Oregon Personal Injury Lawyer Blog

Last week, the DC Circuit Court of Appeals found that a conflict of interest required an attorney to pay back attorney fees. In So v. Suchanek, the client alleged legal malpractice, breach of contract, and breach of fiduciary duty. The appellate court held that the breach of fiduciary duty required repayment of attorney fees, even more than the $456,000 that the trial court awarded the client.

The client, Mr. So got burned in a Ponzi scheme to the tune of $30 million by Land Base LLC. The attorney, Mr. Suchanek, had provided an opinion to Land Base that its operations were lawful and any claim to the contrary was frivolous. Yet, Suchanek felt he could oversee worldwide litigation to try to help Mr. So. Attorney Suchanek did not appear in court. Instead, he hired the lawyers, and paid himself $1 million. By the way, Suchanek also represented Mr. So's business agent, the woman who invested So's money into the Ponzi scheme.

See any conflict of interest here?

The trial court saw some. It found that the attorney breached his fiduciary duty to the client because the attorney violated the rules of professional conduct that prohibit conflicts of interests. The trial court found breaches during two particular periods of time, and it ordered pay back of $400,000 plus interest.

The Court of Appeals found that attorney violated the conflict of interest rules from the beginning. It ordered the trial court to reconsider the facts and require the attorney to return more money, perhaps the entire $1 million Suchanek paid himself.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Death does not extend the time to file a personal injury lawsuit against a public body, held Oregon's Court of Appeals. In yesterday's opinion, the court addressed the interplay between the statute of limitations for lawsuits against public bodies with the statute that keeps alive personal injury claims despite the injured person's death. These are called "continuation actions," because the claim for injury continues after the death of a person.

The source is ORS 30.075(1), which allows the personal representative of the estate to continue or start a lawsuit against the wrongdoer "if the decedent might have maintained an action, had the decedent lived[.]" The confusion came from the last sentence, which requires that the lawsuit be filed within the general two year statute of limitations (ORS 12.110), "or within three years by the personal representatives if not commenced prior to death."

Public bodies have their own statute of limitations - not the general SOL -- even though it also establishes a two-year deadline. ORS 30.275(9) says that its two-year time deadline applies, regardless of any other "statute" of "limitation." In yesterday's case, the lawyer filed the lawsuit 14 days after the two-year anniversary of the injury. He argued that the law allowing up to three years to file continuation actions is not a statute of "limitation." Instead, he urged, it established an extra year, kind of like when minors get extra time to file a lawsuit.

Oregon's Court of Appeals disagreed. The three-year deadline for continuation actions is, in fact, another statute of limitations, which is trumped by the special law for public bodies.

So, when you have a personal injury claim against the government, you can't let death get in the way of filing within two years.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

"I was fired, and my employer wants me to sign a "release" called Employment Termination Agreement. Should I?" Oregonians ask me this question more frequently. This post discusses the history of termination agreements and what to consider. Whatever you do, at least "sleep on it." Do not sign it while you are in the shock of termination. Evaluate the offer, and contact an attorney if you are unsure of what to do.

In 1987, I wrote an article saying Oregon employers would be smart to use termination agreements. Back then, the term, "employment law" was just being coined. Before then, the world of employment rights had two anchors: union contracts and public employee rights to Due Process of Law. Things changed in the 1980s because of court opinions and legislation. Having represented employers and employees, I placed the first Yellow Pages ad in Portland for "Employment Law Attorney." I believed that most good lawyers could identify a potential claim against even private, non-union employers. Termination agreements made sense for employers because it is cheaper to eliminate the risk of an expensive lawsuit by paying the employee extra money for him or her to release or waive any rights to sue. 25 years later, employees have even more rights to sue employers, and employers frequently offer termination agreements.

An enforceable contract requires an offer, acceptance and "consideration." Consideration means that something of value is exchanged. It distinguishes an enforceable promise from, say, a gift. If I tell you I will give you my old car but, instead, donate it to a charity, you cannot sue me for the car, because you promised me nothing in exchange. So, for an enforceable employment termination agreement, the employer needs to give the employee something extra in exchange for the employee waiving his or her rights to sue.

The exchange typically involves extra money - how much money depends on a lot of factors, which I will discuss in a minute. Other terms we often see in a FINAL agreement (as compared to the one proposed by the employer) include:

• Letter of "reference" for the employee


• "Non-Disparagement," which means both sides agree not to say negative things about the other.


• The employee will not reapply for employment.


• Employer releases any claims against employee, too.


• Confidentiality about the agreement, the worker, and the business.

