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
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 That way, instead of having a book that is immediately outdated, we can make the required edits and provide the Bar an up-to-date legal resource.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!
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.
By Ian Pisarcik, Legal Publications Attorney Editor
One of my favorite cartoons depicts a young female student standing next to a tall male teacher. Both are staring at a chalkboard. The chalkboard reads: Stone Age Man, Bronze Age Man, and Iron Age Man. The speech bubble extending from the young girls mouth asks: “Did they have women in those days?”
“Gender-neutral language is achieved by avoiding the use of ‘gendered generics‘ (male or female nouns and pronouns used to refer to both men and women).” This is easier said than done. But so is carrying a tune, and that doesn’t stop nine out of ten I-5 drivers from pulling their lips back and pretending they’re Mick Jagger.
The Oregon Appellate Courts Style Manual states that “[g]ender-neutral terms are preferred, and gender-based pronouns are avoided except when referring to a specific person.” The style guide suggests using “he or she” only when all other constructions fail. The Oregon State Bar Legal Publications Department asks authors to avoid gender-based pronouns as well, but actually recommends the “he or she” construction.
In most cases, this is straightforward (albeit, a little clumsy). The defendant has the burden of raising his Confrontation Clause objection becomes the defendant has the burden of raising his or her Confrontation Clause objection, or the defendant has the burden of raising the defendant’s Confrontation Clause objection.
But things can get tricky when writers decide to alternate between masculine and feminine pronouns. Not only does this tend to confuse the reader, but a recent study conducted by researchers at New Mexico State University found that (1) readers perceive alternating pronouns to be just as gender-biased as masculine pronouns, and (2) readers consistently rate writing featuring alternating pronouns as lower in quality than text with generic masculine pronouns.
Further complicating things are the countless terms that feature the word man. Some are easy to spot and fix: policeman should become police officer, serviceman should become serviceperson. But, there are others that are not as easy to spot or fix: manpower, manhole, ombudsman, penmanship, freshman, and middleman among them.
Achieving gender-neutral writing takes some effort. But it is an effort that most states are making and that OSB Legal Publications wholeheartedly embraces. And the fact that the United States Supreme Court lags behind in this regard should serve only as further motivation for lawyers concerned with eliminating subtle sexism in the field.
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.
In preparation for the upcoming release of the 2014 edition of Appeal and Review: Beyond the Basics, we decided to share a couple of blogs and websites related to appellate practice. We do not endorse any of the blogs or guarantee the accuracy of the information contained in them; the court websites we think are fairly reliable.
OSB Appellate Practice Section —
— This blog, published by the OSB Appellate Practice Section, is periodically updated with posts on a variety of topics of interest to appellate practitioners. Recent articles include a review of significant 2013 appellate decisions, a story about the Oregon Supreme Court building’s 100th birthday, and a notice about new appellate filing fees that took effect in October 2013. It also includes a digital version of the Appellate Almanac that the section previously published in hard copy.
Oregon Courts / Oregon Judicial Department —http://courts.oregon.gov/OJD/Pages/index.aspx
— This is the official website of the Oregon Courts, with links to the Oregon Court of Appeals and Oregon Supreme Court websites. This site is an essential resource for appellate practitioners. On this website you will find a plethora of information, including Oregon eCourt information, rules and fees for appellate courts, forms, the Oregon Appellate Courts Style Manual (http://www.publications.ojd.state.or.us/docs/Style%20Manual%202002.pdf), and more.
United States Courts for the Ninth Circuit —
— This is the official website of the Ninth Circuit Court of Appeals, with a plethora of information about this court, including calendars, news (including judicial appointments), cases of interest, and more.
— This frequently-updated blog is sponsored by Bloomberg Law and includes news articles on the status of cases before the U.S. Supreme Court, as well as status posts regarding cases up for oral argument, pending petitions, recent decisions, and more. You can even sign up for their Twitter feeds from the blog.
Notice of Appeal: Stoel Rives’ Appellate Practice Blog —
— This blog is published by the law firm of Stoel Rives LLP and focuses on reviews of case decisions. Although it deal primarily with Washington state appellate cases, it does include some articles on Oregon cases.
By Dean Land, Legal Publications Attorney Editor
Although no one has been keeping track, State v. Mills, 354 Or 350, 312 P3d 515 (2013), probably holds the record for the case that necessitated changes to the most jury instructions. Mills is the Oregon Supreme Court case holding that venue is no longer an issue for the jury. And, as anyone familiar with Oregon’s Uniform Criminal Jury Instructions knows, most of the instructions list the elements of particular crimes, beginning with the venue element: “The act occurred in _______ County, Oregon.”
After Mills came down, the Uniform Criminal Jury Instructions Committee had to remove the venue element from 381 instructions. It also withdrew three other instructions that addressed specific venue situations. So Mills accounted for changes to 63% of the instructions in the book (and a headache for a certain staff member of the Legal Publications department).
Rest assured, all those changes and more are incorporated in the 2013 Supplement to the Uniform Criminal Jury Instructions. The supplement is available for preorder at a discounted price through January 24 (and at full price thereafter), and the updated instructions will be posted on BarBooks™ by the end of January.