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30 Years of Legal Editing

By Cheryl McCord, Legal Publications Attorney Editor

I am a legal editor. For over 30 years, I have edited legal resources used and relied upon by Oregon lawyers. Over the years, I have seen a lot of mind-boggling changes in the editorial process. Frankly, probably because of my advancing age, it’s difficult for me to remember “the way we were.” I will, however, make a feeble attempt to do so.

The Old Days

When I began my career as a legal editor, we paid law students to check the citations in chapters (e.g., running heads for case names) and to alert us to issues that required further analysis. The clerks came to our office to check out chapters (which the authors had sent to us by Pony Express) and then they went to the law library to work on them. They would have to run around the library to get—and put back—multitudes of volumes of reporters, treatises, statutory compilations, and other resources, and then physically turn pages to check an author’s citations. (They had to be physically fit, like firefighters.) Using red ink pens, they made changes and notes on the manuscript pages. After completing a chapter, the clerk returned the manuscript to a legal editor.

The editor then made editorial changes on that same manuscript using a different-colored ink pen (I preferred purple). The editor looked at Oregon cases and statutes while reviewing the legal accuracy of the author’s statements. Inserts and revisions that were too lengthy to interline on the manuscript were hand-written (often illegibly) on separate pieces of paper and attached to the relevant pages. The resulting dog-eared and wrinkled product became a collage of different colors, arrows, doodles (flowers were my specialty), editorial symbols, and materials (including coffee stains, remnants of what the law clerk had for lunch, and other unknown substances—I’m sure the brown smudges were chocolate).

Then our secretary typed the inserts and the messy pages, and used the cut-and-paste method to put the edited manuscript together. This was a very time-consuming (and sloppy) process. We then photocopied this conglomeration to send it to the author, who reviewed our edits and made additional marks on the pages. The chapter was then ready to be sent to an outside typesetter. When the print version was returned to us, we had to proofread the manuscript carefully, line by line. AARRGGHH!!

One thing I’ve learned over the years is that everything is always evolving into something else. Like everything in life, our editorial process has undergone changes that have been so gradual and imperceptible that we didn’t even know they were occurring (such as our hair color—mine is now white; when did THAT happen?).

The Future Is Here

With the invention of personal computers, we began to type our own inserts, but our word-processing specialist had to incorporate the inserts and hand-written editorial changes into the digital version of the chapter. Then, with the advent of online legal resources, we attorney editors enjoyed great access to many different kinds of legal materials and began doing our own cite-checking online. It was amazing—we could sit at our desks and visit many law libraries without having to jump up and down and run down the aisles between bookshelves! We thought that our editorial lives couldn’t get much better than this. But that evolutionary process kept on truckin’.

And then, lo and behold, we discovered digital editing! (Yep, just like Al Gore invented the Internet.) It was miraculous! (Well, okay, I have to admit that I resisted this change. To begin digital editing in MS Word seemed overwhelming—it was so different and revolutionary and there was so much to learn! It’s harder for my old eyes to read words on a computer screen than words on paper. I even questioned my inner being—was I an attorney editor or a word-processing non-specialist? Woe is me.)

The evolution of our editorial process has given life to a better world of editing. I believe that digital editing, coupled with online legal researching by our attorney editors, have improved the quality and accuracy of our publications. We now even have dual computer monitors to enhance the process (one screen for the chapter we’re editing, and one screen for online legal resources).

Digital editing is also a huge benefit to our volunteer authors. The track-changes feature of digital editing in MS Word enables them to readily see where any changes were made to the chapter. (Deletions are noted in boxes in the left-hand margin and additions are marked in red with a double underline.) Rather than destroying trees in order to mail hard copies of edited chapters to authors, we now e-mail chapters to them. Authors seem to appreciate receiving an electronic version of their chapter with tracked changes; it saves them time in reviewing our work.

