Author: Linda Kruschke

Appellate Oral Argument – the Judges’ Perspective

Posted on | by Linda Kruschke

Excerpted from Appeal and Review: Beyond the Basics (OSB Legal Pubs 2014), chapter 4 Effective Oral Advocacy.

By William F. Gary, Hon. Joel S. DeVore, Hon. Erica L. Hadlock, and Hon. Jack L. Landau

To learn more about advanced appellate advocacy tips and practices, go to BarBooks™ to view this completed book, or preorder your print copy of this handy reference from our online bookstore.

The Judges’ Goals for Oral Argument

On any court, judges hold a wide variety of views about the utility of oral argument. Some judges say it rarely influences how they vote to decide a case; others report that it affects their decisions in a significant minority of cases argued. Still other judges believe that argument rarely shifts their vote on the ultimate outcome, but acknowledge that how the parties frame the issues during oral argument often influences the way in which the judges write opinions. What happens during a court of appeals argument certainly can affect the court’s decision whether to affirm a lower court’s or agency’s decision without published opinion (AWOP) or to write an opinion in the case.

Some common themes do emerge in conversations with judges about what they hope to accomplish during oral argument. Judges view argument as their sole opportunity to question the advocates—to engage in a dialogue with the lawyers instead of merely being on the receiving end of the lawyers’ monologues. Because of that, and because 15 minutes go by so quickly, judges may not allow lawyers much time to deliver prepared arguments—which too frequently are only variations on the monologues already delivered in the briefs—before the judges start asking questions.

A primary goal that judges have in questioning lawyers is to clarify what the parties are arguing, in the most basic sense. Before the judges start evaluating the merits of the parties’ arguments, they need to understand what those arguments are. For example, the judges want to know exactly which trial-court rulings the appellant is challenging, and on precisely what grounds. If the appellant’s brief is vague, ambiguous, or internally inconsistent in that respect, judges are likely to ask clarifying questions before they address the substance of the appellant’s arguments.

Court of appeals judges also may not immediately dive into the merits of a case if the briefs have not made clear what issues are properly before the court, and by what standards the appellate judges will review the lower court’s rulings on those issues. If the briefs leave the court with questions about whether arguments were preserved for appeal, or what standards of review apply, judges are likely to use argument time to clarify those points.

In addition, court of appeals judges may ask questions related to their general desire to resolve cases in the most straightforward way possible, without addressing more issues than is necessary (a desire that is grounded both in jurisprudential principles and in workload concerns). Judges sometimes refer to this as looking for the “first principled door out” of a case. Accordingly, judges may ask questions aimed at clarifying how the various arguments presented in a party’s brief relate to each other. Essentially, the judges are trying to picture the flowchart that shows the relationships between all of those arguments, with the hope of discerning the simplest path from one end of the chart (the assignments of error) to the other (disposition of the appeal). If those analytic pathways are not clearly described in the brief, the judges probably will ask questions on that point.

Beyond clarifying the contours of the parties’ arguments and how they interrelate, judges view oral argument as a time to explore the strengths and weaknesses of those arguments. By asking probing questions, the judges intend to give each lawyer an opportunity to make the best case possible for his or her client. Judges may want to know how a party’s arguments can be reconciled with (or distinguished from) existing case law, or if the party can prevail only if some precedent is overruled. In a case that centers on statutory interpretation, judges might ask how a lawyer’s proposed construction of a particular provision makes sense in the context of the statutory scheme as a whole. Or a judge might ask a hypothetical question designed to reveal whether a lawyer’s argument remains sound when pushed to its logical conclusion. In all of those circumstances, the judge’s goal is to make sure that the lawyers have been confronted with any potential weaknesses in their arguments and have had a fair chance to respond.

Practice Tip: Because the judges will have read the briefs before argument, experienced oral advocates generally spend little time repeating the points they’ve already made in their briefs. Instead, they focus on responding to their opponent’s arguments. Indeed, some of the most compelling oral arguments are those in which the lawyers start by acknowledging their opponents’ strongest points and then making their best arguments in response.

