Available Now for Pre-order – Oregon Uniform Jury Instructions

The 2014 Supplements to the Oregon Uniform Civil and Criminal Jury Instructions are available now for preorder.  Don’t miss out on the preorder discount.  Order your copies today by visiting our online bookstore.  You may also contact our order desk at (503) 431-6413, or toll-free in Oregon, 1-800-452-8260.  Pre-order discount ends January 19, 2015.

Learn more….

 

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Taking a Look at the Dreaded Bluebook

By Ian Pisarcik, Legal Publications Attorney Editor

I have a confession to make: I like The Bluebook: A Uniform System of Citation. I actually think it’s well organized for the amount of information it contains, and I think there are good reasons behind many of the rules. Mary Whisner, a reference librarian at the University of Washington School of Law, provides a good example:

Most law reviews are paginated consecutively through a volume, so we can cite an article unambiguously by volume and page: 79 J.Name 36 (2003). But if a journal or magazine starts numbering with page one each issue within a volume, then the rule has to be different. Volume 79 of a given journal might have twelve different articles starting on page 36, so it makes sense instead to cite journals that are not paginated consecutively with the format: J.Name, June 2003, at 36.

I even sort of enjoy thumbing through The Bluebook. But, I realize most attorneys aren’t as nerdy enamored with The Bluebook as I am. I would wager that most attorneys are more likely to recognize the sentiments of Judge Richard Posner:

Needless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness¾‘The horror! The horror!’¾and am tempted to end there.

Nevertheless, in the interest of making The Bluebook a more familiar (if not a more comfortable) place to visit, I thought I would take the next couple posts to point out a few rules I commonly see ignored or misinterpreted.

  1. Omissions (Rule 5.3)

    Omitting words when using quoted language can be tricky. Thus, attorneys should review Rule 5.3. In particular, attorneys should keep in mind that ellipsis should never be used when individual words are merely altered. Moreover, when omitting the end of a sentence, the punctuation at the end of the sentence must still follow the ellipses. This means that when the sentence ends in a period, the attorney will need to insert a total of four periods (e.g., “If land becomes disqualified on or after July 1, it will be assessed as farmland . . . .”).

  2. Introductory signals (Rule 1.3)

    When using more than one signal in a citation string, signals of the same type¾supportive, comparative, contradictory, or background¾must be strung together within a single citation sentence and separated by semicolons. On the other hand, signals of different types must be grouped in different citation sentences. Here’s an example: See Hope Vill., Inc. v. Dep’t of Revenue, 17 OTR 370 (2004); cf. Polk Cnty. v State Dep’t of Revenue, 14 OTR 566 (1999). See generally Gangle v. Dep’t of Revenue, 13 OTR 343 (1995). But see Catherine’s Residence, Inc. v. Dep’t of Revenue, State of Or, 14 OTR 500, 502 (1998).

  3. Signals as verbs (Rule 2.1(d))

    The word “see” should be italicized when it is being used as a signal, but not when it is part of a sentence (e.g., “For further discussion of special assessments, see chapter 57.”)

More next week . . .

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Giving Thanks

OSB Legal Publications would like to thank all of our volunteer authors and editorial review board members for their contribution to our books. We couldn’t do what we do without their tireless efforts and expertise. This year we thank the following bar members:

 Criminal Law, 2013 revision

Laura Fine Moro — C. Amber Kinney — Kenneth Lerner — Ryan Lufkin — Kristin Carveth — Janet A. Klapstein — Hon. Richard L. Barron — Hon. John L. Collins — Michael E. Rose — Susan Russell — Michael J. Slauson — Shaun S. McCrea — Hon. Jamese L. Rhoades — Jonathan W. Diehl — Jeffrey Alan Howes — Kristen E. Boyd — Erin Galli — W. Douglas Marshall — Carolyn Alexander — Kristina Hellman — Daniel M. Carroll — Meg Garvin — Greg Rios — Margie Paris — Lisa J. Ludwig — Steven Griffin — Jamie K. Contreras — Anne Fujita Munsey — Joanna Jenkins — Ben Eder — Stephen Morgan — Katherine Green — Laura S. Anderson — Kendra M. Matthews — Laura Graser — Harris S. Matarazzo — Stephen A. Houze — Alex Bassos — Hon. Edward Jones — Timothy A. Sylwester — Michael L. Schmidt — Shelley Keller — Matthew J. Lysne — Ryan O’Connor — Kathleen M. Correll — Kathleen M. Cegla — Dan Bennett — Paul L. Smith — Hon. Joseph V. Ochoa — Ginger G. Mooney —Samuel A. Kubernick — Daina A. Vitolins

