Friday, February 9, 2018

Legislative update, 2018 Oklahoma session

Here are quick updates on Title 12 bills before the Oklahoma legislature:
  1. SB1550 would appear to create a new procedure for attacking a judgment based on evidence not previously presented or heard by the court.  The new statute would be added to the Oklahoma Evidence Code.  It contains no limitations period.  It makes no requirement that the evidence be "new" in the manner currently contemplated.  This bill runs the risk of disrupting the finality of judgments in Oklahoma.  On the other hand, a court interpreting this statute, if enacted, by treat it as purely procedural and require that it be interpreted consistently with existing statutes and common law regarding "new evidence" and applicable statutes of limitations.  Sen. Anthony Sykes is the author.  The bill is assigned to the Senate Judiciary Committee.
  2. SB968 would amend 12 O.S. 2008 by moving us toward more specific pleading requirements.  Among other things, the bill would strike Section 2008(E)(1), which requires that pleadings be simple, concise, and direct.  More importantly, Section 2008(A)(1) would be amended to require particularized pleading of all material facts creating a reasonable inference that the claimant is entitled to relief.  If a party pleads a fact based upon belief, the party would be required to particularly plead all facts upon which the belief is based.  Sen. Julie Daniels is the author.  The bill is assigned to the Senate Judiciary Committee.
  3. HB3482 would amend 12 O.S. 696.4, which provides procedure for recovery of attorney fees and costs, by adding a substantive right for the State of Oklahoma to recover attorney fees and costs in any action in which it is the prevailing party.  The bill's author is Rep. John Jordan.  The bill is referred to the House Rules Committee.
  4. HB2766 would amend 12 O.S. 759, 762, and 769 would allow the appraiser upon execution of a judgment to be a disinterested legal entity rather than three individuals.  The bill would also allow bids at Sheriff sales to take place electronically.  Rep. Scott McEachin is the author.  The bill is assigned to the House Judiciary Committee.
  5. HB2863 would amend 12 O.S. 667, dealing with legislative continuances.  This bill would allow the legislator who is either a party or counsel of record to request the continuance by telephone, electronically, or by facsimile no later than one day before the event to be continued.  Additional requirements are imposed, such as filing a motion two weeks later, and requiring the continued hearing to occur at least ten days after the legislative session ends.  Rep. Jason Lowe is the author.  The bill is assigned to the House Judiciary Committee.
  6. HB2871 would create a new procedure for real property owned by one but not both spouses, and which property is not the other spouse's homestead.  The owner spouse can initiate an action requesting the court to judicially determine that the property is not, or was not, the other spouse's homestead.  This would be intended to allow cures to title defects based on the other spouse's failure or refusal to join a deed on property that that spouse holds no homestead interest.  The cure would be available for up to ten years after the conveyance.  Rep. Scott McEachin is the author.  The bill is assigned to the House Judiciary Committee.
  7. HB3281 would amend 12 O.S. 1148.5A, dealing with forcible entry and detainer (FED).  The amendment would allow the landlord to later seek damages for rent and other monetary relief if the court in the FED action renders solely judgment for possession.  Rep. Chris Kannady is the author.  The bill is assigned to the House Judiciary Committee.
  8. SB1299 would amend 12 O.S. 3234 to impose the same requirement added in one of the two competing versions adopted last session, dealing with the timing of requests for production or entry upon land (RFP).  More specifically, the RFP could be served only (i) after an answer is filed or (ii) upon leave of court if no answer is filed.  Title was stricken in the Senate Judiciary Committee, meaning that the bill would be re-heard by the Senate if approved by the Senate and then approved by the House.  This indicates that amendments are anticipated at some point in the process.  We might see more amendments designed to either conform the two competing versions passed last year or impose additional amendments to the statute.  Rep. John Sparks is the author.  As noted above, title was stricken by the Senate Judiciary Committee, but otherwise the bill received a do-pass from that committee.
  9. SB1503 would amend 12 O.S. 2015 to give the party responding to an amended pleading twenty days to respond, rather than the ten days provided in the statute.  Rep. John Sparks is the author.  The bill is assigned to the Senate Judiciary Committee.

