IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Adoption of
Amendments to the Oregon Rules of
Appellate Procedure
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Chief Judge Order 09-06

Pursuant to ORAP 1.10(3), the Court of Appeals may, from time to time, adopt temporary amendments to the Oregon Rules of Appellate Procedure.  The Court of Appeals by this order adopts a temporary amendments to Oregon Rule of Appellate Procedure (ORAP) 5.40 and ORAP 5.45.  The amendments are set out below with additions indicated in boldface and deletions indicated in strikeout.  The amendment adopted by this order is effective on the date the order is signed, and shall expire on December 31, 2010, if not previously adopted as a permanent amendment.

Rule 5.40
APPELLANT'S OPENING BRIEF:
STATEMENT OF THE CASE

The appellant's opening brief shall open with a clear and concise statement of the case, which shall set forth in the following order under separate headings:

(1)       A statement, without argument, of the nature of the action or proceeding, the relief sought and, in criminal cases, the indictment or information, including citation of the applicable statute.

(2)       A statement, without argument, of the nature of the judgment sought to be reviewed and, if trial was held, whether it was before the court or a jury.

(3)       A statement of the statutory basis of appellate jurisdiction and, where novelty or possible doubt makes it appropriate, other supporting authority.

(4)       A statement of the date of entry of the judgment in the trial court register, the date that the notice of appeal was served and filed, and, if more than 30 days elapsed between those two dates, why the appeal nevertheless was timely filed; and any other information relevant to appellate jurisdiction.

(5)       In cases on judicial review from a state or local government agency, a statement of the nature and the jurisdictional basis of the action of the agency and of the trial court, if any.

(6)       A brief statement, without argument and in general terms, of questions presented on appeal.

(7)       A concise summary of the arguments appearing in the body of the brief.

(8)       (a)       In those proceedings in which the Court of Appeals has discretion to try the cause anew on the record  and the appellant seeks to have the court exercise that discretion, the appellant shall concisely state the reasons why the court should do so.*

(b)       In those proceedings in which the Court of Appeals has discretion to make one or more factual findings anew on the record and the appellant seeks to have the court exercise that discretion, the appellant shall identify with particularity the factual findings that the appellant seeks to have the court find anew on the record and shall concisely state the reasons why the court should do so.*

(c)       The Court of Appeals will exercise its discretion to try the cause anew on the record or to make one or more factual findings anew on the record only in exceptional cases.  Consistently with that presumption against the exercise of discretion, requests under paragraph (a) or (b) of this section are disfavored.

(d)       The Court of Appeals considers the items set out below to be relevant to the decision whether or not to exercise its discretion to try the cause anew on the record or make one or more factual findings anew on the record.  These considerations, which are neither exclusive nor binding, are published to inform and assist the bar and the public.

(i)        Whether the trial court made express factual findings, including demeanor-based credibility findings.

(ii)       Whether the trial court's decision comports with its express factual findings or with uncontroverted evidence in the record.

(iii)      Whether the trial court was specifically alerted to a disputed factual matter and the importance of that disputed factual matter to the trial court's ultimate disposition of the case or to the assignment(s) of error raised on appeal.

(iv)      Whether the factual finding(s) that the appellant  requests the court find anew is important to the trial court's ruling that is at issue on appeal (i.e., whether an appellate determination of the facts in appellant's favor would likely provide a basis for reversing or modifying the trial court's ruling).

(v)       Whether the trial court made an erroneous legal ruling, reversal or modification of which would substantially alter the admissible contents of the record (e.g., a ruling on the admissibility of evidence), and determination of factual issues on the altered record in the Court of Appeals, rather than remand to the trial court for reconsideration, would be judicially efficient.

(89)     A concise summary, without argument, of all the facts of the case material to determination of the appeal. The summary shall be in narrative form with references to the places in the transcript, narrative statement, audio record, record, or excerpt where such facts appear.

(910)     In a dissolution proceeding or a proceeding involving modification of a dissolution decree, the summary of facts shall begin with the date of the marriage, the ages of the parties, the ages of any minor children of the parties, the custody status of any minor children, the amount and terms of any spousal or child support ordered, and the party required to pay support.

