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Is it true that Oregon disadvantages pro se litigants from filing affidavits or declarations?

West Linn, OR |

I filed a complaint for veterinarian professional negligence and obtained a veterinarian to testify on the standard of care, but now I find I have to have a lawyer submit my affidavit/declaration as I am blocked from submitting it myself.


It seems to me a rather sneaky way to further disadvantage a pro se litigant in Oregon and dismiss the constitutional right of a citizen to prosecute his own case. 80 P3d 529 (2003) I've read hundreds of cases in my time and have never read a case so hostile to fairness - even using "speculation" and "minutes" of political committee discussion to justify a ruling with logic so tortured is seems to contradict itself.

Attorney Answers 3

Posted

No, the "disadvantage" suffered by pro se litigants is that they don't know what they're doing most of the time. There are certain things that a pro se litigant cannot legally do themselves - issue subpoenas, compel depositions, &c. - but these things can generally be done with a court clerk's assistance or other court order. I don't know why you can't submit this affidavit, whatever it is, by yourself - there's not enough information here to say.

You should seriously consider hiring a lawyer, if you're engaged in litigation. If you can't find a single lawyer who's interested in your case, it suggests (doesn't prove conclusively, but does suggest) that your case isn't very good. Which, in turn, means that you're at risk of losing and being ordered to pay the other side's attorney fees and costs, which could be huge. You really need to think carefully about what you're doing here.

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Posted

I'm also not sure exactly what kind of affidavit/declaration you are talking about, but I have an idea about what the problem might be. The vet you want to testify as an expert witness regarding the standard of care needs to testify in person. The other party must have the opportunity to cross-examine your witness regarding their testimony, level of experience/knowledge, etc. Also, the judge and/or jury need to be able to see and hear the expert testify so that they can draw their own conclusions able credibility. If you just try to offer an affidavit or declaration without the witness there, this is hearsay and will never be read by the judge and/or jury.

My responses to posts on AVVO are not legal advice, nor do they create an attorney-client relationship. In order to provide true (and reliable) legal advice, an attorney must be able to ask questions of the person seeking legal advice and to thus gather the appropriate information. In order for an attorney-client relationship to exist, you and I both have to agree the the terms of such an agreement.

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Orion Jacob Nessly

Orion Jacob Nessly

Posted

I just read the case you are talking about (Due-Donahue v. Beal) and I know what you are talking about now. Please disregard my earlier answer. The case was a medical malpractice case where the defendant's attorney filed a motion for summary judgment (which is basically asking that the Court decide the case as a matter of law because there are no actual facts in dispute). To dispute the motion, the plaintiff filed the affidavit of her own medical expert and the Oregon Court of Appeals ruled that ORCP 47 allows a party's attorney to file such an affidavit, but NOT an unrepresented party. The Court did look to the minutes of the Summary Judgment Subcommittee who considered a rule allowing pro se parties to do the same, but because the Subcommittee declined to do so, the Court would not add in the proposed (but not adopted) language. This was the state of the law in 2003. I haven't checked to see if a case changed the law since then. Based on the case you cited, I think you are right that a pro se party CANNOT file such an affidavit and if they do so, the motion for summary judgment will proceed effectively unopposed.

Posted

You may think that the case you cite to (Due-Donohue v. Beal) is an example of "tortured logic," but actually the case just says that the language of ORCP 47 E means what it says: Sometimes, one party in a lawsuit may need to provide an expert opinion in order to oppose the other side's motion for summary judgment. In this situation, the party opposing a motion can always produce a declaration or affidavit from their expert. However, ORCP 47E also allows that party to produce a declaration or affidavit from the party's attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, and the court will deem this sufficient to deny the motion for summary judgment.

It is possible that ORCP 47E creates some sort of equal protection violation, but for now that is the rule. Unless you want to be a test case, you shouldn't rest your whole action on that one rule.

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