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Oh, the places you can go: THE TRIAL ATTORNEY AND APPELLATE

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Transcript of Oh, the places you can go: THE TRIAL ATTORNEY AND APPELLATE

Shenoa Payne

Julene Quinn

Appellate Counsel
Oh, baby, the places you'll go
Preservation
Reviewable Judgments/Orders
When to Appeal
Mandamus
Bare Necessities of Appellate Process
Biggest Mistakes
When to Retain Appellate Counsel
Preservation
Purpose
Exceptions:
Inability
Futility
Plain Error
Oh, the places you can go
:
The Trial Attorney
and Appellate Practice

Thank you!
No ability: The preservation requirements may give way entirely, as when a party has no practical ability to raise an issue. See, e.g., McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 95 n 6, modified on recons., 327 Or 185 (1998).
Futility: If a party can show that preservation would have been futile, because the trial court would not have permitted an issue to be raised or the record to be developed. See, e.g., State v. Olmstead, 310 Or 455, 461 (1990).
Plain error: ORAP 5.45(1) – When an error is apparent on the record, an issue of law, and the court may exercise its discretion to consider the error.
Procedural fairness to parties and court: Preservation is generally met if (1) the trial court has had the chance to consider and rule on the contention, and (2) the opposing party has had the opportunity to respond to a contention.
See Peeples v. Lampert,
345 Or 209, 219 (2008).
Making your Record
Evidentiary Issues
Sufficiency of the Evidence
Jury Instructions
Verdicts
You must object to any deficiencies or inconsistencies in the verdict before the court discharges the jury.
Building Structures, Inc. v. Young
, 328 Or 100, 108 (1998).

If your motion for directed verdict is denied on a specific element of a claim, you must submit a special verdict form as to that specific portion of the claim to the jury – i.e., causation.
Purdy v Deere & Co.
, 355 Or 204, 228-29 (2014).

You must bring a motion for directed verdict to preserve the argument that a claim (or an element of a claim) should not proceed to the jury, either because the claim is insufficient as a matter of law, or because the court should rule in your favor on the claim as a matter of law.
ORCP 59(H)
State v. Vanornum
, 354 Or 614, 623 (2013)
Caution: Make your Record! File any instructions, in addition to sending to judge by email.
Other Issues:

Sidebars

Chambers
Reviewable Judgments
and Orders
Final judgments-- limited, general, or supplemental judgments are appealable. ORS 19.205 (1).
Orders that Prevent a Judgment – Orders that "affect a substantial right, and that effectively determine the action so as to prevent a judgment in the action * * *." ORS 19.205(2).
Orders Made After a Final Judgment – "An order that is made in the action after a general judgment is entered and that affects a substantial right, including an order granting a new trial * * *." ORS 19.205(3)
When to appeal
30 days after a final judgment is entered. ORS 19.255(1) ("Notice of appeal must be served and filed within 30 days after the judgment appealed from is entered in the register").
Practice tip: The date of entry of judgment is the "CREATED" date in the register of actions in OECI. It is NOT the date the judgment is signed.
After 30 days from an order ruling on a motion for new trial or judgment notwithstanding the verdict or the time expiring to rule on such motion.
ORS 19.255(2)
Supplemental judgments

If you have an attorney fee motion or other matter pending after entry of the general judgment, make sure you first appeal within 30 days from the general judgment.
Do not wait
for the supplemental judgment to be entered, or you will lose your right to appeal the general judgment.

In order to appeal the supplemental judgment,
you must amend
your notice of appeal within
30 days of entry of the supplemental judgment.

Mandamus
A party may immediately seek review of a trial court's order to the Oregon Supreme Court (mandamus) pursuant to ORS Chapter 34 under certain circumstances.
It is an extraordinary remedy aimed at correcting errors of law for which there is no other "plain, speedy and adequate remedy in the ordinary course of law." ORS 34.110. It is meant to correct legal errors or decisions "outside the permissible range of discretionary choices." Mandamus is not appropriate for trial court decisions that involve discretion. Lindell v. Kalugin, 353 Or. 338, 347 (2013).
Typically, you must prove you will suffer some immediate harm by the trial court's decision, rather than waiting to appeal the decision. Orders denying discovery, and orders involving venue and personal jurisdiction, tend to be decisions that are reviewable by mandamus.
A party must seek mandamus within 30 days of the trial court's order. ORAP 11.05 n 4.
Bare Necessities -
Basic Appellate Process
Petition
Today is your day
You're off to great places
You're off and away!
The rule of 30
File Notice of Appeal. ORAP 2.05

Or Petition for Judicial Review. ORAP 4.15
Undertaking
File An Undertaking for Costs within 14 days. If necessary, file a supersedeas bond.
ORS 19.300.
Transcript
Make financial arrangements with the court reporter for preparation of the transcript. ORAP 3.33(2)(b).
Notification to Parties of Briefing Schedule - usually 49 days after Transcript (orRecord for Administrative cases)
Briefs Filed – Opening, Answering, and Reply Brief
Oral Argument - MUST OPT-IN
Decision
AWOP Issues in 2-3 weeks OR Opinion Issues
(6 mo – 2 years)
Biggest Mistakes
Failure to Properly
Assign Error to a Ruling of the Trial Court –
Decisions, Holdings, or Reasonings are Not Proper Assignments of Error
You are Not in Front of a Jury Anymore
TONE
Seeking the Proper Relief –

So What It is You Want and How Do You Win?
Not the Kitchen Sink!
And will you succeed?
Yes, you will indeed!
(98 and 3/4 percent guaranteed)
Drafting the Complaint
Venue and/or Personal Jurisdiction
Motions to Amend to Seek Punitive Damages or other Complex Motions
Dispositive Motions
Pretrial Motions
Trial – Assisting with Preservation

Factor in an increase in your contingency fee percentage for appeals.

Provide an informed consent clause in your contingency fee agreement regarding fee splitting pursuant to ORPC 1(d).

Ask Appellate Counsel! We often know how we can get paid.

Today is your day!

Your mountain is waiting,

So, get on your way!
You can get confused
That you'll start into race
down long wiggled roads at break-necking pace
$Fees$
and grind on for miles across weirdish wild space
headed, I fear, toward a most useless place.
The Waiting Place...
Full transcript