The factors to consider in determining the amount include the following:

Continue reading "Oregon Employers Use Employment Termination Agreements More Frequently." »

The Oregon Bureau of Labor and Industries (BOLI) issued formal charges against Typhoon! Restaurant, alleging it paid workers from Thailand less and imposed longer hours than non-Thai workers. As Oregon's workforce includes more and more people from other countries, it's important to remember that Oregon law prohibits discrimination based upon national origin.

I've fielded calls on this topic from several angles. There was a man from El Salvador who accused his Mexican-born boss of demeaning him. Several Mexican-born and Mexican-American employees have complained about their U.S.-born co-workers or bosses. And a U.S.-born worker called me saying that his crew boss gave his hours to Mexicans, thereby constructively discharging him. ("Constructive Discharge" is defined in OAR 839-005-0011.)

Q: Does National Origin Discrimination Cover Mexican-Americans? I was born in Oregon.

A: Yes. Oregon generally follows the similar United States law against discrimination. Regulations under U.S. law cover discrimination because of an ancestor's place of origin, too. (29 CFR 1606.1) So, you do not have to be born in Mexico to be protected.

Q. My co-workers are hassling me - calling me Mexican because I have an accent - is that discrimination based upon national origin?

A. It could be, if the employer knows about it and fails to take immediate and appropriate corrective action. (This is a link to Oregon harassment law.) If you have linguistic characteristics of another national group, that can be enough to trigger protection.
http://www.jeffmerrick.com/lawyer-attorney-1845427.html
Q. I married a man named Ivanov, and they keep calling me Ruse-Key and asking me if he's part of the Russian Mafia. Or I married a man named Martinez, and they started using nasty slurs. Is this national origin discrimination?

A. If people associate a person's name or their spouse's name with a national group, and they treat you negatively at work, that is covered. You need to make sure the company knows you do not appreciate the slurs. Then, talk to an attorney if the company does not take appropriate measures to fix the problem.

Today, America honors the work and life of Martin Luther King, Jr. We cannot wait for leaders and movements. All of us, in our own small ways, must fight the battles we see for justice and equality. If you work in Oregon and need help with your own fight, you may call me.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer. Law changes over time. So, if you read this months or years after it was written, then it might no longer be accurate.

Yesterday, ANOTHER parent called me, "My child was walking his bike in the crosswalk and was hit by a car." Once again, the insurance company for the driver did not offer to pay the child's medical bills under the Personal Injury Protection (PIP) part of the automobile insurance policy. Most Oregonians do not realize that the coverage exists. This post covers what to do if a motor vehicle hits your child as he or she is walking.

First, here's a primer on PIP law. Every automobile insurance policy in Oregon must include Personal Injury Protection of at least $15,000. It is a no-fault provision. Drivers and passengers use PIP to pay doctor bills from injuries. Later, after the insurance companies determine who caused the accident, one insurance company will reimburse the other insurance company. The point of the law is to make sure people get the medical care they need, now.

But what if it is car versus pedestrian? Oregon Law (ORS 742.520) controls what must be in insurance policies. PIP policies must cover "pedestrians struck by the insured motor vehicle." This is separate coverage from the "liability" party of the policy, which pays for losses if the injured person proves that the driver caused the collision. So, for example, if a car runs over a child, the insurance available includes the liability part, (say, $100,000) PLUS the PIP (at least $15,000).

What else should you do if you are in a car accident? At least the following:

Get necessary medical care. Do your best to recover. The best news an attorney can give you is, "Your injuries are not worth suing about, because the cost of the lawsuit might be more than a jury award."

Preserve the physical evidence. Take photos of the scene, damage to cars, bicycles, and people. If clothing were damaged, save it. At some point, you might need to tell your story to 12 strangers. An illustrated story is easier to follow and remember.

Preserve the economic evidence. Keep receipts for everything. Keep all papers and E-mails.

Preserve the noneconomic evidence. Part of your claim will be what the injured person went through, emotionally. The injured person and family members should consider keeping a journal of the ups and downs of the recovery. Otherwise, when you testify a year later, you will forget details.

Don't get trapped. Insurance companies try to minimize payouts. They do this by trying to develop evidence to use against you. Sometimes it is by pretending to be your friend while asking you questions that they can use against you later. Sometimes it is by trying to get you to sign a release before you fully appreciate the extent of your loss. Sometimes, they send you to one of "their" "doctors," who usually just say, "It's time to cut off benefits because. . . ."

