Reserved 2015 Beverly Michaelis]

Case Numbers are Not Unique – Oregon eCourt Week

This is the final post in my week-long series on Oregon eCourt. Today we take note of a small, but potentially important detail: case numbers are not unique in the eCourt system.

After logging on, eCourt users have an option to search case records, court calendars, or find judgments with money awards. If you elect to search Civil, Family and Probate Case Records, the following search screen appears:

search screenThe first option is to search by Case Number. Here is an actual search result that generated three listings in three different jurisdictions for the identical Case Number. Identifying information has been redacted for privacy reasons:

case numbers

Identical case numbers across judicial districts do not pose a problem so long as you are aware of the possibility.

Other Options when Searching Case Records

Searching by Case Number is the first option presented when searching case records. Users may also search by Party, Attorney, or Date Filed.

other search criteria

All Rights Reserved [2014] Beverly Michaelis.