Month: February 2014

What’s That Author Trying to Say?

Posted on | by Linda Kruschke | Leave a Comment on What’s That Author Trying to Say?

By Linda L. Kruschke, Director of Legal Publications

OSB Legal Publications contain several types of author commentary, including practice tips, queries, and caveats. But did you ever wonder what the differences are? Or if there is any rhyme or reason to the headings of our author commentary?

We do provide authors with guidelines on using the various categories of author commentary, and our Attorney Editors are trained to recognize which category is appropriate in a given situation. But even so, if you, the reader, don’t know the difference, all our efforts are in vain. So here, at last, is the definitive description of each category of author commentary in OSB publications. These descriptions are what we provide to our authors for guidance.

•    Caveat: Use a caveat to caution the reader about an exception to the rule stated in the text, a pitfall in practice not easily discerned from the substantive law, or a development in a separate but related area of the law that may contradict or render ineffectual the rule stated in the text.

•    Comment: Use a comment to point out your analysis or opinion on the rule stated in the text or to add a side issue.

•    Example: Use an example to provide a hypothetical situation that illustrates the rule stated in the text.

•    Note: Use a note to bring to the reader’s attention a point of law or other fact that deserves special emphasis, or that is not directly related to the law being discussed in the text but that may affect it.

•    Practice Tip: Use a practice tip to describe a practice-oriented suggestion.

•    Query: Use a query when raising a question about the point of law previously discussed in the text. The reader appreciates an author’s attempt to answer the query.

Is there another type of author commentary that would be helpful to you in your practice? If so, let us know by leaving a comment below. We will consider adding it to the list of descriptions we provide to our authors and encourage them to use it.

A Beautiful Hypothetical

Posted on | by Linda Kruschke | Leave a Comment on A Beautiful Hypothetical

By Ian Pisarcik, Legal Publications Attorney Editor

There is a scene in the 2001 film A Beautiful Mind where John Nash’s wife Alicia, played by Jennifer Connelly, discovers that the door to an abandoned tool shed at the edge of the property in a grove of trees has been left ajar. Alicia enters the shed and discovers that the walls are covered with newspaper and magazine clippings. Random words and numbers are scribbled in black marker over the clippings. Thin agricultural rope connects words, images, and numbers. It is in this moment that Alicia realizes the extent of her husband’s mental illness. Though John Nash believes that the clippings are part of a code that can be deciphered in order to identify the exact position of a nuclear bomb being transported somewhere on the eastern seaboard, Alicia sees the installation for what it is: the rambling scrawls of a man deep in the throes of schizophrenia.

This scene often comes to mind when I read complex hypotheticals or doctrinal illustrations that identify parties by unrelated letters, or worse, switch between unrelated letters, proper names, and normative categories. The following is a common example:

A, a contractor, agrees to build a house for B. C, a subcontractor, agrees with A to lay the foundation for $50,000. C supplies goods and services worth $25,000 for which contractor made progress payments aggregating $15,000 as required by the subcontract. C then breaches by refusing to perform further. A reasonably spent $40,000 to have the work completed by D, another subcontractor. C sues A for reasonable value of benefits conferred and the contractor counterclaims for breach of contract. Should plaintiff recover the benefit conferred on defendant for which plaintiff has not been paid?

The above hypothetical distracts the reader and creates unnecessary cognitive demands for two reasons:

  1. Meaningless letters, and
  2. A lack of consistency.

The solution to this problem often depends on the subject matter and the audience. Normative categories (e.g., general, plaintiff) are often helpful in contract hypotheticals written for other lawyers. For example:

General agrees to build a house for owner. Sub agrees with General to lay the foundation for $50,000. Sub supplies goods and services worth $25,000 for which General made progress payments aggregating $15,000 as required by the subcontract. Sub breaches by refusing to perform further. General reasonably spent $40,000 to have the work completed by someone else. Sub sues General for reasonable value of benefits conferred and General counterclaims for breach of contract. Should Sub recover the benefit conferred on General for which Sub has not been paid?

Ohio First District Court of Appeals Judge Mark Painter, on the other hand, urges lawyers drafting briefs to remember that parties have names. Judge Painter notes that “when we use procedural titles, the reader must translate to understand what we mean.” Moreover, “the procedural titles change throughout the case, but names remain the same.” Also, “using names humanizes your client.” Finally, Judge Painter urges lawyers to be consistent. He notes that he once read a brief stating “Defendant-Appellant Mary Jones (hereinafter usually referred to as Jones).” Usually?