Sunday, June 18, 2017

Oklahoma Supreme Court addresses application of 20 OS 95.10

The Oklahoma Supreme Court holds that 20 OS 95.10 does not require judicial disqualification upon appellate reversal and remand.  The statute is not allowed to usurp the courts' superintending control of judicial assignments.

"Mere reversal of a lower court's dispositive rulings will not, standing alone, provide a sufficient basis to warrant disqualification."

Commentary on the BNSF decision

Follow the link for excellent commentary on the BNSF decision on general jurisdiction.

Saturday, January 21, 2017


If a garnishment affidavit contains a false statement, this does not give rise to a separate cause of action.  Instead, the remedy is within the action where the false statement was made.  "[S]uch an allegation is a defense to the underlying collection action and must be asserted in that suit." Stricklen v. O.I.P.M., LLC, 2017 OK CIV APP 3.

Friday, November 25, 2016

Opening statements

An excellent read on opening statements, from a legendary Oklahoma trial lawyer, of use to anyone with an interest in Oklahoma trial procedure.

Block Quotes

We've all seen them -- block quotes from other sources.  This writing technique has become a simple and way-too-easy method of adding sources and content -- to everything from a blog post to an appellate brief.  Content editors provide tools for indentation of your block quote, which can then be linked back to the original source.  I would say that this crutch has become overused, but the word 'become' would be out-of-place.  Twenty-two years ago, when reading and judging "write-on essays" for Texas Law Review, I found that at least a handful of my contemporaries would scarcely connect their series of block quotes with text, barely sufficient to connect their reasoning in some logical manner.  These law students were among the best -- law students, after all, at the University of Texas.  But their method of presentation became both a distraction and a reminder that their reasoning was borrowed.

The hallowed halls of UT Law placed great emphasis on original thought.  I spent a great deal of my third year editing articles by and about Prof. Philip Bobbitt, whose writings represent some of the most enduring in generations of law professors.  But some of his critics argued that Prof. Bobbitt's thoughts were not original.  Jack M. Balkin & Sanford V. Levinson, Constitutional Grammar, 72 Tex. L. Rev. 1771 (1994) was the academic equivalent of insulting a person's heritage on the playground.  See Philip C. Bobbitt, Reflections Inspired by My Critics, 72 Tex. L. Rev. 1869 (1994).
 With this emphasis on original thought, it became even more important to avoid the common practice of linking together a series of block quotes from other sources.

But what are the options for the legal writer -- who is so dependent upon sources and attribution, and whose original thoughts may well be critique of or commentary on other thoughts?

More after the break....

IN CASE YOU MISSED IT: Civility in motion practice

Oklahoma Civil Procedure: Civility in motion practice: I recently had occasion to review a seminar presentation that I gave ten years ago.  The topic was ethics in appellate and summary judgment ...

Wednesday, October 12, 2016

Appealable denial

Oklahoma Supreme Court carves another small exception to the rule that denials of summary judgment cannot be reviewed on appeal.

Thursday, March 3, 2016

Gavel to Gavel: Passionate Independence

In a book whose title I have long since forgotten, professor Sanford Levinson compared the U.S. Constitution to Ulysses’ pact with the crew of his ship, to bind him to the ship’s mast as it transported him past the Sirens. My quick research shows that many other constitutional scholars have written about the allegory, including Stephen Holmes and Jon Elster, who wrote from the perspectives of philosophy and social sciences.

But the allegory helps understand why we, as a nation and as the state of Oklahoma, would impose limitations on the current majority’s ability to fundamentally change our government. Founders (state or federal) hold a responsibility to protect us from future majorities – regardless of political affiliation. Our federal constitution is designed to protect the country from expansive new legislation that might be enacted by an administration seeking fundamental change. Likewise, our state constitution and legal system is designed to help us avoid governmental change.

Read more:

Tuesday, July 28, 2015

The Court's decision on the Ten Commandments

The Court's decision on the Ten Commandments is now available for download on the Court's docket.  The main decision was entered on July 27, 2015, along with five separate opinions joined by various combinations of the nine justices.  These five separate opinions give Oklahomans great insight into the justices' views of the law on Oklahoma's establishment clause.  Required reading for any Oklahoma interested in our State's Constitution and constitutional law.  Find the decision and separate opinions in PDF form, linked here: