BarBooks™ Online Library to Level Up on June 8

Coming June 8 at Noon: The next level of the BarBooks™ online library.
The interface will be new, but the award-winning library you are familiar with will remain the same. A generous grant from the Professional Liability Fund made this upgrade possible.

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New! Oregon Constitutional Law, 2022 Edition

For a limited time, Oregon Constitutional Law is available for pre-order at a discount. Use coupon code CONLAW2022 at check-out to save 10% through February 28, 2022. You won’t want to miss this fully updated second edition. It includes a new chapter on constitutional odds and ends, as well as a copy of the original 1857 constitution and the current Oregon Constitution with updates through 2021. Continue reading

OSB Seeks Assistant Disciplinary Counsel – Litigation

Assistant Disciplinary Counsel – Litigation

The Oregon State Bar is looking for someone to provide counsel to the Bar in the evaluation, investigation, and litigation through trial of ethics complaints made against Oregon lawyers.

Visit http://www.osbar.org/osbcenter/openings.html for job details.

The Oregon State Bar is an Equal Opportunity Employer.

Oregon State Bar Wins International Award

The Association for Continuing Legal Education (ACLEA) has awarded the Oregon State Bar, Legal Publications, one of only 10 annual awards granted to competitors representing more than 300 organizations.

An Award of Outstanding Achievement was given to the Oregon State Bar for Oregon Civil Pleading and Litigation, in the Best Publication category. Continue reading

Damages Book Wins ACLEA Award

OSB Legal Publications has once again been recognized for our commitment to publishing quality legal resources. We received an award for a book we released in 2016.

The Association for Continuing Legal Education (ACLEA) has selected Damages as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. A plaque commemorating the award was presented at ACLEA’s Annual Meeting in Montreal, Quebec, Canada in August and is on display in the lobby of the OSB Center.

Of course, Legal Pubs couldn’t have created this highly informative and innovative book without the help of our three volunteer editorial board members Hon. Karsten Rasmussen, Rick Lee, and Heather Bowman.

Damages was designed to support Oregon attorneys in their role as litigator and advisor. Whether the attorney is a recent law grad or a seasoned attorney, there is something in here for them. This publication was made possible only through the extra­ordinary dedication and gratuitous contribution of time and talent offered by 50 Oregon attorneys. The accomplished attorneys who drafted each chapter offered their insights—starting with an over­view of the particular practice area or basis for money damages, and drilling down into the most relevant details that practicing attorneys are likely to encounter in their practice. The authors included practice tips and caveats where appropriate. Many authors also provided references to other resources, which are often helpful springboards when greater depth of understanding in a nuanced area of the law is necessary.

The authors who volunteered their time and talent on this publication and made an ACLEA award possible are Allen E. Eraut, Julie A. Smith, Joshua Sasaki, Megan McGuire, Laura C. Johnson, David Auxier, Ted Reuter, Bernard S. Moore, Samuel T. Smith, Joshua D. Stadtler, Jeffrey D. Munns, Nicholas E. Wheeler, James C. Edmonds, Jeffrey A. Trautman, Donald E. Templeton, Frederick H. Lundblade, III, Jennifer Middleton, Meredith Holley, Hon. Benjamin M. Bloom, Thomas M. Triplett, Keith S. Dubanevich, Nadine A. Gartner, W. Greg Lockwood, Carson D. Bowler, Michelle G. Rudd, Reilley D. Keating, Jay W. Beattie, Gavin W. Bruce, Emily S. Miller, D. Gary Christensen, Cody Berne, Robert Lane Carey, Lindsay L. Reynolds, Sarah M. Einowski, Jeff Bradford, Rima I. Ghandour, Erin E. Gould, Bryan P. Murphy, Justine Fischer, Thomas C. Peachey, Andrew J. Myers, Michael B. Hallinan, Sara Kobak, Jordan R. Silk, James Coon, Gordon T. Carey, Jr.

The editorial review board, authors, and in-house editors have produced a deskbook that is practical, comprehensive, and well-supported with citations to legal authorities. It filled an ever-present need for up-to-date information on the law of damages in a variety of areas of law. Because of the quality of the publication and its unique place in the market it has become an invaluable resource for Oregon lawyers.

Oregon Real Estate Deskbook Wins Award

OSB Legal Publications has once again been recognized for our commitment to publishing quality legal resources. We received an award for a book we released in 2015.