Whether you decide to use normative categories or proper names depends on the situation. But unless you want to turn your reader’s office into a mock-up of John Nash’s tool shed, avoid using meaningless letters, or switching heedlessly between meaningless letters, normative categories, and proper names.

New Law for Commitment of Person with Mental Illness

Posted on | by Linda Kruschke | Leave a Comment on New Law for Commitment of Person with Mental Illness

Excerpted from Criminal Law (OSB Legal Pubs 2013), chapter 15 Mental Illness and Incapacity.

By Harris Matarazzo, sole practitioner.

To learn more about this new legislation, go to BarBooks™.

§ 15.13-3(g) Extremely Dangerous Person with Mental Illness
§ 15.13-3(g)(1) In General

The 2013 Legislature enacted Senate Bill 421, which created a new classification of individual subject to a civil-commitment proceeding: “extremely dangerous person with mental illness.” ORS 426.701–426.702. See Or Laws 2013, ch 715. Although the new law appears in ORS chapter 426 along with other provisions relating to civil commitments, the underlying basis for this proceeding is previously adjudicated criminal conduct, or pending allegations of such activity. This could include a situation in which a person was found to lack the capacity to go to trial. Persons committed by the court pursuant to this law are subject to the jurisdiction of the Psychiatric Security Review Board (PSRB), the same agency responsible for overseeing persons found “guilty except for insanity” under ORS 161.295. See ORS 426.701(3).

Comment: As such, this legislation combines elements of both criminal law and civil law and, although sharing some procedural features, should not be confused with other civil commitments.

The discussion in § 15.13-3(g)(2) to § 15.13-3(g)(10) highlights the differences between Oregon’s longstanding bases for civil commitment and a commitment initiated on the basis of “extreme danger.” Otherwise, the procedures remain the same.

§ 15.13-3(g)(2) Who May Be Committed as an Extremely Dangerous Person with Mental Illness

A person is subject to commitment as an extremely dangerous person with mental illness if:

(1)    The person is “extremely dangerous,” ORS 426.701(3)(a)(A);

(2)    The person is at least 18 years old, ORS 426.701(1)(a)(A);

(3)    The person has a “mental disorder that is resistant to treatment,” ORS 426.701(3)(a)(B);

(4)    Because of that mental disorder, the person committed one of the following acts described in ORS 426.701(3)(a)(C):

(a)    “Caused the death of another person,” ORS 426.701(3)(a)(C)(i);

(b)    “Caused serious physical injury to another person by means of a dangerous weapon,” ORS 426.701(3)(a)(C)(ii);

(c)    “Caused physical injury to another person by means of a firearm as defined in ORS 166.210 or an explosive as defined in ORS 164.055,” ORS 426.701(3)(a)(C)(iii);

(d)    “Engaged in oral-genital contact with a child under 14 years of age,” ORS 426.701(3)(a)(C)(iv);

(e)    “Forcibly compelled sexual intercourse, oral-genital contact or the penetration of another person’s anus or vagina,” ORS 426.701(3)(a)(C)(v); or

(f)    “Caused a fire or explosion that damaged the protected property of another, as those terms are defined in ORS 164.305, or placed another person in danger of physical injury, and the fire or explosion was not the incidental result of normal and usual daily activities,” ORS 426.701(3)(a)(C)(vi);

(5)    The person is “exhibiting symptoms or behaviors of a mental disorder substantially similar to those that preceded the [specific criminal] act,” ORS 426.701(1)(a)(B); and

(6)    Because of the mental disorder, the person (a) “[p]resents a serious danger to the safety of others by reason of an extreme risk that the person will inflict grave or potential lethal physical injury on other persons,” and (b) “[u]nless committed, will continue to represent an extreme risk to the safety of other persons in the foreseeable future,” ORS 426.701(1)(a)(C).

The statute does not define the term mental disorder, but the statute provides that the mental disorder must be “resistant to treatment.” ORS 426.701(3)(a)(B). Furthermore, the statute provides that a mental disorder does not include a disorder “manifested solely by repeated criminal or otherwise antisocial conduct” or a disorder “constituting solely a personality disorder.” ORS 426.701(1)(b).

Qualifying conditions are deemed to be “resistant to treatment” if the person “continues to be significantly impaired in the person’s ability to make competent decisions and to be aware of and control extremely dangerous behavior” after (1) “receiving care from a licensed psychiatrist and exhausting all reasonable psychiatric treatment” or (2) “refusing psychiatric treatment.” ORS 426.701(1)(c).