Appeal and Review: Beyond the Basics, 2014 edition

Jerry Lidz — R. Daniel Lindahl — George Kelly — Erin Galli — Thom Brown — Roy Pulvers — Hon. Erin C. Lagesen — Rolf Moan — Janet Schroer — Marjorie Speirs — Meagan Flynn — Bill Gary — Hon. Joel DeVore — Hon. Erika Hadlock — Hon. Jack Landau — James W. Nass — Edward Harri — Hon. Virginia Linder — James Westwood

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What’s New on BarBooks™

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

Oregon Real Estate Deskbook
Chapter 35:  Commercial Lease Disputes and Remedies
Chapter 39:  Timeshares
Chapter 40:  Environmental Considerations

Uniform Criminal Jury Instructions
UCrJI 1613A — Sexual Abuse in The Second Degree
(Lack of Consent Due to Incapacity) (new)
UCrJI 2306 — Harassment—Physical Contact with
Sexual or Intimate Parts
UCrJI 2716 — Driving While Suspended or Revoked—
Defense: Injury or Immediate Threat of Injury
(Necessity)
UCrJI 3315 — Permanent Injury (new)

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Lesser-known Punctuation Rules

By Ian Pisarcik, Legal Publications Attorney Editor

Let’s start the week off right with some lesser-known punctuation rules.

  1. Punctuation and closing quotation marks

    Most people agree that periods and commas precede closing quotation marks (let’s forget the loveably misguided British for a moment). However, confusion abounds when colons and semicolons enter the mix. To clear things up, colons and semicolons (along with question marks and exclamation points) follow closing quotation marks unless they appear in the original quoted matter. Moreover, all punctuation should appear outside quotation marks when distinguishing words to be typed. For example:

    President Barak Obama invited me to the presidential inauguration to recite the lyrics to my hit song “Peace in the World”; instead I lectured the nation on the rules of punctuation. I was able to record a video of the event before a large man with dark sunglasses grabbed me by the shoulder and asked me how I expected to make any friends. To view the video, go to my homepage, click on the search function, and type “Ian attends the inaugural address”.

  2. Using a comma before “such as” and “including”

    Many people automatically place a comma before “such as” and “including.” But a comma is only necessary when followed by a nonrestrictive, nonessential phrase or clause. For example:

    Songs such as “Hands on the Wheel” and “Can I Sleep in Your Arms” appear on Willie Nelson’s 1975 album.

    Some songs, such as “Hands on the Wheel” and “Can I Sleep in Your Arms,” are commonly referred to as old-country or classic-country songs.

  3. Punctuating one-word questions

    When a question consists of a single word, the question mark can be omitted. For clarity, the word should be italicized. For example:

    Joe asked himself why.

  4. Hyphenating phrasal adjectives

    Phrasal adjectives are almost always hyphenated. As Bryan Garner put it, “[I]f two or more consecutive words make sense only when understood together as an adjective modifying a noun, those words should be hyphenated.” Thus, “high-school dropout” and “first-year graduate student” are proper. Naturally, there are exceptions, including when a phrase contains a proper noun (e.g., “the famous World War II battle”).

  5. The interrobang

    To round off all this punctuation fun, I thought I’d introduce a lesser-known punctuation mark. Ladies and gentlemen: the interrobang The interrobang is an overlapping question mark and exclamation point. It was invented in 1962 and managed to make its way onto many typewriters and into several dictionaries. It even made its way into the default typefaces in the Apple and Microsoft operating systems. While its rise is admirable, I wouldn’t expect it to see it on BarBooks™ any time soon.

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Attorney Fees Provide Fair Access to Courts

Statutory and contractual rules for the award of attorney fees are important provisions that help ensure that parties have fair access to the judicial system. To help lawyers navigate the many rules and regulations related to attorney fees, Legal Publications will be publishing a companion set: Oregon Attorney Fee Codebook and Oregon Attorney Fee Compilation.

This article includes an excerpt of one of the chapters that is excerpted in the Compilation along with the statutes cited in the excerpt as they will appear in the Codebook. For a more thorough discussion of the topic and to read cross-referenced sections, you can check out Oregon Civil Pleading and Practice on BarBooks™ or pre-order the Codebook and Compilation.

Compilation excerpt:

Oregon Civil Pleading and Practice, Chapter 43. Attorney Fees, Cost Bills, and ORCP 17 Sanctions, by Timothy S. DeJong and Keil M. Mueller.