Some Things Never Change

Although the manner in which I accomplish the finished product has changed over the years, my essential role as a legal editor has remained the same. Editing a legal manuscript involves not only reviewing the substantive accuracy of the author’s work, but also checking the work for spelling, grammar, consistency, and conformity to an in-house style manual. The legal editor is also the person who reviews the chapter from the reader’s perspective, ensuring that the reader will understand what the author has written. An important part of the legal editor’s job is to determine whether the author has left any unanswered questions in the reader’s mind. The editor serves as a link between the authors (who are usually quite knowledgeable about the subject matter) and the readers (who may not be).

As I said before, everything is always evolving into something else. What will attorney editors be like in the future? (I know I’ll be even older.) What if attorney editors evolve into a new species with computer-like brains so that they can do editing and cite-checking in their own minds? At least that would make it easier to work from home.

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What’s New on BarBooks™

The following material has been posted to BarBooks™ as of August 1, 2014. Chapters to books in progress are posted as they are finalized, before they are available in print.

Oregon Real Estate Deskbook
Chapter 29:   Real Estate Appraisals
Chapter 49:   Americans with Disabilities Act Requirements for Public Accommodations

Oregon Formal Ethics Opinions
2005-2 — Information about Legal Services:
Cross-Referrals, Office Sharing with Nonlawyer
2005-3 — Information about Legal Services:
Disseminating Information Through the Media
or Through Speeches
2005-7 — Lawyer as State Legislator: Lobbying
on a Client’s Behalf
2005-51 — Conflicts of Interest, Current Clients: Lawyer
Membership in Trade Association Represented by
Lawyer
2005-58 — Information about Legal Services: Publicizing
Lawyer’s Relationship to Independent Business
2005-79 — Information about Legal Services: Providing
Legal Services to Church Members or on Behalf of
Church-Related Causes
2005-100 — Information about Legal Services: Initiating
Contact with Lawyer Referral Service Clients
2005-112 — Information about Legal Services:
Distribution of Brochure by Welcoming Program and
Participation in Health Club Services Program
2005-115 — Unauthorized Practice of Law: Third-Party
Influence

Uniform Civil Jury Instructions
UCJI 17.01 — Statute of Limitations Defense
(Discovery Rule)
UCJI 17.02 — Statute of Limitations Defense
(Products Liability) (In Claims Involving Death,
Personal Injuries, or Property Damage that
Occurred Before January 1, 2004, and to Which
the Revival Provisions of ORS 30.905, as amended
by 2003 Or Laws ch 768, sec. 2(1), Do Not Apply)
UCJI 21.03 — Comparative Fault–Two or More
Defendants (Applies Only to Claims Arising Before
September 9, 1995)
UCJI 21.06 — Conduct of Nonparties–Comparative
Fault Not at Issue
UCJI 23.03 — Criminal Conduct as a Defense (In
Claims Arising on or After September 27, 1987)
UCJI 36.01 — Negligence Not Imputed to Passenger
in Automobile
UCJI 36.02 — Guest Passenger–Aircraft, Watercraft
UCJI 41.04 — Probable Cause–Hypothetical
UCJI 42.03 — Fraudulent Misrepresentation–False
Representation–Failure to Disclose (Special
Relationship)
UCJI 42.09 — Fraudulent Misrepresentation–Promise of
Future Performance
UCJI 43.03 — Willful Violation of Oregon Unlawful
Trade Practices Act
UCJI 44.02 — Duty of Specialist
UCJI 46.04 — Possessor’s Duty to Trespasser
UCJI 46.05 — Definition of Licensee
UCJI 46.06 — Possessor’s Duty to Licensee–Conditions
on Land
UCJI 46.07 — Possessor’s Duty to Licensee–Activities
on Land
UCJI 46.08 — Definition of Invitee
UCJI 46.10 — Comparative Negligence (Invitee)
UCJI 51.01 — Misappropriation of Trade Secret
UCJI 51.04 — Damages–Trade Secret
UCJI 54.01 — Claim for Unpaid Wages–Wages Defined
UCJI 54.02 — Claim for Unpaid Wages–Quit Without 48
Hours’ Notice
UCJI 54.03 — Claim for Unpaid Wages–Quit with 48
Hours’ Notice
UCJI 57.02 — Intentional Interference with Employment
or Prospective Employment Relationship
UCJI 57.03 — Harm to Employment Relationship–
Defined
UCJI 57.04 — Third Party to Employment Relationship
UCJI 58.03 — Reemployment to Other Available and
Suitable Employment
UCJI 58A.02 — Whistleblowing (Public Employer)
UCJI 59.03 — Disability Discrimination–Record of
Impairment
UCJI 60.04 — Just Compensation as a Basic
Constitutional Concept
UCJI 60.05 — Condemnation–No Burden of Proof
UCJI 60.11 — Measure of Damage–Combination Rule
UCJI 60.12 — Highest and Best Use
UCJI 60.14 — Items of Damage
UCJI 60.15 — Comparable Sales–Weight Given to
UCJI 60.17 — No Potential Access
UCJI 60.18 — Special Benefits, as Offset Against
Severance Damages
UCJI 65.14 — The Parties’ Interpretation of the Contract
UCJI 65.15 — Breach of Contract Defined
UCJI 66.01 — Time to Accept an Offer from a
Merchant (UCC)
UCJI 66.02 — Price (UCC)
UCJI 76.01 — Apportionment of Damages–Two or
More Defendants (In Claims Arising Before
September 9, 1995)
UCJI 76.02 — Apportionment of Damages–Two or
More Defendants–Comparative Fault in Issue
(Claims Subject to ORS 31.610 and Arising Before
September 9, 1995)
UCJI 76.03 — Apportionment of Damages–Legal
Effect–Multiple Parties and/or Comparative
Fault (In Claims Arising on or After September 9,
1995, and Subject to ORS 31.605 and 31.610)
UCJI 90.03 — Written Instructions