The Association for Continuing Legal Education (ACLEA) has selected Oregon Real Estate Deskbook as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. A plaque commemorating the award was presented at ACLEA’s Annual Meeting in Seattle, Washington in August and is on display in the lobby of the OSB Center.

Of course, Legal Pubs couldn’t have created this highly informative and innovative book without the help of our many volunteer editorial board members (in bold) and authors: Thomas E. Bahrman, Dustin R. Klinger, Andrew I. Davis, Dina E. Alexander, Peter R. Jarvis, Lee Aronson, Patricia A. Ihnat, C. Cleveland Abbe, Dean P. Gisvold, Jonathan M. Radmacher, Michael G. Magnus, Michelle D. Da Rosa, Robert W. Wilkinson, Amy Heverly, Damien R. Hall, Mark A. Manulik, Paul B. Barton, John B. Benazzi, Rebecca S. Schwarzkopf, Don G. Carter , Jeffrey S. Davis, Benjamin Leedy, Thomas S. Hillier, Christopher R. Ambrose, John A. Lusky, Jonathon L. Goodling, Valerie Athena Tomasi, Marisol Ricoy McAllister, Eleanor A. DuBay, Cody Hoesly, Steven A. Moore, Barry L. Groce, Bennett H. Goldstein, Brent Summers, Jason Alexander, Mike G. Halligan, Rich Canaday, Ryan Nisle, James M. Walker, Charles M. Greeff, Mike Silvey, Jeremy Bader, Thomas S. Smith, Kimberly McCullough, Richard Bailey, Robert W. Wilkinson, Jacob A. Zahniser, P. Stephen Russell III, Rebecca Biermann Tom, Howard M. Feuerstein , Steven F. Hill, Hong N. Huynh, Jennie Bricker, David E. Filippi, Kirk B. Maag, Jerry R. Fish, Eric L. Martin, Christopher C. Criglow, Greg Fullem, Richard Allan, Phillip E. Grillo, Lauren E. Johnson, Phillip C. Querin, William D. Miner, Kathleen L. Wilde, Clifton Molatore, Jeanne Kallage Sinnott, David W. Hercher, John Casey Mills, Teresa H. Pearson, William H. Caffee, Ann E. McQuesten, Jim L. Guse, Ronald A. Shellan, Jeneé (Gifford) Hilliard, John H. Gadon, Adam C. Kobos, Eric J. Kodesch, William F. (Fritz) Paulus, Edwin C. Perry, Neil N. Olsen, Sean M. Mazorol, Jill S. Gelineau, Marilyn Moylan Wall, Harold D. Gillis, Alexandra E. Sosnkowski, Robert R. Griffith, Alec J. Shebiel, and Michael H. McGean. Thanks to all of you for your hard work and dedication to this volunteer effort.

For many years, the Oregon State Bar published a loosely related series of real estate books, each published at different times, with different editorial boards, and with a different focus. In addition, we published a book titled Foreclosing Security Interests, which included real estate foreclosure topics.

In late 2012, we assembled a new editorial board interested in a complete reorganization of the series into a comprehensive multi-volume deskbook designed to meet the evolving needs of Oregon real estate attorneys. The editorial board represented a cross-section of the varied practice areas within real estate law. The board members reviewed all of the existing chapters of the real estate series as well as the Foreclosing Security Interests chapters. They identified topics that were covered in different ways in multiple chapters of the existing series and combined them; identified several topics that were no longer relevant and eliminated those chapters; determined that there were 11 additional topics not covered before that needed to be added; and logically organized the 66 chapters based on the order in which they would likely be encountered by the practitioner.

Oregon Real Estate Deskbook was designed to support Oregon attorneys in their role as legal counselor in real estate transactions where nonlawyers are increasingly playing a leading role. Whether the attorney is a recent law grad or a seasoned attorney, there is something in here for them. This publication was made possible only through the extra­ordinary dedication and gratuitous contribution of time and talent offered by over 90 Oregon attorneys. The accomplished attorneys who drafted each chapter offered their insights—starting with an over­view of the particular practice area and drilling down into the most relevant details that practicing attorneys are likely to encounter in their practice. The authors included forms and practice tips where appropriate. They also provided references to other resources, which are often helpful springboards when greater depth of understanding in a nuanced area of the law is necessary.

Oregon Real Estate Deskbook is available on BarBooks™ to all Oregon Bar members or for purchase in print at the Bar’s online bookstore.

