Friday, January 30, 2015

Procedure for attorney disqualification must be followed

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. Davis2013 OK 20299 P.3d 477, a trial court considering such a motion must follow the procedure set forth in Piette v. Bradley & Leseberg1996 OK 124, ¶ 2, 930 P.2d 183, andArkansas Valley State Bank v. Phillips2007 OK 78171 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.

Summary judgment affirmed after plaintiff's affidavit is stricken

In Kutz v. Deere & Co., 2015 OK CIV APP 6, the Oklahoma Court of Civil Appeals affirmed a summary judgment in favor of a defendant after the court struck the plaintiff's self-serving affidavit.

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. Andrew2006 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." Tortorelliid., (citing Savage v. Burton2005 OK CIV APP 106125 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

Oklahoma Supreme Court holds that notice provided only via Facebook does not satisfy due process

In a decision issued on October 14, 2014, the Oklahoma Supreme Court engaged in a spirited debate over whether a Facebook message provided adequate notice under state and federal due process requirements. The issue arose in a parental rights dispute between a mother and father. The majority held that Facebook messaging is unreliable and insufficient to meet the requirements of due process. The three dissenting justices pointed out that the father admitted receiving the Facebook message -- noting the longstanding principal that actual notice is adequate notice. The dissent then points out that other methods of communication could be just as unreliable.
In paragraph 37 of the opinion, the majority of the justices wrote: “Instead of contacting Father directly, Mother left him a message on Facebook, which is an unreliable method of communication if the accountholder does not check it regularly or have it configured in such a way as to provide notification of unread messages by some other means. This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected.”

In paragraph 11 of the dissenting opinion, the dissenting justices wrote: “The majority opinion does not inform the biological mother precisely what notice is needed to satisfy this Court. The rule has been long accepted that, ‘Actual notice is the preferred method of satisfying due process requirements. . . .’ In re Dana P. 1982 OK 149, ¶ 9, 656 P.2d 253, 255. The Facebook message was actual notice. The Father testified that Facebook was his method to contact the Mother after he learned of the guardianship and that he reached her within twenty-four hours. Why would Facebook be any less reliable than other forms of electronic communication? Does the Court require a face-to-face confrontation with witnesses? Face-to-face discussions can be denied; letters can remain unopened; and faxes can be lost.”

The decision can be found here:

Click here for a recent column on this issue:

Thursday, June 26, 2014

Videoconferencing for courts: Pilot program announced

The Oklahoma Supreme Court recently made news by canceling its contract for development of a unified electronic case management system. Electronic filing may move forward in some manner. Yet while e-filing’s path forward may be unknown outside of the Oklahoma Judicial Center, the Supreme Court provided indications this week that it will continue working on technology issues facing Oklahoma courts.
On Monday, the court announced a pilot program for videoconferencing in district courts. Building on electronic transmission circuits already in place, the court intends to allow court reporters, interpreters, witnesses and judges to participate in hearings and proceedings through remote video access.
Many attorneys will correctly point out that district courts already use videoconferencing. Oklahoma law authorizes district courts to use videoconferencing between courtroom and correctional facilities or juvenile detention facilities to conduct sentence reviews, post-conviction relief hearings, delinquent and deprived actions, custody and adoption proceedings, commitment proceedings, and extradition proceedings. Likewise, Oklahoma law authorizes the use of videoconferencing and other alternative methods for presentation of testimony from witnesses under the age of 13 years.
The new pilot program extends the availability of videoconferencing to all stages of civil and criminal litigation. The trial judge is given discretion on whether to allow videoconferencing based on a list of factors, including undue surprise, prejudice, the parties’ diligence in securing a witness’s physical presence, security risks, whether the litigation affects a party’s fundamental rights, the trial court’s ability to control the proceedings through remote means, and whether videoconferencing will affect the dignity, solemnity, and formality of proceedings.
The program will cover Beaver, LeFlore, McCurtain, Texas and Washington counties. The Administrative Office of the Courts will equip one courtroom in each county with videoconferencing equipment.
One driving factor for this program is a shortage of court reporters and interpreters in rural counties. Tulsa County Presiding Judge Carlos J. Chappelle confirmed the current shortage of court reporters, citing low examination passing rates for new reporters. Chappelle reported that the new videoconferencing program would be a good thing for Tulsa County. The program might allow Tulsa County court reporters to provide their services to other counties when time permits.
While some may say that cancellation of the vendor contract for electronic case management is a step backward, videoconferencing may be a step forward for ensuring access to Oklahoma’s court system.

Gavel to Gavel: Remote control

Friday, May 2, 2014

Does Oklahoma need a civility oath?