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Electronically Stored Information (ESI) and Litigation

This article is an excerpt from Oregon Civil Pleading and Practice, chapter 30, E-Discovery. For more information on this topic, go to the BarBooks™ online library or purchase a hard copy at a discount during our Summer Sale.

By Mark A. Friel

  INTRODUCTION

This chapter discusses key aspects of electronically stored information (ESI) in the context of civil discovery in Oregon courts. ESI generally refers to any information created or used in a digital environment, or stored on digital media. The Federal Rules of Civil Procedure were first amended in December 2006 to specifically address the discovery of ESI. The Oregon Council on Court Procedures has promulgated an amendment to ORCP 43, which took effect on January 1, 2012, to include “electronically stored information” within the definition of documents, and to include the following new provision (ORCP 43 E):

E Electronically Stored Information. A request for electronically stored information may specify the form in which the information is to be produced by the responding party but, if no such specification is made, the responding party must produce the information in either the form in which it is ordinarily maintained or in a reasonably useful form.

Reported decisions under Oregon state law are practically nonexistent with respect to ESI, and there is very little guidance for state courts apart from the more developed case law under the Federal Rules of Civil Procedure. For example, see Conference of Chief Justices, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006) (noting the lack of guidance relating to ESI under state law, and making frequent references throughout the publication to the federal rules and federal case law) (available at <http://www.ncsc.org/Topics/Civil/Civil-Procedure/Resource-Guide.aspx>).

Relying mostly on developments under federal law, this chapter explains some of the basics of ESI, why it is different from traditional forms of discovery, how to effectively manage the process of ESI preservation and production, and the sanctions the courts use to deal with the mishandling of ESI. The final section (§30.6) offers further reading in this rapidly evolving area.

   BASICS OF ELECTRONICALLY STORED INFORMATION (ESI)

Sources of ESI

In Zubulake v. UBS Warburg LLC, 217 FRD 309 (SDNY 2003), in the first of a series of famous opinions on electronic discovery, the court explained that

[f]ive categories of data, listed in order from most accessible to least accessible, are described in the literature on electronic data storage:

1.     Active, online data: “On-line storage is generally provided by magnetic disk. It is used in the very active stages of an electronic records [sic] life—when it is being created or received and processed, as well as when the access frequency is high and the required speed of access is very fast, i.e., milliseconds.” Examples of online data include hard drives.