§43.1    ATTORNEY FEES

§43.1-1 Availability of Attorney Fees

In Oregon, the general rule is that attorney fees are available only when expressly authorized by contract or statute. Swett v. Bradbury, 335 Or 378, 381, 67 P3d 391 (2003). But see §43.1-1(f) regarding a court’s “inherent power” to award attorney fees in certain cases.

When preparing a pleading, the lawyer should determine whether any basis for claiming attorney fees exists under contract or in the substantive law. For example, attorney fees are available in civil rights actions under 42 USC §1983 (see 42 USC §1988(b)), unlawful trade practices claims under ORS 646.638(3), and certain landlord-tenant actions under ORS 90.510(8). ORS chapter 20 also provides for the availability of attorney fees in a variety of types of actions.

Some statutes require an award of attorney fees to the prevailing party in certain types of actions. See §43.1-1(a); see also §43.1-2 regarding identifying the prevailing party. Other statutes give the court discretion to award attorney fees in some kinds of actions. See §43.1-1(b). Attorney fees are also recoverable in actions based on a contract that specifically provides for them. See §43.1-1(e).

Practice Tip: The failure to assert a right to attorney fees at the earliest possibility may prevent a party from recovering attorney fees. See §43.1-3(a). Therefore, it is crucial for the lawyer to determine whether attorney fees are available at the outset of every case.

Attorney fees are also allowed when the court finds that the opposing party had “no objectively reasonable basis” for asserting a claim, defense, or ground for appeal. ORS 20.105(1); see §43.1-1(c).

Also, the Uniform Trial Court Rules include provisions relating to attorney fees. See §43.1-1(d).

Note: Pro se litigants typically may not recover attorney fees. Pendell v. Department of Revenue, 315 Or 608, 616, 847 P2d 846 (1993); Parquit Corp. v. Ross, 273 Or 900, 902, 543 P2d 1070 (1975). However, an attorney who represents him- or herself may recover “the reasonable value of the legal services that [the attorney] performed on [his or her] own behalf.” Colby v. Gunson, 349 Or 1, 9, 238 P3d 374 (2010) (interpreting ORS 192.490(3), which provides that any person who prevails in a suit seeking the right to inspect or to receive a copy of a public record is entitled to reasonable attorney fees).

Note: ORS 20.125 provides that the court “shall” assess attorney fees and costs against a lawyer whose “deliberate misconduct” causes a mistrial.  

* * * * *

Codebook excerpt:

Note: All statutes updated through 2014 legislative session.

Ch. 20 Attorney Fees, Costs and Disbursements
PROCEDURE IN CIVIL PROCEEDINGS
ATTORNEY FEES; EXPERT WITNESS FEES

20.105 Attorney fees where party disobeys court order or asserts claim, defense or ground for appeal without objectively reasonable basis. (1) In any civil action, suit or other proceeding in a circuit court or the Oregon Tax Court, or in any civil appeal to or review by the Court of Appeals or Supreme Court, the court shall award reasonable attorney fees to a party against whom a claim, defense or ground for appeal or review is asserted, if that party is a prevailing party in the proceeding and to be paid by the party asserting the claim, defense or ground, upon a finding by the court that the party willfully disobeyed a court order or that there was no objectively reasonable basis for asserting the claim, defense or ground for appeal.

(2) All attorney fees paid to any agency of the state under this section shall be deposited to the credit of the agency’s appropriation or cash account from which the costs and expenses of the proceeding were paid or incurred. If the agency obtained an Emergency Board allocation to pay costs and expenses of the proceeding, to that extent the attorney fees shall be deposited in the General Fund available for general governmental expenses. [1983 c.763 §57; 1995 c.618 §2]

OTHER COSTS

      20.125 Assessment of costs and attorney fees against attorney causing mistrial. In the case of a mistrial in a civil or criminal action, if the court determines that the mistrial was caused by the deliberate misconduct of an attorney, the court, upon motion by the opposing party or upon motion of the court, shall assess against the attorney causing the mistrial costs and disbursements, as defined in ORCP 68, and reasonable attorney fees incurred by the opposing party as a result of the misconduct. [1985 c.556 §1; 1995 c.618 §3]

Chapter 90 — Residential Landlord and Tenant
MANUFACTURED DWELLING AND FLOATING HOME SPACES

      90.510 Statement of policy; rental agreement; rules and regulations; remedies. . . . 
(8) Intentional and deliberate failure of the landlord to comply with subsections (1) to (3) of this section is cause for suit or action to remedy the violation or to recover actual damages. The prevailing party is entitled to reasonable attorney fees and court costs.