Judges also use oral argument as an opportunity to explore the implications of the positions that the parties advocate. In resolving a case, judges must decide whether to publish an opinion (instead of AWOP a case in which the lower court’s judgment will be affirmed) and, if they do issue a written opinion, must consider how that published discussion of the law will affect future cases. Those concerns often prompt judges to ask big-picture questions of the lawyers that go beyond the details of the particular case at issue. Thus, if a lawyer’s argument is focused mostly on the pertinent facts and the outcome the lawyer advocates, a judge might ask the lawyer what legal principle would lead to that desired result. Indeed, some judges will ask lawyers to articulate the rules of law they think the court should announce in its opinions.

In addition to helping judges better understand the parties’ arguments and their implications, oral argument also gives appellate judges an opportunity to get the benefit of their colleagues’ thoughts. Because the court of appeals sits in three-judge panels, each judge is able to listen to exchanges that might not have occurred if that judge were the only one asking questions. Many judges go into argument with the goal of breaking out of any “tunnel vision” or “bubbled thinking” they may have developed around the issues in a case.

Searching for Clues in The Bluebook

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

I recently stumbled across Derrick Muller’s blog post, “Was Barack Obama’s Greatest Contribution to Legal Scholarship the Bluebook?” The post posits the following three facts: (1) Harvard Law Review members generally lead the effort to revise The Bluebook, (2) The fifteenth edition of The Bluebook was released in 1991, and (3) Barack Obama was the president of the Harvard Law Review from 1990 to 1991. The fifteenth edition includes massive revisions (the book expanded from 272 to 366 pages). While it is unclear whether the president’s contributions were negligible or significant, Muller’s blog post managed to spark my interest in the history of this often shuddersome book.

The first edition of The Bluebook was published in 1926 by Erwin Griswold, a second-year law student at Harvard, and consists of 26 pages. There is no index and the book devotes two pages to identifying symbols for hand editing manuscripts. The cover isn’t even blue; it is a dull grayish-brown color reminiscent of efflorescence-riddled concrete or perhaps the mouth of the Willamette River. The first line in the first edition states: “This pamphlet does not pretend to include a complete list of abbreviations or all the necessary data as to form.” The current nineteenth edition, coming in at 511 pages (36 of which make up the index), suggests The Bluebook may have strayed from this original intent.

As for those who wish to look for details in the pages of the fifteenth edition, like patterns in tea leaves, foreshadowing the future path of the president, you may want to start with the fact that South Texas College of Law Professor James Paulson called the fifteenth edition the first manual with a “social conscience.” Paulson noted that the fifteenth edition added a substantial number of citation examples written by women, including titles on topics such as feminism, sexual orientation, reproductive rights, and apartheid. You may want to turn to page 103 and note the newly added and apropos (in light of a recent executive order) citation example: Women’s Bureau, U.S. Dep’t of Labor, Leaflet No. 55, A Working Woman’s Guide to Her Job Rights. Given The Bluebook’s current pace, curious minds will have to employ a team of researchers to find such details if another Harvard law review member is ever elected president of the United States.

* Those who may be interested can find full PDF copies of the first 15 edition of The Bluebook here.

Appellate Practice on the Web

Posted on | by Linda Kruschke

In preparation for the upcoming release of the 2014 edition of Appeal and Review: Beyond the Basics, we decided to share a couple of blogs and websites related to appellate practice. We do not endorse any of the blogs or guarantee the accuracy of the information contained in them; the court websites we think are fairly reliable.

OSB Appellate Practice Section —
http://osbaps.blogspot.com/
— This blog, published by the OSB Appellate Practice Section, is periodically updated with posts on a variety of topics of interest to appellate practitioners. Recent articles include a review of significant 2013 appellate decisions, a story about the Oregon Supreme Court building’s 100th birthday, and a notice about new appellate filing fees that took effect in October 2013. It also includes a digital version of the Appellate Almanac that the section previously published in hard copy.

