Author: Linda Kruschke

Grammatical Mistake Leads to Animal Neglect

Posted on | by Linda Kruschke

By Dean Land, Legal Publications Attorney Editor

By my own unscientific methods, I’ve determined that “comprise” is the most misused verb in the English language. That kind of pervasive grammatical error has serious ramifications for an editor like me. When I read the sentence, “The Oregon Supreme Court is comprised of seven justices,” I get hung up. That sentence takes over my conscious thought. Priorities go out the window, and I forget to pick up dog food on the way home.

So what’s the problem? Many writers confuse the verb “comprise” with the verb “compose.” As stated in The Chicago Manual of Style, “To comprise is ‘to be made up of, to include’ {the whole comprises the parts}. To compose is ‘to make up, to form the substance of something’ {the parts compose the whole}.” Usage hawk Bryan Garner provides the correct passive-voice phrasing: “the whole is composed of the parts; the parts are comprised in the whole.” He points out that the phrase “comprised of” is “always wrong.”

Following that logic, we have a number of different ways to express the same thought:

  • The Oregon Supreme Court comprises seven justices.
  • Seven justices are comprised in the Oregon Supreme Court.
  • Seven justices compose the Oregon Supreme Court.
  • The Oregon Supreme Court is composed of seven justices.

Some are more awkward than others, but all are correct. Most importantly, none of them will cause my dogs to go hungry.

Because misery loves company, I’m happy to report that software engineer Bryan Henderson has compulsively removed every single instance of “comprised of,” numbering in the tens of thousands, on Wikipedia. I just hope that guy doesn’t have pets.

Appeal and Review Wins Award

Posted on | by Linda Kruschke

 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 2014.

The Association for Continuing Legal Education (ACLEA) has selected Appeal and Review: Beyond the Basics as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. The physical award will be presented at ACLEA’s Annual Meeting in Chicago, Illinois in August and put 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: Hon. Erika L. Hadlock; Edward J. Harri; Hon. Virginia L. Linder; James N. Westwood; Jerome Lidz; R. Daniel Lindahl; George W. Kelly; Erin Galli; Thomas W. Brown; Roy Pulvers; Hon. Erin C. Lagesen; Rolf Moan; Janet M. Schroer; Marjorie A. Speirs; Hon. Meagan A. Flynn; William F. Gary; Hon. Joel S. DeVore; Hon. Jack L. Landau; James W. Nass. Thanks to all of you for your hard work and dedication to this volunteer effort.

Appeal and Review: Beyond the Basics explores several areas of appellate practice and jurisprudence in greater depth than its companion volume, Appeal and Review: The Basics (OSB Legal Pubs 2010). The first introductory chapter provides thoughts on the convergence of theory and practice. In chapter 2, the authors discuss the principles that serve as the basis for familiar rules of appellate practice, including rules related to preservation, standards of review, and harmless error. The authors then explain how those principles should influence a lawyer’s analysis of whether to appeal or seek judicial review, balancing client considerations like the expense of appeal, the likelihood of prevailing, delay, and the possibility of having to pay the respondent’s attorney fees. The chapter 3 authors discuss the art of drafting appellate briefs, covering everything from appropriate structure to techniques for making briefs helpful and persuasive to appellate judges. Chapter 4 addresses oral argument from both sides of the bench, focusing on goals that all participants often do—and should—have for oral arguments. Both chapters 3 and 4 touch on the differences between practicing in the Oregon Court of Appeals and practicing in the Oregon Supreme Court. Finally, chapter 5 provides a comprehensive explanation of motion practice in both courts. All chapters reflect contemporary practices built on longstanding Oregon tradition.

Appeal and Review: Beyond the Basics is available on BarBooks™ to all Oregon Bar members or for purchase in print at the Bar’s online bookstore.

Sales of Manufactured-Dwelling Parks in Oregon

Posted on | by Linda Kruschke

This article is excerpted from Oregon Real Estate Deskbook, chapter 48 Manufactured and Mobile Homes, by Phillip C. Querin and William “Bill” D. Miner.

The complete chapter will soon be available on the BarBooks™ online library. Look for the preorder offer for the entire Oregon Real Estate Deskbook coming soon.

