OSB Seeks OLF Assistant Director

Assistant Director—Oregon Law Foundation and Legal Services Programs

The Oregon State Bar is looking to fill the position that will work with the Director to achieve the objectives of the Oregon Law Foundation (OLF), the Legal Services Programs (LSP), and other access to justice initiatives. If this position speaks to your passion and experience, we encourage you to apply.

Please visit http://www.osbar.org/osbcenter/openings.html for job details.

The Oregon State Bar is an Equal Opportunity Employer.

 

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Oregon Real Estate Deskbook Wins Award

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 2015.

The Association for Continuing Legal Education (ACLEA) has selected Oregon Real Estate Deskbook as the winner of its ACLEA’s Best Award of Outstanding Achievement in Publications. A plaque commemorating the award was presented at ACLEA’s Annual Meeting in Seattle, Washington in August and is 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: Thomas E. Bahrman, Dustin R. Klinger, Andrew I. Davis, Dina E. Alexander, Peter R. Jarvis, Lee Aronson, Patricia A. Ihnat, C. Cleveland Abbe, Dean P. Gisvold, Jonathan M. Radmacher, Michael G. Magnus, Michelle D. Da Rosa, Robert W. Wilkinson, Amy Heverly, Damien R. Hall, Mark A. Manulik, Paul B. Barton, John B. Benazzi, Rebecca S. Schwarzkopf, Don G. Carter , Jeffrey S. Davis, Benjamin Leedy, Thomas S. Hillier, Christopher R. Ambrose, John A. Lusky, Jonathon L. Goodling, Valerie Athena Tomasi, Marisol Ricoy McAllister, Eleanor A. DuBay, Cody Hoesly, Steven A. Moore, Barry L. Groce, Bennett H. Goldstein, Brent Summers, Jason Alexander, Mike G. Halligan, Rich Canaday, Ryan Nisle, James M. Walker, Charles M. Greeff, Mike Silvey, Jeremy Bader, Thomas S. Smith, Kimberly McCullough, Richard Bailey, Robert W. Wilkinson, Jacob A. Zahniser, P. Stephen Russell III, Rebecca Biermann Tom, Howard M. Feuerstein , Steven F. Hill, Hong N. Huynh, Jennie Bricker, David E. Filippi, Kirk B. Maag, Jerry R. Fish, Eric L. Martin, Christopher C. Criglow, Greg Fullem, Richard Allan, Phillip E. Grillo, Lauren E. Johnson, Phillip C. Querin, William D. Miner, Kathleen L. Wilde, Clifton Molatore, Jeanne Kallage Sinnott, David W. Hercher, John Casey Mills, Teresa H. Pearson, William H. Caffee, Ann E. McQuesten, Jim L. Guse, Ronald A. Shellan, Jeneé (Gifford) Hilliard, John H. Gadon, Adam C. Kobos, Eric J. Kodesch, William F. (Fritz) Paulus, Edwin C. Perry, Neil N. Olsen, Sean M. Mazorol, Jill S. Gelineau, Marilyn Moylan Wall, Harold D. Gillis, Alexandra E. Sosnkowski, Robert R. Griffith, Alec J. Shebiel, and Michael H. McGean. Thanks to all of you for your hard work and dedication to this volunteer effort.

For many years, the Oregon State Bar published a loosely related series of real estate books, each published at different times, with different editorial boards, and with a different focus. In addition, we published a book titled Foreclosing Security Interests, which included real estate foreclosure topics.

In late 2012, we assembled a new editorial board interested in a complete reorganization of the series into a comprehensive multi-volume deskbook designed to meet the evolving needs of Oregon real estate attorneys. The editorial board represented a cross-section of the varied practice areas within real estate law. The board members reviewed all of the existing chapters of the real estate series as well as the Foreclosing Security Interests chapters. They identified topics that were covered in different ways in multiple chapters of the existing series and combined them; identified several topics that were no longer relevant and eliminated those chapters; determined that there were 11 additional topics not covered before that needed to be added; and logically organized the 66 chapters based on the order in which they would likely be encountered by the practitioner.