Oregon Courts / Oregon Judicial Department —http://courts.oregon.gov/OJD/Pages/index.aspx
— This is the official website of the Oregon Courts, with links to the Oregon Court of Appeals and Oregon Supreme Court websites. This site is an essential resource for appellate practitioners. On this website you will find a plethora of information, including Oregon eCourt information, rules and fees for appellate courts, forms, the Oregon Appellate Courts Style Manual (http://www.publications.ojd.state.or.us/docs/Style%20Manual%202002.pdf), and more.

United States Courts for the Ninth Circuit —
http://www.ca9.uscourts.gov/
— This is the official website of the Ninth Circuit Court of Appeals, with a plethora of information about this court, including calendars, news (including judicial appointments), cases of interest, and more.

SCOTUSblog —
http://www.scotusblog.com/
— This frequently-updated blog is sponsored by Bloomberg Law and includes news articles on the status of cases before the U.S. Supreme Court, as well as status posts regarding cases up for oral argument, pending petitions, recent decisions, and more. You can even sign up for their Twitter feeds from the blog.

Notice of Appeal: Stoel Rives’ Appellate Practice Blog —
http://www.noticeofappeallawblog.com/
— This blog is published by the law firm of Stoel Rives LLP and focuses on reviews of case decisions. Although it deal primarily with Washington state appellate cases, it does include some articles on Oregon cases.

Is Your Writing Verbose and Redundant?

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

If you were to assemble together people from the general public, most would agree that lawyers are not very concise. Further, they would likely agree that the verbosity found in most legal texts should be completely eliminated. If the problems with the italicized words in this paragraph are obvious to you, you may possibly defy this stereotype. If you haven’t yet discovered the issue with the italicized words, you may want to review the following list of redundant phrases. Of course, there are hundreds more, but this should get you started in your quest to totally annihilate redundancies from your writing.

  • Advance planning: All planning must be done in advance.
  • By and between: Between alone suffices.
  • Free and clear: As Judge Mark Painter notes, “Free and clear mean the same thing. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.”
  • Increasingly inevitable: A war may be certain or uncertain, but not increasingly certain.
  • Null and void or null and of no effect: Another example of what lawyer and author Bryan Garner calls “amplification by synonym.”
  • Off of: Don’t bother taking something off of the table. Just take it off the table and be done with it.
  • Revert back: Nothing reverts forward, except maybe Michael J. Fox in a DeLorean.
  • Temporary respite: As opposed to permanent respite?
  • Very unique: As the late writer David Foster Wallace notes, this phrase is “at best redundant and at worst stupid.”
  • Will and testament: Yet another common mixed language doublet.

Totally eEliminating doublets from your writing will make your writing it less verbose and redundant, and maybe keep your readers from falling asleep.

The Posting Begins for Oregon Real Estate Deskbook

Posted on | by Linda Kruschke

Excerpted from Oregon Real Estate Deskbook (OSB Legal Pubs 2014, in progress), chapter 6 Recording and Priorities.

By Chas Cleveland Abbe,
state underwriting counsel, Fidelity National Title Group, Portland.

To learn more about recording and priorities, go to BarBooks™, where you can also see what other chapters of this new book have been posted.

§6.5 OREGON’S RECORDING LAW

Oregon’s basic race-notice recording law is stated in ORS 93.640. Stripped of document types other than “conveyance,” ORS 93.640(1) states:

Every conveyance . . . affecting the title of real property within this state which is not recorded as provided by law is void as against any subsequent purchaser in good faith and for a valuable consideration of the same real property, or any portion thereof, whose conveyance . . . is first filed for record, and as against the heirs and assigns of such subsequent purchaser.

This phrasing protects (1) a subsequent purchaser (2) in good faith (3) for valuable consideration (4) who records first. The Oregon Supreme Court has grafted lack of notice onto the good-faith requirement. Thus, a subsequent purchaser or encumbrancer must take its interest “in good faith for value and without notice of the outstanding interests.” High v. Davis, 283 Or 315, 332–33, 584 P2d 725 (1978) (emphasis added). This was not always true. See § 6.10-1 (purchaser status, good faith, and valuable consideration).