Click the link below yo learn about California's new civility oath:

Civility oath requires new California lawyers to pledge to behave with dignity

Saturday, April 26, 2014

Looking at juror social media profiles OK: ABA

The ABA issued an ethics opinion on whether lawyers may look up prospective jurors on social media.

"Lawyers who want to pick through troves of public information that jurors or potential jurors put on the Internet about themselves may do so, but they may not communicate directly with the jurors, such as asking to 'friend' them on Facebook, according to a formal ethics opinion issued today by the ABA Standing Committee on Ethics and Professionalism."

Friday, March 28, 2014

Gavel to Gavel: Greener Pastures?

The Oklahoma House of Representatives plans to address whether to change the method of judicial selection in Oklahoma.

One does not have to look far for an example of partisan elections for appellate judges. The Texas Constitution provides for these types of elections. During election season, visitors to Texas can see this process in action, through a multitude of billboards, favoring or disfavoring a judicial candidate, often from a partisan viewpoint.

Is the pasture greener in Texas? Some members of the Texas appellate judiciary don’t think so. Texas Supreme Court Justice Don Willett recently said that he and every member of his court favor smart judicial-selection reform, with the goal of moving away from “the current partisan elected system. … Interestingly, the business lobby and tort-reform groups all favor scrapping (Texas’) current (partisan) judicial-selection system.”

Read more:

amendments to jury instructions and court rules

The Oklahoma Supreme Court has approved modifications to the Oklahoma Uniform Jury Instructions, the Rules for District Courts, and the Oklahoma Supreme Court Rules.  Most notably, these amendments now specifically address the use of jury questionnaires.  In addition, the Court has approved amendments to verdict forms, and jury instructions for false representation, nondisclosure or concealment, wrongful discharge, employment based discrimination, exemplary damages, defamation, and trade secrets.


The amendments to jury instructions can be found here:

The amendments to the Rules for District Courts can be found here:  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:

Thursday, October 24, 2013

Gavel to Gavel: Discovery Masters

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:

Thursday, October 17, 2013

What Happens Now? Weighing Section 2056, the Federal Anderson Trilogy Standard and the State Constitutional Right to Trial

Over the past four years, many Oklahoma attorneys have wondered whether Section 2056 of the Oklahoma Pleading Code would forever change Oklahoma summary judgment standards. Section 2056 was enacted in 2009 as part of the Oklahoma Comprehensive Lawsuit Reform Act (CLRA). Until recently, the Oklahoma Supreme Court had remained silent on the role of Section 2056 in summary judgment proceedings. In November 2012, the Oklahoma Supreme Court entered a brief order according “precedential value” to an Oklahoma Civil Court of Appeals opinion, which in turn stated Section “2056 governs the procedure for summary judgment.”


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

Mixed bag of bills

In my Gavel to Gavel column in the Journal Record, I have described the mixed bag of bills offered up by the 2013 special session.  Some of the statutes enacted or amended by the 2009 Comprehensive Lawsuit Reform Act were re-enacted.  Some were not.  This leaves lawyers looking to the legislative history more in coming years, as we continue to sort through the fallout from the Douglas decision.
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:

Tuesday, September 10, 2013

Deciphering the Special Session

From a quick look at the text of the bills signed by the Governor, the legislature appears to have played it safe by reenacting certain of the reforms that were stricken by the Oklahoma Supreme Court in the Douglas decision.

HB1024 is notably missing from the 23 bills showing up as signed by the Governor.  This was the special session bill that addressed summary judgment procedure.  This is speculation on my part, but it appears that the legislature left alone those statutes that were (i) enacted or amended as part of the 2009 tort reform statute and (ii) subsequently amended by the legislature as part of separate legislation.

So my quick reaction is that 12 O.S. 2056 remains a part of the Oklahoma statutes, having been amended and reenacted in 2011, even though the Douglas decision struck down the 2009 CLRA.

For an article on the Governor's approval of 23 special session bills, see:

For a list of special session provisions showing last action taken, go here:  Then, look for those "sent to Governor."

Text of measures can be found here:

Friday, September 6, 2013

ICYMI: Sorting through the "chaos" resulting from the CLRA logrolling decision

As Oklahoma lawyers watch the special session, here is an excerpt from my July column on sorting through the "chaos":
[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.

Monday, August 12, 2013

Special session on tort reform: Will the legislature avoid constitutional pitfalls?

On August 12, 2013, Gov. Fallin signed Executive Order 2013-30, setting up a special session of the state legislature to address tort reform.  The Executive Order focuses the special session on the provisions of HB1603, which was declared unconstitutional by the Oklahoma Supreme Court in June.  The Executive Order instructs the legislature to pay special care to the state constitutional provisions on logrolling.  (Interestingly, the executive order mis-cites the constitutional provision.)