Chapter 5: State Civil Trial Procedures

Chapter 5: State Civil Trial Procedures

In civil cases, an action is started by filing a copy of a complaint with the county clerk, generally in the county of the defendant’s residence. A complaint states what the defendant has done wrong, how the plaintiff was injured or damaged and to what degree.

After filing the complaint the sheriff or private process server delivers (serves) a copy of the complaint and a summons upon the defendant. The summons tells the defendant that he or she must “appear” in this case or the other side will win automatically. Appearance is done by filing a legal document (motion, demurrer or answer) with the court. The time for filing an answer, or motion, is within 30 days after the summons is served.

If the defendant is not found, the plaintiff can try again. In some cases where the defendant is not found, service can be upon the public welfare division, the corporation commissioner, the motor vehicles division or by publication in a newspaper of general circulation in the area where the defendant was last known to be. Once the defendant appears, he or she can file motions asking that the service of summons be quashed or disallowed, that the complaint or parts of it be stricken or made more definite and certain. The defendant can file an answer which gives his or her side of the story (affirmative defense or counterclaim), simply deny the complaint, or a combination of these answers.

The court hears legal arguments on motions and can allow or deny all, part or none. Rarely will there be any testimony presented. If the court disallows all or part of a complaint, some period of time, usually 10 days, is allowed to file an amended complaint and the process of motion, demurrer and answer starts again. After the defendant responds, the plaintiff can file motions against the defendant’s answer the same as cited above for the defendant.

If the defendant has answered by giving his or her side of the story, the plaintiff then replies by denying the affirmative allegations.

The court hears legal arguments on motions and can allow or deny all or part or none; again no testimony is presented. The “pleadings” are concluded once a complaint, answer and a reply, if necessary, are filed and all motions and demurrers have been ruled upon.


Summary Judgment: The judge decides all or part of the case before trial where facts are not in dispute. Any party can ask for summary judgment by a motion filed at least 20 days after the commencement of the case and no fewer than 45 days from trial. The motion is usually accompanied by supporting affidavits and other relevant documents showing there is no genuine issue as to any material fact; and the moving party is entitled to prevail on all or part of the claim.

The party opposing the motion may respond and support his or her response with affidavits and other relevant documents showing there is a genuine issue of fact of trial, the other side is not entitled to relief or the responding party is entitled to win.

The judge may hear oral arguments and consider all documents and grant or deny the summary judgment. Granting a summary judgment decides the case or part of it just as if there had been a trial.

Trial is defined as a judicial examination of the issues between the parties, whether issues of law or fact. A right to jury trial exists where the value in controversy exceeds $200. Right to jury trial can be waived, however, by oral or written motion or by failing to appear for trial. There is no jury trial by right in domestic relations, juvenile, equity or mental hearing matters.

The jury panel is drawn from the registered voters of the county. Jury terms are of a length determined by the presiding judge of the circuit court, but can be no longer than two months. By law, suits for $10,000 or less are to be tried by six-person juries.

At trial the jury is usually 12 persons selected by lot, except that by agreement of the parties there can be a jury of a lesser number — usually six. Challenges to trial jury are for cause or peremptory. Challenges for cause can be of any number and are for such things as being related to a party, having an opinion as to the outcome and other obvious things. Peremptory challenges are for no reason or any reason, and each side can take three (two in a six-person jury). Where there is more than one party plaintiff or defendant they must join in the challenge.

If a trial is to be a lengthy one, the judge can order selection of up to six alternate jurors. They are selected and participate as regular jurors but are excused when the jury retires to deliberate unless a juror has become ill or has been excused during trial.

The trial procedure usually begins when the jury is called to the jury box and examined briefly by the judge. Plaintiff and defense counsel examine each juror and may challenge for cause at this time. Such challenges are then ruled upon by the judge. At the conclusion of counsel’s jury examination (called voir dire) they in turn submit written peremptory challenges (three challenges for each side).

When a jury is picked and all challenges are exhausted or waived the jury is impaneled to try the case.

The plaintiff, followed by the defense counsel, presents opening statements which tell the jury what each intends to prove in the case. The plaintiff then calls witnesses for direct examination. The defendant cross-examines plaintiff’s witnesses. If the judge allows, the lawyers may be allowed some re-direct and re-cross examination.

After the plaintiff has called all witnesses for direct examination, the case rests in chief. At that time, the defendant may move to eliminate certain parts or all of the complaint because the plaintiff has not proved the case, motions to strike, or to dismiss. The judge rules on the motions, often remarking that before the defendant has put on a case, the plaintiff is entitled to all reasonable inferences from the testimony.

The defense then calls witnesses and plaintiff cross-examines and both may re-direct and re-cross examine. The defendant then rests the case in chief. The plaintiff may then move against defendant’s case.

The plaintiff may (or may not) put on witnesses to rebut the testimony of the defense witnesses (not to “prove over again,” but to rebut the defense case). The plaintiff then rests rebuttal.

The plaintiff, followed by the defendant, argues the case to the jury. The plaintiff gets the last word and is allowed to present argument rebutting the defendant’s argument. (The last word goes to the plaintiff because he or she has the burden of proving the case.)

The judge instructs the jury on the general and specific law of the case. The jury deliberates and must find a verdict by the concurrence of at least nine of their number (in a six-person jury, five out of six must concur).

The judge receives the verdict and the jury is discharged.