2.     Near-line data: “This typically consists of a robotic storage device (robotic library) that houses removable media, uses robotic arms to access the media, and uses multiple read/write devices to store and retrieve records. Access speeds can range from as low as milliseconds if the media is already in a read device, up to 10–30 seconds for optical disk technology, and between 20–120 seconds for sequentially searched media, such as magnetic tape.” Examples include optical disks.

3.     Offline storage/archives: “This is removable optical disk or magnetic tape media, which can be labeled and stored in a shelf or rack. Off-line storage of electronic records is traditionally used for making disaster copies of records and also for records considered ‘archival’ in that their likelihood of retrieval is minimal. Accessibility to off-line media involves manual intervention and is much slower than on-line or near-line storage. Access speed may be minutes, hours, or even days, depending on the access-effectiveness of the storage facility.” The principled difference between nearline data and offline data is that offline data lacks “the coordinated control of an intelligent disk subsystem,” and is, in the lingo, JBOD (“Just a Bunch Of Disks”).

4.     Backup tapes: “A device, like a tape recorder, that reads data from and writes it onto a tape. Tape drives have data capacities of anywhere from a few hundred kilobytes to several gigabytes. Their transfer speeds also vary considerably . . . The disadvantage of tape drives is that they are sequential-access devices, which means that to read any particular block of data, you need to read all the preceding blocks.” As a result, “the data on a backup tape are not organized for retrieval of individual documents or files [because] . . . the organization of the data mirrors the computer’s structure, not the human records management structure.” Backup tapes also typically employ some sort of data compression, permitting more data to be stored on each tape, but also making restoration more time-consuming and expensive, especially given the lack of uniform standard governing data compression.

5.     Erased, fragmented or damaged data: “When a file is first created and saved, it is laid down on the [storage media] in contiguous clusters . . . As files are erased, their clusters are made available again as free space. Eventually, some newly created files become larger than the remaining contiguous free space. These files are then broken up and randomly placed throughout the disk.” Such broken-up files are said to be “fragmented,” and along with damaged and erased data can only be accessed after significant processing.

Zubulake, 217 FRD at 318–319 (footnotes and internal citations omitted). Of these five categories of electronically stored information (ESI), “the first three categories are typically identified as accessible, and the latter two as inaccessible.” Zubulake, 217 FRD at 319–320. The distinction the court in Zubulake drew between “accessible” and “inaccessible” ESI is, as explained in §30.4-5, relevant to a party’s obligations under the discovery rules.

Even within the various categories of accessible and inaccessible data, ESI includes not only that information that the user created intentionally (such as the text of a word processing file), but also any information created by the device on which the file is created, used, or stored (such as the date the file was created, the file’s author, the identity of anyone who may have edited the file, and a history of edits made to the file). This “metadata” is also a form of ESI and potentially subject to discovery. See, e.g.,
Romero v. Allstate Ins. Co., 271 FRD 96, 103 (ED Pa 2010) (“‘the producing party ordinarily must take into account the need for metadata to make otherwise unintelligible documents understandable’” (quoting Ford Motor Co. v. Edgewood Props., 257 FRD 418, 425 (DNJ 2009))).

Difficulties of Handling ESI

Electronically stored information (ESI) is unlike traditional documents. It does not reside in a drawer, in a filing cabinet, or on a shelf in a warehouse. It cannot be photocopied and simply handed over to another party in response to discovery requests. Perhaps most importantly, it is much easier to lose, alter, or destroy ESI than traditional documents. A simple keystroke could overwrite, alter, or destroy vast quantities of information in a matter of seconds.

It is because of the ease with which ESI can be lost, altered, or destroyed that the 2006 amendments to FRCP 37 added a new section providing:

Failure to Provide Electronically Stored Information. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.

FRCP 37(e); see also FRCP 37(e), 2006 Advisory Committee notes (“The ‘routine operation’ of computer systems includes the alteration and overwriting of information, often without the operator’s specific direction or awareness, a feature with no direct counterpart in hard-copy documents.”). FRCP 37(e) is not an automatic out for parties who have allowed relevant, accessible ESI to be altered, overwritten, or otherwise lost. In its commentary on the new provision, the Advisory Committee explained:

Rule 37[(e)] applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation. A preservation obligation may arise from many sources, including common law, statutes, regulations, or a court order in the case. The good faith requirement of Rule 37[(e)] means that a party is not permitted to exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve. When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.” Among the factors that bear on a party’s good faith in the routine operation of an information system are the steps the party took to comply with a court order in the case or party agreement requiring preservation of specific electronically stored information.