§ 48.3-3               Sales of Manufactured-Dwelling Parks

House Bill 4038 (2014) substantially modified the provisions that establish the process for tenants of manufactured-housing parks to purchase the parks. Park owners must now give written notice of their interest in selling the community (a) before commencing marketing to the general public, or (b) when the owner receives an offer that it intends to consider, whichever occurs first. Or Laws 2014, ch 89, § 1(1).

The written notice must be given to: (1) all tenants of the manufactured-dwelling park; or (2) the tenant committee, if one exists and (a) was formed for purposes that include the purchase of the park , and (b) with which the owner met within the 12-month period before delivery of the notice. Additionally, the written notice must be given to the “Office of Manufactured-Dwelling Park Community Relations of the Housing and Community Services Department.” Or Laws 2014, ch 89, § 1(2)–(3).

The notice must inform the residents that:

               (a)          The owner is considering selling the park.

               (b)          The tenants, through a tenants committee, have an opportunity to compete to purchase the park.

               (c)           In order to compete to purchase the park, within 10 days after delivery of the notice, the tenants must form or identify a single tenants committee for the purpose of purchasing the park and notify the owner in writing of:

               (A)          The tenants’ interest in competing to purchase the park; and

               (B)          The name and contact information of the representative of the tenants committee with whom the owner may communicate about the purchase.

               (d)          The representative of the tenants committee may request financial information described in section 2 (2) of this 2014 Act from the owner within the 10-day period.

               (e)          Information about purchasing a manufactured-dwelling park is available from the Office of Manufactured Dwelling Park Community Relations of the Housing and Community Services Department.

Or Laws 2014, ch 89, § 1(4).

Within 10 days after delivery of the notice, if residents are interested in purchasing, they must notify the park owner in writing of (1) their interest in purchasing the park, (2) the identification of the tenants committee, and (3) the name and contact information of a tenant representative from the tenants committee with whom the park owner may communicate about the purchase. Or Laws 2014, ch 89, § 2(1).

During the 10-day period after delivery of the notice, the tenant representative may make a written request for “the kind of financial information that a seller of a park would customarily provide to a prospective purchaser.” Or Laws 2014, ch 89, § 2(2). The park owner is required to provide the following information within seven days after the tenant’s request for information: (1) the “asking price, if any, for the park”; (2) the “total income collected from the park and related profit centers” during the “12-month period immediately before delivery of the notice required by [Or Laws 2014, ch 89, § 2(1)]”; (3) the cost of all park utilities during the same 12-month period; (4) the annual cost of park insurance policies per the most recent premium period; (5) the number of park-owned homes; and (6) the number of vacant spaces and homes in the park. Or Laws 2014, ch 89, § 2(3).

NOTE: The park owner may place certain restrictions on the required information, such as making all or part of the information confidential. See Or Laws 2014, ch 89, § 2(4).

If the tenants choose to continue, within 15 days of delivery of the owner’s financial information, they must (1) form a corporate entity legally capable of consummating the purchase, or associate with a nonprofit capable of doing so; (2) submit a written offer of purchase; and (3) provide a copy of the articles of incorporation or other evidence of legal capacity to purchase the park. Or Laws 2014, ch 89, § 2(5).

The park owner is not obligated to continue negotiating with residents if they fail to perform within any of the required time periods, or if they violate any confidentiality agreement. Or Laws 2014, ch 89, § 2(6)(c).

Finally, the following general principles apply to the purchasing process:

(1)          All parties must act in a “commercially reasonable manner,” (Or Laws 2014, ch 89, § 3(1));

(2)          Minor errors in providing notice to the tenants or in providing financial information will not prevent the owner from selling to a third party and will not make the owner liable to the tenants, (Or Laws 2014, ch 89, § 3(3));

(3)          The park owner may seek out and negotiate with other potential purchasers while also negotiation with the tenants, (Or Laws 2014, ch 89, § 3(4));

(4)          If the park owner fails to comply with the rules “in a substantial way that prevents the tenants from competing to purchase the park,” the tenants may obtain injunctive relief to prevent a sale to a third-party purchaser (only if the owner has not already filed an affidavit of compliance under ORS 90.830), or recover the greater of actual damages or twice the monthly rent from the owner for each tenant, (Or Laws 2014, ch 89, § 3(5)); and

(5)          If a tenant violates the confidentiality agreement in a substantial way, the park owner may recover actual damages from the tenant, (Or Laws 2014, ch 89, § 3(6)).