Probate Procedure: Probate powers generally include the power to probate and hear contests of wills; to determine heirship; and to control the administration, settlement and distribution of estates of decedents. The judge of the probate court may appoint a commissioner to assist the probate judge. That commissioner may act in most uncontested matters setting up the probate of an estate. The commissioner acts only under the authority of the court and all commissioner orders can be set aside by the court. Unless set aside or modified, however, all commissioner orders have the same effect as if made by the judge.


Domestic Relations Procedure: In Oregon the grounds for divorce are that “irreconcilable differences” have arisen which have caused the “irremediable breakdown” of the marriage. These grounds can exist even where one side does not want a divorce, as that demonstrates that there are irreconcilable differences.

In Oregon any married person can get a divorce simply by filing a petition with the court and maintaining that there are irreconcilable differences which have caused the irremediable breakdown of the marriage. The petition must be filed in the county in Oregon in which the filing party resides. One of the parties to the suit must have resided in Oregon for at least six months prior to filing. The respondent (the spouse who did not file) need not “answer,” as in an ordinary civil case, but only file a paper saying “respondent appears.”

Either party may ask the court to order the other party to pay temporary child support, spousal support (alimony) or money for filing or attorney fees.

Either party may ask the court for temporary child custody, possession of real or personal property, removal of one spouse from the family home, a restraining order preventing “molesting or interfering with the other or the minor children” or a restraining order preventing either or both from disposing of or encumbering assets. In a court hearing on pre-decree requests the court takes testimony and grants or denies requests such as those listed above. The court may order a child custody study to be made for the purpose of protecting the child’s future interest. This independent investigation helps the court with child custody decisions.

Some courts offer conciliation services authorized by Oregon law. The service is funded by dissolution filing fees and does not cost the parties. The court of its own motion or either party can ask for conciliation services. The court can then suspend the dissolution proceedings for 45 days for conciliation services provided by the court.

Ninety days after filing for dissolution the hearing can commence (90 days can be waived for emergencies). The hearing is conducted as a suit in equity without as judge. The petitioner puts on evidence first. The respondent cross examines and then proceeds when the petitioner has rested the case in chief. The petitioner cross examines and then may proceed with rebuttal evidence if authorized. Then the counsel make closing statements and the court rules.

Often the parties enter into a contract dividing property, providing for custody, support and otherwise settling some or all of the issues. Fault is not an issue in a dissolution. Evidence of causation of the marriage breakdown is irrelevant except as it might bear upon the issue of child custody but only when a direct relationship between fault and custody is shown. The general moral character of a party is not an issue in a custody contest unless it is shown to have a direct effect on the child.

Most dissolutions are obtained when one of the parties has been served with the petition and summons but does not file an answer or appear in court. Often an opposing lawyer is involved but a settlement is made so that the respondent simply agrees to the contents of the petition or the terms of an amended petition or property settlement agreement. Occasionally the opposing counsel or party is physically present at the hearing but does not participate.

Typically the petitioner will testify to the grounds (“irreconcilable differences have arisen causing an irremediable breakdown of the marriage relationship”) and a few other matters and the decree would be granted with the whole thing taking five minutes or less. There is also dissolution by affidavit (mail order divorce?). Some courts may allow a dissolution without a hearing if neither child custody nor support is involved, the parties are co-petitioners or one is in default, the 90-day waiting period has passed and the case is otherwise ready for a hearing or the moving party files an affidavit setting out proof required in a dissolution hearing.

Generally all citizens are allowed access to their courts without the necessity for a lawyer. Several companies sell forms designed to allow persons with no legal training to seek and obtain a dissolution. Some courts require a strict adherence to the rules and others relax the procedure where a party is not represented. But many courts require the intervention of a lawyer where the case is complex, contested, child custody is at issue or where otherwise necessary.

The grounds and other procedures for separation are identical to those for a dissolution. The court shall determine and fix the duration for the separation after which the degree has no effect. The duration can be extended upon motion. The court may decree an unlimited separation. At any time the separation can be changed to a dissolution or dismissed or modified.


Family Abuse Prevention Act: Under this act, a petition may be filed with the court asking for a temporary restraining order to prevent abuse. The petitioner must show abuse between “family or household members” which causes or attempts to cause bodily injury; fear of imminent serious bodily injury; or causes another to engage in involuntary sexual relations by force, threat of force or duress.

“Family or household member” means spouses, former spouses, adult persons related by blood or marriage or persons who have cohabited with each other within one year of the filing for the restraining order. Petitions and instruction brochures are available from the clerk of the court. There is no filing fee for abuse prevention restraining orders.

The court will hold an ex parte (only one side present) hearing to decide whether or not to grant the relief requested. The court hearing will be held the same day or the day following the filing of the petition.

The court can order temporary child custody, one party be required to vacate the family home, parties be restrained from molesting or interfering with the other or minor children or respondent restrained from entering upon any premises to prevent respondent from molesting or interfering. The order is good for one year. Bail is set for violations of the order. A person who is subject to the restraining order can request a hearing at which the judge may change or cancel all or part of the order. The orders will be entered on the Law Enforcement Data System. A peace officer shall arrest a person where there is probable cause to believe the order has been violated. The judge may release the arrested person on security or on conditional or recognizance release, as in criminal cases.

A hearing is set at which the judge decides whether or not the arrested person is in contempt of court for violation of the order. The penalty can be up to six months in jail and a $300 fine.

* Oregon Revised Statutes which apply include chapters 16 and 107.

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