Oregon State Bar Bulletin — AUGUST 2003


Learning Diversity
On July 10 I attended 'Diversity Toolkit' at OSB headquarters. The seminar was attended by 31 attorneys and was conducted by two professors, Phyllis S. Lee, Ph.D., from OSU and Ellen Summerfield, Ph.D., from Linfield College. These speakers were charming, articulate, very entertaining and engaged in a great deal of discussion with the attendees, and I enjoyed the three hours very much. They also came across as mostly non-judgmental, although one was clear about her political leanings (extreme left). We were sitting in one big circle, so we could all see each other. No one walked out. It appeared to me that all attendees were actively listening for the entire three hours, and about half made comments.

This was quite a change from the 'Cultural Competency' seminar put on by OSB in downtown Portland in April 2002, where at least one attendee walked out in disgust, many spent the last hour or so ignoring the speakers, some privately expressed disdain for the new MCLE or openly said they were insulted by this requirement, and a few laughed at the speakers’ remarks. The seminar’s tone was generally 'let’s make heterosexual whitey feel guilty for every problem experienced by the rest of society.' Several months later I happened upon an article in the Oregonian that featured this CLE’s keynote speaker, Peggy A. Nagae. In that article, Ms. Nagae was quoted as saying that she has been angry all her life. I wondered why the OSB leadership believed the membership should be subjected to her anger and negative view of life.

I would like to make three comments:

1. Regardless how such seminars are packaged, how entertaining and informative the speakers and how 'guilt-free' the subject is approached, it is still the OSB’s attempt to train all attorneys to view certain political and social issues the way the current left-wing elite views them. Thought control has no place in a democratic society. The Oregon State Bar has used its power over attorneys’ livelihoods to force-feed certain ideas into its’ membership, so that in the future either: a) all attorneys will possess just one collective viewpoint; and/or b) any attorney with a contrary idea will keep his or her mouth shut to protect his or her license to practice law. I lived in Taiwan while it was still under martial law, and the citizens were not allowed to express certain thoughts and ideas, and one-sided political views were taught to students from first grade through college. I see no difference here.

2. The OSB leadership must believe strongly that the membership needs this training. After all, they converted the LEGAL education program into political training by making this non-legal subject mandatory. Attorneys would be going voluntarily if the credits per hour were increased, with or without additional cost. If a three-hour seminar about diversity gave a busy, overworked attorney six credits or nine credits instead of three, OSB would have to implement rules to prevent attorneys from taking 'too many' diversity classes. Using the carrot instead of the stick makes one feel somewhat in control and more positive toward the task at hand. Or maybe the OSB leadership is just more interested in control, their own control.

3. One might wonder why I attended another 'diversity' class when my license was made secure until December 2007 by attending the April 2002 class. I am in the middle of a long research project on the 'diversity movement' so that I can better understand it, and so that I can write/speak about it with some authority. Moreover, this is the topic that finally got me motivated enough to enter OSB politics. In April I was elected as a member of the House of Delegates, from Region 6 (Clackamas, Marion, Polk andYamhill counties).

Diane L. Gruber
West Linn

• • • • •

Having been a member of the Oregon State Bar for the past 22 years, I want everyone to know how pleased I am that we, as a profession, are finally spending funds on helping 'individuals identify their opinions and feelings about work-force diversity,' See The Bridges to Understanding CLE promotional flier. Surely, this is more important than providing such things as legal services for the poor and downtrodden, legal education for the uneducated, and treatment options for the hurting and addicted in our society.

Dale A. Riddle

‘We Can’t Tell’ Rule
The July issue of the Bulletin included an article criticizing the Oregon Supreme Court’s recent decision in Shoup v. Wal-Mart Stores, Inc., 335 Or 164, 61 P2d 628 (2003). (Shoup overruled Whinston v. Kaiser Foundation Hospital, 309 Or 350, 788 P2d 428 (1990), which had first articulated the so called 'we can’t tell' rule.)

The article presented a one-sided argument in favor of the now discarded 'we can’t tell' rule without any discussion of the rationale for Justice Balmer’s thoughtful opinion in Shoup on behalf of a unanimous Oregon Supreme Court. Nor was there any discussion in the article of the extensive amicus briefings of the Oregon Trial Lawyers Association and the Oregon Association of Defense Counsel which, along with the parties’ own briefs, explored the pros and cons of the 'we can’t tell' rule while Shoup was pending on appeal. (Attorneys interested in a more thorough exploration of the merits of the arguments on both sides may wish to review those appellate briefs.)

Instead, the authors based their own critical analysis of the court’s carefully crafted Shoup decision almost entirely on an erroneous premise. Amended Article VII, Section 3, of the Oregon Constitution requires the Oregon Supreme Court to affirm trial court judgments 'notwithstanding any error committed during the trial' whenever that court concludes that 'the judgment appealed from was such as should have been rendered in the case.' Oddly, the authors construe this explicit constitutional language prohibiting reversals whenever the error below was clearly harmless to be an implied prohibition on any affirmance of the judgment when the harmless nature of the error is any less clear. This is a straightforward logical error that seasoned attorneys should not be making. (Given only that 'a' must lead to 'b', it simply does not follow that 'not a' must lead to 'not b'.) And, of course, the language of the amendment itself is entirely consistent with its acknowledged historical purpose which was to constrict appellate reversals, rather than to expand them.

