The BarBooks™ online library is one of the highest rated member benefits that the Oregon State Bar offers to its membership. Members can also purchase subscriptions for their support staff. Continue reading
We relaunched the BarBooks™ online library on a new platform on June 8, 2022. Many members and subscribers dived right in and started using the new platform without any trouble. Others have struggled to navigate the change. Whether you fall in the first category, the second category, or somewhere in between, the BarBooks Ins and Outs webinar scheduled for November 30, noon to 1:00 p.m. will help you make the most of your BarBooks research experience. Continue reading
Following the recommendation of the Committee, the Executive Committee of the Real Estate and Land Use Section of the Oregon State Bar (“Executive Committee”) formally adopted the updated 2022 Oregon Model Opinion Report and the accompanying 2022 Oregon Model Opinion for use in Oregon secured real estate transactions on September 16, 2022. Continue reading
The OSB Legal Publication Torts was last revised in 2012. A new revision is in the early planning stages, but in the meantime the Legal Publications team has provided statutory updates using the new Public Notes feature that is part of the new BarBooks™ online library platform.
This post highlights two areas related to automobile insurance. To view the complete list of notes updating these and other chapters of Torts, visit the BarBooks online library. Continue reading
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.
Now in its sixth edition, Guardianships, Conservatorships, and Transfer to Minors is a comprehensive guide to protective proceedings in Oregon. Topics include: Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act; access to the basic pleading, notice, objection, and hearing procedures to be used for seeking and obtaining the appointment of a fiduciary in a protective proceeding; includes over 45 forms, including checklists for monitoring a protective proceeding to assist the lawyer and the fiduciary; 2017 and 2018 legislation; and much more.
TABLE OF CONTENTS
- Provisions Generally Applicable to Protective Proceedings
- Guardianships and Temporary Fiduciaries
- Conservatorships and Other Protective Proceedings
- Uniform Transfers to Minors Act
A special thank you to the following editor and author for their time and contributions to this new edition:
Peter Barnhisel, Author
Gary Vigna, Editor
Order your copy today by visiting our online bookstore. You may also contact our CLE Service Center at (503) 431-6413 or 1-800-452-8260, ext. 413.
The following material has been posted to BarBooks™ as of November 1, 2017. Chapters to books in progress are posted as they are finalized, before they are available in print.
Veterans, Military Servicemembers, and the Law
Chapter 6: The US Department of Veterans Affairs
Chapter 8: Employment and Reemployment Rights
Chapter 10: Family Law
Administering Trusts in Oregon
Chapter 1: The Role of Trusts in Estate Planning Process
Chapter 5: Trustee’s Duties, Powers, and Liabilities
Chapter 6: Administration Procedures
Chapter 14: Oregon Rule Against Perpetuities
Oregon Criminal Jury Instructions
UCrJI Nos. 1043, 1103 and 2311
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.
- 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.
* * * * *
- 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”).
* * * * *
§ 2.4 ADVERTISING
Lawyer advertising, marketing, and self-promotion have changed markedly over the years. Prior versions of this chapter may have focused almost exclusively on business cards, Yellow Page ads, letterheads, and solicitation; and although this chapter still addresses those topics, it is important to pause and reflect on the ever-evolving nature of lawyer advertising.
Lawyers have been turning to the Internet in increasing numbers as a means of self-promotion. Almost all law firms have their own website, and lawyers now may create blogs to provide general legal analysis, send out e-mail alerts on new cases, use Internet directories and referral services, and join group advertising to develop larger and more effective websites. Lawyers may study web traffic and become proficient in “SEO” (search-engine optimization), and may need to understand “Adwords” and “pay per click advertising.” Other lawyers may join social media (such as Twitter or Facebook) to expand and develop their Internet presence. Over recent years, bar associations have begun responding to the proliferation of lawyer and law-firm websites and other forms of Internet activity by lawyers by modifying or clarifying the extent to which the rules governing lawyer advertising and solicitation extend to these activities.
For lawyers who are subject to regulation by Oregon, no reported decisions currently exist concerning the applicability of the rules governing advertising and solicitation to most types of Internet activity, such as lawyer websites, nor do the Oregon rules expressly regulate such activity to any substantial extent. However, the rules expressly address the related area of electronic-mail communications and real-time communications (see § 2.4-3; § 2.6-1 of The Ethical Oregon Lawyer), and at least one ethics opinion deals with whether (and when) lawyers may accept Internet-based referrals and how they can pay for that service. See, e.g., OSB Formal Ethics Op No 2007-180 (“Internet Advertising: Payment of Referral Fees”).
