Oregon State Bar Bulletin — JUNE 2005


Lack of Credibility
Janine Robben’s two articles about Oregon’s courthouses (February/March 2005) were both informative and entertaining. The pitiful condition of some courthouses has not been lost on the attorneys who frequent them. I fear, however, that the bond levies necessary to build new courthouses won’t be voted in anytime soon.

It is an issue of credibility. Oregon’s bureaucrats and politicians have no credibility with Oregon’s taxpaying voters. This lack of credibility has been well earned over the last two decades by repeated refusals to listen to Oregonians. The taxpaying public has demanded reductions in taxes, fat, waste and frivolities again and again, only to be ignored.

Recently the legislature treated us to yet two more examples of greed and waste. Our "representatives" are working on a bill to legally steal the balances on gift cards when the card becomes three years old. Yes, they are real creative when it comes to taking money away from those who earn it, yet their creativity is rarely applied to saving and managing the same money.

Lack of respect for law-abiding Oregonians and their money can also be found in a bill that would give illegal aliens $12,000 per year reduction in college tuition, meaning, of course, that the LEGAL students’ costs will need to be increased to make up the shortfall.

The public knows there is plenty of money to provide for basic services, such as law enforcement and the courts. It is a matter of priorities. The priorities of Oregon’s politicians and bureaucrats are not the same as the majority of Oregonians.

Diane L. Gruber
West Linn

Right to Jury Trial Being Politicized
I read with interest Janine Robben’s article in the April 2005 Bulletin entitled "Who Decides: Specialized Courts vs. the Jury of Peers," particularly since I was quoted (with permission) in the article. When I saw the photo of Thomas Jefferson on the cover and the lead paragraph quoting Jefferson’s famous comment to Congress that trial by jury was "the only anchor ever yet imagined by man by which a government can be held to the principles of its constitution," I was hoping to see a long-awaited and much needed piece in our OSB Bulletin devoted to a vigorous defense of our jury system. Instead, my hopes were dashed by the suggestion that Jefferson’s comments are outdated and thus not applicable to modern America. Have we come to the point where even our legal commentary is so influenced by current politics that the very foundation of our legal system — trial by jury — is now being openly questioned as outdated?

As Ms. Robben correctly points out, the medical malpractice arena has been an unwitting (and undeserved) lightning rod for the so-called "tort reform" movement. As a lawyer who has spent years defending and suing physicians, I have viewed the debate literally from both sides. The point which was missed by the article — and which needs to be made — is that "tort reform" is not a doctrine being developed through judicial decisions, nor is it a movement being championed by lawyers. It is purely and simply a political message being pushed by non-lawyers with a clear political agenda. It is about money and favored immunity being granted to special groups. I am very troubled to see an article which seems to acquiesce to this political agenda by suggesting the unfounded notion that juries are incapable of deciding complex, technical questions and should, therefore, be replaced by specialized courts. It is the job of every trial lawyer to educate a jury so that it becomes a specialized tribunal capable of resolving the particular complex issues of the case it is deciding. Are we as lawyers going to cave in to the notion that juries "just can’t get it right?" Once we do, Mr. Jefferson’s comment will seem prophetic.

Our legal system is neither "broken" nor "out of control" as those pitching the sound bites of "tort reform" want the public to believe. We have the greatest system in the world for deciding both simple and complex disputes between our citizens. This system is founded upon citizen jurors dispensing justice. Shouldn’t we as lawyers be the ones speaking the loudest to protect that system for all Americans? And shouldn’t the bar’s journal be the vehicle to deliver that message instead of one which tacitly condones an unproven alternative system?

Dave Miller

Who Decides?
Janine Robben’s article on specialized courts seemed to miss the point. Much of the article focused on the thoughts of a couple of corporate attorneys who were unhappy about patent infringement jury verdicts rendered against their clients, blaming the juries’ inability to understand the technology at issue.

With all of the sophisticated computer modeling tools and technology experts available to help teach technology to juries in patent and other technology litigation, there is no excuse for confusion on the part of the jury. A patent infringement defendant is able to present a panoply of defenses that can be difficult and expensive for a patent owner to rebut. That patent owner or inventor should be protected by the jury system, much as Thomas Jefferson noted the jury system protects citizens from their government. A large corporation should know that it will be found guilty of patent infringement if it doesn’t effectively design around the patents that have been issued to those creative few who can improve our lives.

Indeed, the reason the patent system was established was to encourage invention, and without infringers being held accountable when they do infringe, this incentive is lost. If defendants’ counsel is not able to demonstrate to a jury of their peers that there has been no infringement, it is not the jury system that needs help; it is corporate clients who need help in selecting counsel that can adequately explain their position and the technology to the jurors deciding the case.

Peter E. Heuser

Time to Speak Out
It never occurred to me that a state bar association would want to diminish me as a lawyer and as a person.

It never occurred to me that the state bar association would want to discipline me, because plainly I have done nothing wrong except ply the practice of law.

It never would have occurred to me that anyone in leadership at the Oregon State Bar would relish the individual agony of those subject to its rules. Alas, that is reality.

It never occurred to me there would be personal reprisal for speaking out, for that is, after all, what our profession calls us to do.

Then I saw the small injustices. Then the big ones. Then I spoke out. Then, measure-by-measure the reprisal occurred.

If you see those injustices, it is time to speak out. For that is what justice calls one to do. Unless you fear reprisal. Because they will if we let them by remaining silent.

Lauren Paulson

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