The word conveyance in ORS 93.640(1) is construed broadly to include any document in the form of a conveyance, such as a mortgage, and is not limited to documents that transfer legal title. Watson v. Dundee Mortgage & Trust Inv. Co., 12 Or 474, 8 P 548 (1885). Nevertheless, ORS 93.640(1) expressly refers to the following: “conveyance, deed, land sale contract, assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or other agreement or memorandum thereof affecting the title.” This phraseology “includes mortgages, trust deeds, and assignments for security purposes or assignments solely of proceeds, given by purchasers or sellers under land sale contract.” ORS 93.640(1). “Memorandum” is defined in ORS 93.640(1) and ORS 93.710(3).

The same race-notice language applies to an assignment of a sheriff’s certificate of sale of real property on execution or mortgage foreclosure if the assignment is not recorded within five days after its execution. ORS 93.640(2), ORS 93.530.

Other statutes omit the good-faith and valuable consideration language of ORS 93.640. In large measure, these statutes simply expand or clarify the roster of documents eligible for recording. For example, ORS 93.710(1) sets forth several additional recordable documents and notes that recordation of these documents constitutes notice to third persons of the rights of the parties irrespective of whether the party granted such interest is in possession of the real property. That said, the bona fide purchaser doctrine developed under ORS 93.640 is favored in the case law.

Under ORS 93.806, recordation of “[a]ny instrument creating a lien on unpaid rents and profits of real property . . . constitutes notice to third persons, and shall otherwise have the same effect as recordation pursuant to ORS 93.710.” This statute goes on to state that an instrument recorded under ORS 93.710 (as well as one recorded under ORS 93.806) “shall not be voidable by and shall not be subordinate to the rights of . . . [a] subsequent bona fide purchaser of real property.”

Recordation of a judgment affecting land “is notice to all persons” of the judgment and proceedings through which the judgment was recorded. ORS 93.730. A notice of pendency of an action creates notice at recording: “From the time of recording the notice, and from that time only, the pendency of the suit is notice, to purchasers and encumbrancers, of the rights and equities in the premises of the party filing the notice.” ORS 93.740. The recorded notice will cut off those persons whose interests are unrecorded and unknown, as well as those persons whose interests arise after recording of the notice. To support a notice of pendency, the action must be filed in court, and the subject of the action “must be an actual interest in real property, not merely a speculative future one.” Doughty v. Birkholtz, 156 Or App 89, 95, 964 P2d 1108 (1998) (recorded notice was wrongful when only pending proceeding was an administrative claim before the Construction Contractors Board); see Vukanovich v. Kine, 251 Or App 807, 285 P3d 733 (2012), rev den, 353 Or 203 (2013) (recorded notice was wrongful when a breach of contract claim for membership interest in a limited liability company that owned property did not “involve, affect, or bring into question any interest in the [real] property” identified in the notice); see generally § 6.8-1.

For judgment liens, ORS 18.165 establishes special rules that supersede previous statutes and case law. ORS 18.165 states:

    (1)     If a judgment with lien effect under ORS 18.150, 18.152 or 18.158 is entered or recorded in a county before a conveyance, or a memorandum of a conveyance, of real property of the debtor is recorded in that county, the conveyance of the judgment debtor’s interest is void as against the lien of the judgment unless:

    (a)     The grantee under the conveyance is a purchaser in good faith for a valuable consideration, the conveyance is delivered and accepted before the judgment is entered or recorded in the county where the property is located and the conveyance or memorandum of the conveyance is recorded within 20 days after delivery and acceptance of the conveyance, excluding Saturdays and legal holidays under ORS 187.010 and 187.020;

    (b)     The judgment creditor has actual notice, record notice or inquiry notice of a conveyance of the debtor’s interest to a grantee when the judgment is entered or recorded in the county;

    (c)     The conveyance by the debtor is a fulfillment deed entitled to priority over the judgment under ORS 93.645; or

    (d)     The conveyance is a mortgage, trust deed or other security instrument given by the debtor to secure financing for the purchase by the debtor of the real property described in the conveyance.