FRCP 37(e), 2006 Advisory Committee notes (former FRCP 37(f)); see also
Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 FRD 139, 146 (D DC 2007) (“Rule [37(e)] does not exempt a party who fails to stop the operation of a system that is obliterating information that may be discoverable in litigation”).

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Job Opportunity at the OSB

Assistant Disciplinary Counsel – Probation and Enforcement

The Oregon State Bar is looking for someone to provide counsel to the OSB in the pursuit of enforcement proceedings arising out of probationary judgments and in the evaluation, investigation, and litigation of ethics complaints made against Oregon lawyers.

The Bar invites all interested applicants to submit a cover letter and resume. Please visit http://www.osbar.org/osbcenter/openings.html for job details and information about how to apply.

The Oregon State Bar is an Equal Opportunity Employer.

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He Said, She Said

By Ian Pisarcik, Legal Publications Attorney Editor

One of my favorite cartoons depicts a young female student standing next to a tall male teacher. Both are staring at a chalkboard. The chalkboard reads: Stone Age Man, Bronze Age Man, and Iron Age Man. The speech bubble extending from the young girls mouth asks: “Did they have women in those days?”

“Gender-neutral language is achieved by avoiding the use of ‘gendered generics (male or female nouns and pronouns used to refer to both men and women).” This is easier said than done. But so is carrying a tune, and that doesn’t stop nine out of ten I-5 drivers from pulling their lips back and pretending they’re Mick Jagger.

The Oregon Appellate Courts Style Manual states that “[g]ender-neutral terms are preferred, and gender-based pronouns are avoided except when referring to a specific person.” The style guide suggests using “he or she” only when all other constructions fail. The Oregon State Bar Legal Publications Department asks authors to avoid gender-based pronouns as well, but actually recommends the “he or she” construction.

In most cases, this is straightforward (albeit, a little clumsy). The defendant has the burden of raising his Confrontation Clause objection becomes the defendant has the burden of raising his or her Confrontation Clause objection, or the defendant has the burden of raising the defendant’s Confrontation Clause objection.

But things can get tricky when writers decide to alternate between masculine and feminine pronouns. Not only does this tend to confuse the reader, but a recent study conducted by researchers at New Mexico State University found that (1) readers perceive alternating pronouns to be just as gender-biased as masculine pronouns, and (2) readers consistently rate writing featuring alternating pronouns as lower in quality than text with generic masculine pronouns.

Further complicating things are the countless terms that feature the word man. Some are easy to spot and fix: policeman should become police officer, serviceman should become serviceperson. But, there are others that are not as easy to spot or fix: manpower, manhole, ombudsman, penmanship, freshman, and middleman among them.

Achieving gender-neutral writing takes some effort. But it is an effort that most states are making and that OSB Legal Publications wholeheartedly embraces. And the fact that the United States Supreme Court lags behind in this regard should serve only as further motivation for lawyers concerned with eliminating subtle sexism in the field.

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And/Or

By Ian Pisarcik, Legal Publications Attorney Editor

Lodged somewhere between income disparity and climate change on the list of greatest threats facing the nation is the use of and/or. I am kidding of course. But on any given afternoon you are likely to encounter one of our editors groping the wall muttering “say what you mean, say what you mean” in response to the unhinged use of this expression. It’s not just persnickety editors that have trouble with the expression¾okay, mostly it is, but the courts don’t like it either! The expression is responsible for two of the most biting lines ever written in an opinion:

[T]hat befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients.

Employers’ Mut. Liab. Ins. Co. of Wisconsin v. Tollefsen, 219 Wis 434, 263 NW 376, 377 (1935).

It is one of those inexcusable barbarisms which were sired by indolence and dammed by indifference, and has no more place in legal terminology than the vernacular of Uncle Remus has in Holy Writ. I am unable to divine how such senseless jargon becomes current. The coiner of it certainly had no appreciation for terse and concise law English.