Note: However, numerous ethics opinions address how lawyers navigate an electronic practice, including the Internet and other electronically derived issues. See, e.g., OSB Formal Ethics Op No 2005-164 (“Communicating with Represented Persons: Contact Through Web Sites and the Internet”); OSB Formal Ethics Op No 2011-187 (rev 2015) (“Competency: Disclosure of Metadata”); OSB Formal Ethics Op No 2011-188 (rev 2015) (“Information Relating to the Representation of a Client: Third-Party Electronic Storage of Client Materials”); OSB Formal Ethics Op No 2013-189 (“Accessing Information about Third Parties Through a Social Networking Website”).
An increasing number of jurisdictions have addressed Internet-related issues in reported decisions, and these decisions may provide insights into how the Oregon rules will be applied to Internet activity. For a description of efforts in other states, see ABA/BNA Lawyers’ Manual on Professional Conduct 81:551–81:574 (2014); 81:2012–81:2014 (2013) (supplemented periodically) (summarizing state regulatory activity in this area). The ABA Center for Professional Responsibility’s website lists resources concerning technology and marketing. See <www.abanet.org/ cpr>.
For a discussion of how the usual principles governing lawyer advertising and solicitation will or should work as applied to the Internet, see Louise L. Hill, Change Is In the Air: Lawyer Advertising and the Internet, 36 U Richmond L Rev 21 (2002); Louise L. Hill, Lawyer Communications on the Internet: Beginning the Millennium with Disparate Standards, 75 Wash L Rev 785 (2000); J. Clayton Athey, The Ethics of Attorney Web Sites: Updating the Model Rules to Better Deal with Emerging Technologies, 13 Geo J Legal Ethics 499 (2000); and Peter R. Jarvis & Bradley F. Tellam, Competence and Confidentiality in the Context of Cellular Telephone, Cordless Telephone, and E-Mail Communications, 33 Willamette L Rev 467 (1997) (addressing limits placed on communications by rules governing advertising and solicitation).
Lawyers disseminating information via the Internet should take account of the multijurisdictional character of the dissemination. Information included on an Oregon lawyer’s website will be disseminated in other jurisdictions. Given the myriad restrictions placed on lawyer advertising by state regulators, it would be at least impractical to suggest that lawyer advertisements on the Internet must comply with each state’s regulatory scheme. However, the inherent multijurisdictional nature of Internet communications has led some commentators to favor replacing the current state-by-state approach to the regulation of lawyer self-promotion with a national standard. See, e.g., William E. Hornsby, Jr., Ad Rules Infinitum: The Need for Alternatives to State-Based Ethics Governing Legal Services Marketing, 36 U Richmond L Rev 49 (2002). Unless and until a national approach is adopted, lawyers must determine which states’ rules to follow in communicating through the Internet. For Oregon lawyers, Oregon’s choice-of-law provision provides some assistance in making this determination. See § 2.7.
Practice Tip: Although the law in this area is not well-developed, the existing decisional law from other jurisdictions indicates that lawyers’ dissemination of information via the Internet is likely to be treated as advertising and solicitation. See, e.g., California Formal Op Interim No 12-0006 (2015) (a blog that is part of a lawyer’s professional website, or that otherwise expresses the lawyer’s availability for professional employment, is subject to the rules regulating lawyer advertising). See also New York State Bar Ethics Op 967 (2013) (a blog written by a lawyer, “the primary purpose of which is not retention of the attorney,” is not subject to the advertising rules).
Internet communications can take a number of forms, at least some of which do not fit comfortably into the traditional advertising and solicitation paradigm. See, for example, California Formal Op No 2012-186, which discusses whether social-media communications (such as through Facebook or Twitter) are lawyer advertising. Lawyers using the Internet should at the very least assume that the basic requirement that information be truthful and nonmisleading will apply to Internet communications. These restrictions should be considered with respect not only to the content of lawyers’ websites, but also to their domain names.
Caveat: Lawyers who advertise in Oregon should be aware that the Oregon Rules of Professional Conduct are not the sole legal constraints on lawyer advertising. Oregon statutes prohibiting unfair trade practices also apply. See ORS 646.605–646.656; ORS 646.881–646.885.
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.