Park owners are, however, excluded from complying with the above requirements in the case of certain transfers described in Or Laws 2014, ch 89, § 4.

Shall I Compare Thee to a Summer’s Day? Probably not.

Posted on | by Linda Kruschke

by Ian Pisarcik, Legal Publications Attorney Editor

The writer David Foster Wallace was so fond of words that he used to lie awake for hours reading the dictionary and circling the ones he liked best: Maugre, Tarantism, Ruck, Sciolism, Primipara. He is a man who once wrote “I do things like get in a taxi and say, ‘The library, and step on it.’” His desire to use uncommon words was matched by his desire to know the meaning of those uncommon words. Many lawyers, it seems at times, share only the first desire. Nowhere is this more evident than in the enduring use of the word shall.

Lawyers rely heavily on the word shall, and while the most common interpretation of the word is that it denotes a mandatory action (i.e., must), lawyers do not consistently use it this way. As lawyer and lexicographer Bryan Garner points out, “that’s why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.” Let’s look at some examples, shall we?

  1. “No person shall operate a motorboat at a speed greater than is reasonable.” If shall means must, then this sentence is telling us that no person must operate a motorboat at a speed greater than reasonable. In other words, you’re not required to operate a motorboat at a speed greater than is reasonable, but if you want to, knock yourself out. This is clearly not the intended meaning. What the author is trying to say is: “No person may operate a motorboat at a speed greater than is reasonable.” In other words, you are not allowed to do this.
  2. “The sender shall have fully complied with the requirement to send notice, when the sender obtains electronic confirmation that the transmission has been received.” Is shall denoting a mandatory action here? Of course not. The sentence is simply defining when the sender has fully complied: “The sender has complied . . . when the sender obtains electronic confirmation. . .”
  3. “The agreement shall be terminated.” A duty must be imposed on a capable actor. An agreement is not a capable actor. What this sentence is intended to mean is that the agreement is terminated (presumably by someone or some action, but that’s a post for another day).

The word shall is rarely used consistently throughout a legal document. And the result is that, as Garner puts it, “the word breeds litigation.” According to Garner, the multivolume Words and Phrases, published by Thomson Reuters, contains 107 pages of small-type cases interpreting the word shall. Garner hoped to cut down on some of this litigation when he revised the civil, appellate, and criminal federal rules, and dropped the word shall completely. The editors at the Oregon State Bar have chosen to do the same. We shall banish the word from our vocabulary, and don’t get us started on witnesseth . . .

Punctuation Pet Peeves

Posted on | by Linda Kruschke | 4 Comments on Punctuation Pet Peeves

Some people are bothered by the over use of the exclamation point. F. Scott Fitzgerald once said, “Cut out all these exclamation points. An exclamation point is like laughing at your own joke.” He may be right, but a properly placed exclamation point has never peeved me.

Other people are bothered by the use of the Oxford comma and still others by leaving it out. But that’s an argument (and a post) for another day.

My biggest punctuation pet peeve is the misuse of hyphens, en dashes, and em dashes. Writers frequently use these three distinct forms of punctuation interchangeably. Just because they are all little lines doesn’t mean they are the same. They are different lengths for a reason and they have different purposes in the composition of a sentence.

The Internet makes this particularly troublesome because often html editors don’t provide options for the em dash. Yet I think the problem stems from many people simply not understanding what these three punctuation marks do.

The Hyphen (-)

The hypen is a tiny little line that is used to connect two or more words as in a multi-word adjective or compound phrase. For example, “multi-word” in the previous sentence uses a hyphen. Other examples are: a three-day notice; long-term care options; open-ended contingency; or he was down-and-out.

Hyphens are also used to separate the syllables of a single word at the end of a typed line.

Finally, hyphens are sometimes part of a section, paragraph, or page number in a book. For example, an OSB legal publication might include the section number “§3.4-3” appearing on page “3-27.”

A hyphen is created using the hyphen key next to the 0 key on your computer keyboard.