    (2)     For the purpose of subsection (1)(a) of this section, a memorandum of conveyance must contain the date of the instrument being memorialized, the names of the parties, a legal description of the real property involved and a description of the nature of the interest created. The memorandum must be signed by the person from whom the interest is intended to pass, and be acknowledged or proved in the manner provided for the acknowledgment or proof of deeds.

    (3)     As used in this section:

    (a)     “Conveyance” means a deed, a land sale contract, an assignment of all or any portion of a seller’s or purchaser’s interest in a land sale contract or any other agreement affecting the title of real property within this state, including a trust deed, a mortgage, an assignment for security purposes or an assignment solely of proceeds, given by a purchaser or seller under a land sale contract or given by a person with title to the real property.

    (b)     “Grantee” means:

    (A)     The person deemed to be the mortgagee under a trust deed pursuant to ORS 86.715; and

    (B)     Any other person to whom the interest that is the subject of a conveyance is intended to pass.

Various instruments not covered by the above provisions of ORS chapter 93 gain benefits or effect from recording. The following is a partial list of such instruments and the corresponding statutes. Additional instruments can be found in ORS 205.246 and the listing of involuntary liens can be found in § 6.9-3. Note that the law may accord special priorities to the liens associated with some of these instruments.

Instrument Citation
1 Writ of execution on real property ORS 18.870
2 Fixture filing and certain other UCC filings ORS 79.0501, ORS 205.246(1)(a)
3 Mortgage discharge ORS 86.120
4 Trust deed notice of default and other non-judicial foreclosure documents ORS 86.705 to 86.815
5 Correction of error for withdrawing a trust deed reconveyance or a trust deed trustee’s deed ORS 86.722, ORS 205.246(1)(z)
6 Subdivision or partition plat ORS 92.140, ORS 205.246(1)(u)
7 Order of vacation ORS 92.234, ORS 271.150, ORS 368.356
8 Request for notice to real property manager ORS 93.265
9 Department of Human Services or Oregon Health Authority request for notice of transfer or encumbrance ORS 93.268, ORS 411.694, ORS 416.350, ORS 205.246(1)(w)
10 Power of attorney ORS 93.670, ORS 696.030
11 Patents, judgments, official grants of land ORS 93.680
12 Documents, orders, decrees of the United States District Court ORS 93.760
13 Bankruptcy petitions, orders, and decrees ORS 93.770, ORS 205.246(1)(x)
14 Transfer on death deed; instrument revoking transfer on death deed ORS 93.948–93.979
15 Death certificate ORS 205.130(2)(c), ORS 432.124
16 Rerecording to correct a previously recorded instrument ORS 205.244
17 Written warranty agreement for new commercial or residential structure ORS 701.605, ORS 205.246(1)(y)
18 Affordable housing covenant ORS 456.280
19 Notice or order by the State Forester requiring reforestation of specific lands ORS 527.710, ORS 527.680, ORS 93.710(2)
20 Notice of designation of substantial damage to residential structure by flooding; notice of remedy of substantial damage ORS 105.780, ORS 205.246(1)(bb)–(cc)

Recordation has no effect unless the recordation is specifically required or authorized by statute. ORS 87.920 states that “except where filing of the document is specifically required or authorized by statute, no document filed for recording . . . shall create a lien or encumbrance upon or affect the title to the real or personal property of any person or constitute actual or constructive notice to any person of the information contained therein.” ORS 87.920 is not limited to ORS chapter 87 liens. The statute was enacted into law by the legislative assembly but was not added to or made a part of ORS chapter 87 or any series therein by legislative action. See ORS Preface, viii (2001).

Because the recording statutes are applied liberally, the impact of ORS 87.920 is unclear. The statute probably has a bearing on types of documents well outside the bounds of the recording statutes, for example, a notice of pendency of action recorded when no action is filed or a claim of lien for a lien not recognized under Oregon law. See § 6.7-1 (types of documents that may be recorded); § 6.8-1 (effect of recording).

