If you decide to bring a lawsuit, or if you get sued, there is a certain set of laws your attorney has to follow regarding the way your case proceeds through the Oregon state court system. These laws, the Oregon Rules of Civil Procedure (ORCPs), govern the way that Oregon attorneys practice civil law in each county courthouse throughout the state. Whether filing court actions and other pleadings, conducting discovery and depositions, advocating in a trial by jury or any other legal proceeding, the ORCPs outline the rules of the game.
In all there are 85 different ORCPs, most with numerous subsections and many with subparts. ORCP 42, however, is conspicuously absent. It currently reads, in whole, “Reserved for Expansion.” Some Oregon attorneys, though, feel that ORCP 42, like its counterparts in other states and territories, should instead expressly allow the use of a certain discovery device to help their clients: interrogatories.
Interrogatories are a tool utilized in litigation in other jurisdictions, including the federal courts. Essentially, interrogatories are a formal set of written questions that one side makes the other answer. That certainly sounds simple enough, right? As is so often the case, however, the issue simply isn’t that simple.
Timothy MB Farrell is a practicing attorney and member of six state bar associations, including Oregon, and has tried numerous cases across the country. In addition, he’s a member of the Oregon State Bar House of Delegates (HOD), which is the state bar’s legislative body. Farrell represents defendant homeowners facing foreclosure, and he reasons that the use of interrogatories could help his clients pinpoint certain information in foreclosure proceedings earlier, without having to go through more expensive discovery processes such as depositions.
To advocate for the use of interrogatories, Farrell has issued a Delegate Resolution to the HOD, urging it to recommend an amendment to ORCP 42. To support his position, he points out that many Oregon government agencies use interrogatories in their administrative proceedings already, as do federal courts and other state court systems.
ORCPs are authored and maintained by Oregon’s Council on Court Procedures, an appointed body governed by statute (ORS 1.730) which consists of numerous Oregon judges, attorneys and a member of the general public. The Council, in turn, gets recommendations on changes to rules and procedures from a variety of groups, including the HOD.
Farrell’s proposal has garnered significant publicity in Oregon’s legal community, and he authored an article in the Bar’s Bulletin magazine in August, detailing his position and championing the cause.
Farrell points out that the Oregon rules don’t expressly prohibit the use of interrogatories, but a lawyer would have to file a motion, moving for leave of the court, to utilize them in an Oregon case – requiring more paperwork, more time, and more expense. “Indeed, all out of state attorneys may be obligated both ethically and by the competency standards in their communities to so move,” he says. “The bottom line is we are the only state that does not allow them by rule.”
Other members of the bar, however, are quick to point out the problems associated with using interrogatories, as they consider Oregon’s unique stance on interrogatories to be a good thing.
Michael Wise is a Portland attorney at Michael Wise & Associates, PC, and the President of the Oregon Trial Lawyers Association (OTLA), a resource organization for litigators throughout the state. Wise feels that an amendment to ORCP 42 is unnecessary, reasoning that it “seems like a solution in search of a problem that doesn’t exist.”
Some members of Oregon’s judiciary agree. Honorable Judge Henry Kantor, a Multnomah County Circuit Court Judge and member of the bench since 1995, who also served six years on the Council of Court Procedures including two years as it chair, argues, “We do not need interrogatories, which will add significantly to the cost of litigation, especially for people who can’t afford it.”
Addressing the additional expense of using interrogatories in personal injury suits, Wise adds it would, “put the burden of those costs on the injured patients and consumers.”
Ultimately, there’s no doubt that using interrogatories could prove to be a potentially useful tool in certain circumstances. As Farrell suggests, their use by a defendant in pinpointing key issues in a case early on is but one. However, if they’re expressly allowed, that same tool can be used by both sides – not just by a defendant family in trying to stop a big bank from a wrongful foreclosure, say, but also by the big bank itself in trying to overwhelm a financially-strapped defendant family with multiple duplicative discovery requests and paperwork.
The dilemma begs the questions: Does Oregon really need interrogatories? At what cost?
Kevin Parks is an elected member of the House of Delegates, representing Region 5. As of this post, he’s still undecided on the use of interrogatories in Oregon, as some of Slinde Nelson‘s Seattle business clients use them, while its Portland business clients do not. The HOD meets October 28th to vote on Delegate Resolution No. 3.