Mastering Motions to Compel

Celia C. Elwell, the Researching Paralegal, recently pointed to an excellent article in the ABA Journal entitled “6 Keys to Acing Discovery.” The article focuses on preparing for and arguing motions to compel. Post author, Katherine A. Hopkins, cites the following as keys to success:

  1. Avoid canned briefs
  2. Research the court procedures
  3. Research the judge hearing your motion
  4. Research opposing counsel
  5. Make the judge’s life easy
  6. Finally, don’t be a jerk

Read the full article here.

Your first reaction may be: this sounds like a lot of work for a “simple” motion to compel. Perhaps it is. On the other hand, research is something you only need to do once. If you’re in a firm or have a network of fellow practitioners, it should be easy to make a few phone calls about an unfamiliar judge or opposing counsel.

Knowing the court procedures? You better know the court procedures! If it’s been a while or you are new to a particular judicial district in Oregon, start with the OJD Rules Center. Scroll the page to find UTCRs, SLRs, and “other rules,” including the Oregon Rules of Civil Procedure. If you are a Multnomah County practitioner, the new updated 2018 Attorney Reference Manual is now available on the Multnomah Bar Association website. Get it toot sweet!

I can heartily vouch for the tips about making the judge’s life easy and not being a jerk. No one likes the latter. Don’t take the bait if the other side is contentious. Keep your cool and your reputation intact.

As for the judge, put yourself in his/her position. A straightforward, well-organized motion with clearly marked exhibits is a great start. Your argument should be the same.

All Rights Reserved 2018 Beverly Michaelis

Oregon Foreclosure Checklist Updated

The Professional Liability Fund Trust Deed Foreclosure Checklist (August 2012) has been updated to incorporate specific requirements related to SB 1552.  Practitioners are encouraged to review the Foreclosure Mediation Requirements in tandem with the checklist.   Download the Trust Deed Foreclosure Checklist and Foreclosure Mediation Requirements on the PLF Web site > Practice Aids and Forms > Real Property.

July Issue of In Brief Now Available

The July issue of In Brief is now available on the Professional Liability Fund Web site.  Articles and announcements include:

  • Modification to Civil Case Management System in Multnomah County
  • Revised Uniform Trial Court Rules Effective August 1, 2012
  • Adjusted Tort Liability Limits Against Public Bodies Effective July 1, 2012
  • Contract Lawyers: Independent Contractors or Employees?
  • New Foreclosure Law Requirements and PLF Practice Aids


New Civil Case Management Rules

On February 1, 2012, new civil case management rules went into effect in Multnomah County Circuit Court.  The new rules require:

The new civil case management process applies to cases filed on or after
February 1, 2012.  Cases filed before February 1 are not subject to the new process.

You can read more about the changes on the Professional Liability Fund Web site.  Select News, then Multnomah County – New Civil Case Management Process.

Zero Tolerance for eFiling Errors

In April the Oregon State Bar will publish my article, “Zero Tolerance for E-Filing Errors: How to Avoid Committing Malpractice with a Few Clicks of Your Mouse.”  I don’t want to give all my tips away (smile), but here is a small snippet to whet your appetite:

While some courts have excused lawyers for missing a deadline due to an errant spam filter, [1] most are not given a second chance.  Follow these steps to prevent court notices and other important e-mails from getting blocked:

Smart Spam and Junk Mail Filtering

  • Practice whitelisting. Set your spam or junk e-mail filters to allow receipt of e-mails from approved senders or domains. Include courts, administrative agencies, key clients, opposing counsel, and any other senders whose e-mail you don’t want to miss. You may need to make this change at the ISP level and in the settings of your specific e-mail program.  If you aren’t sure how to whitelist a sender or domain, search the Help or Support pages for your e-mail program or provider.
  • Review quarantine summaries daily.  Aggressive spam filters like Google’s Postini® will occasionally block senders and domains you have added to your whitelist if the filter finds content in the e-mail to be possible spam.  Court e-mail addresses and domains can also change, causing new notices to be marked as spam.
  • Check junk mail folders daily.  Approved senders and domains can make it past your ISP or server-level spam filter, then land in your e-mail program’s junk mail folder.  Outlook permits users to disable automatic filtering of junk mail to avoid this problem, but understand that if Outlook believes a message originated from a blocked sender, it will still land in your junk mail folder. The best practice is to check your junk mail folder regardless.

Safety First

  • Once you’ve learned how to retrieve docket activity online, consider making it a weekly routine. Every Friday, run a docket activity report for a specified date range or search circuit court calendars online.  Compare the court’s calendar with yours and update your calendar if necessary.
  • Thoroughly train support staff – on CM/ECF systems, proper handling of court notices, and technology in general.
  • If you have no staff, consider creating a secondary e-mail account for yourself to use exclusively for court notices.  Include it in ECF court filings whenever permitted.  If your primary e-mail account goes down, you can check the second account.
  • If you’re experiencing problems, tell the court. The attorney who lost the right to arbitrate in Philadelphia would probably still have a viable $35,000 fee claim if he had just picked up the phone. According to the judge, “A telephone call to [my] chambers might have avoided the whole predicament.”
The full article is 2,498 words and will appear in the April edition of the Oregon State Bar Bulletin.

Copyright 2012 Beverly Michaelis

[1] See Pace v. American Int’l Group, 08 C 945 (N.D. Ill; November 1, 2010) and Shuey v. Schwab, Case No. 08-4727 (3rd Cir. 2009).  For a discussion of these cases, see Eric Goldman’s Technology and Marketing Law Blog at  (Posts dated November 4, 2010 and December 1, 2009.)