Saturday, January 21, 2017
Friday, November 25, 2016
An excellent read on opening statements, from a legendary Oklahoma trial lawyer, of use to anyone with an interest in Oklahoma trial procedure.
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....
Wednesday, October 12, 2016
Oklahoma Supreme Court carves another small exception to the rule that denials of summary judgment cannot be reviewed on appeal.
Tuesday, September 20, 2016
Thursday, March 3, 2016
Tuesday, July 28, 2015
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:
Tuesday, July 7, 2015
Our "constitutional dispute" is making national news. Here are a few things to keep in mind. First, no one is in violation of court orders yet. The matter remains on appeal until mandate is issued, which will be after the rehearing process (whether granted or denied). Once mandate is issued, the mandate must be "spread of record." And the Supreme Court's order suggests further proceedings on remand, presumably consisting of some motions dealing with how the Supreme Court's decision will be memorialized in the trial court. That does take time. But we can expect the plaintiffs to seek swift movement. Second, the Governor's statement does not state that she will order a violation of the Court order. It just says (i) we respect rule of law, (ii) we will seek further proceedings, (iii) we will seek a constitutional amendment, and (iv) the memorial isn't going anywhere. This leaves her leeway to order compliance with the court order once it is enforceable. Third, I don't think it will be the governor who will be in contempt as she is not a party. The party defendant is the Oklahoma Capitol Improvement Authority. The Authority is represented by the OKAG. It is not clear yet whether the OKAG will sponsor or allow contempt of court. I will be watching this one closely, as it has the potential to turn into a constitutional crisis. But it isn't there yet.
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/