Oregon State Bar Bulletin AUGUST/SEPTEMBER 2013
Channing Bennett has seen his share of time in the courtroom, first as a litigator representing clients in civil cases and later as a volunteer judge pro tem in Marion County Circuit Court. The Salem attorney is a hearings referee for the Oregon Judicial Department. Now, he knows firsthand the emotional anguish many of his clients have experienced during a trial.
“I’ve gained a lot of empathy for my clients going through the trial process. You feel very helpless and you get frustrated with the courts, even as an experienced observer,” he says.
Bennett is one of the scores of Oregon attorneys who have been plaintiffs in a case, had to hire an attorney, been the victim of a crime or witnessed a crime, or participated in the Oregon State Bar disciplinary system. Some have experienced the state’s legal system from multiple perspectives — all from a very different place than where they are used to sitting during the legal process.
Like Bennett, most of the attorneys who shared their stories with the Bulletin didn’t exactly enjoy a positive experience. Yet they overwhelmingly said they learned something from it, ranging from greater empathy for clients to a broader understanding of what it means to be a good lawyer.
In Bennett’s case, he and his wife are trying to adopt an 8-year-old girl who has lived with them for two years and has become a daughter to them. Raised in an unstable situation with her biological family, the girl joined the Bennetts through a temporary emergency placement initiated by the state Department of Human Services. The court terminated parental rights and the Bennetts recently went through a four-day permanency trial that was repeatedly interrupted by recesses and delays.
Bennett gained new perspective on the inconvenience his clients face when they must make arrangements to be absent from work or find child care to attend court proceedings that stretch over several days. And, with the adoption process occurring at a seemingly glacial pace, he now has a new appreciation for the emotional rollercoaster that can occur during a trial.
“It’s very difficult to understand what’s happening when you aren’t involved in it every day. It changed the way I practice and how I talk to my clients and prepare them in advance about what to expect,” he says. “To really put your heart and soul into something and have it be in someone else’s hands is a real emotional strain.”
Trust Takes a Hit When Attorneys Hire Other Attorneys
The Sandwich Generation includes multitudes of Oregon lawyers who are caring for their parents and children and sometimes extended family as well. A Tigard attorney who asked to remain anonymous helped her mother hire a divorce lawyer in Washington, and saw her mother’s trust of attorneys completely disintegrate during the process.
With the end of a long-term marriage at the heart of the matter, the situation was already difficult. The Tigard attorney helped her mother find a lawyer she liked and trusted, they completed a retainer agreement, and the Washington attorney began the divorce proceedings. Not long after, however, she sent a form letter announcing her retirement and stating that all of her cases would be handled by her new associate.
“What I learned is that the attorney-client relationship is a relationship. It made me realize that things lawyers may not think is important to tell the client can be vitally important,” the Tigard attorney says. “My mom was devastated by having to switch lawyers so soon after spending so much time and emotional effort finding and hiring this lawyer.”
They hired a second lawyer who ultimately handled the divorce successfully. He then asked the Tigard attorney’s mother out on a date, making her second guess all of the personal information she had shared with him during the proceedings.
“She thinks that what I do is wonderful and she has a lot of respect for me, but she does not trust lawyers anymore,” the Tigard attorney says. “She went from a position of total trust because her daughter is a lawyer to not trusting lawyers at all.”
A Portland attorney who also requested anonymity described her experience of hiring an attorney to represent a young relative who was charged with statutory rape (three counts of rape in the third degree) and other crimes he was accused of while living on the streets with a young woman.
“He met the complainant on the street, she said she was 18 and had false ID to prove it, and they were together for a few days and had sexual relations. She turned out to be a 15-year-old runaway,” the Portland attorney says. “The girl’s mother pressed the D.A. to charge him.”
According to the Portland attorney, an already ugly situation was made worse by the quality of legal representation. The lawyer they retained failed to communicate, missed appointments with the client and his family, and ultimately did not follow through with the probation officer on treatment programs.
In thinking about what the experience has taught her, the Portland attorney came away with a few lessons. “A young person, particularly one who has a mental illness, needs an advocate with him or her to deal with their own attorney. Also, one can’t assume because an attorney practices criminal defense that they know much about the consequences of a plea, especially a plea to a felony, and a plea to a sex offense in particular.” In retrospect, she would do more research on any attorney before hiring him or her.
