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.

[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

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: http://journalrecord.com/2013/10/23/gavel-to-gavel-discovery-masters-opinion/#ixzz2igAZcWq0

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?

Read more here: http://www.okbar.org/members/BarJournal/archive2013/OctArchive13/OBJ8427MiltonCushman.aspx

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: http://journalrecord.com/2013/09/18/gavel-to-gavel-mixed-bag-of-bills-opinion/#ixzz2fIk1wP7Z

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: http://journalrecord.com/2013/09/10/fallin-signs-special-session-bills-capitol/

For a list of special session provisions showing last action taken, go here: http://legiscan.com/OK/legislation?sort=asc&order=Last+Action.  Then, look for those "sent to Governor."

Text of measures can be found here: http://www.oklegislature.gov/TextOfMeasures.aspx

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.

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.)

More fallout from court decisions striking tort reform

This month, I wrote in the Journal Record that the recent Douglas decision, striking the Comprehensive Lawsuit Reform Act ("CLRA") of 2009, no doubt resulted in a flurry of activity for lawyers.   There is also activity among lawmakers.  The Tulsa World reports that lawmakers may call a special session to consider 22 to 24 bills "to recreate the entire measure the court found offensive."

Meanwhile, the Oklahoma Supreme Court Clerk's office has published a new set of judgment interest rates based on its interpretation of Douglas.  (Is this interpretation correct?  That remains to be seen.)

As noted in my Journal Record column, it is possible that post-2009 amendments may have "saved" certain of the provisions of the CLRA, based on the "re-enactment" provision of Article 5, Section 57 of the Oklahoma Constitution.

Yet, the legislature may decide to recreate these amendments anyway in order to resolve challenges.

It appears that Justice Winchester was correct in predicting that “chaos ... will inevitably follow this opinion.”

DEVELOPING: Oklahoma Supreme Court strikes a number of civil procedure provisions

Two recent decisions on constitutionality of civil procedure provisions:

Douglas v. Cox Retirement Properties, Inc., 2013 OK 37, http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=469532.  Holding that the Comprehensive Lawsuit Reform Act of 2009, HB 1603, including 12 O.S. 19, is unconstitutional under the single-subject rule.  This decision contains an extensive discussion of the single-subject rule, providing additional insight into the types of legislation that might run afoul of the rule.  This rule remains a risk for any number of legislative initiatives.

Critically, HB 1603 also contains 12 O.S. 2056, which was the legislature's effort to align Oklahoma summary judgment procedure with federal summary judgment procedure.  On this basis, the Douglas decision appears to answer the question, for now, of whether 12 O.S. 2056 controls Oklahoma summary judgment procedure.

For the text of 2009's HB 1603, see: http://webserver1.lsb.state.ok.us/cf_pdf/2009-10%20ENR/hB/HB1603%20ENR.PDF

Wall v. Marouk, 2013 OK 36, http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=469531.  Holding that 12 O.S. 19 is unconstitutional as a special law and as a burden on access to the courts.  This decision extends Zeier v. Zimmer, 2006 OK 98.  Notably, Zeier had one dissenting justice.  Wall v. Marouk has two dissenting justices.

For the Journal Record articles on these decisions, see: http://journalrecord.com/2013/06/04/states-high-court-overrules-lawsuit-reform-act-law/
And: http://journalrecord.com/2013/06/05/protecting-our-core-judiciary-system-needs-to-be-independent-of-politics-oconnor-says-law/

For a couple of recent columns on the single-subject rule, see: http://journalrecord.com/2013/05/16/c-fourthreading051713-opinion/
And: http://journalrecord.com/2013/05/29/gavel-to-gavel-constitutional-differences-opinion/

Texas Supreme Court adopts rules for expedited actions when amount at issue is $100,000 or less

Read more here: http://texaslawyer.typepad.com/texas_lawyer_blog/2013/02/after-tsunami-of-feedback-texas-supreme-court-revises-and-issues-rule-for-expedited-actions.html

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 practice.  The audience (which consisted of Tulsa lawyers) was active with questions and comments during the presentation.  One of the attendees (whose identity is lost to passage of time) pointed out that most judges who make continuing education presentations remark that attacks on the other side can destroy the advocate's credibility. In response, I noted:

I’ve certainly seen that to be the case....  I ... find that I ... have more success ... if I describe the case in the least amount of argumentative terms as possible.

I went on to suggest that factual statements should be presented with minimal argument.  But I quickly pointed out that the ordering and presentation of facts is, in and of itself, argument -- that is, you are telling a story when you outline your facts in a motion.

