From: Bear Wilner-Nugent <bwnlaw@gmail.com>
Date: July 23, 2009 3:01:12 PM PDT
To: Robert A Callahan <racallahan@nwlawcenter.com>
Subject: Telephonic testimony

Dear Mr. Callahan,

I am in receipt of your letter dated July 22 regarding Carter v. Bowman.  In that letter, you state that “[p]etitioner may offer witness testimony via telephonic testimony at the hearing.”  Please take notice that, at the hearing in this matter on August 21, I will object to the presentation of telephonic testimony for the following reasons:

* You have failed to state good cause for telephonic testimony in your letter, and you will be unable to make a showing of good cause at the hearing.  ORS 45.400(1), (3), (7).

* The ability to evaluate the credibility and demeanor of your witnesses, including Ms. Carter, in person is critical to the outcome of the proceeding.  ORS 45.400(3)(a).

* The issues that your witnesses, including Ms. Carter, will testify about are so determinative of the outcome that face-to-face cross-examination is necessary.  ORS 45.400(3)(b).

* The failure of your witnesses, including Ms. Carter, to appear personally will result in substantial prejudice to Mr. Bowman.  ORS 45.400(3)(f).

I suggest that we plan to address this issue with the court at the commencement of the hearing.  Given that you have already sought and received two continuances of the hearing date, I also suggest that you have your witnesses, including Ms. Carter, ready to testify in person should the court rule that you have not established good cause to support telephonic testimony or that a basis for denying your motion to offer telephonic testimony exists under ORS 45.400(3).  If you do not prevail on the motion to offer telephonic testimony and subsequently do not make your witnesses available in person on August 21, I will ask the court to proceed with the hearing on that date, rather than allow a further continuance, even if that means that some witnesses are unavailable to you.

Respectfully,
Bear Wilner-Nugent