If the codefendant files the codefendant demurrer, don't join in
by: Ryan • June 7, 2014 • no comments
If the co-defendant demurrer is viable in a case, then it is equally applicable to all co-defendants. Consequently, the impulse for some defense attorneys, if the co-defendant has filed the demurrer, is to simply "join" the co-defendant's demurrer. Saves paper. Saves changing the caption. Even saves reading the demurrer yourself. All you have to do is tell the court, "We join with their demurrer."
Don't do it. A demurrer must be in writing and signed by the attorney or the defendant, and it must be specific. ORS 135.610.
If you orally join in someone else's demurrer, you have not filed a demurrer in writing. Their demurrer never makes it to your client's court file, because it's a different file -- and different file number -- than the co-defendant's file.
In sum, the COA won't even reach the merits of the demurrer, because you didn't demur in writing. Since most of the time when we file the demurrer, it's in the hope we'll lose at the trial court, in order to win on appeal, you've killed any chance of that happening.