Oregon Real Estate Deskbook was designed to support Oregon attorneys in their role as legal counselor in real estate transactions where nonlawyers are increasingly playing a leading role. Whether the attorney is a recent law grad or a seasoned attorney, there is something in here for them. This publication was made possible only through the extra­ordinary dedication and gratuitous contribution of time and talent offered by over 90 Oregon attorneys. The accomplished attorneys who drafted each chapter offered their insights—starting with an over­view of the particular practice area and drilling down into the most relevant details that practicing attorneys are likely to encounter in their practice. The authors included forms and practice tips where appropriate. They also provided references to other resources, which are often helpful springboards when greater depth of understanding in a nuanced area of the law is necessary.

Oregon Real Estate Deskbook is available on BarBooks™ to all Oregon Bar members or for purchase in print at the Bar’s online bookstore.

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OSB Resumes Search for Director of Diversity & Inclusion

The Oregon State Bar is looking to fill the position that will provide leadership and oversight for the OSB’s initiatives and programs to advance diversity and inclusion within the legal profession. If this position speaks to your passion and experience, we encourage you to apply.

Please visit http://www.osbar.org/osbcenter/openings.html for job details.

The OSB is an Equal Opportunity Employer.

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Damages (2016 Revision): Later, but Better

by Dean Land, Legal Publications Attorney Editor

During our editing process here in the OSB Legal Publications Department, it’s not uncommon for the Oregon appellate courts to issue an opinion that affects the book that we’re working on. Sometimes, the effect is limited to a minor issue in one or two chapters. Other times, the effect is much broader (like when State v. Gaines, 346 Or 160 (2009), came down just as we were finishing Interpreting Oregon Law). Although it may delay publication, we’d much rather have such a case come down during the editing process than after we go to print. That way, instead of having a book that is immediately outdated, we can make the required edits and provide the Bar an up-to-date legal resource.

As we approach our deadline for the 2016 edition of Damages, the Oregon Supreme Court has indulged us once again, this time by issuing its opinion in Horton v. OHSU, 359 Or 168 (May 5, 2016). In a lengthy decision (140 pages in the Advance Sheets, including concurring and dissenting opinions), the court altered its interpretation of two provisions of the Oregon Constitution and, in doing so, overruled two significant prior decisions.

Before Horton, the court’s analysis of the Remedy Clause of Article I, section 10, was governed by Smothers v. Gresham Transfer, Inc., 332 Or 83 (2001). Under Smothers, the court asked whether Oregon common law, as it stood in 1857 (when the Oregon Constitution was drafted), recognized a cause of action for the plaintiff’s alleged injury. If so, then the Remedy Clause required a constitutionally adequate remedy for that injury. Horton overruled Smothers and disavowed the bright-line rule that protected common-law causes of action that existed in 1857 but offered no protection for causes of action that did not exist in 1857. In place of the Smothers methodology, the court created a framework that considers “the extent to which the legislature [in altering a common-law remedy] has departed from the common-law model measured against its reasons for doing so.” Horton, 359 Or at 220.

Horton also changed the analysis of Article I, section 17, which protects the right to a jury trial in civil cases. Under Lakin v. Senco Products, Inc., 329 Or 62, modified, 329 Or 369 (1999), if Oregon common law in 1857 recognized a cause of action, then Article I, section 17, prevented the trial court from reducing a jury verdict. Thus statutory caps on damages, such as those of the Oregon Tort Claims Act, were inapplicable to those causes of action. Horton overruled Lakin, deciding instead that Article I, section 17, guarantees only a procedural right to a jury for causes of action recognized by Oregon common law in 1857. It does not impose any substantive limits on the legislature’s authority to limit damages for a claim.