Motion writing is best done in a storytelling manner.  The attorney's job is to educate the court and persuade that the facts warrant a resolution of the case in one direction or the other.  This can be accomplished by telling the story, "very orderly and very methodically and very almost sterilely setting forth the argument and the facts ...."

Ten years later, I remain convinced that the best advocates can persuade without attacks, simply by telling the story of their case.

Voir dire and privacy

Must voir dire proceeding always be open to the public? Maine Supreme Court says yes.

http://www.abajournal.com/news/article/top_maine_court_says_voir_dire_must_be_public_even_when_answers_could_be_em/?utm_source=feedburner&utm_medium=feed&utm_campaign=ABA+Journal+Top+Stories&utm_content=Google+Reader

Threatening emails not sufficient for victim protective order

Subjective fear or unease resulting from threatening or insulting emails is insufficient to support a victim protective order under the Oklahoma Protection from Domestic Abuse Act.

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=468502

Summary judgment and 12 O.S. 2056

Below is a link to a decision of the Oklahoma Court of Civil Appeals, along with a link to yesterday’s order by the Oklahoma Supreme Court, giving the decision precedential effect under Oklahoma Supreme Court Rule 1.200.

The Court of Civil Appeals decision addresses the summary judgment standard.  Among other things, the Court of Civil Appeals states: “Title 12 O.S. 2056 (2011) governs the procedure for summary judgment.”  [para. 5.]

I have not previously seen any action by the Oklahoma Supreme Court that could be viewed as adopting the view that Section 2056 governs the summary judgment process.  There has been some speculation that Section 2056 is vulnerable based on the Oklahoma Supreme Court’s own jurisprudence on summary process, based on state constitutional law, adopting standards less favorable to summary judgment than the federal courts.

I might be the only one to focus on this narrow aspect of the decision.

http://oklegal.onenet.net/oklegal-cgi/ifetch?okca+23716226807609+F

http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=468424

UPDATED: Oklahoma Bar Association House of Delegates approves proosal to amend to Section 2502 of the Oklahoma Evidence Code

On Friday, November 16, 2012, the Oklahoma Bar Association House of Delegates approved a proposed amendment to Section 2502, adopting the federal Upjohn rule.  This proposal now becomes part of the OBA's legislative program for 2013.  This proposal must be approved by the legislature and signed by the Governor before it becomes law.

The proposal modifies Section 2502 to remove the control group aspect of Section 2502(A)(4) so that the attorney-client privilege in Oklahoma protects attorney communications with corporate employees in the same manner as those communications are protected under the Upjohn rule (and the rule in most other states).  The Upjohn rule is found in Upjohn v. United States, 449 U.S. 383 (1981).  There, the U.S. Supreme Court struck down the “control group test,” which would have protected only communications between attorneys and the officers and agents responsible for direction action in response to legal advice.  “Such a view, we think, overlooks the fact that the privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.”  Upjohn, 449 U.S. at 390.

Of course, in federal court, the rules governing privilege for the most part are contained in court decisions or are found through reference to state law.  See Fed. R. Evid. 501.  As a result, the best method of arriving at a proper amendment to the text of 12 O.S. 2502 was to examine the rules and statutes in other states.  At least as of 1997, fourteen states had adopted the Upjohn rule, while a majority of the states had not yet decided the issue.  Brian E. Hamilton, Conflict, Disparity, and Indecesion: The Unsettled Corporate Attorney-Client Privilege, 1997 Ann. Survey of Am. Law 629, 633-40 (1997).

In drafting the proposal, the OBA Civil Procedure & Evidence Code Committee looked to the Texas Rules of Evidence as an example.  Under the Texas Rules of Evidence, “representative of the client” is defined as “(i) a person having authority to obtain professional legal services, or to act on advice thereby rendered, on behalf of the client or (ii) any other person who, for the purpose of effectuating legal representation for the client, makes or receives a confidential communication while acting in the scope of employment for the client.”  Tex. R. Evid. 503(a)(2).

In addition to specific states, the Bar can look to the National Conference of Commissioners on Uniform State Laws (“NCCUSL”).  In 1986, the NCCUSL modified Rule 502 of the Model Rules of Evidence (1974), to adopt the Upjohn test.  This revision survived and is included in Rule 502 of the Model Rules of Evidence (1999).

The proposal before the Bar follows the text of both the Texas rule and the 1986 amendment to Rule 502 of the Model Rules of Evidence (1974).