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 That way, instead of having a book that is immediately outdated, we can make the required edits and provide the Bar an up-to-date legal resource.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!

Editorial Sloth, Lists, Etc.

By Yasha Renner, Attorney Editor

It was a Friday, almost lunch time, and I was nearing the end of a chapter I was editing for the 2016 revision of Damages. I couldn’t figure out why the chapter’s author decided to include only four of the nine contractor designations cited in ORS 701.081 when they all seemed applicable. Does the author think less of locksmiths or home inspectors? I wondered.

Here’s the sentence:

As part of the registration process, a $10,000, $15,000, or $20,000 surety bond must be posted, depending on the contractor’s designation as a residential general contractor, a residential developer, a residential specialty contractor, or a residential limited contractor. ORS 701.068; ORS 701.081.

At a loss, a sly thought entered my mind; I could finish the sentence with an etc. That way I wouldn’t have to bother the author with a stupid question, nor would I have to endanger the assertion by adding the remaining actors, who (I am sure) were excluded for noble reasons. But to act on this temptation, I soon learned, would have been quite wrong. And just as I resolved to do so my conscience spoke, accusing me of editorial sloth—a capital vice.

So I did what I often do when faced with a question of editorial ethics: I turn to Bryan Garner, our department’s de facto editor in chief, who, with meekness and charity, invoked the following French proverb: “God save us from a lawyer’s et cetera.” Garner’s Dictionary of Legal Usage 331 (3rd ed. 2011). And thus, with the help of a higher power (i.e., a style guide), I was instantly freed from the enemy’s grip. “Still,” he counseled, “it would be foolish to lay down an absolute proscription against using etc., for often one simply cannot practicably list all that should be listed in a given context.” Id.

Alright, then, I thought to myself. I was relieved to know that etc. is not malum in se. But does the context here sanction its use? Certainly not, since I could list all of the designations. “Hideous!” my right-brain suddenly cried out, clearly bothered by the thought; and with that I yielded to its complaint. This sentence had to be pretty.

What’s an attorney editor to do?

Let’s just say I banished the offending half-truth. But that doesn’t really matter. What matters is that we lawyers don’t miss the moral here, which has nothing to do with style or grammar and everything to do with cultivating good habits, namely diligence and veracity, i.e., completeness. Because an incomplete thought, if aired, could become a scandal to others who, for instance, might be tempted to complete it for you, etc., etc.

Shall I Compare Thee to a Summer’s Day? Probably not.

by Ian Pisarcik, Legal Publications Attorney Editor

The writer David Foster Wallace was so fond of words that he used to lie awake for hours reading the dictionary and circling the ones he liked best: Maugre, Tarantism, Ruck, Sciolism, Primipara. He is a man who once wrote “I do things like get in a taxi and say, ‘The library, and step on it.’” His desire to use uncommon words was matched by his desire to know the meaning of those uncommon words. Many lawyers, it seems at times, share only the first desire. Nowhere is this more evident than in the enduring use of the word shall.

Lawyers rely heavily on the word shall, and while the most common interpretation of the word is that it denotes a mandatory action (i.e., must), lawyers do not consistently use it this way. As lawyer and lexicographer Bryan Garner points out, “that’s why courts in virtually every English-speaking jurisdiction have held—by necessity—that shall means may in some contexts, and vice-versa.” Let’s look at some examples, shall we?

  1. “No person shall operate a motorboat at a speed greater than is reasonable.” If shall means must, then this sentence is telling us that no person must operate a motorboat at a speed greater than reasonable. In other words, you’re not required to operate a motorboat at a speed greater than is reasonable, but if you want to, knock yourself out. This is clearly not the intended meaning. What the author is trying to say is: “No person may operate a motorboat at a speed greater than is reasonable.” In other words, you are not allowed to do this.
  2. “The sender shall have fully complied with the requirement to send notice, when the sender obtains electronic confirmation that the transmission has been received.” Is shall denoting a mandatory action here? Of course not. The sentence is simply defining when the sender has fully complied: “The sender has complied . . . when the sender obtains electronic confirmation. . .”
  3. “The agreement shall be terminated.” A duty must be imposed on a capable actor. An agreement is not a capable actor. What this sentence is intended to mean is that the agreement is terminated (presumably by someone or some action, but that’s a post for another day).

The word shall is rarely used consistently throughout a legal document. And the result is that, as Garner puts it, “the word breeds litigation.” According to Garner, the multivolume Words and Phrases, published by Thomson Reuters, contains 107 pages of small-type cases interpreting the word shall. Garner hoped to cut down on some of this litigation when he revised the civil, appellate, and criminal federal rules, and dropped the word shall completely. The editors at the Oregon State Bar have chosen to do the same. We shall banish the word from our vocabulary, and don’t get us started on witnesseth . . .

The Power of Typeface

By Ian Pisarcik, Legal Publications Attorney Editor

How many animals of each species did Moses take on the Ark?

If you answered “two,” you’re wrong, but you’re not alone. According to a study published in The
Journal of the International Social Cognition Network, 88 percent of people failed to spot the mistake (Noah was the actor in the biblical story). But here’s the interesting part, when a less-common typeface was used, the number of people who failed to spot the mistake fell from 88 percent to 53 percent.

The conclusion of the University of Michigan researchers, as well as numerous other researchers who have conducted similar studies, is that a familiar typeface enables readers to skim effortlessly over words. On the other hand, an unfamiliar or hard-to-read typeface forces the brain to invest greater time and attention. The result is that readers are more likely to spot anomalies.