Damages (2016 Revision): Later, but Better

by Dean Land, Legal Publications Attorney Editor

During our editing process here in the OSB Legal Publications Department, it’s not uncommon for the Oregon appellate courts to issue an opinion that affects the book that we’re working on. Sometimes, the effect is limited to a minor issue in one or two chapters. Other times, the effect is much broader (like when State v. Gaines, 346 Or 160 (2009), came down just as we were finishing Interpreting Oregon Law). Although it may delay publication, we’d much rather have such a case come down during the editing process than after we go to print. That way, instead of having a book that is immediately outdated, we can make the required edits and provide the Bar an up-to-date legal resource.

As we approach our deadline for the 2016 edition of Damages, the Oregon Supreme Court has indulged us once again, this time by issuing its opinion in Horton v. OHSU, 359 Or 168 (May 5, 2016). In a lengthy decision (140 pages in the Advance Sheets, including concurring and dissenting opinions), the court altered its interpretation of two provisions of the Oregon Constitution and, in doing so, overruled two significant prior decisions.

Before Horton, the court’s analysis of the Remedy Clause of Article I, section 10, was governed by Smothers v. Gresham Transfer, Inc., 332 Or 83 (2001). Under Smothers, the court asked whether Oregon common law, as it stood in 1857 (when the Oregon Constitution was drafted), recognized a cause of action for the plaintiff’s alleged injury. If so, then the Remedy Clause required a constitutionally adequate remedy for that injury. Horton overruled Smothers and disavowed the bright-line rule that protected common-law causes of action that existed in 1857 but offered no protection for causes of action that did not exist in 1857. In place of the Smothers methodology, the court created a framework that considers “the extent to which the legislature [in altering a common-law remedy] has departed from the common-law model measured against its reasons for doing so.” Horton, 359 Or at 220.

Horton also changed the analysis of Article I, section 17, which protects the right to a jury trial in civil cases. Under Lakin v. Senco Products, Inc., 329 Or 62, modified, 329 Or 369 (1999), if Oregon common law in 1857 recognized a cause of action, then Article I, section 17, prevented the trial court from reducing a jury verdict. Thus statutory caps on damages, such as those of the Oregon Tort Claims Act, were inapplicable to those causes of action. Horton overruled Lakin, deciding instead that Article I, section 17, guarantees only a procedural right to a jury for causes of action recognized by Oregon common law in 1857. It does not impose any substantive limits on the legislature’s authority to limit damages for a claim.

Horton affected seven chapters in Damages and required a bit of scrambling on our part. Our in-house editors read the opinion, revised the affected chapters, and sent them back to the authors and the editorial review board for approval and any additional changes. (One exasperated author commented that Horton came down just as he was beginning to understand Smothers.) In the end, though, the new edition of Damages will be more helpful to practitioners because it includes the changes wrought by Horton. Thanks to all our authors and the editorial review board for the extra effort!

Pain and Suffering Damages

This article is an excerpt from Chapter 4 of Damages, by Lara Christine Johnson

For more information on this topic, check out the Damages book on BarBooks™. The print version of this book will be available later this year.

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  • 4.3    PROOF OF PAIN AND SUFFERING AS AN ELEMENT OF NONECONOMIC DAMAGES
  • 4.3-1 General Principles

To prove pain and suffering, the most significant general principle is that evidence must be presented showing that the plaintiff’s pain and suffering is causally related to the defendant’s conduct. See Crawford v. Seufert, 236 Or 369, 388 P2d 456 (1964). Sometimes that proof must be in the form of medical testimony; but sometimes the nature of the injury is such that laypersons or the jury can determine causation without the help of an expert.

In Ouma v. Skipton, 267 Or App 406, 341 P3d 124 (2014), the trial court struck the testimony of a chiropractor because he failed to testify that the injuries he treated were, to a reasonable degree of medical probability, caused by the collision. The trial court granted a motion for directed verdict on noneconomic damages on the ground that the plaintiff had failed to present sufficient evidence of causation. On appeal, the court noted that the record contained testimony by the plaintiff that he had fractured his tooth in the collision, evidence from which the jury could find causation without expert medical testimony. “Although we agree,” the court explained,

with the trial court’s conclusion that plaintiff necessarily would have to introduce expert medical testimony in order to establish causation with respect to the other injuries alleged in the complaint, we previously have held that defendant is not entitled to a directed verdict on an entire claim where there is sufficient evidence to permit a finding that the defendant’s conduct caused some part of the injuries alleged.

