Category: Judge’s Corner

Attorney Fees – The Bench perspective

The Honorable Benjamin Bloom, Jackson County Circuit Court

Assessing and resolving a party’s request for attorney fees is a unique experience for a trial court judge. Judges are asked to make decisions all the time. It is a central function our duties, one I embrace, and take seriously. Decisions on attorney’s fees are different from many matters because judges are asked to make a critical determination of a lawyer’s pecuniary interests and the value of his or her services.

Generally, petitions for fees arise in three different situations: general civil cases, domestic relations cases, and motions for sanctions. In civil cases, the court can only award attorney fees if a statute or contract authorize the award. The process for awarding attorney fees is set out in the Oregon Rules of Civil Procedure. Rule 68 C(4)(a) requires a party to submit a request for attorney fees no later than 14 days after entry of judgment. The court does have discretion to allow the filing of a petition after the 14-day period. A party opposing the fee petition can file an objection and the petitioner may thereafter file a response. ORCP 68 C(4)(c). If requested the court will hold a hearing. Otherwise, the court will determine the matter on the record. If objections are not timely filed, “the court may award attorney fees or costs and disbursements sought in the statement. ORCP 68 C(4)(f).

When I begin to address an attorney fee petition in a civil case, I start from a position of believing that a prevailing party is entitled to its reasonable attorney’s fees if a statute or contract authorizes those fees. I rely on factors set forth in ORS 20.075 when awarding fees if fees are authorized by statute and I consider those factors when fees are authorized by contract or in domestic relations matters.

In a civil case, with a couple of exceptions, I am apt to award all fees requested if the fees are for services related to the claim or claims on which a party prevailed, and which provide a basis for recovering fees if the amount sought is reasonable. I also award fees for work done on claims which would not provide an individual basis for fees if those claims included matters common to claims authorizing the recovery of attorney fees. See Vill. at North Pointe Condos. Ass’n v. Bloedel Constr. Co., 278 Or App 354, 369-370 (2016). I will award fees for preparing and filing an unsuccessful pretrial motion, such as a motion for summary judgment, if I determine that the filing of the motion was a reasonable litigation strategy. However, it is important that fee petitions include an explanation of the work done if a party wants to recover fees. The explanation does not have to be overly detailed but should give the court guidance of what work was actually performed. Claiming fees for drafting six memoranda is more easily justified when the court understands what drove the need for the work.

Turning to the exceptions, I will not award fees for work I feel has no reasonable connection to the merits of the prevailing claim. For instance, I denied a party fees in connection with a writ of mandamus seeking reversal of a judge’s decision not to recuse himself from a case. I also would not award fees for time spent generating a letter to the Bar complaining about opposing counsel’s conduct. I also do not award fees for work that appears to be duplicative. For instance, the court is used to seeing fees requested for legal research and drafting memoranda on the research. I generally will not award fees where more than one attorney in a firm is reviewing correspondence, reviewing emails, or reviewing a research memorandum when another attorney has generated fees for reviewing the documents or drafting the memorandum. I also am unlikely to award fees for services performed by a paralegal or legal assistant when an attorney has claimed fees for the same activity. For instance, I generally will not award fees for paralegal or legal assistant preparing a pleading or a letter when an attorney has claimed fees for the same activities. I believe the paralegal or legal assistant’s fees are part of firm overhead for which is accounted by the lawyer’s fees.

At a hearing on fees, it is expected that the party requesting fees will have a witness testify regarding the reasonableness of the fees. Similarly, the party opposing the fees should have a witness stating why the fees are unreasonable. Obviously, the witness on the fees will be an attorney familiar with hourly rates who can testify that the hourly rates and the work performed were reasonable.

Now I want to briefly talk about attorney fees in domestic relations cases and attorney fees as sanctions for discovery violations or other misconduct. In domestic relation cases, I will award a party who has “prevailed” attorney fees in certain limited circumstances. I consider a party to have prevailed if he or she obtained to greater part of the relief sought. The limited circumstances include: a significant disparity in the resources of the parties in the litigation, the conduct of the parties in the litigation, attempts to resolve the dispute, and the merits of the parties’ positions. In domestic relation cases, I generally do not award a party all of his or her attorney fees but rather a percentage of the fees because I believe each party is generally responsible for paying fees. The single biggest factors to me in awarding fees in domestic relations cases are the disparity in the parties’ incomes, and the reasonableness of the parties’ positions. In custody cases, I am extremely concerned if I believe a parent with resources is attempting to wage a war of attrition with the other parent in order to leverage concessions in custody or parenting time.

I only award fees for discovery violations or sanctions if I believe a party’s conduct has been overly egregious. I do believe that requesting fees as a sanction is generally, although not always, unwarranted and that requesting fees simply elevates the animosity between the parties and prolongs conflict. Frequently I defer ruling on a fees issue until after trial. When I do find that a party has blatantly failed to comply with reasonable discovery requests or failed to comply with a court order, I will certainly award fees.

Determining fee petitions is a necessary part of my job. Attorneys should not be shy about seeking fees if the award is authorized by statute or contract. In those situations, submit sufficient information for the court to make a good decision and be prepared to litigate the matter in a hearing. When the court has discretion to award fees (as in the domestic relations context or the sanctions context), the parties should weigh whether to request fees given the fact that fee petitions increase the polarization of opposing parties thereby making matters more difficult to resolve and increasing litigation expenses for everyone. Requesting fees when not authorized by statute or contract should be done cautiously in my experience.

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Attorney Fees – The Plaintiff’s perspective

J. Ashlee Albies, Albies and Stark, LLC, Portland

One major reason fee shifting statutes exist is to allow people to seek vindication of their rights where they could not otherwise access the civil legal system. Many plaintiffs’ attorneys work on a contingency basis. These statutes and contingency fee arrangements allow us to take clients who do not have the financial means to pay hourly rates, or even what other lawyers might consider a reasonable flat fee. Our firm represents employees in employment disputes and plaintiffs in civil rights cases; many of our clients face economic uncertainty and/or do not have the means to pay an attorney to represent them in complex and high-risk litigation. As such, in order to do this important work, it is critical that plaintiffs’ attorneys successfully recover their fees. Here are some tips on how I approach this important aspect of plaintiff-side litigation.

As an initial matter, plead the statutory entitlement to fees in your complaint.¹ At fee petition stage, follow ORCP 68, and apply the factors set out in ORS 20.075. Read these statutes, rules, and interpreting case law carefully and follow their guidance, and be sure to ask for specific findings in your motion.