Horton affected seven chapters in Damages and required a bit of scrambling on our part. Our in-house editors read the opinion, revised the affected chapters, and sent them back to the authors and the editorial review board for approval and any additional changes. (One exasperated author commented that Horton came down just as he was beginning to understand Smothers.) In the end, though, the new edition of Damages will be more helpful to practitioners because it includes the changes wrought by Horton. Thanks to all our authors and the editorial review board for the extra effort!

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Oregon Administrative Law, 2016 Supplement

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.

Highlights include:

  1. Agency Authority and Functions — 41 updated sections
  2. The Administrative Law Judge — 13 updated sections
  3. Administrative Rules — 19 updated sections
  4. Contested Cases: Preparation and Strategy — 66 updated and 4 new sections
  5. Orders in Other than Contested Cases — 16 updated sections
  6. Extraordinary Remedies in Administrative Cases — 63 updated sections
  7. Public Records — 29 updated sections
  8. Public Meetings and Public Hearings — 29 updated sections
  9. Attorney General Opinions and Rules — 8 updated and 3 new sections
  10. Civil Penalties and Cease-and-Desist Orders — 5 updated sections
  11. Criminal Enforcement of Administrative Rules, Permits, and Absence of Permits — 14 updated sections
  12. Alternative Dispute Resolution — 3 updated sections
  13. Health Professional Licensing and Enforcement — 15 updated sections
  14. Judicial Review of Administrative Decisions — 32 updated sections
  15. Governmental Oversight and Relations — 11 updated sections
  16. Legal Ethics in the Administrative Law Setting — 16 updated sections

Order your copy today! 

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Job Opening in OSB Client Assistance Office

Assistant General Counsel and Client Assistance Office Attorney

The Oregon State Bar (OSB) regulates the practice of law in Oregon and provides a variety of services to its members and the public. We are looking for someone to join our dedicated team and provide initial response and disposition to all inquiries and complaints concerning the conduct of attorneys.

OSB is an Equal Opportunity Employer                                               

 Responsibilities include the following:

  • Receives and reviews inquiries and complaints concerning the conduct of attorneys. Analyzes facts and legal issues to determine whether misconduct may have occurred and exercises discretion to dismiss matters or refer for further investigation.
  • To the extent possible and as resources permit, assists clients and lawyers to resolve issues not involving misconduct.
  • Manages a high volume case load.
  • Issues written opinions regarding inquiries and complaints.
  • Responds to telephone contacts from the public.
  • Serves as back-up to provide telephone ethics assistance to members as needed.
  • Assists in development of long- and short-range plans, policies, and procedures for the Client Assistance Office (CAO).
  • Provides input on the evaluation of support staff.
  • Responsible for coordination or oversight of specific program functions as assigned.
  • Assists with CAO staff training.
  • Speaks and writes on ethics issues for continuing legal education (CLE) programs and Oregon State Bar (OSB) publications.

Candidates may have any satisfactory equivalent combination of the following experience & training which ensures the ability to perform the work.