Cochrane v. Florida E. Coast Ry. Co., 107 Fla 431, 435, 145 So 217 (1932).

The problem isn’t that and/or has no meaning; it does (one or the other or both). The problem is that it is ambiguous at best and flat-out wrong at worst. As Bryan Garner puts it, “about half the time, and/or really means or; about half the time, it means and.” For example, if a sign says “no food or drink allowed,” it certainly doesn’t mean that you can have both.

So how do you avoid this problem? The answer, as the muttering editor will tell you, is to simply say what you mean. If you mean or, say or; if you mean and, say and; if you mean one or the other or both, say just that. For example, the defendant may be charged with unlawful arrest or malicious prosecution, or both.

Otherwise, you will continue to risk the wrath of judges or attorney editors, or both.

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Promoting Access to Justice with E-Books

The OSB Legal Publications department launched a new project in May that we wanted to tell you about. We have begun offering a series of Family Law e-books on Amazon.com. These e-books include information on how to find and hire a lawyer, as well as links to information about the OSB Lawyer Referral Service, legal aid services in Oregon, and the ABA page on lawyer referral services nationwide.

The purposes of this project are two-fold:

First, we want to promote access to justice for segments of the population that are underserved by the legal community for various reasons, including that they are unaware of their rights, unfamiliar with how to find an attorney, or cannot afford legal counsel at full-market rates.

Second, we want to produce some revenue, albeit a very small “some” so far, for the Legal Publications Department to offset the costs of providing BarBooks™ as a member benefit to all active members of the bar.

If you are a lawyer, these e-books can also be a great resource for your clients to help them understand the legal issues you are assisting them with and the complexity of the work you are doing for them. At only $9.99 each, they are an affordable adjunct to your legal representation of your clients. With this resource on their Kindle or other digital device, your clients can gain a better understanding of what you have already explained to them – this is especially helpful for clients who are not auditory learners and can’t retain all of the important information you have shared with them.

Each title is based on a chapter or chapters from our Family Law treatise, edited by Scott Sorensen-Jolink, Trina J. Strom, and Hon. Katherine E. Tennyson. Available titles are:

Keep your eye out for Consumer Law and Criminal Law series e-books in the future.

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Fiction for Attorneys

By Ian Pisarcik, Legal Publications Attorney Editor

As an attorney, two things are reasonably certain to occur in your lifetime: Sallie Mae will deduct an astronomically high student loan payment from your checking account and someone, somewhere will ask you if you’ve read To Kill a Mockingbird and if you were aware that John Grisham used to be a real honest-to-God practicing attorney. It is at this point that you will calmly try to explain that you read more than just legal thrillers or you will begin shouting and waving your arms like a windmill with a broken turbine. Take solace in the fact that it could be worse. You could be a doctor. Doctors are asked similar questions (insert The House of God and Michael Crichton) followed by a request to diagnose the inquirer’s mysterious malady.

In the spirit of recognizing that your interests extend beyond the narrow scope of your profession, here are ten lesser-known books worth reading that have only a tangential connection to the practice of law.