If you are preparing a fee petition under ORCP 68, congratulations! The critical term for Plaintiffs’ counsel seeking fees under a statute allowing for an award of reasonable attorney fees is the word reasonable.

Key tips:

Track your time carefully, thoroughly, and daily. Use a time keeping program, or some consistent method to ensure your time is captured contemporaneously. Being able to represent you tracked your time contemporaneously makes it significantly more reliable, and you do not want to recreate your time going back through old emails and calendars. It is inefficient, time consuming, and unbillable. Given that most cases settle, and that most plaintiffs’ attorneys do not bill clients on a regular basis, accurate timekeeping may get deprioritized in the rush of a busy practice. Make it a habit to review your time keeping at the end of every day, or the close of each week. Also, be specific in your descriptions. Block-billing will draw objections, and the court may not award or may reduce block-billed time. Makarios-Oregon, LLC v. Ross Dress-For-Less Inc., 293 Or App 732, 739 (2018).

Review your time carefully. The appropriate calculation for attorney fee awards is the basic “lodestar” calculation: the number of hours reasonably expended on the litigation multiplied by the reasonable hourly rates for each timekeeper, with potential adjustments made for factors such as the risk of loss and the quality of the attorney’s work. Strawn v. Farmers Ins. Co. of Or., 353 Or 210, 217 (2013). When the time comes to prepare a fee petition, be thoughtful about what you trim and what you leave in and advise the Court regarding those decisions. For instance, I do not recommend billing 0.1 each for three separate brief emails. You can group them together for one 0.1 entry, which is more reasonable and increases your credibility. Remove time for administrative work performed by an attorney, or if you feel you really must claim time for making copies (don’t!), then bill that time at a lower rate. Do not, however, eliminate time that is compensable: Plaintiffs’s counsel are entitled to bill for multiple attorneys engaging in substantive strategy discussions. State ex rel. English v. Multnomah Cty., 231 Or App 286, 299 (2009). Likewise, time spent on an unsuccessful motion to compel or partial success in opposition to summary judgment may still be compensable. Goodsell v. Eagle-Air Estates Homeowners Ass’n, 280 Or App 593, 603, 604, (2016); Makarios-Oregon, 293 Or App at 739.

Present your time in an organized manner. In your fee petition, be as clear as possible. For example, use a chart that plainly describes attorney or staff time, rates, and total sought. Even after reading all the briefs, the court will want to know, clearly and directly, what you seek. Update this in your reply brief and have a final number at the hearing.

Use Experts to attest to your fee rates, as well as the reasonableness of your hours. Employment and civil rights litigation are complex areas of the law, factually complicated and legally challenging. Experts help justify your time and rate and may educate the court about the complexity of your litigation.

Your time is valuable and maximizing your recovery helps you represent more clients in need. Attorneys who successfully navigate an unfriendly legal framework to a positive jury verdict should be justly compensated for their work. For this reason, be sure to seek fees on fees: Courts may award fees for services provided in conjunction with the recovery of attorney fees. Emerald People’s Util. Dist. v Pacificorp, 104 Or App 504 (Or. 1990). Likewise, a contingent-fee arrangement can be the basis for an award of attorney fees that is greater than standard hourly rates, and the amount of fees does not have to be proportional to the damage award. Tanner v. Oregon Health Sciences Univ., 161 Or App 129, 132–134 (1999); Strawn v. Farmers Ins. Co., 228 Or App 454, 488 (2009).

Seek a multiplier if appropriate. Oregon law permits an enhancement of fees when it is supported by the facts and circumstances of the case. See Griffin v. Tri-County Metro. Transp. Dist., 112 Or App 575, 585 (1992) aff’d in part, rev’d in part, 318 Or 500 (1994).

Document efforts at settlement, even if, and especially if, fruitless.

What you want reflected in your fee petition, and thus you must live it during your case, is reasonableness. You can be aggressive, assertive, competent, and still be reasonable. My goal with a fee petition is similar to one of my goals as I litigate my cases: maintain credibility with the Court and the opposing party, while minimizing what opposing counsel can credibly attack. Value your time, your work, and your risk.

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¹ For a list of Attorney Fee provisions in Oregon, see Barbooks: Oregon Civil Litigation Manual, Ch. 28, Appendix 28A.

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Attorney Fees – The Defendant’s Perspective

Sarah J. Crooks, Perkins Coie LLP

When getting a new case, defense counsel should evaluate the potential for the plaintiff to seek recovery of their attorney fees, if successful. Defense counsel should also thoroughly evaluate the potential to recover attorney fees for their defense client, if successful in defeating plaintiff’s claim. In many cases, if not most cases, it is the claim for attorney fees that is the real risk for both sides of a lawsuit. Consequently, defense counsel must look for ways to minimize or defeat a plaintiff’s claim for attorney fees and/or seek to recover some or all of defendant’s attorney fees. Here are some tools to consider when addressing attorney fees from a defense perspective.

Bases for attorney fees. In most cases, a statute or contractual provision will provide the basis for a claim for attorney fees. In a contract dispute, defense counsel should read all relevant contracts carefully to understand whether there is a basis for either party to seek attorney fees. All attorney fee provisions based in contract, however, are mutual “without regard to whether the prevailing party is the party specified in the contract[.]” ORS 20.096.

Some key statutory bases. Many statutory claims, like claims under the Oregon Unlawful Trade Practices Act (“UTPA”), provide for the recovery of attorney fees for a successful plaintiff, and some provide for the recovery of attorney fees for a defendant who succeeds in defeating a statutory claim. Defense counsel should carefully examine the relevant statutory scheme to determine whether a successful defendant can seek to recover their attorney fees and the applicable standard for awarding attorney fees to a successful defendant, which may be a higher standard than for a plaintiff’s claim for attorney fees. See, e.g. ORS 646.638(3) (allowing court to award reasonable attorney fees to a prevailing defendant “only if the court finds that an objectively reasonable basis for bringing the action or asserting the ground for appeal did not exist”); but see ORS 646.638(4) (defendant cannot be awarded attorney fees if action is maintained as a class action).

