Fundamentals of Oregon Civil Trial Procedure Cosponsored by the Litigation Section Thursday, October 12, 2017 8:30 a.m.–4:30 p.m. Friday, October 13, 2017 9 a.m.–12:30 p.m. 9.75 General CLE or Practical Skills credits FUNDAMENTALS OF OREGON CIVIL TRIAL PROCEDURE SECTION PLANNERS Ben Eder, Thuemmel Uhle & Eder, Portland Steven Lovett, Stoel Rives LLP, Portland Kimberly Stuart, Washington County, Hillsboro Jennifer Wagner, Stoll Berne, Portland OREGON STATE BAR LITIGATION SECTION EXECUTIVE COMMITTEE Reneé E. Rothauge, Chair Scott C. Lucas, Chair-Elect John R. Bachofner, Past Chair Jeanne F. Loftis, Treasurer Kimberly Anne S. Y. Stuart, Secretary Peter L. Barnhisel The Honorable Matthew Donohue Gilion C. Dumas Ben Eder Lindsey H. Hughes Steven T. Lovett The Honorable Josephine H. Mooney Jennifer S. Wagner Kate Anne Wilkinson Xin Xu The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2017 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Fundamentals of Oregon Civil Trial Procedure ii TABLE OF CONTENTS Schedule . v Faculty . vii 1. The Art of Drafting Complaints and Answers—Presentation Slides . 1–i — Steve Larson, Stoll Berne PC, Portland, Oregon 2. Mastering the Discovery Basics in State Court—Presentation Slides . 2–i — Courtney Angeli, Buchanan Angeli Altschul Sullivan LLP, Portland, Oregon 3. The Art and Science of Depositions . 3–i — David Eder, Thuemmel Uhle and Eder, Portland, Oregon — Joel Sturm, Law Office of Barry J. Goehler, Portland, Oregon 4. Seeking Preliminary Injunctive Relief—When, Why, and How . 4–i — Steven Lovett, Stoel Rives LLP, Portland, Oregon 5. Mastering Key Pretrial Motions—Presentation Slides . 5–i — Sarah Crooks, Perkins Coie, Portland, Oregon 6. Documenting Settlement Agreements: Best (and Worst) Practices. 6–i — Adam Starr, Markowitz Herbold PC, Portland, Oregon 7. Handling the “Half-se” Hearing . 7–i — The Honorable Mustafa Kasubhai, Lane County Circuit Court, Eugene, Oregon 8. Anatomy of a Trial . 8–i — Dennis Rawlinson, Miller Nash Graham & Dunn LLP, Portland, Oregon — Judy Snyder, Law Offices of Judy Snyder, Portland, Oregon 9. Obtaining and Collecting a Judgment—Show Me the Money!. 9–i — John Bachofner, Jordan Ramis PC, Vancouver, Washington 10. Protecting Your Appeal. 10–i — The Honorable Rives Kistler, Oregon Supreme Court, Salem, Oregon — The Honorable Lynn Nakamoto, Oregon Supreme Court, Salem, Oregon — The Honorable Janice Wilson, Senior Judge, Portland, Oregon 11. Closing Argument—Presentation Slides . .11–i — John Coletti, Paulson Coletti, Portland, Oregon Fundamentals of Oregon Civil Trial Procedure iii Fundamentals of Oregon Civil Trial Procedure iv SCHEDULE Thursday, October 12 7:30 Registration 8:30 The Art of Drafting Complaints and Answers F Framing your client’s case F Stating a claim for relief or affirmative defense F Where to file and why Steve Larson, Stoll Berne PC, Portland 9:15 Mastering the Discovery Basics F Discovery requests F Subpoenas F Other general discovery provisions Courtney Angeli, Buchanan Angeli Altschul Sullivan LLP, Portland 10:00 Break 10:15 Tips for Taking and Defending a Deposition F How to prepare a client for deposition F What questions to ask and how to ask them F Setting up effective impeachment F Dealing with difficult opposing counsel David Eder, Thuemmel Uhle and Eder, Portland Joel Sturm, Law Office of Barry J. Goehler, Portland 11:00 Seeking Preliminary Injunctive Relief—When, Why, and How F Motion for temporary restraining order F Preliminary injunction motion Steven Lovett, Stoel Rives LLP, Portland 11:30 Lunch 12:30 Mastering Key Pretrial Motions F Motions to dismiss F Discovery disputes F Motions for summary judgment Sarah Crooks, Perkins Coie, Portland 1:30 Documenting Settlement Agreements: Best (and Worst) Practices F Material terms F Compromises F Challenges to enforceability Adam Starr, Markowitz Herbold PC, Portland 2:30 Break Fundamentals of Oregon Civil Trial Procedure v SCHEDULE (Continued) 2:45 Courtroom Conduct: What You Can Do Versus What You Should Do F Challenges working with a pro se litigant F Challenges working with difficult opposing counsel F This is what the judge sees when you do this . The Honorable Mustafa Kasubhai, Lane County Circuit Court, Eugene 3:15 Closing Argument F Purpose of closing: what are you trying to accomplish? F Anatomy of a closing F Embracing the burden of proof F Rebuttal arguments: bring it home John Coletti, Paulson Coletti, Portland 4:30 Adjourn Friday, October 13 8:30 Late Registration 9:00 Anatomy of a Trial F How to develop a trial theme F The most powerful way to conduct an opening statement F The real purpose of closing argument F Why less is more . when it comes to trial Dennis Rawlinson, Miller Nash Graham & Dunn LLP, Portland Judy Snyder, Law Offices of Judy Snyder, Portland 10:35 Break 10:45 Show Me the Money—Obtaining and Collecting Your Client’s Judgment F Obtaining a proper judgment or confirming an arbitration award F Using creditor rights to locate and collect assets to satisfy your client’s judgment John Bachofner, Jordan Ramis PC, Vancouver 11:30 Protecting Your Appeal F Trial judges’ perspective on preservation of error F Helpful tips for new practitioners when preparing for appeal at the trial level The Honorable Rives Kistler, Oregon Supreme Court, Salem The Honorable Lynn Nakamoto, Oregon Supreme Court, Salem The Honorable Janice Wilson, Senior Judge, Portland 12:30 Adjourn Fundamentals of Oregon Civil Trial Procedure vi FACULTY Courtney Angeli, Buchanan Angeli Altschul Sullivan LLP, Portland. Ms. Angeli has extensive experience litigating employment cases and providing comprehensive employment law counseling and training to employers. She is past president of the Federal Bar Association Oregon Chapter and a member of the Owen M. Panner American Inn of Court. She holds a Senior Professional in Human Resources (SPHR) certification from the Human Resources Certification Institute. She is a regular speaker and writer on employment law issues and has made numerous joint presentations with federal judges for the Federal Bar Association. She received the 2013 Honorable James M. Burns Federal Practice Award. Ms. Angeli is admitted to practice in Oregon, Washington, and Alaska (inactive). John Bachofner, Jordan Ramis PC, Vancouver. Mr. Bachofner chairs Jordan Ramis PC’s Litigation Group, and his practice focuses on litigation and jury trials, as well as on insurance coverage, product liability, general business, bankruptcy, and creditors’ rights issues. He is a member of the Oregon State Bar: Board of Governors, chair of the Oregon State Bar Litigation Section, a member of the Oregon Casualty Adjusters Association, a member of the Oregon Association of Defense Counsel, chair of the Oregon Council on Court Procedures, and a member of the Defense Research Institute. Mr. Bachofner is admitted to practice in Oregon and Washington. John Coletti, Paulson Coletti, Portland. Mr. Coletti limits his practice to representing seriously injured people in cases involving defective and dangerous products, medical malpractice, and negligence. He is a member of the Inner Circle of Advocates, the International Academy of Trial Lawyers, the American Board of Trial Advocates, the International Society of Barristers, the American Association for Justice, the Oregon Trial Lawyers Association, and the Washington State Association for Justice. Mr. Coletti has served as an adjunct professor of Advanced Trial Advocacy at Lewis and Clark Law School. He is admitted to practice in Oregon and Washington. Sarah Crooks, Perkins Coie, Portland. Ms. Crooks practices business and commercial litigation with an emphasis on defense of class actions. She has an active trial practice, representing companies and individuals in a wide variety of complex business disputes and class action lawsuits in state and federal courts across several industries, including technology, consumer products, financial, and telecommunications. As a volunteer attorney with Legal Aid Services of Oregon, Ms. Crooks represents victims of domestic violence at protective order hearings. She is a member of the Owen M. Panner Inn of Court, past president of Oregon Women Lawyers, past president of the National Conference of Women’s Bar Associations, and past president of the Multnomah Bar Association. Ms. Crooks has received the Oregon Bench and Bar Commission Justice Edwin J. Peterson Professionalism Award and the Oregon Women Lawyers Justice Betty Roberts Award. David Eder, Thuemmel Uhle and Eder, Portland. Mr. Eder practices in the areas of personal injury, DUII defense, and criminal law. He previously was an assistant city attorney with the City of Beaverton, handling thousands of vehicle-related cases as well as civil litigation and major crimes work. In 2011, he served as an instructor at the National Advocacy Center on the topic of jury selection. He is past chair of the Oregon New Lawyers Division. In 2010, he developed a program to help underemployed and unemployed lawyers receive training from nonprofit organizations; the program was named as the American Bar Association Young Lawyer Section Program of the Year. The Honorable Mustafa Kasubhai, Lane County Circuit Court, Eugene. Judge Kasubhai was appointed to the bench by Governor Kulongoski in 2007. He previously worked as an active civil trial litigator specializing in tort litigation and workers’ compensation. In addition to Judge Kasubhai’s general trial court assignment, he regularly serves as a settlement judge for all types of cases. He is a past member of the Oregon Workers’ Compensation Board. He is a frequent speaker on trial court practice, settlement conferences, and issues involving diversity and inclusion in the legal profession. Fundamentals of Oregon Civil Trial Procedure vii FACULTY (Continued) The Honorable Rives Kistler, Oregon Supreme Court, Salem.