  1. Fourth of July Creek by Smith Henderson: Released in hardcover last month, Fourth of July Creek is already receiving a lot of praise. The novel tells the story of a social worker who finds a nearly feral eleven-year-old boy living in the Montana wilderness. Dependency attorneys will relate all too well.
  2. Plainsong by Kent Haruf: This novel features a plot that will also strike a chord with dependency attorneys. The story, which would be intriguing in the hands of a lesser writer, is nearly flawless in the hands of Kent Haruf (for my money, one of the best writers alive).
  3. The Hermit’s Story by Rick Bass: Acclaimed writer and environmental activist Rick Bass will appeal to environmental attorneys, lovers of wild places, and fans of powerful writing.
  4. Train Dreams by Denis Johnson: Attorneys could learn a thing or two about being concise from this epic story about a day laborer in the American west told in a mere 128 pages.
  5. The Power of the Dog by Thomas Savage: Attorneys understand the complexities of human beings and perhaps no fictional character is more complex and fully-realized than Phil Burbank in this novel that inspired the better known novella, “Brokeback Mountain,” by Annie Proulx.
  6. Canada by Richard Ford: While most people think of John Grisham and Scott Turrow when asked to name lawyers who became writers, many forget the formidable Richard Ford.
  7. Birds of a Lesser Paradise by Megan Mayhew Bergman: Megan Mayhew Bergman lives on a farm in rural Vermont with her veterinarian husband, four dogs, three cats, two goats, chickens, and a handful of rescue animals. These animals are featured in many of her stories (my favorite is about a woman who drives hundreds of miles to visit a parrot so that she might hear the voice of her deceased mother one more time). Animal attorneys rejoice!
  8. Winter’s Bone by Daniel Woodrell: A dark, gritty novel about taking the law into your own hands.
  9. In the Lake of the Woods by Tim O’Brien: The lauded author of The Things They Carried crafts a complex story about a failed politician who may have murdered his wife in his sleep. A story fit for a bar exam hypothetical.
  10. Independent People by Halldór Laxness: An epic novel set in rural Iceland, Independent People tells the story of a sheep farmer determined to live independently on a nearly unmanageable patch of land. The novel doesn’t have a great deal to do with the law, but it’s beautifully written and most attorneys have at least considered quitting their jobs and moving to a sheep farm in the middle of nowhere.

Honorable Mentions: Meditations from a Moveable Chair by Andre Dubus; Crooked Letter, Crooked Letter by Tom Franklin; Fencing the Sky by James Galvin; Where Rivers Change Direction by Mark Spragg; Winter in the blood by James Welch; and Lives of Girls and Women by Alice Munro.

They say if you want to write well you must read good writing. Perhaps reading some of this great fiction will improve your writing for that next big brief in which you must somehow keep the attention of a judge while explaining your client’s complicated fact pattern.

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Free Speech in Oregon

In celebration of Oregon Constitutional Law receiving the ACLEA Award of Outstanding Achievement in Publications, we decided to share an excerpt from that award-winning book. This excerpt is from chapter 3, Article I, Section 8, Free Speech Writ Large, by Robert M. Atkinson.  For more on this topic you can purchase a copy of Oregon Constitutional Law from the OSB Online Bookstore or log in to BarBooks™.

§3.1 INTRODUCTION

The Oregon Supreme Court’s free-speech jurisprudence under Article I, section 8, of the Oregon Constitution is unique in its analysis. Consequently, federal law of free expression or the law of other jurisdictions on that subject is unlikely to be useful in attempting to apply the Oregon Constitution’s provision. For example, federal law distinguishes among differing kinds of expression based on their content. Thus, commercial speech gets less federal constitutional protection than political expression. Compare Boos v. Barry, 485 US 312, 321, 108 S Ct 1157, 99 L Ed2d 333 (1988) (political speech), with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 US 557, 562–63, 100 S Ct 2343, 65 L Ed2d 341 (1980) (commercial speech). Under the Oregon Constitution, by contrast, all expression is equal and equally protected. Bank of Oregon v. Indep. News, Inc., 298 Or 434, 439–40, 693 P2d 35 (1985). In general, Oregon’s free speech jurisprudence is uniquely protective of expression of all kinds. Indeed, it is no exaggeration to state that—with very few and limited exceptions, which are discussed in §§ 3.4-1 to 3.4-3—all speech and expressive conduct are constitutionally protected.

The basic outline of the analysis is readily described, even if not always easily applied. But difficult questions—such as what conduct is sufficiently expressive to warrant protection—remain unresolved. This chapter is intended as a doorway into this important area. To avoid excessive length and paralyzing detail, it sticks, for the most part, to the well-traveled roads, leaving some interesting byways unexplored.

§3.2 TEXT

Article I, section 8, of the Oregon Constitution states: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

§ 3.3 BASIC ANALYSIS

The genesis of the modern construction of this provision is found in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Any lawyer seeking to understand and apply Article I, section 8, must be familiar with that case. The Robertson analysis categorizes laws as falling within one of three levels or categories. Vannatta v. Oregon Gov’t Ethics Comm’n, 347 Or 449, 455–56, 222 P3d 1077 (2009) (Vannatta II); City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Those categories focus on the terms in which the law in question is written and whether those terms refer directly to expression.