Defense counsel should also carefully review ORS chapter 20, where several attorney fee statutes are codified, including statutes that provide bases for a defendant to seek attorney fees. One key statute to consider is ORS 20.105(1), which allows a defendant to seek an award of attorney fees when a plaintiff brings or maintains a claim without an objectively reasonable basis. In deciding whether to award attorney fees under this statute, courts look at the facts underlying a claim at the time the claim was made to determine whether there was no objectively reasonable basis for asserting the claim. Niman and Niman, 206 Or App 400, 420-21 (2006). But, importantly, the court’s review is not limited to the moment when a plaintiff files a complaint: “a claim that was objectively reasonable when asserted may become unreasonable when viewed in light of additional evidence or changes in the law.” Dimeo v. Gesik, 197 Or App 560, 562 (2005). “[A] party has a continuing duty to evaluate its position throughout the course of litigation.” Id. ORS 20.105(1) can be particularly useful and effective if a plaintiff will not drop a claim despite a change in the law or despite overwhelming contrary evidence, and defense counsel has developed a record supporting a court’s finding that the claim was not objectively reasonable, either when the complaint was filed or at some later point in the litigation.

ORCP 54 E Offers. Another tool available to a defendant is ORCP 54 E, which provides for an offer to allow judgment and can significantly minimize a plaintiff’s claim for attorney fees. If a plaintiff rejects an offer to allow judgment and later fails to obtain a judgment more favorable than the ORCP 54 E offer, a plaintiff may not recover costs, prevailing party fees, disbursements, or attorney fees incurred after the date of the offer, and a defendant may recover their costs and disbursements from the time of service of the offer. To maximize the effectiveness of ORCP 54 E, defense counsel should consider making an offer to allow judgment at different points throughout the litigation, if an earlier offer is not accepted. Any of the offers may exceed the ultimate judgment at trial and may be used to limit and minimize a plaintiff’s claim for attorney fees. This tool can be especially helpful when dealing with a plaintiff who overestimates the value of their claim or simply fails to re-evaluate the merits of their claim in light of facts developed in discovery. Defense counsel should carefully consider whether to include or exclude plaintiff’s attorney fees, if any claimed, in an ORCP 54 E offer.

Attacking the attorney fee petition. The briefing and hearing on a plaintiff’s petition for attorney fees provides one final opportunity for a defendant to limit or minimize a plaintiff’s claim for attorney fees. Attorney fees may be awarded to the “prevailing party,” defined as “the party who receives a favorable judgment or arbitration award on the claim.” ORS 20.077(2). When a case involves multiple claims or counterclaims, the court must designate the “prevailing party” for each claim, separately analyzing each claim. Id.; Beggs v. Hart, 221 Or App 528, 537-38 (2008). Likewise, when a single claim includes multiple counts that are factually and legally distinct, the court should analyze each count separately. See Rogers v. RGIS, LLP, 229 Or App 580, 585-86, adh’d to as mod on recons, 232 Or App 433 (2009) (analyzing counts separately). Finally, in situations where there are multiple issues to be litigated within a single claim and the results are mixed, the court will apply a qualitative test, weighing “what was sought by each party against the result obtained.” Beggs, 221 Or App at 537-38 (citation omitted). Charts can be helpful here.

In every case, courts have discretion to determine the reasonable amount of attorney fees to award under the specific circumstances. Hanna Ltd. P’ship v. Windmill Inns of Am., Inc., 223 Or App 151, 166 (2008). A defendant may be able to successfully challenge the hourly rates of plaintiff’s counsel using the Oregon State Bar Economic Survey and the Morones Survey of Commercial Litigation Fees. Although those surveys provide an “initial starting point,” an attorney’s hourly rate should also be considered in light of other factors, including the attorney’s experience, reputation, and ability. Oregon Realty Co. v. Greenwich Ins. Co., No 3:12-cv-00200-MO, 2013 WL 3287092, at *4 (D Or June 28, 2013), mod in part by Oregon Realty Co. v. Greenwich Insurance Co., No 3:12-cv-00200-MO, 2013 WL 4859305 (D Or Sept 11, 2013). Finally, defense counsel should be prepared to introduce expert testimony at the attorney fee hearing to discuss the time spent on various stages of the litigation, whether it was reasonable for the plaintiff to litigate in the way they did, and, most importantly, to discuss market rates for attorneys who handle matters like the one underlying the attorney fee petition at issue.

As a final cautionary note, if you object to the reasonableness of the amount of attorney fees sought by a plaintiff, the plaintiff may request and be permitted discovery on the amount of attorney fees defendant incurred in defending against the plaintiff’s claim. Plaintiff’s counsel may contend that defense counsel’s hourly rates and time spent will inform the court’s determination of the reasonableness of plaintiff’s requested attorney fees. So — consider carefully that the amount of defense costs may be disclosed before attacking the reasonableness of the amount of attorney fees requested by the plaintiff.

The Honorable Danielle J. Hunsaker, Washington County Circuit Court

The Bench Perspective

Summary judgment motions are an important tool because they can reduce costs and shorten litigation by resolving a case before trial or narrowing the issues for trial, which often facilitates settlement. However, there can be downsides to seeking summary judgment, and attorneys should carefully consider their summary judgment strategy.

The purpose of this article is to identify things attorneys should think about in deciding whether to move for summary judgment. But first, a comment on the legal standard. These motions are not decided based on a level playing field. Summary judgment is proper only where “there is no genuine issue as to any material fact” and the law dictates that the moving party must win. ORCP 47C. In figuring out whether this standard is met, the court has to view the evidence in favor of the opposing party. The court cannot weigh the relative strength of the evidence or assess credibility, as happens at trial (or in typical decision-making processes). This standard exists because granting summary judgment takes the case or an issue away from the jury, which should be difficult given the jury’s role in our legal system. Sometimes it seems litigants don’t really understand what they are asking the court to do when they ask for summary judgment. This is not a tool for resolving cases that are merely “dumb” or “weak.” It is a tool for resolving cases where the law dictates a specific outcome.

Now a few suggestions:

1. Identify a Worthy Goal

One of my mentors taught me to think about summary judgment in terms of impact. Sometimes you can resolve an entire case. Sometimes you can resolve only a part of a case. A small goal can be worthwhile, but some rules of thumb to consider are whether prevailing on your motion will (1) simplify the issues to be presented at trial, (2) narrow discovery, (3) eliminate the need for experts, or (4) narrow the available remedies. Each of those possibilities can have a meaningful impact. But if all you can hope for is eliminating one legal theory underlying a claim or eliminating one of several claims based on the same facts and providing the same possible remedy, that may not be significant enough to justify spending the time and money filing a motion. Knowing what your goal is not only helps assess whether to file a motion, it also helps sharpen your presentation if you do file.

I have heard attorneys say that “educating the judge” is a reason to move for summary judgment. This is problematic for at least two reasons. First, in many courts the judge who hears your motion likely will not be the same judge who presides at trial or any other proceedings in the case. And second, litigators risk losing credibility when they file motions that cannot be won on their merits.