Ouma, 267 Or App at 409 (citing Wheeler v. LaViolette, 129 Or App 57, 61, 877 P2d 665 (1994)).

The severity of a plaintiff’s injuries will bear on the amount of proof required for noneconomic damages; “no severe physical injury can occur without involving mental distress.” Rostad v. Portland Ry., Light & Power Co., 101 Or 569, 582, 201 P 184 (1921); see also Smitson v. S. Pac. Co., 37 Or 74, 95, 60 P 907 (1900) (holding that damages for future pain and suffering of double amputee was not an erroneous jury instruction). Evidence of continued pain 18 months after an accident “establishes a probability that for sometime in the future plaintiff will suffer pain.” Odrlin v. Dugan, 137 Or 140, 142, 1 P2d 599 (1931); accord Nelson v. Tworoger, 256 Or 189, 192, 472 P2d 802 (1970).

If the plaintiff is seeking damages for permanent injuries, the existence of a scar two years after an accident is sufficient evidence of permanency. Kelley v. Light, 275 Or 241, 243, 550 P2d 427 (1976); Senkirik v. Royce, 192 Or 583, 593–94, 235 P2d 886 (1951).

  • 4.3-2 Proof from Medical Practitioners

Although expert medical testimony may not be required to prove future pain and suffering, it is a common practice that can be effective. See Hecker v. Union Cab Co., 134 Or 385, 392, 293 P 726 (1930); Kelley v. Light, 275 Or 241, 550 P2d 427 (1976). As a matter of trial tactics, the plaintiff’s counsel will likely present medical testimony to explain the future course of the injury and how it will affect the plaintiff’s life.

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  • 4.3-3 Other Types of Proof

The plaintiff’s testimony about his or her own condition is always competent evidence on the issue of past and future pain and suffering. Skeeters v. Skeeters, 237 Or 204, 231, 389 P2d 313, reh’g den, 237 Or 242, 391 P2d 386 (1964) (plaintiff’s testimony held sufficient evidence of his paralysis to go to the jury on the question of whether such paralysis actually existed); Frangos v. Edmunds, 179 Or 577, 589, 173 P2d 596 (1946). Nonmedical witnesses may testify about the plaintiff’s declarations of present pain or suffering or about the witness’s own observation of the plaintiff’s behavior while in pain, such as limited activity. Frangos, 179 Or at 593 (testimony of plaintiff’s wife); Weygandt v. Bartle, 88 Or 310, 319, 171 P 587 (1918). In Fieux v. Cardiovascular & Thoracic Clinic, P.C., 159 Or App 637, 978 P2d 429, rev den, 329 Or 318 (1999), the court held that a patient was not required to present expert testimony on the issue of negligence or emotional distress when a surgeon allegedly left a clamp behind during open heart surgery, thus requiring another surgery. “[I]njured plaintiffs are entitled to claim damages for mental anguish, which plaintiffs may establish through their own or other lay testimony.” Fieux, 159 Or App at 641 (emphasis omitted).

In addition to testimony from the plaintiff and other lay witnesses, day-in-the-life videos may be helpful to communicate the effects of an injury on the plaintiff. See Arnold v. Burlington N. R. Co., 89 Or App 245, 248, 748 P2d 174, rev den, 305 Or 576 (1988) (over defendant’s objections, videotape admitted into evidence because it “communicated to the jury effectively, and perhaps better than words could do, what plaintiff’s life as a double amputee was like”).

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Grammar Can Be Funny, But Not All Grammarians Are

By Linda Kruschke, Director of Legal Publications

This book review was originally written for the ACLEA (Association for Continuing Legal Education) newsletter called In the Loop. We are sharing it here today in celebration of National Grammar Day.

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If you work in legal publications (or any type of publications for that matter), grammar is important. Whether you are a legal editor, a copy editor, or a proofreader, you have to be a little bit pedantic about grammar, punctuation, and style.

But sometimes you just like to focus on the humorous side of grammar (yes, there really is a humorous side of grammar!). Sometimes you like to read books like the classic Eats, Shoots & Leaves by Lynne Truss. Or sometimes you enjoy the humor in more traditional grammar texts like Garner’s Dictionary of Legal Usage by Bryan Garner.

When I was asked to write a book review for In the Loop, I decided it would be fun to share a different humorous grammar book with the ACLEA folks, one that the legal publications and seminars people could both appreciate. So imagine my delight when I discovered Grammar Snobs Are Great Big Meanies by June Casagrande. I cracked it open (okay, I actually opened it on my Kindle, but don’t tell my fellow legal pubs folks) and started with the Note from the Author.