Moreover, ORS 19.415 (2) specifies that 'no judgment shall be reversed or modified except for error substantially affecting the rights of a party.' Accordingly, the practical policy issue for the court really boils down to which party should ultimately bear the burden of appellate uncertainty as to the correctness of the judgment, the appellant or the respondent. The 'we can’t tell' rule placed the burden of appellate uncertainty squarely on the respondent: unless the respondent could clearly show that any error complained of did not affect the judgment, the case would be reversed for a new trial. The Shoup rule simply puts the burden of appellate uncertainty back on the appellant: No error is grounds for reversal unless the appellant shows a substantial likelihood that the error adversely affected appellant’s rights. The former rule required the prevailing party to prove a negative or suffer a reversal; the Shoup rule now requires the losing party to show a likelihood of a substantial injury before a jury’s verdict is set aside and a new trial ordered.

Few jury trials are ever completely error free, and our civil justice system does not guarantee perfect trials, merely fair ones. The Shoup rule protects the public interest in preserving the finality of judgments (and in avoiding the public costs of a second trial), while the former rule required an automatic reversal and a second trial even when the outcome was quite likely to be the same.

On a cost/benefit basis, the 'we can’t tell' rule was clearly an uneconomic solution to the problem of appellate uncertainty. And in practice it seems likely that the old rule resulted in more, rather than less, actual injustice between the parties as well. After all, given two alternative theories of recovery, one supported by the evidence and the other not, there would normally be no reason for the appellate courts to presume any real likelihood that the jury had rejected the theory of recovery supported by the evidence and adopted only the alternative theory submitted without any evidentiary support. And, of course, to the extent that this is ever really a danger, future parties could easily avoid it by submitting a special verdict form which separated out the allegedly unsupported theory for individual consideration.

Paul J. Lipscomb
Presiding Judge

Making Life Better
My recent 30th birthday has caused me to reflect upon my impact on this world, and I have the feeling that I haven’t done enough with my life.

As attorneys, we are members of a privileged class. We are privileged in terms of education, power, status (arguable considering the persistence of cliché attorney jokes), opportunity and wealth. My search for direction can be encapsulated in the life-long struggles of two venerable sages. G.I Joe taught me that with privilege comes great responsibility, and Ebenezer showed me that 'mankind is my business.'

But what sort of legacy are we leaving our children?

I am fortunate to sit on the board of directors for the Juvenile Rights Project. For those of you unfamiliar with this non-profit organization, JRP represents abused and neglected children in dependency cases and youths charged with delinquent offenses. JRP also achieves systemic changes in state and local social service systems through administrative advocacy, legislative advocacy and litigation.

Children in poverty, disabled children and children in the custody of the state are dependent upon public health, education and other systems for their welfare. JRP intervenes when these systems fail to work together to serve the best interests of these children.

Consider this a gentle prod to support JRP. Your firm has the opportunity to contribute to JRP by purchasing individual seats or tables for JRP’s Annual Dinner on October 22 at the Multnomah Athletic Club. (Direct all questions to Janet Miller, executive director, (503) 232-2540, ext. 231 or by e-mail: janetm@jrplaw.org.)

In the end, your life will be enriched, and you will feel a sense of well-being knowing that you did something simply for the sake of making another person’s life qualitatively better.

So unless you’re planning on running for governor of California, you really don’t have a good excuse, do you?

Scott W. Lee
Mount Tabor Legal Services

Surviving Budget Cuts, Lane County Style
The recent, legislatively driven, indigent defense budget shortfall created unprecedented challenges and questions for all involved in the criminal justice arena. Lane County was severely tested. The Public Defenders Office of Lane County, because of reduced monthly payments, was forced to furlough all its employees for more than two months and, indeed, was forced to operate with only skeleton staff and volunteer attorneys for the last three weeks of June. Despite these difficulties, no individual criminal defendant was incompetently or inadequately represented. This salutary result reflects the cooperative relationships in Lane County between the courts, the prosecution and the defense.

The chief justice should be commended for his leadership in averting a dangerous constitutional confrontation with the legislature. Reasonable people differ on the constitutionality of the chief justice’s approach in dealing with this crisis, but the third branch of government has reemerged as an independent, co-equal branch, serving the people of this state well. Attorneys were not conscripted to do court appointments, held in contempt or put in jail. In many ways, from the practitioners’ point of view, this was a bloodless crisis.

Presiding Judge Mary Ann Bearden and Chief Criminal Judge Karsten Rasmussen were instrumental in guiding thousands of criminal cases through the court, while the process of appointment of counsel changed frequently, sometimes daily.

District Attorney Doug Harcleroad has maintained a professional career office and was committed to doing what was fair and just, understanding that without appropriate defense counsel, the criminal justice system could not properly function. Lane County’s deputy district attorneys were likewise intent on finding a way through this difficult period and, in large measure, were understanding of and sympathetic with the plight defense counsel faced. Lane County public defenders, despite being unpaid and having their practices thoroughly disrupted, continued to represent the less fortunate. Their commitment was exemplified by having 43 of 45 people returning to work July 1, though with increased caseloads.

There are lessons to be learned for the rest of the state; it is counterproductive for judges to forget that they were once practicing attorneys and that a black robe does not give license for incivility and condescension. Prosecutors should not be driven by political pandering or hatred or vengeance. Defenders must remember that government is not always evil and that criminal defense will never be easy, nor should it be. Clearly this is not and never will be a practice of law for those who are driven by monetary reward.

The three legs of the criminal justice stool in Lane County are strong and of equal height. We were the only jurisdiction that maintained a comprehensive early disposition program throughout the crisis. Each leg, the court, the prosecution, and the defense, all have different roles, and in Lane County there exists a mutual respect for the functions and duties of all.

I have noticed that when the practices of Lane County are described elsewhere in the state there is an almost inevitable rolling of the eyes and a silent murmuring, 'boy, are they different.' I am not inviting any lawyers to move to Lane County (we have quite enough attorneys), but Eugene is a great place to practice law.

Indeed, we are different and are happy for it. The citizens of Lane County, whether or not they know it, are well served.

Ross Shepard
Public Defender Services of Lane County

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