2. Realistically Assess the Strength of Your Position

Attorneys need to be realistic about the likelihood of reaching their goal. Just because you can doesn’t mean you should. This is true with many things, including summary judgment motions. A colorable argument in and of itself is not a reason to file a motion. Do the work to understand the strengths and weaknesses of your case and anticipate your opponent’s position. An effective advocate must be able to see the case from more than just their client’s perspective. This includes considering whether you are likely to succeed in the trial court and on appeal. It is difficult to acquire precise data, but a significant percentage of summary judgment motions that initially succeed do not survive appeal. Don’t forget the long game when deciding whether to file for summary judgment.

3. Assess the Evidence

Summary judgment motions are evidentiary motions. Any evidence that you need to prevail must conform to the light-most-favorable-to-the-nonmovant standard. A practice I tried to follow as a lawyer was to draft my factual statement relying only on evidence from my opponent’s witnesses, if possible. If you find that the evidence you need comes only from your witnesses, that may be an indication that you are not likely to prevail.

Any evidence you present must be competent and admissible. ORCP 47D. Figure out how you would admit at trial each piece of evidence you need and then demonstrate the admissibility of the evidence in your motion papers. If you can’t establish a foundation for your evidence or if you have a hearsay problem that can’t be resolved, you have a problem.

Sometimes it seems attorneys think anything said in or attached to a declaration is acceptable. Not true. Attorneys can’t testify in their own cases except about very limited topics. ORPC 3.7. Therefore, the scope of topics properly included in an attorney declaration is likewise limited. All declarations must be based on the declarant’s personal knowledge. “Information and belief” assertions don’t work, nor do hearsay statements to which no exception applies. See West v. Allied Signal, Inc., 200 Or App 182 (2005), U.S. Bank, N.A. v. McCoy, 290 Or App 525 (2018). And don’t forget about documents. They must be attached to a declaration that establishes the necessary foundation. ORCP 47D.

4. Put Yourself in the Judge’s Shoes

This point relates to each of the others, but it is worth making separately. Too often litigants put little, if any, thought into the judge’s job of taking what they file (and argue) and figuring out an answer to the questions raised. The more difficult you make this job by not clearly understanding your case or not spending the time necessary to assess your evidence and clearly present your arguments, the more you risk wasting the time and money you’ve spent bringing the motion. Denial of summary judgment typically is not reviewable, meaning there’s no risk that the trial judge will be reversed in denying the motion and letting the factfinder figure things out after a full evidentiary presentation. Freeman v. Stuart, 203 Or App 191, 194 (2005). This is not an excuse for trial judges taking the easy way out and failing to conduct a reasoned analysis, but attorneys are foolish not to think about this when considering their summary judgment strategy. Timing is also a factor. Attorneys cannot expect the court to expedite their motion just because it was filed on the last possible day with a fast-approaching trial date.

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Jason Kafoury, Kafoury & McDougal

The Plaintiff’s Perspective

Our firm handles a variety of large and small cases. At any given point, we typically have around 125 cases in litigation. Our litigated cases range from ordinary negligence/personal injury claims, such as motor vehicle accidents, to a wide range of complex, non-standard cases involving anything from sex abuse to defective products.

While preparing for this CLE, it has been difficult to get accurate numbers on how often state courts grant defendants’ motions for summary judgment, and how those numbers break down across different types of civil cases. From our firm’s perspective, I would estimate we face MSJs in 10% of our ordinary negligence cases and 60% of our non-standard negligence cases. Looking at past years, I would estimate we prevail on all or some portions of the MSJ 95% of the time.

In the rare occurrences where an MSJ is granted, we almost always appeal, given the low threshold of meeting the “any evidence” standard to prevail on an MSJ. Whether the defense moves for summary judgment seems to vary by defense firm. (Some firms are much more aggressive than others in filing MSJs.) Obviously, there are strategic decisions about cost and likelihood of success that the defense and their insurance carriers make on a case-by-case basis. However, in our experience, we see a lot of boilerplate MSJ language, string-citing to out-of-state authorities. Many of those motions are examples of form over substance. Another common pattern we see is a defendant attempting to raise new issues in their reply brief, which is both unfair and against the rules, since plaintiff has no opportunity to respond until the hearing. You should always object to this at oral argument.

Here in Multnomah County, over my ten years, we have seen a lot more pro tem judges assigned summary judgment motions. Our firm’s traditional policy is to request regular sitting judges for any MSJs, unless we feel very comfortable with the pro tem selection. I suggest researching your pro tem judge the moment you get the notice from the court and ask around for advice to other lawyers as well.

Here are some strategic tips for new lawyers on the plaintiff’s side when responding to an MSJ.

Summary Judgment: Pointers for Plaintiffs

Start your response by concisely stating why your client should prevail. Don’t lead off with boilerplate, and don’t start by criticizing the defendant’s characterization of facts or law. If there is a genuine issue of material fact, state the facts supported by admissible evidence. If expert testimony defeats the summary judgment, start by stating so.

When you get the defendant’s motion for summary judgment, you may wish to take a black sharpie pen and mark through every conclusory, unsupported statement of fact or law. Cross through all boilerplate statements of the law and string citations. You will generally find that the defendant’s motion ends up being a whole lot shorter after you do that.

Next, focus on whether the motion for summary judgment is one of a matter of law, a mix of facts and law, or simply factual. Do not respond based on how defendant framed the argument (also, don’t feel compelled to respond to the defendant’s arguments in order). Tell the court why your case has legal and factual merit. After you have done that, then address defendant’s arguments.

In any case where you have retained an expert, and the motion for summary judgment is based on a mixture of law and fact, or simply facts, ORCP 47(E) allows a plaintiff to defeat summary judgment if an issue of fact is susceptible to proof by expert testimony. The scope and power of ORCP 47(E) must be understood, to wit:

The attorney is not required to identify the issues that the attorney will prove by expert testimony and those that the attorney intends to prove by non-expert evidence, and the attorney may not want to reveal the range or limits of the expert’s testimony. Thus, an attorney may aver that an expert is available and willing to testify to facts or opinions creating a question of fact without specifying the issues on which the expert will testify.

Two Two v. Fujitec Am., Inc., 355 Or. 319, 329, 325 P.3d 707, 713 (2014).

Once you start specifying the issues on which the expert will testify, you may be trapped. Moore v. Kaiser Permanente, 91 Or.App. 262, rev. den. 306 Or. 661 (1988). If you feel that you need to specifically delineate an issue that an expert will address, perhaps to avoid any question that an affidavit is made in good faith, be careful how you word it. Expert testimony is very difficult to summarize in a sentence or two, and you should always qualify the statement that the expert will testify to such issues “including but not limited to.” If you take this path, you should craft the 47(E) affidavit with regard to particular specifications of negligence or claims for relief, rather than how defendant has characterized your deficiencies in their motion for summary judgment.