  • Graduation from an accredited law school. Admission to the practice of law in Oregon.
  • Four years of legal experience, preferably in a government or private practice involving litigation.
  • Experience managing a heavy caseload.
  • Knowledge of legal ethics rules and principles. Experience in resolving legal ethics issues helpful.
  • Experience with the Microsoft Office Suite in a Microsoft Windows environment with particular emphasis on Word, Excel, Outlook, and Access or other database programs. Ability to type 40 WPM with accuracy.
  • Excellent skills in legal analysis, legal research, and writing.
  • Strong organizational skills and time management skills.
  • Strong self-motivation skills requiring minimal supervision.
  • Excellent presentation and public speaking skills before large and small groups.
  • Excellent interpersonal and conflict management skills with strong ability to listen, use tact, and resolve conflict through informal telephone mediation.
  • Ability to work independently and in a team environment both efficiently and courteously.
  • Ability to work with various groups or individuals with conflicting demands.
  • Ability to multitask, prioritize, and meet deadlines in a detail-oriented, fast-paced environment.
  • Ability to exercise professional demeanor and a high level of customer service for a potentially demanding customer base in a variety of situations.
  • Ability to exercise sound judgment in keeping with the policies and objectives of CAO and the OSB.
  • Commitment to the concept of teamwork and cross-responsibility within a department.
  • Ability to communicate in person, in writing, by e-mail, and by telephone.
  • Ability to operate a computer for long periods of time.
  • Ability to manipulate data for program purposes and typing.
  • Ability to use standard office equipment and computer peripherals.
  • Ability to remain in a stationary position and maintain focus for long periods of time.
  • Ability to maintain focus and perform work requiring concentrated effort for long periods of time.
  • Ability to remain on the telephone for long periods of time.
  • Ability to make presentations before large and small groups of people.
  • Ability to work in a moderately noisy, open environment.
  • Ability to travel overnight, inside and outside Oregon, to meetings and seminars.

Salary: $6,554 per month minimum, depending on experience. The OSB offers excellent benefits including voluntary 6% participation in the PERS program.

Send resume with a cover letter to Director of Human Resources, Attention: CAO, Oregon State Bar, P. O. Box 231935, Tigard, OR 97281. Fax to 503-598-6985 or e-mail to hr@osbar.org.

 

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Oregon Formal Ethics Opinions, 2016 Revision and ORPCs Annotated, 2016 Edition

Avoid being waylaid by ethics issues. Save time by having all the answers to your ethics questions at your fingertips with your own copy of the revised Oregon Formal Ethics Opinions and all new Oregon RPCs Annotated. Both publications are available now.  Visit our online bookstore to order your copies today.


Oregon Formal Ethics Opinions, 2016 Revision

This new edition of the Oregon Formal Ethics Opinions replaces the 2005 revision and all supplements. It includes:

  • Revised comments to all 2005 opinions with updated cross-references to The Ethical Oregon Lawyer, 2015 Revision, and other resources
  • New comments to all opinions issued in 2006 and later
  • One new opinion issued and twenty-six opinions that were revised by the Legal Ethics Committee in 2015
  • Nine opinions that were revised by the LEC in 2016
  • Updated tables, revised and updated subject index, and opinions citator

Oregon Rules of Professional Conduct Annotated, 2016 Edition

This new offering from the Oregon State Bar Legal Publications Department is a companion to the Oregon Formal Ethics Opinions, and includes:

  • Full text of all Oregon RPCs
  • Annotation summaries of all Oregon Supreme Court cases, Disciplinary Board Reporter cases, and Oregon Formal Ethics Opinions citing the Oregon RPCs and ORS chapter 9
  • Annotation summaries of all cases citing relevant DRs
  • Sanction imposed in each case clearly highlighted for quick reference
  • Cross-references to discussions of the Oregon RPCs in The Ethical Oregon Lawyer, 2015 Revision
  • Tables, subject index, and conversion table from DRs to Oregon RPCs

Will be updated annually with new case annotations


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.

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Creditors’ Rights and Remedies, 2016 Revision

Available for Purchase.  ORDER NOW!

  • Trying to collect a judgment or enforce a lien?
  • Having trouble locating the debtor or the debtor’s assets?
  • Need to know what property is subject to execution?

Creditors’ Rights and Remedies can help!

This book contains the latest developments in debtor-creditor law and a wealth of practice tips to make you an efficient and effective lawyer. The 2016 revision completely updates the prior revision and supplement, and also includes several revised chapters from Foreclosing Security Interests. It focuses on Oregon case law and statutes, and presents explanations of federal law where applicable.