At the outset, Casagrande makes a distinction between grammar geeks—people who are fascinated by grammar and word usage—and grammar snobs—people who like to rub their superior grammar knowledge (which is apparently actually not that superior) in other people’s faces for spite. She claims to be the former, but proves quite early on in the book to be of the latter ilk.

Her mean-spirited attack of grammar gurus such as James Kilpatrick, Lynne Truss, and Bryan Garner, to name but a few, took me quite aback. It was not at all what I expected and not at all funny (at least not to me). In her first chapter, “A Snob for All Seasons,” she spends five pages attacking Kilpatrick as well as William Saffire. She ends with a single page on the grammar lesson of the chapter, using as an illustration a sentence involving a bug crawling up these grammarian’s butts. While the lesson was accurate on the use of “‘s” with compound subjects, it was hard to see through the unfunny language of the example.

In addition, she uses a fair amount of sexual humor in instances that are unwarranted and merely gratuitous. For example, in the discussion of the difference between “to lay” and “to lie,” she uses an example that involves police requiring suspects to “lay” rather than “lie” on the floor at a crime scene. Rather than focus on the everyday difference between these words, Casagrande homes in on the slang or vulgar meaning of the word “lay,” to have sexual intercourse. Her attempt at humor was lost on me and her lesson was not particularly helpful if one was truly confused about which of these two verbs to use.

On a positive note, I did find confirmation that my favorite birthday song does use the words “who” and “whom” correctly.

In the spirit of full disclosure, I confess I couldn’t finish this whole book, but I did slug through a good portion of it hoping to find a funny nugget. No such luck. All I found were insults to anyone who thinks that being pedantic (i.e. excessively concerned with minor details or rules) about grammar is a useful thing. As a Director of Legal Publications, pedantic editors are what I look for when hiring new staff. In legal publications consistency and accuracy are important; one can easily be pedantic without being a grammar snob. Likewise, as Casagrande illustrates, one can be a grammar snob (and meanie) without being particularly pedantic.

In short, I don’t recommend this book for the grammar lessons or the humor. I’ll keep looking for another good humorous grammar book to recommend.

Editorial Sloth, Lists, Etc.

By Yasha Renner, Attorney Editor

It was a Friday, almost lunch time, and I was nearing the end of a chapter I was editing for the 2016 revision of Damages. I couldn’t figure out why the chapter’s author decided to include only four of the nine contractor designations cited in ORS 701.081 when they all seemed applicable. Does the author think less of locksmiths or home inspectors? I wondered.

Here’s the sentence:

As part of the registration process, a $10,000, $15,000, or $20,000 surety bond must be posted, depending on the contractor’s designation as a residential general contractor, a residential developer, a residential specialty contractor, or a residential limited contractor. ORS 701.068; ORS 701.081.

At a loss, a sly thought entered my mind; I could finish the sentence with an etc. That way I wouldn’t have to bother the author with a stupid question, nor would I have to endanger the assertion by adding the remaining actors, who (I am sure) were excluded for noble reasons. But to act on this temptation, I soon learned, would have been quite wrong. And just as I resolved to do so my conscience spoke, accusing me of editorial sloth—a capital vice.

So I did what I often do when faced with a question of editorial ethics: I turn to Bryan Garner, our department’s de facto editor in chief, who, with meekness and charity, invoked the following French proverb: “God save us from a lawyer’s et cetera.” Garner’s Dictionary of Legal Usage 331 (3rd ed. 2011). And thus, with the help of a higher power (i.e., a style guide), I was instantly freed from the enemy’s grip. “Still,” he counseled, “it would be foolish to lay down an absolute proscription against using etc., for often one simply cannot practicably list all that should be listed in a given context.” Id.

Alright, then, I thought to myself. I was relieved to know that etc. is not malum in se. But does the context here sanction its use? Certainly not, since I could list all of the designations. “Hideous!” my right-brain suddenly cried out, clearly bothered by the thought; and with that I yielded to its complaint. This sentence had to be pretty.

What’s an attorney editor to do?

Let’s just say I banished the offending half-truth. But that doesn’t really matter. What matters is that we lawyers don’t miss the moral here, which has nothing to do with style or grammar and everything to do with cultivating good habits, namely diligence and veracity, i.e., completeness. Because an incomplete thought, if aired, could become a scandal to others who, for instance, might be tempted to complete it for you, etc., etc.