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Pain and Suffering Damages

Posted on | by Linda Kruschke

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

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

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

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

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

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

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

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

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

  • 4.3-2 Proof from Medical Practitioners

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

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  • 4.3-3 Other Types of Proof

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

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

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Lawyer Advertising on the Internet

Posted on | by Linda Kruschke

Excerpted from The Ethical Oregon Lawyer (OSB Legal Pubs 2015), chapter 2 “Marketing, Advertising, and Solicitation” by David J. Elkanich.

§ 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.

Marijuana-Related Jury Instructions under Construction

Posted on | by Linda Kruschke

By Dean Land, Attorney Editor

At first glance, Oregon’s new marijuana laws seem simple—recreational marijuana is now legal. But a more in-depth look reveals some very complex legislation. Together, Ballot Measure 91 (2014) and House Bill 3400 (2015) take up 99 pages in Oregon Laws.

The legislation’s effect on the jury instructions is something that the Uniform Criminal Jury Instructions Committee is still working to untangle. For example, ORS 475.864 (2013), which criminalized the possession of a certain amount of marijuana, was not simply repealed. Instead, the new version of the statute criminalizes possession of marijuana under certain circumstances, based on criteria including the age of the possessor, the location of the possession, and the amount and form of the marijuana. Furthermore, the statute does not apply to licensed growers, processors, and sellers “acting in accordance with” Measure 91. ORS 475.864(6) (2015). This raises questions. Does a district attorney who charges unlawful possession of marijuana have to prove beyond a reasonable doubt that the defendant did not act in accordance with Measure 91? Or is acting in accordance with Measure 91 an affirmative defense? And perhaps most perplexing of all, how should that element of the crime be phrased for the jury?

These are among the many questions confronting the committee as it works to update the instructions for marijuana crimes. Although the committee was unable to revise these instructions in time for the 2015 UCrJI Supplement, it alerted practitioners to the issue by adding notes to the potentially affected instructions. The committee expects to have revised marijuana-crime instructions ready for the 2016 Supplement. In the meantime, judges, defense attorneys, and prosecutors are encouraged to contact committee members with any suggestions.

Oregon Real Estate Deskbook – Available Now!

Posted on | by Candace McLean

The Oregon Real Estate Deskbook is a complete reorganization of the five current real estate series books, combining chapters that covered the same topics from different angles.  In addition, it includes updated chapters from Foreclosing Security Interests and eleven brand new chapters.

This new five-volume book can be purchased as a complete set or as individual volumes.  The comprehensive tables and index, included with the complete set, can be purchased separately with the purchase of any one individual volume.

Order your copy today by visiting our online bookstore or by calling our CLE Service Desk at (503)431-6413, or toll-free in Oregon, 1-800-452-8260, x 413.

Volume 1:  Includes 18 chapters covering Preliminary Considerations; Estates, Title, and Survey; Easements and Covenants, Conditions, and Restrictions; and Acquisitions and Dispositions.  Also included are chapters on Deeds and Conveyances; Escrows and Closing; and Earnest Money Agreements.

Volume 2: Includes 12 chapters on Financing Transactions, including three brand new chapters.  Also included are chapters on Commercial Real Estate Finance; Mortgage Foreclosure; Contract of Sale; and Real Estate Appraisal.

Volume 3: Includes nine chapters covering Residential, Commercial, and Ground Leasing as well as Condominiums, Planned Communities, and Timeshares.  Also includes chapters on Leasing Assignments and Subleases; Commercial Lease Disputes and Remedies; and Governances of Community Associations.

Volume 4: Includes 13 chapters covering Non-Possessory Rights, Unique Property Types, and Other Legal Considerations.  Six chapters are brand new including Mineral Rights, Forestland, Timber, and Forest Products; Receivership; and Property and Liability Insurance.

Volume 5: Includes 12 chapters on Taxes and Assessments, and Real Estate Disputes along with 2 brand new chapters.  Other content includes Like-Kind Exchanges; Tax Credits and Abatements; Vacation and Abandonment; and Judgments, Execution, and Exemptions.

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.

The Remaking of the Oregon Real Estate Deskbook

Posted on | by Candace McLean

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.

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

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.  

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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.

Time Limitations under the Oregon Family Abuse Protection Act

Posted on | by Linda Kruschke

Oregon Statutory Time Limitations is now available on the BarBooks™ online library. This article is an excerpt from the Family and Juvenile chapter of that book. It is not a comprehensive coverage of the topic of the Family Abuse Protection Act, but is rather limited to a discussion of time limitations provided for under that statute. For more information about time limitations in family and juvenile matters, see the complete chapter on BarBooks™.

Authors of the chapter from which this article is excerpted are Jessica Flint, Nigel Vanderford, Alex Sutton, Mark Johnson Roberts, and Craig Cowley.

Sec. 4.1   FAMILY ABUSE PROTECTION ACT

“Any person who has been the victim of abuse within the preceding 180 days may petition the circuit court for relief under ORS 107.700 to 107.735 [the Family Abuse Prevention Act], if the person is in imminent danger of further abuse from the abuser.” ORS 107.710(1). Time during which the respondent is incarcerated or has a principal residence more than 100 miles from the petitioner’s principal residence is not counted as part of the 180-day period. ORS 107.710(6).

Sec. 4.1A Hearing and Duration

When a person files a Family Abuse Prevention Act petition, the court must hold an ex parte hearing on the day the petition is filed or on the
following judicial day. Upon the request of the petitioner and the requisite showing of abuse, danger, and threat, the court must issue an order restraining the respondent and including various specific provisions. ORS 107.718(1). The order is effective for one year or until withdrawn, amended, or superseded, whichever is sooner. ORS 107.718(3).

Sec. 4.1B  Respondent’s Request for a Hearing

Within 30 days after a restraining order is served, the respondent may request a hearing. If the respondent fails to request a hearing within that time, the order is confirmed by operation of law. ORS 107.718(10)(a), (11).

Sec. 4.1C  Hearing Date

If the respondent requests a hearing under ORS 107.718(10), the court must hold the hearing within 21 days after the request. However, if the respondent contests an order granting temporary child custody to the petitioner, the court must hold the hearing within five days after the request. ORS 107.716(1).

Sec. 4.1D  Child Custody Hearing

If the court determines under ORS 107.718(2) that exceptional circumstances exist that affect custody of a child, the court must hold a hearing within 14 days of issuing the restraining order. ORS 107.716(2)(a). The respondent may request an earlier hearing to be held within five days after the request. ORS 107.716(2)(b). When the court schedules a hearing under ORS 107.716(2), the respondent may not request a hearing under ORS 107.718(10). ORS 107.716(2)(c).

Sec. 4.1E  Extension of Time

If service of notice of a hearing under ORS 107.718(2) or (10) is inadequate to provide a party with sufficient notice, the court may extend the date of the hearing up to five days so that the party may seek representation. ORS 107.716(4)(a). If one party is represented by an attorney at such a hearing, the court may extend the date of the hearing up to five days at the other party’s request so the other party may seek representation. ORS 107.716(4)(b).

Sec. 4.1F  Renewal of Order

If the court renews an order, the respondent may request a hearing within 30 days after being served. The court must hold a hearing within 21 days after the respondent’s request. ORS 107.725(4).