Chapter 192 — Records; Public Reports and Meetings
INSPECTION OF PUBLIC RECORDS

192.490 Court authority in reviewing action denying right to inspect public records; docketing; costs and attorney fees. . .
      (3) If a person seeking the right to inspect or to receive a copy of a public record prevails in the suit, the person shall be awarded costs and disbursements and reasonable attorney fees at trial and on appeal. If the person prevails in part, the court may in its discretion award the person costs and disbursements and reasonable attorney fees at trial and on appeal, or an appropriate portion thereof. If the state agency failed to comply with the Attorney General’s order in full and did not issue a notice of intention to institute proceedings pursuant to ORS 192.450 (2) within seven days after issuance of the order, or did not institute the proceedings within seven days after issuance of the notice, the petitioner shall be awarded costs of suit at the trial level and reasonable attorney fees regardless of which party instituted the suit and regardless of which party prevailed therein. [1973 c.794 §9; 1975 c.308 §3; 1981 c.897 §40]

Chapter 646 — Trade Practices and Antitrust Regulation
UNLAWFUL TRADE PRACTICES

      646.638 Civil action by private party; damages; attorney fees; effect of prior injunction; time for commencing action; counterclaim; class actions. . .
(3) The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing plaintiff in an action under this section. The court may award reasonable attorney fees and costs at trial and on appeal to a prevailing defendant only if the court finds that an objectively reasonable basis for bringing the action or asserting the ground for appeal did not exist.

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More E-Books Providing Access to Justice

The OSB Legal Publications department has published its second set of e-books on Amazon.com, this time on the topic of Consumer Law, because consumers have rights, too.

As with the Family Law e-book series, these Consumer Law e-books can be a great resource for your clients to help them understand the legal issues you are helping 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 Consumer Law in Oregon treatise, edited by Dick Slottee and Nanina Takla. Available titles are:

Each e-book includes 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.

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Time Limitations under the Oregon Family Abuse Protection Act

Oregon Statutory Time Limitations is now available on the BarBooks™ online library. This article is an excerpt from the Family and Juvenile chapter of that book. It is not a comprehensive coverage of the topic of the Family Abuse Protection Act, but is rather limited to a discussion of time limitations provided for under that statute. For more information about time limitations in family and juvenile matters, see the complete chapter on BarBooks™.

Authors of the chapter from which this article is excerpted are Jessica Flint, Nigel Vanderford, Alex Sutton, Mark Johnson Roberts, and Craig Cowley.

Sec. 4.1   FAMILY ABUSE PROTECTION ACT

“Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 to 107.735 [the Family Abuse Prevention Act], if the person is in imminent danger of further abuse from the abuser.” ORS 107.710(1). Time during which the respondent is incarcerated or has a principal residence more than 100 miles from the petitioner’s principal residence is not counted as part of the 180-day period. ORS 107.710(6).

Sec. 4.1A Hearing and Duration

When a person files a Family Abuse Prevention Act petition, the court must hold an ex parte hearing on the day the petition is filed or on the
following judicial day. Upon the request of the petitioner and the requisite showing of abuse, danger, and threat, the court must issue an order restraining the respondent and including various specific provisions. ORS 107.718(1). The order is effective for one year or until withdrawn, amended, or superseded, whichever is sooner. ORS 107.718(3).

Sec. 4.1B  Respondent’s Request for a Hearing

Within 30 days after a restraining order is served, the respondent may request a hearing. If the respondent fails to request a hearing within that time, the order is confirmed by operation of law. ORS 107.718(10)(a), (11).

Sec. 4.1C  Hearing Date

If the respondent requests a hearing under ORS 107.718(10), the court must hold the hearing within 21 days after the request. However, if the respondent contests an order granting temporary child custody to the petitioner, the court must hold the hearing within five days after the request. ORS 107.716(1).

Sec. 4.1D  Child Custody Hearing

If the court determines under ORS 107.718(2) that exceptional circumstances exist that affect custody of a child, the court must hold a hearing within 14 days of issuing the restraining order. ORS 107.716(2)(a). The respondent may request an earlier hearing to be held within five days after the request. ORS 107.716(2)(b). When the court schedules a hearing under ORS 107.716(2), the respondent may not request a hearing under ORS 107.718(10). ORS 107.716(2)(c).

