Trial in Oregon: The pros and cons of trial by ambush
Written by Rachel Nies and Elizabeth Wright, Portland Office
The civil pleading and practice rules in most states mirror the Federal Rules of Civil Procedure. The Federal rules provide for notice pleading, disclosure requirements and broad discovery, which allow the parties to learn the theories and facts of their opponent’s case well before the trial begins.
In Oregon, however, litigation is more akin to “trial by ambush.” Although the initial complaint must plead ultimate facts that define and outline the claims, in Oregon, there is no expert discovery and no interrogatories are permitted.
However, Oregon litigants may serve requests on parties for the production of documents and depose witnesses. This leads to the need for broad document requests and detailed review of all documents received. Without the ability to ask questions of the parties through interrogatories, or to view expert reports, the parties develop their theories of the case through the documents, from depositions, and from their own expert investigation.
Depositions help flesh out the facts. In construction defect litigation, this means that the general contractor, developer, subcontractors and homeowners are deposed. Often, multiple depositions of each party take place in order to better reveal the facts in a case. Numerous depositions can require a great deal of deposition transcript reviews in preparation for summary judgment and trial.
Without expert discovery, defendants in construction defect litigation rely heavily upon their own experts to help develop a scope of repair and to obtain bids. Frequently, the only information about the alleged defects is that information set forth in the initial notices of defect, which usually is a broadly written report. Defendants often are left speculating as to what the plaintiff really wants out of the litigation.
The lack of certain discovery in Oregon leads to a great deal of fact gathering by the parties, greater cost to the parties for document review, numerous depositions, and reliance upon each party’s own experts. A positive result of this need for fact development is greater collaboration among the parties. Often, the general contractor and the subcontractors will share their expert information in order to present a unified scope or cost to repair.
Summary Judgment, Mediation and Trial
An additional hurdle for Oregon litigants comes during the summary judgment phase. With the lack of expert discovery, courts will accept an attorney’s affidavit stating that he or she has retained a qualified expert on behalf of the client, who is willing and able to testify to admissible facts and opinions — but without describing those opinions in any detail. Oregon case law makes it clear that this affidavit does not even need to list the issues the expert will testify to, so long as the attorney has a good faith belief that the expert will address all issues raised in the motion. This usually presents the judge with a question of fact, and therefore such an affidavit will defeat a motion for summary judgment on the basis of an undisclosed expert opinion.
Ironically, parties may already have a certain amount of expert information at the time of summary judgment, based on disclosures made during confidential settlement negotiations. Parties generally insist on lengthy, written non-disclosure agreements when they enter into serious mediation discussions. At that time, the experts’ opinions are shared, retaining the fiction that this is privileged attorney-client communications and work product. This information cannot be used for the purposes of summary judgment, as it is usually released for settlement purposes only. On one hand, the parties have a better idea of the plaintiff’s case, but it can put attorneys in the awkward position of maintaining a dual track theory of the facts: One track for mediation, and one for summary judgment and trial.
Oregon’s discovery rules also result in the need for multiple mediations or settlement conferences. Litigants are more likely to engage in multiple mediations just to gather enough facts to begin the process of negotiation. The first mediation might be considered as preliminary, followed by a meeting of the experts, with subsequent mediations later in the case. Often, it is not until after mediation those vital pieces of information are shared with other parties. As such, defendants may find it difficult to value their cases, both on their own merits and in terms of what the other side can prove. Thus, carriers find it difficult to justify and approve reasonable settlement demands early in the process.
Finally, small parties often are kept longer in the litigation. Information develops at a languid pace in Oregon construction defect cases. Experts are expensive and this expense is often put off until the last minute. If the opinions and reports do not have to be finalized until the eve of trial (litigants turn over their expert’s file just 24 hours prior to that expert’s trial testimony), then the plaintiff will keep information at a preliminary level as long as possible. In turn, this means that neither the plaintiff nor the defendants feel justified in stipulating to the dismissal of even the smallest party — not until an expert has confirmed that fault will not be allocated to that party at trial.
Trial in Oregon is called “trial by ambush” because there is much left to discover about the opposition’s case, even up to the eve of trial. Despite Oregon’s fact pleading and broad discovery rules, litigants may not inquire into the identity of an opposing party’s expert, depose that expert, or see any expert report. These rules tend to result in additional time spent on document review, depositions, and investigation for the parties.
Despite the lack of formal discovery, there are ways in which each side may prepare themselves in order to work around the lack of expert discovery. Getting an expert on board at the very beginning of the case is key to quickly identifying the main issues in the matter and identifying the main players. At that time, all potentially implicated parties are tendered to and brought in to the litigation. The parties may then have the opportunity to engage in early inspections and can begin to put together a theory of the case right away, which sets the stage for early negotiation. Finally, the parties tend to work together to try to resolve cases through multiple, protected mediation discussions and meetings.
We strive to mitigate expenses and to promote efficient case resolution by working closely with our experts, clients, mediator and counsel. Therefore, communication is critical. We have found that our efforts to ensure that our clients are well informed about every phase case results in more efficient case management and satisfied clients.