§3.3-1 Laws Focusing on the Content of Expression

At the first level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), are laws that focus on the content of speech or writing and are written in terms directed to the substance of any opinion or any subject of communication. City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Laws written in those terms violate Article I, section 8, “on their face” unless the scope of the restraint is confined within one of the few exceptions discussed in §§ 3.4-1 to 3.4-3. Miller, 318 Or at 495.

To illustrate, imagine that the legislature sought to protect the Oregon Supreme Court from having to decide whether a claim of error on appeal was preserved in the trial court. The most direct way to write such a law would be to state: “Do not discuss preservation of error in the Supreme Court.” That hypothetical law is quite obviously directed by its terms at the content of expression—discussions of preservation—because the statute’s text specifies what speech is forbidden. That law would, therefore, be unconstitutional on its face unless it came within one of the exceptions. The same fate would await laws specifying certain disfavored words, rather than—as in the example above—general content, and making it a crime to utter them.

§.3-2 Laws Focusing on Harms or Effects, but Directed by Their Terms at Expression

The second level of analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden harms or effects but, by their terms, expressly prohibit expression used to achieve those effects. To return to the example in § 3.3-1, a second approach to preventing discussion of preservation might state: “Do not annoy the Oregon Supreme Court by discussing preservation of error.” That hypothetical law is addressed by its terms to a harm or effect—annoying the court. But those terms also specify expression—discussion of preservation—as a means of bringing about that forbidden effect.

Laws in this category are analyzed for overbreadth. In very general terms, a law is overbroad when and to the extent that it purports to prohibit or regulate constitutionally protected expression. For example, a statute that prohibited alarming a person by threatening adverse consequences if the person performs some act focuses on harm—causing alarm—and specifies speech as a means of achieving that harm. That statute is overbroad to the extent that it would prohibit, for example, a physician telling a patient that she will increase her chances of having a heart attack if she does not quit smoking. See State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982);State v. Garcias, 296 Or 688, 698–99, 699 n 10, 679 P2d 1354 (1984). The decisive question would be whether the speech specified in the statute—returning to the prior example, discussion of preservation—is constitutionally protected. If it is, then the statute is overbroad because, and to the extent that, it seeks to restrain constitutionally protected speech; speech that may not be restrained.

Although the question of whether a law is directed at a harm or effect is generally determined by the law’s text, that is not inevitably the case. Rather, the court will consider the statute’s context to determine whether “the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.” State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996) (emphasis by the court).

§3.3-3 Laws That, Although They Are Not Directed at Expression by Their Terms, May Be Applied to Expression

The third level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden effects without referring to expression at all. These “speech-neutral” laws cannot be challenged facially. State v. Illig-Renn, 341 Or 228, 234, 142 P3d 62 (2006). Rather, they are analyzed to determine whether the law was applied in the particular circumstances before the court so that it burdened protected expression. Because these challenges are generally based on the application of the law rather than its text, they tend to be addressed to actions of the executive rather than the legislative branch. Thus, the speaker challenging the law would be asserting that, although the law itself may be constitutional as written, the government exceeded the law’s proper scope by applying it to his or her speech. That may occur, for example, if the regulator simply misconstrues the scope of the law or applies it in a manner that is not speech-neutral. See City of Eugene v. Lincoln, 183 Or App 36, 43, 50 P3d 1253 (2002).

Here, our exemplary law (see §§ 3.3-1 to 3.3-2) would simply state: “Do not annoy the Oregon Supreme Court.” A person prosecuted criminally or subjected to civil sanctions for violating this law by addressing preservation of error would have to argue that the statute was unconstitutional as applied to his or her speech because, the person would claim, speech about preservation of error is constitutionally protected in the context of an appeal. If the person is right, the law is unconstitutional as applied to that particular expression. City of Eugene v. Miller, 318 Or 480, 488–90, 871 P2d 454 (1994), illustrates the application and analysis.

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