An ORCP 47(E) affidavit can only be used when an issue of fact could conceivably (“may” or must) be proven by use of expert testimony. Hinchman v. UC Market, LLC, 270 Or.App. 561 (2015) (involving an alleged hazardously installed floor mat) citing Whalen v. AMR, 256 Or.App. 278 (2013) (involving a battery).

ORCP 47(E) is a powerful tool that the legislature has provided to plaintiff’s attorneys. Do not abuse it. If an affidavit is presented in bad faith, the plaintiff will be required to pay the reasonable expenses, including attorney fees, of the defendant, and you, as an attorney, may be subject to sanctions for contempt. ORCP 47(G).

At the end of the day, the defense has to make a calculated decision on the likelihood of success versus the cost of going through an MSJ. Unless we think there is a serious risk of losing on an MSJ, our firm will almost never negotiate until we have survived summary judgment, because insurance carriers won’t put their top value on a case until after an MSJ is decided. Our firm very rarely files MSJs, but there are certain cases where, strategically, it makes sense to eliminate affirmative defenses or resolve contract-based issues through MSJs from the plaintiff’s side.

Overall, I would advise the defense to analyze carefully the chance of success when deciding whether to file an MSJ. If a 47(E) affidavit is enough to survive an MSJ, think twice about filing the MSJ.

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Joel Mullin, Stoel Rives, LLP

The Defense Perspective

There is a perception that filing a motion for summary judgment in Oregon state court is a futile endeavor. Even if the circuit court grants your motion, the thinking goes, the Court of Appeals will likely reverse to allow the trial court to further develop the record and leave resolution of the case to a jury. Further, the hurdle to winning on summary judgment is greater in light of ORCP 47 E, that uniquely Oregon rule (that together with the absence of expert disclosure establishes Oregon’s well-deserved reputation for trial by ambush) which allows a party to avoid summary judgment simply by filing a vague affidavit stating that an expert’s testimony will create a question of fact.

Since the party filing the affidavit need not include much specificity on the issues the expert will testify to, the court must sometimes engage in “an act of imagination” to determine whether a point at issue in the defendant’s summary judgment motion is susceptible to proof through expert testimony. Hinchman v. UC Mkt., LLC, 270 Or App 561, 570, 348 P3d 328, 334 (2015). An ORCP 47 E affidavit precludes summary judgment on its own, except where the point at issue “could not conceivably be proven through expert testimony, but necessarily would require proof by testimony from witnesses with personal knowledge.” Id. at 572.

Despite the perceived difficulties in successfully moving for summary judgment, the exercise is worthwhile where: (1) the application of the legal issues is clear, such as a case that depends heavily on contract interpretation, (2) it provides the court with a path to resolving the case, and (3) it provides the moving party with a clearer idea of the other side’s case.

First, summary judgment is often a preferred alternative to the filing of a motion to dismiss where the matters at issue concern the interpretation of a contract, or otherwise involve a rule of law, but where a court may be reluctant to dismiss without a more fully developed record. An example, albeit several years old, is Vinton v. Knight, Case No. 0305-05567 (Or Cir Ct Oct. 3, 2003), which involved claims for tortious interference with contract, breach of an express contract, and breach of an implied contract in connection with a dispute over the former Will Vinton Studios (now Laika Studios). In that case, rather than move to dismiss, the defendants moved for summary judgment, requiring the plaintiff to identify the specific discovery it believed was necessary to develop the record. Following that discovery, and on a record that included plaintiff’s evidence, the court entertained the motion for summary judgment. In its opinion granting the motion, the court first addressed whether the defendants had tortiously interfered with the plaintiff’s employment contract, and wrote, “The truth lies somewhere in the thicket of notes, phone slips, e-mail messages, and corporate minutes offered by the parties. But I need not hack my way through it.” Id. at 2. The court granted summary judgment on the tortious interference claim because Oregon law only recognizes the improper purpose element of tortious interference where the interference is motivated solely by ill will. In Vinton, creating a record that showed that the defendants had other motivations was enough to defeat the plaintiff’s claim. The court went on to easily dispose of the breach of contract claims by interpreting the contract and applying its unambiguous terms to the facts.

Similarly, in Butler Block, LLC v. Tri-Cty. Metro. Transp. Dist. of Oregon, 242 Or App 395, 255 P3d 665 (2011), dealt with a claim for breach of contract. The plaintiff had tried to frame the issue as requiring the court to determine whether the defendant was required to give the plaintiff an extension to obtain construction financing, and whether the defendant’s failure to do so constituted anticipatory breach. The Court of Appeals was able to uphold the trial court’s grant of summary judgment because it held that no reasonable person could understand the defendant’s written statements to express an unconditional and unequivocal intent not to perform. Further, the defendant’s statements that it intended to terminate the contract should plaintiff fail to perform were entirely within its contractual rights. Cases that involve interpreting contracts or written conduct allow a trial court to make a determination as a matter of law and are more amenable to summary judgment.

Two more recent cases confirm the strategy for moving summary judgment. In W. Prop. Holdings, LLC v. Aequitas Capital Mgmt., Inc., 284 Or App 316, 392 P3d 770 (2017), the Court of Appeals interpreted the contract at issue to identify the duties that the defendant owed to the plaintiff. From there, it was possible for the Court of Appeals to conclude as a matter of law that the defendant had not breached the contract or the implied duty of good faith and fair dealing. Likewise, in Gibson v. Bankofier, 275 Or App 257, 365 P3d 568 (2015), even an ORCP 47 E affidavit could not save a case from summary judgment. The plaintiff counsel’s affidavit stated that the expert would testify that the defendant had breached certain duties as a real estate agent, but such testimony did not go to a point at issue because the plaintiff had failed to provide any evidence suggesting that the defendant even owed such duties to the plaintiff. An ORCP 47 E affidavit cannot preclude summary judgment where a claim may be disposed of as a matter of law. VFS Fin., Inc. v. Shilo Mgmt. Corp., 277 Or App 698, 707, 372 P3d 582, 587 (2016).