Practice Tip: The differences between ORS 93.640 and ORS 93.710 and similar sections demonstrate the importance of prompt recording. The use of an escrow agent and the purchase of title insurance are two important means by which grantees and lenders may protect themselves against subsequent adverse claimants who win the race to the recorder. With an escrow, release of the consideration may be conditioned on title insurance coverage to the date of recording. With title insurance, a party may obtain indemnification against matters missed in a check of the recorder’s records.

A covenant for a private transfer fee is barred from recording, and a requirement for such a fee is void. Certain exemptions apply. ORS 93.269.

Certain discriminatory restrictions are barred from a conveyance or a contract to convey and are “void and unenforceable.” An affected owner may petition the circuit court to remove the provision from the title. ORS 93.270, ORS 93.272.

 

Kill Your Darlings

Posted on | by Linda Kruschke

By Ian Pisarcik, Legal Publications Attorney Editor

The phrase “kill your darlings, kill your darlings” has been attributed to numerous writers, including William Faulkner, Eudora Welty, and Anton Chekhov. The phrase, however, likely originated with British writer and University of Cambridge Professor Sir Arthur Quiller-Couch who urged students to kill their darlings in a 1913 lecture (reprinted in On the Art of Writing). Irrespective of the source, the implication remains the same: get rid of the fluff.

But how do you identify which of your darlings ought to be pulled from the text and burned at the stake?

University of California Davis School of Law Professor Richard Wydick suggests distinguishing between working words and glue words. Working words carry the meaning of the sentence. Glue words hold the working words together. Glue words are necessary but, like fine cabinetry, working words can be carefully selected, cut, and shaped to fit together with scarcely any glue. Take a look at the following sentences:

The ruling by the trial  judge was prejudicial error for the reason that it cut off cross-examination with respect to issues which were vital.

The trial judge’s ruling was prejudicial error because it cut off cross-examination on vital issues.

In the first sentence, 11 of the 24 words are working words. In the second, clearer and more concise sentence, 11 of the 15 words are working words.

In addition to distinguishing working words from glue words, you can become adept at killing your darlings by:

  • Avoiding compound prepositions (e.g., in the event that = if);
  • Cutting clauses to phrases (e.g., while the trial was in progress = during the trial);
  • Avoiding redundant phrases (e.g., added bonus, last will and testament);
  • Avoiding lawyerisms; and
  • Using the Track Changes feature of Word to compare drafts (particularly helpful to those hesitant to kill their darlings).

Killing your darling won’t be painless. But it is a simple way to improve your writing. Perhaps Stephen King put it best when he stated, “kill your darlings, kill your darlings, even when it breaks your egocentric little scribbler’s heart, kill your darlings.” Anyone who has read King’s Tommyknockers, the 800 page doorstop featuring killer vending-machines, would be quick to call this a case of doing as one says and not as one does. That’s fine. Take his advice. Or if you prefer, take the advice of William Faulkner, Eudora Welty, Anton Chekhov. . .

What’s That Author Trying to Say?

Posted on | by Linda Kruschke

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

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

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).

New Look for Criminal Jury Instructions

Posted on | by Linda Kruschke

By Dean Land, Legal Publications Attorney Editor

Although no one has been keeping track, State v. Mills, 354 Or 350, 312 P3d 515 (2013), probably holds the record for the case that necessitated changes to the most jury instructions. Mills is the Oregon Supreme Court case holding that venue is no longer an issue for the jury. And, as anyone familiar with Oregon’s Uniform Criminal Jury Instructions knows, most of the instructions list the elements of particular crimes, beginning with the venue element: “The act occurred in _______ County, Oregon.”

After Mills came down, the Uniform Criminal Jury Instructions Committee had to remove the venue element from 381 instructions. It also withdrew three other instructions that addressed specific venue situations. So Mills accounted for changes to 63% of the instructions in the book (and a headache for a certain staff member of the Legal Publications department).

Rest assured, all those changes and more are incorporated in the 2013 Supplement to the Uniform Criminal Jury Instructions. The supplement is available for preorder at a discounted price through January 24 (and at full price thereafter), and the updated instructions will be posted on BarBooks™ by the end of January.