A Oregon attorney who represents people injured by car and truck accidents can (1) help guide you through the process, (2) make sure you understand your rights, and (3) maximize the monetary recovery for your losses. Please feel free to call me. I can help.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, Oregon's Court of Appeals upheld a verdict in favor of attorneys accused of legal malpractice in the case of Perry Watson, III v. Meltzer. Although jurors found that one of the attorneys screwed up, they also said the client did not prove that the attorney's malpractice cost him any money.

The case involved a sale of an automobile dealership. After the parties signed a contract to sell the assets, the seller, Mr. Watson learned that he would owe roughly $2 million to cover liabilities on an employee benefit plan. Mr. Watson said his lawyers should have alerted him to the $2 million obligation. The jury agreed: the attorney's failure to discover the two million dollar issue and address it breached the attorney's duty of care to Mr. Watson.

But breach of duty is only the first element of legal malpractice lawsuit in Oregon. A client must also prove (1) that the breach caused harm and (2) the value of the harm. Here, the question was what would have happened if everyone had known about the $2 million dollar obligation? Would the sale have occurred, anyway? Would the buyer have paid more money to help cover the loss? In other words, "So what if the lawyer screwed up?"

Apparently, the only evidence offered on "so what" was the testimony of the buyer who swore that he "could not say" if he would have restructured the deal to soften the $2 million-dollar blow to the buyer. The jury said that was not enough evidence to prove that the mistake caused harm to Mr. Watson. The Court of Appeals held that the trial judge's instructions to the jury were appropriate. End of case.

The opinion does not disclose whether the legal malpractice attorney for Mr. Watson alleged -- as a distinct element of damages -- the "lost opportunity" to consider the $2 million liability in the negotiations. The "loss of a chance" is a viable damage in some types of malpractice, although that doctrine might have had an uphill battle in this case.

The other question I have is what other evidence could the legal malpractice attorneys have presented to the jury? Could there have been expert opinion on how buyers and sellers normally resolve such issues? Did the buyer have a history of other deals that could have shed light on how the buyer likely would have reacted to the $2 million conundrum it had arisen earlier, BEFORE they signed the asset purchase agreement.

Every case is about the evidence. Here, the evidence just was not enough to prove, "more likely that not," that a thorough attorney could have helped the client achieve a better outcome.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

How does a brain injury impact the time to sue under Oregon's Statutes of Limitations? Time limits in Oregon are too many to list. In fact, Oregon Attorneys all receive a 406-page red book that lists the different limits. This post highlights a few critical laws controlling when to sue the person who caused an acquired brain injury.

A disabling brain injury extends some (not all) statutes of limitations for up to five years. The extension is found in ORS 12.160, which covers minors and "insane" people. It "tolls" -- or puts on hold -- the running of some statutes of limitations for "so long as the person is insane" but not longer than an additional five years. So how bad must the brain injury be to toll the statute of limitations? The injured person must be unable to comprehend his or her legal rights, according to the 1991 case of Roberts v. Drew.

For example, if a person suffers traumatic brain injury in a car accident, the general statute of limitations is 2 years. If the person is unable to comprehend his legal rights for the rest of his life, then the time limitation to sue is 2 years + 5 years for a total of 7 years.

But that is not the whole story. Claims in Oregon have more than just a statute of limitations, which generally begins to run when someone "discovers" her right to sue. What happens if she discovers her right to sue years later? Can she file her claim 20 years later? That depends on another time limitation called the period of "repose." For many claims, that second time limit is 10 years. But for some, it is shorter. For medical malpractice, it is 5 years from the time the doctor made the mistake.

Generally, a person hurt by medical malpractice in Oregon must sue with 2 years, as with car accident cases. For example, I had a client who suffered anoxic brain injury because of the malpractice of the anesthesiologist. If the brain injury were bad enough to toll the statute of limitations for the rest of his life, his time limit to sue would NOT be 2 + 5 = 7, as with the car accident example. Instead, the 5-year medical malpractice statute of repose would require a lawsuit within five years of the date of the anesthesia (with some exceptions). At most, the acquired brain injury would add three years to the time limit, not five years.

Another example where permanent disability from brain injury might not provide an additional 5 years is claims against government hospitals, school districts, or other public bodies. First, Oregon's Tort Claims Act requires formal written notice of intent to sue, regardless of disability, within months. Second, Oregon's law is unsettled whether disability extends the two-year statute of limitations against governmental bodies.

In conclusion, a person who acquires a brain injury because of the fault of another usually has a right to sue. A disabling brain injury often -- but not always -- extends the time limits for asserting claims. If your family member obtained a brain injury, I know you have a lot to deal with. However, if you want to preserve his or her right to sue, you need to find time to talk with me, or another Oregon attorney, to determine the potential claims and time limitations.