She also has less faith that a criminal defendant in Oregon’s legal system will receive justice, concluding, “The system does not fall apart predominantly because 95 percent of accused persons plead guilty, whether they are or not. They do so to avoid prison, yet many of them end up there regardless, as a result of technical or not very serious probation violations. In our case, the judge and district attorney saw my relative as a ‘type’ and punished him for that. People within the system are far more biased than I realized.”
New Views Gained From Being a Victim, a Witness and Sitting on the Hot Seat
Liani Reeves was a college student when she had to hire a lawyer to obtain a stalking order. It was her first contact with the legal system and, despite the situation, it was a positive one. Now general counsel for Gov. John Kitzhaber, Reeves says the experience gave her insight into the crisis feeling that people usually have when they come into contact with the legal system or have to testify. She has used that insight when working with clients and witnesses.
“It also gave me a great respect for the power that lawyers have to help people and it made me appreciate the importance of having the ability to hire a lawyer. I had the good fortune of being able to hire a lawyer to pursue a remedy that had great impact on my life and sense of security,” she says. “And as educated as I was at the time, I don’t think I could have done it on my own. Not everyone has that access to lawyers and that is one of the reasons access to justice is so important to me.”
Reeves also credits her experience to her attorney’s responsiveness, organization and kindness.
“That went a long way and I have tried to emulate that in my practice,” she says. “It’s funny, we are now both lawyers and we run into each other periodically. He recently talked to me about the experience and apologized for not being more empathetic during what he imagines was a stressful situation for me. What I remember about him was that he helped me through a very difficult time and I have always been grateful for that.”
Portland attorney Jeremy Vermilyea also praised the legal system’s response to what is an unthinkable situation for most of us. Last summer, he and his daughter witnessed a double murder at the home across the street from theirs. June 4, 2012, was a day that forever changed Vermilyea’s life on a personal level, and as he testified before a grand jury about the incident, he was impacted professionally as well.
During his testimony, Vermilyea shared how he watched Adrien Wallace, 41, shoot his mother, Sandra Sue Wallace, and his 14-year-old nephew, Nick Juarez, in the driveway of his mother’s Lake Oswego home.
He credits the Clackamas County detectives investigating the case for their sensitivity to what the Vermilyeas had witnessed, noting the detectives provided referrals to trauma counselors and victim assistance resources while interviewing Vermilyea and his daughter after the shooting.
Vermilyea, who practices construction law, commercial litigation, and real estate and environmental law with Schwabe, Williamson & Wyatt, says he was surprised by how informal the grand jury experience was.
“I was so impressed by how seriously the people on the grand jury were taking the case,” he says. “As a lawyer, that gives me great comfort because people often joke about how to get out of jury service. The people who end up serving on juries do take it seriously and they do their best to do a good job.”
An eastern Oregon attorney who asked to remain anonymous recently served as a witness and realized just how unsettling the experience can be.
“When I started to practice, I had a client who got up to testify and couldn’t spell her own name,” she says. “After testifying in January I can understand her nerves, and I think that helped me learn to prepare my clients better. It also helped me be more empathetic. I think I’m pretty empathetic anyway, but I definitely have a lot more insight about what it’s like to sit up in front of the judge and tell your side of the story.”
Multiple Experiences Lead to Myriad Perspectives
Some attorneys have had the misfortune to experience the system’s biggest failures yet still find ways to use those experiences to improve their own practice. Grants Pass attorney Janay Haas is an example.
One of Haas’s earliest experiences with the legal system occurred when she was raped and beaten by an ex-boyfriend. “The police wouldn’t even file a report. What I learned was that reporting a sexual assault was a very bad idea,” she says.
In the early days of identity theft, someone cashed fake checks on Haas’s account as well as others along the I-5 corridor. The bank sent Haas a notice, she filled out a police report and then heard nothing for months.
“Finally, I was called in to testify before a grand jury. The jurors asked no questions,” she says. “Many months later, I learned from the local newspaper that the perps had been prosecuted successfully.”
She says that experience taught her that victims often are left entirely out of the loop, and that a grand jury is not necessarily an inquisitive body holding the state to its burden of proof.