As a defendant, it is my practice to always attempt to portray the dispute as one involving issues of law, rather than disputed issues of fact. Moving for summary judgment (rather than relying on a motion to dismiss) permits the defendant to test that theory on a more developed record and even if unsuccessful, to force the plaintiff both to come forward with the facts and law that it believes to be at issue, and to look closely at the strengths and weakness of its own case. This both can give the defendant important insight into the plaintiff’s view of the dispute and to obtain a more reasonable settlement, if that is the client’s objective. In addition, even parties filing an ORCP 47 E are, in my experience, tempted to explain why the expert’s testimony will create an issue of material fact, rather than relying entirely on the court’s imagination. That explanation can prove helpful to the defense.

Finally, the perception that there is only a small chance to prevail on a motion for summary judgment is contrary to reality. According to statistics gathered two years ago in Multnomah and Washington Counties, approximately 45% of all motions for summary judgment are granted. Statistics on how many of those motions are appealed and the reversal rates in the Court of Appeals are difficult to come by. Nonetheless, it is a worthwhile endeavor for defendants in cases where the defendant can portray the dispute as one involving legal rather than factual matters, which is usually the goal of those on the defense side.

The Honorable Janet Stauffer, 7th Judicial Circuit – Gilliam, Hood River, Sherman, Wasco & Wheeler County Circuit Courts

A party may move to disqualify a judge from hearing a case if the judge has an actual conflict, the judge is, in fact, prejudiced against the party, or the party has a good faith belief that the party cannot have a fair and impartial hearing before the judge. ORS 14.210-270. Historically the statute required a showing of prejudice. The statute no longer requires a showing of prejudice or bias.

Motions based on a party’s belief are subject to strict time lines. An affidavit in contested cases must be filed within five days after the matter is at issue or within 10 days of assignment or appointment to a judge. ORS 14.260(2). In smaller judicial districts (population of less than 100,000) any judge is deemed immediately assigned to the case for the purpose of the statutory timeline. State v. Hilborn, 299 Or 608,613, 705 P.2d 192 (1985). In judicial districts having a population of more than 100,000, a motion to challenge the judge must be made at the time the case is assigned for a trial, motion or demurrer. The motion may be made orally but must be followed, by the next judicial day, with a written motion. ORS 14.270.

No motion to disqualify a judge may be made after a judge has ruled on a petition, demurrer or motion, other than a motion to extend time. A party or attorney may not make more than 2 applications to disqualify in any case. ORS 14.260(6).

A challenge “for cause” may be made at any time. Judges may also be disqualified for cause in the specific instances listed in ORS 14.210. For example, if the judge is a party, or related to a party or attorney in the action, or if the matter is an appeal of a matter which the judge decided. Of course, judges have an ethical obligation to recuse in compliance with the Code of Judicial Conduct. OCJC 3.10.

Motions and affidavits to disqualify a judge should mirror the statute and indicate only that the attorney or client has a rational belief of inability to receive a fair trial before the named judge. The belief must be rational, but the reasons do not need to be described.

The challenged judge should only rule as to the legal sufficiency and the timeliness of the motion. Otherwise the motion should be heard by the presiding or other disinterested judge.
If a judge wants to challenge the disqualification, the hearing will be heard before a disinterested judge. The challenging judge has the burden to show the motion to disqualify was made in bad faith or for the purposes of delay. ORS 14.260(1). The judge must show there was no objectively reasonable basis for the good faith belief or that the movant’s sincere belief is so irrational that allowing the motion would amount to an outright hindrance of the court’s ability to adjudicate cases. State ex rel. Kafoury v Jones and Londer, 315 Or 201, 843 P.2d 932(1992). The test is not whether the judge IS fair and impartial, but rather whether the movant has a good faith belief that the judge isn’t fair or impartial as to the particular case. ORS 14.250 plainly states that the primary issue is the belief of the moving party, not the objective truth of that belief.

If it is clear that the primary aim of the motion is something other than procurement of fair adjudication, such as judge shopping, the motion to disqualify will be denied. Marriage of Benson and Youngblutt, 141 Or App 458, 919 P2d 496 (1996).

When a judge is disqualified by a party the matter is to be transferred to another judge. Only 2 motions to disqualify per party may be filed. If the motion is denied, mandamus is the only remedy.

Consider carefully the decision to move for a change of judge. Judges are human. Judges are also lawyers. To be disqualified because a colleague alleges a belief that a judge cannot be fair cuts to the core of the judge’s job description and, more importantly, his or her Oath of Office. It is a significant event in the career of a judge that should not be lightly initiated. I would ask you to consider the potential, unintended consequences. For example, our dockets are busy – other judges having to cover for the disqualified judge adds stress to an already stressed system. Also, remember that the statute only permits two bites at the apple. Consider who might be next. My suggestion is that you consider both the short and long term consequences of such a motion.

The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court

Introduction

Over the last 20 years or so there have been a number of cases in the Oregon Reports that reflect the use of fictitious names for parties in civil litigation, particularly plaintiffs. Certainly, the “poster child” example of this type of pleading is found in a case that arose out of Multnomah County Circuit Court and is styled, John Roe, v. Jane Doe, 161 Or. App. 477(1999), where both parties appeared under fictitious names. At the trial court level, essentially all documents in the case, as well as the recorded record of the proceedings, were “sealed” by judge so that nowhere in the trial court records of the case can the true names of the parties be ascertained. The appeal was filed in the Court of Appeals, heard and decided under the fictitious names, without any disclosure of the true names of the parties, and without comment by the Court of Appeals regarding the fact that neither party is actually named anywhere in the litigation.

In support of this secretive litigation process, two counties, Multnomah and Clackamas, have adopted essentially identical Supplemental Local Court Rules permitting this practice if approved by a judge. The Multnomah rule reads as followed:

“SLR 2.035 DESIGNATION OF KNOWN PARTIES BY FICTITIOUS NAME
In civil actions, the designation of a known party by a name other than the party’s true name shall be allowed only upon an order of the court. If ordered, the designation of such party shall be by use of such party’s initials or a fictitious name other than “Jane Doe” or “John Doe”. The name “Jane Doe” or “John Doe” is reserved to be used for a party whose identity is unknown and the party is being designated as provided in ORCP 20 H.”

The Clackamas rule reads as follows:

“SLR 2.016 DESIGNATION OF KNOWN PARTIES BY FICTITIOUS NAMES
In civil actions, the designation of a known party by a name other than the party’s true name shall be allowed only upon an order of the Court. If ordered, the designation of such party shall be by use of such party’s initials or a fictitious name other than “Jane Doe” or “John Doe”. The name “Jane Doe” or “John Doe” is reserved for a party whose identity is unknown and the party is being designated as provided in ORCP 20H”

These Supplemental Court Rules are not supported by any Oregon law, are in direct conflict with Oregon Rules of Civil Procedure 16A, 20H and 26A as approved by the legislature, and constitute an attempt by these courts to adopt substantive law affecting the jurisdiction of the Circuit Court under the guise of the authority of the courts to adopt rules of procedure.