Table of Contents:

  1. Provisional Process
  2. Alternatives to Bankruptcy: Assignment for Benefit of Creditors or Receivership
  3. Statutory and Possessory Liens
  4. Enforcement of Foreign Judgments
  5. Practical Discovery
  6. Execution
  7. Garnishment
  8. Decedents’ Estates
  9. Exemptions
  10. Proceedings in Support of Execution
  11. Fraudulent Conveyances and Creditors’ Bills
  12. Self-Help Remedies under the Uniform Commercial Code
  13. Judicial Foreclosure of Security Interests in Personal Property
  14. UCC Article 9

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.

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Job Opening for OSB Assistant Disciplinary Counsel

OSB Assistant Disciplinary Counsel — Investigation

The Oregon State Bar (OSB) regulates the practice of law in Oregon and provides a variety of services to its members and the public. We are looking for someone to join our dedicated team and provide counsel to the OSB in the evaluation, investigation, and, where appropriate, negotiated resolution of ethics complaints made against Oregon lawyers.

OSB is an Equal Opportunity Employer                                               

 Responsibilities include the following:

  • Responsible for reviewing and evaluating disciplinary investigations, seeking authority for pursuit of formal proceedings, pursuing negotiated resolutions where appropriate, and recommending appropriate outcomes to the State Professional Responsibility Board (SPRB).
  • Gathers documents, interviews witnesses, conducts legal research, and analyzes facts and law.
  • Maintains high-volume caseload in a timely and professional manner, working independently or in consultation with others on staff as needed.
  • Provides input to Disciplinary Counsel on matters of policy, rule-making, budget, and office organization.
  • Serves as a public speaker in CLE seminars or other forums dealing with discipline and legal ethics.

Candidates may have any satisfactory equivalent combination of the following experience & training which ensures the ability to perform the work.

  • Graduation from a four-year college or university and from an accredited law school. Active membership in the OSB.
  • Three years or more of law practice with emphasis on civil litigation and/or appellate work.
  • Experience with the Microsoft Office Suite in a Microsoft Windows environment with particular emphasis on Word, Excel, and Outlook.
  • Ability to type 40 WPM with accuracy.
  • Excellent skills in legal analysis, legal research, and writing.
  • Strong organizational skills with ability to prioritize multiple activities and in a fast-paced, detail-oriented environment. Strong time management skills meeting and exceeding timelines and deadlines.
  • Strong self-motivation skills requiring minimal supervision. Ability to balance independent and team-oriented work.
  • Excellent written and oral communication skills.
  • Excellent presentation and public speaking skills before large and small groups.
  • Excellent interpersonal and conflict management skills with strong ability to listen and use tact.
  • Ability to work independently and in a team environment both efficiently and courteously.
  • Ability to exercise sound judgment in keeping with the policies and objectives of the Regulatory Services Department and the OSB.
  • Ability to exercise professional demeanor and a high level of customer service for a potentially demanding customer base.
  • Ability to work with various groups or individuals with conflicting demands.
  • Commitment to the concept of teamwork and cross-responsibility within a department.
  • Ability to communicate in person, in writing, by e-mail, and by telephone.
  • Ability to operate a computer for long periods of time.
  • Ability to remain on the telephone for long periods of time.
  • Ability to remain in a stationary position for long periods of time.
  • Ability to manipulate data for program purposes and typing.
  • Ability to make presentations before small and large groups of people.
  • Ability to use standard office equipment and computer peripherals.
  • Ability to travel overnight, inside and outside Oregon, for meetings, seminars, and investigative purposes.
  • Ability to work in a moderately noisy, open environment.
  • Ability to perform accurate, detailed, close vision work requiring concentrated effort.

Salary: $7,151 per month minimum, depending on experience. The OSB offers excellent benefits including voluntary 6% participation in the PERS program.

Send resume with a cover letter to Director of Human Resources, Attention: DCO, Oregon State Bar, P. O. Box 231935, Tigard, OR 97281. Fax to 503-598-6985 or e-mail to hr@osbar.org.

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Pain and Suffering Damages

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”).

* * * * *

 

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