As an attorney hiring another attorney in a civil case, Haas learned the value of good legal representation and following one’s instinct. She had moved into an apartment complex in Albuquerque, N.M., and was faced with the manager’s misrepresentations about the amenities offered at the complex.
“I took lots of notes and photographs, confirmed everything in writing and asked around extensively about who would represent me effectively in addressing fraud and retaliation,” she says. “Several people referred me to the same person, so in I went. I’m a busybody, and I worried that I would try to take over the case and aggravate my lawyer, so I took a very hands-off approach to the case. He decided to file the case as a class-action against the mega-owner. Didn’t seem right to me, but what did I know?”Haas says the attorney filed the case and followed up with interrogatories. The mega-owner filed an answer and a counterclaim. Each month, she would email her lawyer about what was happening with the case, but she received little response.
“I finally went to the courthouse to discover that my case — and the counterclaim, thankfully — had been dismissed more than a month before for lack of activity. What did I learn? 1) Meddle. Risk aggravating your lawyer. My lawyer filed class actions in every single case, as a tactic. He had no idea how to prosecute a case when the other side didn’t cave immediately. 2) Even relying on the recommendations of ‘knowledgeable’ people doesn’t guarantee a good result. 3) The standard of practice in Oregon is higher than it is in many other places. Consumer law in Oregon has good precedents,” she adds.
Haas also relayed an incident in which she was teaching a criminal procedure course for Southern Oregon University’s criminology department. The incident began when a student who was adversarial toward her went out of his way to insult law-enforcement practitioners who also were in the class.
“Within a week, I was admonishing him about basic classroom courtesy. His response was that he was exercising his First Amendment rights. I realized right away that he was trying to set up the school for a lawsuit,” she says. “By mid-term, he had filed his federal case. Having the Oergon Department of Justice as ‘my’ lawyer was a huge relief. DOJ kept me apprised of everything that occurred in the case.”
Ultimately, the case died in the 9th Circuit Court of Appeals.
Lewis & Clark Law School Prof. Mark Peterson has experienced the legal system as a juror and a defendant in a civil action. As a juror, he learned the value of effective exhibits and the importance of giving jurors access to as much information as possible as early in a trial as possible.
In the civil case, Peterson was sued for malpractice shortly after he joined Lewis & Clark Law School. He had previously worked for Legal Aid Services of Oregon, and the woman who sued him was a former client who suffered from depression. At one point she had been suicidal, and Peterson called a friend of hers to spend the evening with her so she wouldn’t hurt herself.
“I went down for the deposition and asked how she was doing. I was angry and hurt that she had sued me at first, but I learned that you can’t take it personally and that it’s just business,” he says, adding the case was eventually dropped. “I do recall an ‘aha!’ thing of that’s what it feels like when someone gets the papers that I prepare.”
As a member of the bar’s Unlawful Practice of Law Committee, Peterson was involved in a case where a paralegal was practicing law without a license. The bar sued the paralegal, who in turn filed suit against Peterson and several other members.
“I was refinancing my house at the time, so it was a little inconvenient,” Peterson says. “Fortunately, the bar covered the legal fees and the case was settled.”
Southern Oregon attorney J.M. Michelsen has been called as a witness twice. In a civil case, Michelsen learned just how terrifying it is to walk through a courtroom, take the stand and testify, even when you understand how the proceedings will unfold.
“I can only imagine how it feels for people who don’t understand the system,” Michelsen says. “I learned that it is good to let my witnesses catch their breath for a minute. Having a glass of water really does help; I always tell my clients it’s a great way to catch your breath.”
Michelsen also was involved in a bar disciplinary proceeding against another lawyer. That experience showed the importance of explaining the case to your witness and going over the questions ahead of time because it makes testifying a lot less stressful and the answers more complete.
“On an unrelated matter, I had to use the services of a lawyer in a type of civil issue that I don’t know about in an area I don’t practice in. I learned that what is super basic to one person is not even remotely comprehensible to another equally smart person who lacks the background knowledge,” Michelsen says. “So, I learned to explain things more fully to clients and assume less. Even with all the legal shows on TV, the legal system is remarkably opaque to most people.”
ABOUT THE AUTHOR
Melody Finnemore is a Portland-area freelance writer and a frequent contributor to the Bulletin.
© 2013 Melody Finnemore