Sec. 4.1E  Extension of Time

If service of notice of a hearing under ORS 107.718(2) or (10) is inadequate to provide a party with sufficient notice, the court may extend the date of the hearing up to five days so that the party may seek representation. ORS 107.716(4)(a). If one party is represented by an attorney at such a hearing, the court may extend the date of the hearing up to five days at the other party’s request so the other party may seek representation. ORS 107.716(4)(b).

Sec. 4.1F  Renewal of Order

If the court renews an order, the respondent may request a hearing within 30 days after being served. The court must hold a hearing within 21 days after the respondent’s request. ORS 107.725(4).

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Oregon Statutory Time Limitations Now Available

The fifth edition of Oregon Statutory Time Limitations, published as a joint project of the Professional Liability Fund and OSB Legal Publications, is now available on the BarBooks™ online library. A hard copy will be provided to all PLF-covered attorneys by request. Keep an eye on your email inbox for an email from the PLF with information on how to obtain a copy.

The OSB Professional Liability Fund and OSB Legal Publications gratefully acknowledge the Editorial Review Board for their guidance and oversight in reorganizing, reviewing, and editing this book. Editorial Review Board members are Jeffrey M. Cheyne, Craig Cowley, Hon. Joel DeVore, Bruce C. Hamlin, Richard F. Liebman, Lisa J. Ludwig, Robert J. McGaughey, Alan L. Mitchell, Phillip C. Querin, Janet Schroer, Richard A. Slottee, and Brent G. Summers. We also acknowledge the many authors for their diligence and dedication in researching and writing their individual chapters.

This completely reorganized handbook has been expanded and now includes treatment of the following practice areas:

  1. Alternative Dispute Resolution
  2. Civil Procedure and Litigation
  3. Criminal Law
  4. Family and Juvenile
  5. Appellate Practice and Procedure; Writs
  6. Elder Law; Survival of Actions; Decedents’ Estates; Trusts
  7. Personal Injury and Property Damage
  8. Employment Law and Civil Rights
  9. Business Organizations
  10. Business Litigation
  11. Debtor-Creditor Issues; Unclaimed Property; Secured Transactions; Creditors’ Rights in Bankruptcy
  12. Consumer Law
  13. Residential Trust Deeds and Mortgages; Foreclosure
  14. Issues Arising under Contracts and Articles 2, 3, and 4 of the Uniform Commercial Code
  15. Real Estate and Landlord-Tenant Law
  16. Insurance
  17. Construction Law
  18. Judgments and Liens

The inclusion of a comprehensive index and tables of cases and statutes makes this 2014 edition of Oregon Statutory Time Limitations a useful and accessible handbook.

This handbook is a reference guide to many of the statutes, cases, and procedural rules containing time limitations that are relevant to the practice of law. Although the material in this handbook has been carefully researched and reviewed, it should not be relied on as a substitute for full examination of the statutes and cases on any issue. Readers should conduct their own appropriate legal research and consult original sources of authority.

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The Power of Typeface

By Ian Pisarcik, Legal Publications Attorney Editor

How many animals of each species did Moses take on the Ark?

If you answered “two,” you’re wrong, but you’re not alone. According to a study published in The
Journal of the International Social Cognition Network, 88 percent of people failed to spot the mistake (Noah was the actor in the biblical story). But here’s the interesting part, when a less-common typeface was used, the number of people who failed to spot the mistake fell from 88 percent to 53 percent.

The conclusion of the University of Michigan researchers, as well as numerous other researchers who have conducted similar studies, is that a familiar typeface enables readers to skim effortlessly over words. On the other hand, an unfamiliar or hard-to-read typeface forces the brain to invest greater time and attention. The result is that readers are more likely to spot anomalies.

I observe this phenomenon on a small scale almost every day. When I’m reading a passage that seems amiss for no immediately discernible reason, I’ll often change the typeface. The change, nearly without fail, enables me to quickly diagnose the problem.

The University of Michigan study is the tip of the iceberg when it comes to typography research. A study conducted by researchers at Mindlab International found that people who ate soup ordered from a menu written in Lucida Calligraphy were more likely to enjoy the soup than those who ordered the same soup from a menu written in Courier. In another study, Errol Morris (with help from Cornell University Professor of Psychology David Dunning) found that people who read text printed in Baskerville typeface were more likely to believe the text than text printed in many other typefaces, including Georgia and Helvetica.

The body of research surrounding typeface may not help you write a brief or any other court document that has strict requirements, but it may come in handy when creating a website, sending an e-mail, or designing a business card. Just imagine all that power.

*As an interesting side note, typeface and font are not synonymous despite common usage.

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