Wednesday, May 13, 2015
Friday, January 30, 2015
In Mitts v. Stamps, 2015 OK CIV APP 7, the Oklahoma Court of Civil Appeals held that the trial court must follow the prescribed procedure in disqualifying a party's legal counsel. The Mitts court held:
¶7 The Oklahoma Supreme Court has conferred a special procedural status on motions to disqualify counsel. As the Court most recently re-affirmed in Miami Bus. Servs., LLC v. Davis, 2013 OK 20, 299 P.3d 477, a trial court considering such a motion must follow the procedure set forth in Piette v. Bradley & Leseberg, 1996 OK 124, ¶ 2, 930 P.2d 183, andArkansas Valley State Bank v. Phillips, 2007 OK 78, 171 P.3d 899, before ruling whether an attorney should be disqualified based on conflict of interest or improper possession of confidential information. Miami Bus, ¶ 24. The trial court must hold an evidentiary hearing, and then make a specific factual finding in its order that the attorney either had, or did not have, knowledge of material and confidential information. Id. Without such findings, we cannot review the correctness of the courts' disqualification decision, or any exercise of discretion in refusing to vacate the disqualification.
¶8 The district court relied on District Court Rule 4e (motion may be deemed confessed if not responded to) and Rule 4h (motions may be decided by the court without a hearing). We find no current case law holding that Miami Bus andPiette place motions to disqualify counsel outside of the provisions of Rule 4e and Rule 4h. Nevertheless, those decisions are clear that the right to choose counsel is fundamental, and counsel cannot be disqualified without the required hearing and findings, even when a disqualification motion goes unanswered. We therefore remand this matter for a hearing consistent with the Miami Bus decision.
The Deere & Co. court held:
¶9 "When determining whether an affidavit may be disregarded because it attempts to create a sham issue of fact, the Court may consider whether the party was cross-examined during earlier testimony, whether the party had access to the evidence at the time of earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain." Tortorelli v. Mercy Health Center, Inc., 2010 OK CIV APP 105, ¶ 30, 242 P.3d 549, 561 (citing Ishmael v. Andrew, 2006 OK CIV APP 82, ¶16, 137 P.3d 1271, 1276). "A trial court may disregard an affidavit purporting to create an issue of fact by directly contradicting prior deposition testimony during which the deponent was both cross-examined and had access to the information forming the basis for the affidavit at the time of the deposition." Tortorelli, id., (citing Savage v. Burton, 2005 OK CIV APP 106, 125 P.3d 1249).
¶10 In this case, Kutz was deposed at great length in July 2012 with his attorney present about evidence to which he clearly had prior access, including his letter to Deere proposing a settlement of their dispute. At the deposition, Kutz admitted not being forced to write his proposal letter, he understood "reaching a settlement" meant the parties would compromise and end their dispute, and that he knew he was releasing his personal claims for money arising from the fire and the equipment. He also admitted he was neither told nor threatened that if he did not settle and/or release his claims with Deere that it would not let him rent the haying equipment from Grissoms.
Wednesday, October 15, 2014
Thursday, June 26, 2014
Gavel to Gavel: Remote control http://journalrecord.com/2014/06/25/gavel-to-gavel-remote-control-opinion/
Monday, May 12, 2014
New Oklahoma court rule dealing with audio recordings of court proceedings with non-certified foreign language interpreters
Friday, May 2, 2014
Click the link below yo learn about California's new civility oath:
Civility oath requires new California lawyers to pledge to behave with dignity http://feedproxy.google.com/~r/abajournal/topstories/~3/Bhu2-V0zLwQ/
Saturday, April 26, 2014
Friday, March 28, 2014
[UPDATE: LINKS FIXED]
The amendments to jury instructions can be found here:http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=472742
The amendments to the Rules for District Courts can be found here:http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=472743. Note that this order references the "Uniform District Court Rules," although the rules still appear to be entitled "Rules for District Courts."
The amendments to the Oklahoma Supreme Court Rules can be found here:http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=472744
Thursday, October 24, 2013
Discovery disputes take up a great deal of time and account for much of the cost of litigation. In complex cases, discovery can become the tail that wags the dog – with the pace and tenor of the litigation controlled by discovery requests, depositions, motions to compel, and rulings on discovery disputes.Read more: http://journalrecord.com/2013/10/23/gavel-to-gavel-discovery-masters-opinion/#ixzz2igAZcWq0
Thursday, October 17, 2013
What Happens Now? Weighing Section 2056, the Federal Anderson Trilogy Standard and the State Constitutional Right to Trial
At first glance, Section 2056 presents only a superficial change from the previously long-held standard in Rule 13 that judgment should be rendered if “there is no substantial controversy as to the material facts and ... one of the parties is entitled to judgment as a matter of law.” Substantively, Section 2056 merely substitutes the phrase “genuine issue” for “substantial controversy.” Can this modest change mark a fundamental shift in summary judgment jurisprudence?
Wednesday, September 18, 2013
In practice, Oklahoma attorneys can expect that they will need to check legislative histories regarding whether a particular statute was amended or enacted by the 2009 act, whether subsequent amendments saved the statute, and whether this year’s special session resolved these issues.Read more: http://journalrecord.com/2013/09/18/gavel-to-gavel-mixed-bag-of-bills-opinion/#ixzz2fIk1wP7Z
Tuesday, September 10, 2013
Friday, September 6, 2013
[S]ince 2009, the Oklahoma Legislature has amended some of the statutes that the CLRA amended or created. In an interesting twist, these later amendments may save certain provisions of the CLRA, based on the same constitutional provision that the court relied on in striking the CLRA.
The single-subject rule, also known as the rule against logrolling, is found in Article 5, Section 57 of the Oklahoma Constitution. Section 57 also requires that the Legislature re-enact laws when it amends them.
As an example, Section 3226 of the Oklahoma Discovery Code was amended three times since 2009. Each time, the Legislature set forth the statute in its entirety. As a result, it appears that the Legislature saved the CLRA’s changes to Section 3226, simply by complying with the Oklahoma Constitution in its later amendments.
This twist may affect a number of the CLRA’s provisions. As a result, the term “re-enactment” may join “logrolling” as part of our vocabulary.