Practicing Law in Oregon Thursday, June 22, 2017 9 a.m.–4:15 p.m. 4 General CLE or Practical Skills credits and 2 Ethics credits PRACTICING LAW IN OREGON 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 Practicing Law in Oregon ii TABLE OF CONTENTS Schedule . v Faculty . vii 1. Oregon Discovery . 1–i — Leslie Johnson, Samuels Yoelin Kantor LLP, Portland, Oregon — Kevin Sali, Kevin Sali LLC, Portland, Oregon 2. Oregon Pleadings and Parties: Tips to Consider and Traps to Avoid . 2–i — Bonnie Richardson, Folawn Alterman & Richardson LLP, Portland, Oregon 3. Depositions in Oregon . 3–i — Joseph Franco, Holland & Knight LLP, Portland, Oregon 4. The Disciplinary Process: Basics You Need to Know . 4–i — Dawn Evans, Disciplinary Counsel’s Office, Oregon State Bar, Tigard, Oregon 5. Local Practice in the District of Oregon—2017 . 5–i — C. Marie Eckert and Vanessa L. Triplett, Miller Nash Graham & Dunn LLP, Portland, Oregon 6. Oregon’s Judicial Branch. 6–i — The Honorable David Brewer, Oregon Supreme Court, Salem, Oregon Practicing Law in Oregon iii Practicing Law in Oregon iv SCHEDULE 8:00 Registration 9:00 Oregon Discovery—Rules and Conventions F Distinguishing federal and state practice in Oregon F Pursuing records of parties and nonparties F Usual timing and the practice for scheduling and then getting adjustments F Getting public records and discovery with the government F Local discovery for foreign action F Court assistance in disputes Leslie Johnson, Samuels Yoelin Kantor LLP, Portland Kevin Sali, Kevin Sali LLC, Portland 9:45 Oregon Pleadings and Parties: Tips to Consider and Traps to Avoid F Pleadings that make Oregon different from other places F Bringing parties into a case: know the rules F Ultimate facts and defenses: how to assert them and what must be included F Practical considerations in discovery and trial Bonnie Richardson, Folawn Alterman & Richardson LLP, Portland 10:30 Break 10:45 Depositions in Oregon F Oregon’s written and unwritten rules governing depositions F Using depositions at trial Joseph Franco, Holland & Knight LLP, Portland 11:45 Lunch 12:30 The Disciplinary Process: Basics You Need to Know F What they do: Client Assistance Office, Disciplinary Counsel Office, and the State Professional Responsibility Board F How to respond—a defense perspective F Roundtable—common complaints, unique features in Oregon, negotiated outcomes, and recent cases Moderator: Dawn Evans, Disciplinary Counsel’s Office, Oregon State Bar, Tigard Carolyn Alexander, State Professional Responsibility Board, Portland Daniel Atkinson, Client Assistance Office, Oregon State Bar, Tigard Wayne Mackeson, Wayne Mackeson PC, Oregon City 2:30 Break 2:45 Local Practice in the U.S. District Court for the District of Oregon F The importance of civility and professionalism F Considerations during initial case filing F Discovery disputes (minimize them) F Summary judgment practice F Trial practice C. Marie Eckert, Miller Nash Graham & Dunn LLP, Portland Practicing Law in Oregon v SCHEDULE (Continued) 3:30 May It Please the Court—An Overview of the Oregon Court System The Honorable David Brewer, Oregon Supreme Court, Salem 4:15 Adjourn Practicing Law in Oregon vi FACULTY Carolyn Alexander, State Professional Responsibility Board, Portland. Prior to her retirement, Ms. Alexander was a Senior Assistant Attorney General with the Oregon Department of Justice Appellate Division, where she handled civil and criminal appeals at the state and federal levels. She currently serves on the State Professional Responsibility Board and on the Oregon Board of Licensed Professional Counselors and Therapists. She previously chaired the DOJ’s Ethics Committee for many years, and she served on the OSB Legal Ethics Committee. Daniel Atkinson, Client Assistance Office, Oregon State Bar, Tigard. Mr. Atkinson is an Assistant General Counsel in the Oregon State Bar’s Client Assistance Office. Prior to joining the bar, he spent ten years in private practice at two small general practice firms, first in Silverton and then in Portland. The Honorable David Brewer, Oregon Supreme Court, Salem. Justice Brewer was elected to the Supreme Court in May 2012 and joined the court in January 2013. He previously served as Chief Judge on the Oregon Court of Appeals and as a circuit judge for the Lane County Circuit Court, where he presided over many civil and criminal trials and settled many more cases through the court’s settlement conference program. Justice Brewer serves on the Oregon State Bar Legal Services Task Force. C. Marie Eckert, Miller Nash Graham & Dunn LLP, Portland. Ms. Eckert is an experienced business litigator who has handled a wide range of complex commercial litigation in state and federal courts, including contract and business valuation disputes, business torts, lender liability and creditors’ rights claims, insurance coverage actions, and employment, trusts and estates, and environmental litigation. She is a member of the Federal Bar Association, the American Bar Association, the Multnomah Bar Association, and Oregon Women Lawyers. Dawn Evans, Disciplinary Counsel’s Office, Oregon State Bar, Tigard.Ms. Evans is Disciplinary Counsel and Director of Regulatory Services at the Oregon State Bar, administering the attorney discipline office and the bar admissions department. She served for nine years as the Director of Professional Standards at the State Bar of Michigan and worked for eighteen years in attorney discipline at the State Bar of Texas, including five years as Chief Disciplinary Counsel. She is a former president of the National Organization of Bar Counsel and has held positions as a director of the Texas Young Lawyers Association and president of the Walker County Bar Association. Joseph Franco, Holland & Knight LLP, Portland. Mr. Franco focuses his practice in all stages of litigation. He is experienced in managing complicated discovery, taking and defending key depositions, arguing dispositive motions, and serving as the lead lawyer in trials, arbitrations, and mediations in matters involving breach of contract, legal malpractice, insurance coverage, unlawful trade practices, breach of fiduciary duty, and the protection of trade secrets. He is a member of the Oregon Bench and Bar Commission on Professionalism, the Multnomah Bar Association Court Liaison Committee, and the Oregon Trial Lawyers Association. Leslie Johnson, Samuels Yoelin Kantor LLP, Portland. Ms. Johnson joined Samuels Yoelin Kantor LLP in May 2017, after 21 years in private practice in Portland. Her focus has always been on business litigation and business law, with an emphasis on contract issues, corporate governance, shareholder agreements and disputes, employment law, business and real property transactions, franchise disputes, securities, and lawyer and accountant malpractice. She is a member of the Multnomah Bar Association, the Clark County (Washington) Bar Association, the American Bar Association, the Oregon State Bar House of Delegates, and the American Bar Association House of Delegates. Ms. Johnson has spoken at local and state bar association CLE events on practical litigation skills, and she coauthored chapters of the Oregon State Bar publications Insurance, Federal Civil Litigation, and Civil Pleading and Practice. Ms. Johnson is licensed to practice in Oregon and Washington. Practicing Law in Oregon vii FACULTY (Continued) Wayne Mackeson, Wayne Mackeson PC, Oregon City. Mr. Mackeson is primarily a criminal defense trial lawyer who also researches, writes, and argues cases in the Oregon appellate courts and before the Ninth Circuit Court of Appeals. He also defends lawyers accused of ethics violations and children in juvenile delinquency cases. Bonnie Richardson, Folawn Alterman & Richardson LLP, Portland. Ms. Richardson is a trial lawyer who represents clients in cases involving legal and professional malpractice, trust and estate litigation, complex commercial litigation, and insurance coverage disputes. She is a member of the Multnomah Bar Foundation board of directors, the Oregon Asian Pacific American Bar Association, the Oregon Judicial Diversity Coalition, the OSB Rules of Professional Conduct 8.4 Drafting Committee, the Oregon Trial Lawyers Association, the Federal Bar Association, and Oregon Women Lawyers. She also serves as an arbitrator for the Oregon State Bar Fee Arbitration Program. Ms. Richardson is a frequent speaker at continuing legal education seminars for attorneys for the Oregon State Bar, Multnomah Bar Association, the National Business Institute, and many other organizations. She is the recipient of the 2016 Multnomah Bar Association Professionalism Award and the 2009 Multnomah Bar Association Pro Bono Award of Merit. Kevin Sali, Kevin Sali LLC, Portland. Mr. Sali represents individuals and business entities in criminal, civil, and regulatory matters, including high-stakes major felony trials, complex white collar cases, and large-scale environmental actions. Practicing Law in Oregon viii Chapter 1 Oregon Discovery LESLIE JOHNSON Samuels Yoelin Kantor LLP Portland, Oregon KEVIN SALI Kevin Sali LLC Portland, Oregon Contents I. Overview . 1–1 A. Introduction . 1–1 B. Rules and Resources . .1–1 C. Scope of Discovery. .1–1 D. Planning and Balancing . .1–2 E. Timing. .1–2 II. Discovery of Parties . 1–3 A. Requests for Production or Inspection. .1–3 B. Requests for Admission . .1–4 C. Interrogatories (Federal Court Only) . 1–5 III. Discovery of Nonparties . 1–5 A. Subpoenas for Documents or Things . 1–5 B. Interstate Discovery . 1–6 C. Public Records Requests . 1–6 IV. Review of Major Distinctions Between Federal and State Court Practice . 1–7 A. Initial Disclosures . 1–7 B. Interrogatories . 1–7 C. Time Limits on the Conduct of Discovery. .1–7 D. Experts . 1–7 V. Getting Court Assistance .