Oregon Law and Fictitious Party Pleading

Despite what one might assume given the existence of the number of appellate cases in Oregon that clearly reflect the use of fictitious party designations, Oregon law, with two limited exceptions, in fact prohibits fictitious party pleading.

The Prohibition and Exceptions

In understanding the law in Oregon regarding the pleading of fictitious parties in civil actions, it is necessary to understand the interplay between ORCP Rule 26A, Rule 16A and Rule 20H.

This analysis begins with ORCP 26A which declares:

“A Real party in interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, conservator, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that party’s own name without joining the party for whose benefit the action is brought; and when a statute of this state so provides, an action for the use or benefit of another shall be brought in the name of the state. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.” (Emphasis added)

Then follows Rule 16A which reads:

“A Captions; names of parties. Every pleading shall contain a caption setting forth the…title of the action… In the complaint, the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.” (Emphasis added)

And, finally, Rule 20H which reads:

“H Fictitious Parties. When a party is ignorant of the name of an opposing party and so alleges in a pleading, the opposing party may be designated by any name, and when such party’s true name is discovered, the process and all pleadings and proceedings in the action may be amended by substituting the true name.” (Emphasis added)

Even though these rules are quite straight forward in their language, two things are worth noting. First, each of these rules speaks in terms of “the name” of the party. They do not say “a name” or “some name”, or any other equivocal language. ORS 174.010 directs that:

“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted…”

Thus, in interpreting these rule (which are in fact statutes passed by the legislature) it is not legally permissible to read words into or out of these rules to get around the clear restriction that it is “the name” of a party that must be used in pleadings.

From a reading of these three rules and applying the restrictions of ORS 174.010, we can easily glean the following; 1) 26A – An action must be brought in the name of the real party in interest; 2) 16A – The names of the parties must be set forth in the caption of the case; and 20H – The name of any party must be their true name.

In addition to just a simple reading of the wording of the three rules set out above to arrive at the clear conclusion also set forth, there are two cases from the Court of Appeals that assist in avoiding any misunderstanding of the provisions of Rule 26. In Reutter v. RWS Construction Inc. 128 Or. App. 365 (1994) the Court of Appeals reviewed the genesis of Rule 26 at some length and explained that the importance of the rule is to see to it that the proper parties are before the court to accurately resolve the issues presented so that subsequent litigation will not ensue. In addition, the court pointed out that the second sentence of Rule 26A regarding amendment of the pleading to correct the pleading as necessary to ensure the proper parties are before the court, was added to the rule in the interest of justice so that it was easy to amend pleadings to take care of inadvertence and mistakes in naming parties. It was never intended to be “permissive” in the sense that once the true name of a party was discovered it was optional whether or not to amend the pleading to proceed under the party’s true name.

In the subsequent case of Quail Hollow West v. Brownstone West 206 Or. App. 321 (2006) the Court of Appeals reiterated its position that Rule 26A was to ensure that subsequent litigation of the same issue would not occur. However, the Court also spoke to the issue of who in fact is a “real party in interest.” It said:

“Case law describes the rule as recognizing two classes of persons who may be regarded as “real parties in interest” under ORCP 26 A. First, there is the class of parties who will be “benefitted or injured by the judgment in the case.” Association of Unit Owners v. Dunning, 187 Or. App. 595, 607, 69 P.3d 788 (2003). Second, there is the class of persons who are “statutorily authorized to bring an action.” Id.“

From the Quail Hollow case, it is clear that to be a real party in interest, each of the parties must be, “benefitted or injured by the judgement in the case” or be “statutorily authorized” to bring the action. When there are one or more parties appearing under a fictitious name, and thus not a real person or someone statutorily authorized, such parties simply do not meet the test set out in Quail Hollow and there is no party. Assuming that the case is carried out under one or more fictitious names, when judgment is entered for or against a fictitious party, the true party, or parties, are neither benefitted nor burdened by the judgement. Not only that, the same litigation could be pursued again under the true names of the parties, thus violating the central purpose of the rule as discussed above.

While the Oregon Rules of Civil Procedure make it perfectly clear that civil actions can only be prosecuted by the real party in interest and in the true name of that party, there are two exceptions to this rule in ORCP. One is the listing in Rule 26A of various guardians, trustees, bailee etc. who are allowed by law to sue in their own name on behalf of the real party in interest for whose benefit the action is being brought. The second is the provision of Rule 20H where pleading in a fictitious name is allowed when the true name of the party is unknow. Those are the only exceptions.

There is one other exception outside of ORCP that can also be viewed as an exception. That is ORS 648.135.

To begin with, ORS 648.007 provides that any person or legal entity that carries on a business under an assumed business name must register that name with the State of Oregon. That registration process includes the requirement of revealing the true name of the person or legal entity that has assumed the name. ORS 648.135 then provides:

“648.135 Effect of violation of ORS 648.007; damages and attorney fees; effect on other laws. (1) A person who carries on, conducts or transacts business in violation of ORS 648.007 shall lack standing before the courts of this state to maintain a cause of action for the benefit of the business. The person may cure the incapacity at any time by complying with ORS 648.007.”

The effect of ORS 648.007 and 648.135 is that if a person or legally recognized entity assumes a fictitious name under which to do business, that fictitious name may not be used in any court proceeding unless it has been duly registered with the State, thus becoming an “official” name of the person or legal entity.

While the discussion regarding the concept of real party in interest is instructive in helping to understand Rules 16A, 20H and 26A, the issue under discussion here-the pleading of a fictitious party-really goes beyond the real party in interest concept. What in fact is presented in this situation is the difference between having a litigant who is a real person or legally recognized entity as a party and having no party at all. John Doe, Richard Roe etc. are just names. There is no corporeal being or legally recognized entity attached to them. They are simply universal straw men, unable to legally stand on their own, and have no legal authority to act on behalf of anyone else. That being the case, the concept of a fictitious “party” in the law is really an oxymoron. One either has a legally recognized entity or corporeal being as a party proceeding under that party’s true name, or there is no party at all. With no party plaintiff, the court has no jurisdiction and no law suit. With no party defendant, the case is subject to dismissal because there is no one to serve and no one to appear to move the case forward. There simply is no defendant, so there is no case. There is no case because the court lacks jurisdiction.

