Posted: October 2, 2007
Rules of Civil Procedure
URCP 007. Pleadings allowed; motions, memoranda, hearings, orders, objection to commissioner’s order. Amend. Requires motion for the relief sought rather than motion for an order to show cause except to enforce an existing court order.
URCP 040. Scheduling and postponing a trial. Amend and Rename. Deletes obsolete requirement for a local rule to govern trial settings. Simplify text.
URCP 041. Dismissal of actions. Amend. Deletes obsolete reference to Rule 66.
URCP 101. Motion practice before court commissioners. Amend. Requires motion for the relief sought rather than motion for an order to show cause except to enforce an existing court order.
Rule 40 URCP–Suggest taking out the “mutually convenient to the Court and to the parties” and leaving the sentence as “The Court shall schedule the trial.” The term “convenience gives the parties a broad and unwarranted standard for objecting to a trial setting and delaying the case since “convenience” can mean many things and create all types of excuses for delaying the trial in the face of opposing counsel’s objection. Leaving the term out gives courts flexibility to deal with that circumstance. Courts will almost always accomodate counsel’s requests for trial settings and will consult with the parties and counsel before setting a trial date; but there are times an attorney is simply seeking to delay the case for tactical advantage whether at the client’s request or due to lack of preparation. We should not create an ambiguous legal standard to aid them in that effort.
I propose that Utah Rules of Civil Procedure, Rule 101, be amended to eliminate the mandatory hearing requirement that all motions before domestic relations commissioners.
This rule seems to serve no necessary purpose and ends up penalizing attorneys (and their clients) who practice before commissioners because every bloody motion, no matter how insignificant the issue may be, must be subject to a hearing, whereas in district courts where there are no commissioners, motions can be submitted for decision without a hearing (and frequently are). Moreover, even an uncontested motion, if before a commissioner, must still receive a hearing, and that makes no sense at all. Technically, a joint, stipulated motion filed by both parties to an action must receive a hearing according to the language of the current Rule 101. Even when counsel on both sides stipulate to submitting a motion on the pleadings without a hearing (and yes, I’ve had that happen to me), we’ve been compelled to schedule and hold a hearing. How is it that all motions before commissioners (where 99% of the time everything proceeds by proffer, so it’s not as though the hearing serves a vital role as an evidence gathering tool) must receive a hearing, but motions before a judge need not? This mandatory hearing provision wastes time and money and does not apply to all district courts, so it ends up penalizing litigants in commissioner-served districts.
I would wager that no one, not the attorneys, not their clients, not the commissioners, and not the judges favor this mandatory hearing provision.
I have asked judges and commissioners alike to explain the rationale behind the mandatory hearing provision of Rule 101, and I either get “that’s the way it is” or “the Supreme Court wants it that way” response. It appears that nobody knows why the mandatory hearing before commissioners rule was instituted. I, at least, have been unable to find anyone who can tell me the reason why.
I am at a loss to explain what fundamental principle of justice or equity necessitates mandatory hearings for motions before commissioners. Accordingly, since the rule apparenly serves no crucial purpose and in fact often adds a hoop through which one must jump, I propose that the timing provisions of Rule 7 for motion practice apply in motions before commissioners, and that if a motion before a commissioner is uncontested or stipulated, that no hearing be required, and that the motion can be decided on a notice to submit for decision.