I observe this phenomenon on a small scale almost every day. When I’m reading a passage that seems amiss for no immediately discernible reason, I’ll often change the typeface. The change, nearly without fail, enables me to quickly diagnose the problem.

The University of Michigan study is the tip of the iceberg when it comes to typography research. A study conducted by researchers at Mindlab International found that people who ate soup ordered from a menu written in Lucida Calligraphy were more likely to enjoy the soup than those who ordered the same soup from a menu written in Courier. In another study, Errol Morris (with help from Cornell University Professor of Psychology David Dunning) found that people who read text printed in Baskerville typeface were more likely to believe the text than text printed in many other typefaces, including Georgia and Helvetica.

The body of research surrounding typeface may not help you write a brief or any other court document that has strict requirements, but it may come in handy when creating a website, sending an e-mail, or designing a business card. Just imagine all that power.

*As an interesting side note, typeface and font are not synonymous despite common usage.

30 Years of Legal Editing

By Cheryl McCord, Legal Publications Attorney Editor

I am a legal editor. For over 30 years, I have edited legal resources used and relied upon by Oregon lawyers. Over the years, I have seen a lot of mind-boggling changes in the editorial process. Frankly, probably because of my advancing age, it’s difficult for me to remember “the way we were.” I will, however, make a feeble attempt to do so.

The Old Days

When I began my career as a legal editor, we paid law students to check the citations in chapters (e.g., running heads for case names) and to alert us to issues that required further analysis. The clerks came to our office to check out chapters (which the authors had sent to us by Pony Express) and then they went to the law library to work on them. They would have to run around the library to get—and put back—multitudes of volumes of reporters, treatises, statutory compilations, and other resources, and then physically turn pages to check an author’s citations. (They had to be physically fit, like firefighters.) Using red ink pens, they made changes and notes on the manuscript pages. After completing a chapter, the clerk returned the manuscript to a legal editor.

The editor then made editorial changes on that same manuscript using a different-colored ink pen (I preferred purple). The editor looked at Oregon cases and statutes while reviewing the legal accuracy of the author’s statements. Inserts and revisions that were too lengthy to interline on the manuscript were hand-written (often illegibly) on separate pieces of paper and attached to the relevant pages. The resulting dog-eared and wrinkled product became a collage of different colors, arrows, doodles (flowers were my specialty), editorial symbols, and materials (including coffee stains, remnants of what the law clerk had for lunch, and other unknown substances—I’m sure the brown smudges were chocolate).

Then our secretary typed the inserts and the messy pages, and used the cut-and-paste method to put the edited manuscript together. This was a very time-consuming (and sloppy) process. We then photocopied this conglomeration to send it to the author, who reviewed our edits and made additional marks on the pages. The chapter was then ready to be sent to an outside typesetter. When the print version was returned to us, we had to proofread the manuscript carefully, line by line. AARRGGHH!!

One thing I’ve learned over the years is that everything is always evolving into something else. Like everything in life, our editorial process has undergone changes that have been so gradual and imperceptible that we didn’t even know they were occurring (such as our hair color—mine is now white; when did THAT happen?).

The Future Is Here

With the invention of personal computers, we began to type our own inserts, but our word-processing specialist had to incorporate the inserts and hand-written editorial changes into the digital version of the chapter. Then, with the advent of online legal resources, we attorney editors enjoyed great access to many different kinds of legal materials and began doing our own cite-checking online. It was amazing—we could sit at our desks and visit many law libraries without having to jump up and down and run down the aisles between bookshelves! We thought that our editorial lives couldn’t get much better than this. But that evolutionary process kept on truckin’.

And then, lo and behold, we discovered digital editing! (Yep, just like Al Gore invented the Internet.) It was miraculous! (Well, okay, I have to admit that I resisted this change. To begin digital editing in MS Word seemed overwhelming—it was so different and revolutionary and there was so much to learn! It’s harder for my old eyes to read words on a computer screen than words on paper. I even questioned my inner being—was I an attorney editor or a word-processing non-specialist? Woe is me.)

The evolution of our editorial process has given life to a better world of editing. I believe that digital editing, coupled with online legal researching by our attorney editors, have improved the quality and accuracy of our publications. We now even have dual computer monitors to enhance the process (one screen for the chapter we’re editing, and one screen for online legal resources).

Digital editing is also a huge benefit to our volunteer authors. The track-changes feature of digital editing in MS Word enables them to readily see where any changes were made to the chapter. (Deletions are noted in boxes in the left-hand margin and additions are marked in red with a double underline.) Rather than destroying trees in order to mail hard copies of edited chapters to authors, we now e-mail chapters to them. Authors seem to appreciate receiving an electronic version of their chapter with tracked changes; it saves them time in reviewing our work.

Some Things Never Change

Although the manner in which I accomplish the finished product has changed over the years, my essential role as a legal editor has remained the same. Editing a legal manuscript involves not only reviewing the substantive accuracy of the author’s work, but also checking the work for spelling, grammar, consistency, and conformity to an in-house style manual. The legal editor is also the person who reviews the chapter from the reader’s perspective, ensuring that the reader will understand what the author has written. An important part of the legal editor’s job is to determine whether the author has left any unanswered questions in the reader’s mind. The editor serves as a link between the authors (who are usually quite knowledgeable about the subject matter) and the readers (who may not be).

As I said before, everything is always evolving into something else. What will attorney editors be like in the future? (I know I’ll be even older.) What if attorney editors evolve into a new species with computer-like brains so that they can do editing and cite-checking in their own minds? At least that would make it easier to work from home.