Month: November 2014

Giving Thanks

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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

Lesser-known Punctuation Rules

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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.

Attorney Fees Provide Fair Access to Courts

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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.