TIME IS RUNNING OUT! To save 15% on our 2022 codebooks, preorder by April 18 and enter coupon code CODES2022 at checkout. Continue reading
The Uniform Civil Jury Instructions Committee and the Uniform Criminal Jury Instructions Committee spent 2021 working on instructions in a wide array of categories—updating a number of older instructions and in some categories creating brand new instructions. Continue reading
For a limited time, Oregon Constitutional Law is available for pre-order at a discount. Use coupon code CONLAW2022 at check-out to save 10% through February 28, 2022. You won’t want to miss this fully updated second edition. It includes a new chapter on constitutional odds and ends, as well as a copy of the original 1857 constitution and the current Oregon Constitution with updates through 2021. Continue reading
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
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There have been important changes in administrative law. Do you know what they are? Buy the 2016 supplement to Oregon Administrative Law and find out. Oregon Administrative Law thoroughly updates the 2010 text with an explanation of the essential components of Oregon’s Administrative Procedures Act, including its comprehensive definitions, rulemaking procedures, contested case procedures, procedures for judicial review of rules, contested case orders, declaratory rulings, and much more.
- Agency Authority and Functions — 41 updated sections
- The Administrative Law Judge — 13 updated sections
- Administrative Rules — 19 updated sections
- Contested Cases: Preparation and Strategy — 66 updated and 4 new sections
- Orders in Other than Contested Cases — 16 updated sections
- Extraordinary Remedies in Administrative Cases — 63 updated sections
- Public Records — 29 updated sections
- Public Meetings and Public Hearings — 29 updated sections
- Attorney General Opinions and Rules — 8 updated and 3 new sections
- Civil Penalties and Cease-and-Desist Orders — 5 updated sections
- Criminal Enforcement of Administrative Rules, Permits, and Absence of Permits — 14 updated sections
- Alternative Dispute Resolution — 3 updated sections
- Health Professional Licensing and Enforcement — 15 updated sections
- Judicial Review of Administrative Decisions — 32 updated sections
- Governmental Oversight and Relations — 11 updated sections
- Legal Ethics in the Administrative Law Setting — 16 updated sections
The editorial board for the upcoming Oregon Real Estate Deskbook has reorganized the five current real estate series books, combining chapters that covered the same topics and planning the addition of new chapters to touch on topics not addressed before. The editorial board also determined that four chapters from Foreclosing Security Interests more logically fit within a comprehensive real estate deskbook. The new five-volume book will be available soon, available to purchase as a complete set or as individual volumes. Watch for information on preordering a copy of this publication to take advantage of an early discount. The Oregon Real Estate Deskbook is a work in progress, with chapters being posted online as they become ready.
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
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.
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).