The en dash (–)

The en dash, so called because it is roughly the width of the letter n, is used to indicate a range of numbers. For example, in a case citation where the pinpoint cite is a range of pages, the range would be “235–37.” If you were citing to an OSB legal publication, the passage you cite to might be on “3-27–3-32.” This last example illustrates the importance of using hyphens and en dashes correctly.

An en dash is created either by using the “Insert Symbol” menu on in your word processing program or by using the combination of “Ctrl+the minus key.”

The em dash (—)

The em dash, so called because it is roughly the width of the letter m, is sort of a comma or parenthesis on steroids. If you have a phrase in the middle of a sentence—it’s important though not essential to the complete sentence but you want it to really stand out—set it off with em dashes. You could have just put commas or parentheses where the em dashes are in that last sentence; it all depends on how much you want that phrase to be emphasized. But if you use em dashes you do not put spaces before or after them.

An em dash is created either by using the “Insert Symbol” menu on in your word processing program or by using the combination of “Ctrl+Alt+the minus key.”

So the next time you start to think that size isn’t important, remember the hyphen, the en dash, and the em dash. They are all important punctuation marks, but they each serve a different purpose depending on their size.

Taking a Look at the Dreaded Bluebook: Part Two

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

For part two of our look at some of the more commonly ignored or misinterpreted rules found in The Bluebook: A Uniform System of Citation, I want to address Internet citations. Perhaps more than any other type of citation, Internet citations seem to give attorneys trouble. Part of this is because the general rule dealing with Internet citations (Rule 18) was revised considerably between the eighteenth and nineteenth edition. Another factor is that the Oregon Appellate Courts Style Manual provides little guidance on the topic. With these things in mind, here are four rules to remember:

  1. Parallel Citations (Rule 18.2.3)

    The phrase “available at” should not be used to introduce all Internet citations. Rather, the phrase should be used only to introduce a parallel citation to an Internet source. A parallel citation to an Internet source is appropriate when the identical source is available in a printed medium, but a parallel citation to the Internet source will significantly improve access.

  2. Omitting the Institutional Author (Rule 18.2.2(a))

    The name of the author, when available, should generally be included in an Internet citation. However, when the author is an institutional author, the name of the institutional author should be omitted if domain ownership is clear from the website’s main title. Let’s look at the following citation: Or Dep’t of Fish and Wildlife, Hunter Reporting, Oregon Department of Fish and Wildlife, http://www.dfw.state.or.us/resources/licenses_regs/ (last visited Dec. 19, 2014). In this example, the domain ownership (Oregon Department of Fish and Wildlife) is clear from the website’s main title (Oregon Department of Fish and Wildlife) and thus the name of the institutional author should be omitted. Therefore, the citation becomes: Hunter Reporting, Oregon Department of Fish and Wildlife, http://www.dfw.state.or.us/resources/licenses_regs/ (last visited Dec. 19, 2014).

  3. Abbreviations (Rule 18.2.2(a), Rule 18.2.2(b)(i), Rule 15.1(d))

    In the previous example, the institutional author was abbreviated as “Or Dep’t of Fish and Wildlife,” yet the website’s main title remained “Oregon Department of Fish and Wildlife.” This is because the name of an institutional author should be abbreviated using tables T6 and T10, whereas main page titles should be abbreviated using table T13.

  4. Date (Rule 18.2.2(c))

    According to a 2002 study of federal appellate opinions, 84.6 percent of Internet citations in cases from 1997 were inaccessible in 2002; moreover, 34 percent of citations in cases from 2001 were already inaccessible by 2002. Because of this, and because websites are frequently being modified, it is important for an attorney to provide the date in an Internet citation. The date should be included after the main page title if the website contains a clear date associated with the cited material. If the website does not contain such a date, the date the website was last visited should be placed in a parenthetical after the URL. For example: Forest Land Protection Program, Oregon Department of Land Conservation and Development, www.oregon.gov/LCD/pages/forlandprot.aspx#Forest_Land_Protection (last visited Dec. 19, 2014).

Taking a Look at the Dreaded Bluebook

Posted on | by Linda Kruschke | 1 Comment on 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 . . .

Giving Thanks

Posted on | by Linda Kruschke

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

Posted on | by Linda Kruschke

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

Posted on | by Linda Kruschke | 2 Comments on 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.