Given the perfectly clear requirements of the Oregon Rules of Civil Procedure that all civil actions must be carried out in the true names of the real parties in interest, and the further fact that there is no case law in Oregon that in any way abrogates the requirement of this rule, a failure to follow that rule seems to warrant a reminder regarding another section of ORCP. Rule 17C deals with the certifications an attorney makes to the court when signing a pleading. The provision relevant to the issue under discussion is:

“C (3) An attorney certifies that the claims, defenses, and other legal positions taken in the pleading, motion or other document are warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.” (Emphasis added)

In addition to the above, it is important to also remember the admonition of the Oregon Rules of Professional Conduct 3.1 which mirrors the requirements of ORCP 17C and reads in relevant part as follows:

“RULE 3.1 MERITORIOUS CLAIMS AND CONTENTIONS
In representing a client or the lawyer’s own interests, a lawyer shall not knowingly bring or defend a proceeding, assert a position therein, delay a trial or take other action on behalf of a client, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law… “(Emphasis added)

By inserting a fictitious name into a pleading when the true name of the party is known, an attorney is in fact taking the legal position that such a pleading is, “…warranted by existing law or by a nonfrivolous argument for the extension, modification or reversal of existing law or the establishment of new law.” This means that an attorney must then be prepared to present to the court a cogent legal argument in defense of such a pleading or face having violated not only his or her pleading certification but also Rule 3.1 of the Oregon Rules of Professional Conduct. It is not readily apparent how an attorney can make such an argument. Given that ORCP exists through a legislative act and that current law clearly does not support fictitious party pleading, any argument would necessarily have to focus on a “nonfrivolous…extension, modification or reversal” of existing law. Again, since the Oregon Rules of Civil Procedure are legislative constructs, the power of the courts to extend, modify or reverse what the legislature has directed seems to be lacking.

Given that there is no statutory or case law to support fictitious name pleading in Oregoni outside of Rule 20H, the pertinent question is; why are there all these fictitious party cases in the Oregon Reports? The answer seems fairly clear. There are agreements between attorneys in such cases, either express or tacit, to not raise any complaint regarding this practice. With the agreement of the attorneys to overlook the clear violation of Oregon law, trial and/or appellate judges, either expressly or tacitly, join in the agreement to ignore the clear requirements of the law as well. This appears to be a clear violation of the Oregon Code of Judicial Conduct Rule 3.3 which requires in part, “(A) A judge shall uphold and apply the law…” That should mean that when a judge-trial or appellate-identifies a civil action in which a fictitious party has been clearly pled, the judge should recognize that the court has no jurisdiction and give the parties an opportunity to correct this defect by repleading in the true name of the party or parties. If the party or parties fail to avail themselves of the court’s offer to allow them to replead, the case should be dismissed for lack of jurisdiction. See Hood River County v. Stevenson 177 Or. App. 78 (2001).

i Footnote 9 of Doe v. LDS 352 Or. 77 (2012) appears to be the only decision in the Oregon Court of Appeals or the Supreme Court that has even acknowledged the issue of the use of fictitious names for parties in litigation. In that footnote the Supreme Court points out-citing no authority-that it and the Court of Appeals routinely substitutes initials for the names of children in various types of cases. This statement by the Supreme Court is in keeping with the provisions of a joint order of the Chief Justice of the Supreme Court and the Chief Judge of the Court of Appeals designated as Chief Justice Order 10-060 and Chief Judge Order 10-06 and styled, “Order Adopting Criteria for Redaction of Names of Persons from Published Appellate Court Decisions”. While the Courts granted themselves this authority in a somewhat limited subset of cases, the Courts granted themselves this power without providing any legal analysis or authority to support such action. This order only applies to the two appellate courts and their published opinions.

The Honorable Susan Tripp, Marion County Circuit Court

I came to the bench with a pledge. I stood before the Bench, Bar and the citizens of Marion County and pledged that each and every day, I would hold to a set of beliefs, a creed that would guide my actions in seeking and providing justice for all. This is the creed that I hold and strive to follow each and every day as I progress through each and every decision entrusted to me by the citizens of Marion County.

The concept of justice for all, under equal law… equally administered… is not self-executing. It becomes alive and has an existence by and through its administration and application by trial judges– those dedicated to the proposition that it is their affirmative duty to see that justice is done. A trial judge is not merely an umpire, a referee, a routinized follower of tradition, or a symbolic ornament providing approval or authorization to the decisions of others.

To every case brought, a trial judge’s creed includes an affirmative duty to be an instrumentality of justice. A trial judge is sworn to render to every person his or her due under the same law, equally, fairly, and impartially applied and administered, without bias, without prejudice, without passion, and irrespective of race, color, creed, education, sexual orientation, representation, economic resources or social status. The attainment of justice for all is dependent upon a trial judge’s fulfilment of his or her affirmative duty of justice, vigilance and devotion. It is this which securely forms the foundation for the fair and impartial administration of justice.

The oath I took, and the set of beliefs I set forth above, require that I stand vigilant, affirmatively seeking to ensure justice.

This brings me to the reasons I inquire when a Child Attending School (CAS) files a waiver of his or her right to appear, right to collect child support or allows a default to be taken. We are all aware of the history of contracts of adhesion — a historical legal trap used to inject prejudice, bias, inequality and lack of justice into agreements of benefit to those of power…. company stores, usurious interest rates and other predatory financial agreements of the past. And at times those agreements came before a trial judge for enforcement. There was a time, when despite unequal bargaining power, the courts gave full force and effect to the provisions of oppressive and unjust agreements.

One would hope those days have passed. But not all attempts to use the justice system for improper purpose are historical. There continue to be those who use the legal process to attain unjust results. I am sure there are still complaints filed and defaults requested that stem from contracts with clearly usurious interest rates and questionable proof of service. There are those who seek Immediate Danger Orders or Restraining Orders for improper purpose. It is in these cases, as well as others, where a trial judge’s vigilance, devotion and affirmative duty to seek justice continue to form the foundation for the attainment of justice for all.

And such is also the case when a college student waives his or her statutory right to receive child support due from his or her parents. It is in this situation where vigilance and an affirmative duty of justice cause one to inquire. Did the stipulation arise from oppressive circumstances or deception? Is the CAS’s decision based on family pressure, threat, inaccurate information, or fraud? Quoting an oft-used phrase, is the CAS’s waiver of his or her right to collect child support or the agreement to allow a default to be taken…knowingly, voluntarily, and intelligently given?

Therefore, in the future, if a CAS is giving up a right, you should expect that I will continue to follow my oath of vigilance and my affirmative duty and devotion to justice. I will continue to inquire as to whether the CAS’s decision is knowingly, voluntarily, and intelligently given. I believe it is my duty to inquire.