(1011)     Any significant motion filed in the appeal and the disposition of the motion. A party need not file an amended brief to set forth any significant motion filed after that party's brief has been filed.

(1112)     Any other matters necessary to inform the court concerning the questions and contentions raised on the appeal, insofar as such matters are a part of the record, with reference to the parts of the record where such matters appear.


* See ORS 19.415(3)(b) regarding discretion of the Court of Appeals to try the cause de novo or make one or more factual findings anew on appeal in some equitable proceedings; see also ORAP 5.45(5) concerning the identification of standards of review for each assignment of error on appeal.


Rule 5.45
ASSIGNMENTS OF ERROR AND ARGUMENT

(1)       A question or issue to be decided on appeal shall be raised in the form of an assignment of error, as prescribed in this rule. Assignments of error are required in all opening briefs of appellants and cross-appellants. No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the opening brief in accordance with this rule, provided that the appellate court may consider an error of law apparent on the face of the record.

(2)       Each assignment of error shall be separately stated under a numbered heading. The arrangement and form of assignments of error, together with reference to pages of the record, should conform to the illustrations in Appendix 5.45.

(3)       Each assignment of error shall identify precisely the legal, procedural, factual, or other ruling that is being challenged.

(4)       (a)       Each assignment of error shall demonstrate that the question or issue presented by the assignment of error timely and properly was raised and preserved in the lower court. Under the subheading “Preservation of Error”:

(i)        Each assignment of error, as appropriate, must specify the stage in the proceedings when the question or issue presented by the assignment of error was raised in the lower court, the method or manner of raising it, and the way in which it was resolved or passed on by the lower court.

(ii)       Each assignment of error must set out pertinent quotations of the record where the question or issue was raised and the challenged ruling was made, together with reference to the pages of the transcript or other parts of the record quoted or to the excerpt of record if the material quoted is set out in the excerpt of record.  When the parts of the record relied on under this clause are lengthy, they shall be included in the excerpt of record instead of the body of the brief.

(iii)     If an assignment of error challenges an evidentiary ruling, the assignment of error shall quote or summarize the evidence that appellant believes was erroneously admitted or excluded.  If an assignment of error challenges the exclusion of evidence, appellant also shall identify in the record where the trial court excluded the evidence and where the offer of proof was made; if an assignment of error challenges the admission of evidence, appellant also shall identify where in the record the evidence was admitted.

(b)       An assignment of error for a claimed error apparent on the face of the record shall comply with the requirements for assignments of error generally by identifying the precise ruling, specifying the state of the proceedings when the ruling was made, and setting forth pertinent quotations of the record where the challenged ruling was made.1

(c)       The court may decline to consider any assignment of error that requires the court to search the record to find the error or to determine if the error properly was raised and preserved.

(5)       Under the subheading “Standard of Review,” each assignment of error shall identify the applicable standard or standards of review, supported by citation to the statute, case law, or other legal authority for each standard of review.2

(6)       Each assignment of error shall be followed by the argument. If several assignments of error present essentially the same legal question, the argument in support of them may be combined so far as practicable. The argument in support of a claimed error apparent on the face of the record shall demonstrate that the error is of the kind that may be addressed by the court without the claim of error having been preserved in the record.


1 See State v. Brown, 310 Or 347, 355-56, 800 P2d 259 (1990).

2 Standards of review include but are not limited to de novo review and substantial evidence for factual issues, errors of law and abuse of discretion for legal issues, and special statutory standards of review such as those found in the Administrative Procedures Act, ORS 183.400(4), and ORS 183.482(7) and (8).  See also ORS 19.415(1), which provides that, generally, "upon an appeal in an action or proceeding, without regard to whether the action or proceeding was triable to the court or a jury," the court's review "shall be as provided in section 3, Article VII (Amended) of the Oregon Constitution"; ORS 19.415(3)(b) regarding discretion of the Court of Appeals to try the cause de novo  or make one or more factual findings anew on appeal in some equitable proceedings; see also ORAP 5.40(8) concerning appellant's request for the court to exercise de novo review and providing a list of nonexclusive items Court of Appeals may consider in deciding whether to exercise its discretion.



DATED this 14th day of July, 2009.

David V. Brewer, Chief Judge


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