Jeff Merrick, Oregon Trial Attorney
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Recently, Oregon's Court of Appeals provided a road map for how a disappointed client may seek attorney fees in a legal malpractice case. The case, Saul Rivera-Martinez v. Tommy Vu and Donald Hooton, applies to claims alleging that an attorney committed legal malpractice on an employment retaliation claim, wage claim, or other claims that provide for attorney fees.

The general rule is simple. On negligence claims, including claims that a lawyer was negligent, a party my not win attorney fees on top of other losses. So, in legal malpractice cases, the former client may not seek attorney fees against the lawyer who was negligent.

But what if the client hired the lawyer to win a case that provided for attorney fees? Certain statutory claims provide attorney fees to the winning party, including employee whistleblower lawsuits and wage claims. Mr. Rivera-Martinez alleged that his employer did not pay him overtime wages, which is against the Oregon and United States law. Both laws allow for attorney fees. Attorney fees in such cases are critical. If, for example, the employer owes only $4,000, then it would not make sense to sue, because it would cost the employee more than $4,000 to take the case through court (unless the employer settles promptly). Unfortunately, the attorneys filed late, after the statute of limitations expired, so Mr. Rivera-Martinez lost his right to sue for wages.

Mr. Rivera-Martinez sued his lawyers for legal malpractice. His new attorney alleged that Mr. R-M should recover both the wages lost plus attorney fees that would have been expended. The case went to arbitration first. The arbitrator believed that attorney fees may be claimed as part of the money losses to the client. (The Court of Appeals assumed this was true without actually deciding the issue.) Nevertheless, the trial court did not award money for attorney fees because it held that the legal malpractice attorney did not ask for attorney fees in the correct way.

There were two possible ways to ask for attorney fees. The first was to offer evidence during a trial or arbitration of what attorney fees and costs would have been if the first lawyers had filed the wage case on time. The second possibility was to ask for attorney fees like we do in a wage case - that is - wait until after the trial and then submit the attorney bills. Mr. R-M's attorneys took the second route and argued that the time they spent proving the wage-claim part of the case was a fair measure of what should be paid.

The arbitrator, the trial judge, and the Court of Appeals all said that to recover the attorney fee part of a wage claim, the client must offer evidence during trial -- in his "case-in-chief" -- of what the attorney fees would likely have been. The post-trial route of submitting actual attorney fee bills may not be used when the attorney fees are part of damages from the legal malpractice.

Yes, this is a bit confusing to nonlawyers. But it makes perfect sense to attorneys.

Jeff Merrick, Oregon Trial Attorney
Legal Malpractice, Personal Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

This post reviews the 2011 Oregon Supreme Court disciplinary actions against Oregon attorneys. Ultimately, the Oregon Supreme Court sets the standard of care for Oregon attorneys. Attorneys who breach the standard of care and hurt their clients may be liable for legal malpractice.

The process starts with the Oregon State Bar, which disciplines attorneys it finds guilty of unethical conduct. Penalties range from a reprimand to disbarment. Attorneys may appeal to the Oregon Supreme Court, which ruled on only six attorney-conduct cases in 2011, finding three lawyers guilty of misconduct. It disbarred another based on conduct in Hawai'i. Also, the court accepted 5 "Form B" offers to resign and rejected one offer, disbarring the attorney, instead. A Form B resignation means that the lawyer is finished forever, with practicing law in Oregon. Some lawyers use Form B resignations instead of fighting disciplinary proceedings.

The court suspended Jason D. Castanza for 60 days. The Oregon State Bar found that Attorney Castanza quit on two clients in a civil action without protecting their interests by (1) allowing them enough time to employ another attorney, (2) asking the court to postpone trial, (3) filing a proper notice of withdrawal, (4) responding to a motion to dismiss, (5) responding to the general judgment and cost bill, or even letting his clients know about the judgment.

The court disbarred Randy R. Richardson, who the Oregon State Bar found had engaged in illegal conduct, failed to provide competent representation and broke conflict-of-interest rules. Attorney Richardson assisted a man obtain real estate from the man's aunt by means of fraud and deception.

The court disbarred Steven B. Johnson after the Hawai'i disbarred him for failing to disclose, during his application for the Hawai'i bar, prior Oregon complaints against him and then not being truthful about it.

The court disbarred John H. Oh, who was accused of 52 violations of the rules of professional conduct involving 12 different clients in immigration matters. Although Mr. Oh appealed the State Bar's recommendation, he never filed a brief with the court. He tried to resign, instead. But the court disbarred him.

By contrast, the Oregon Supreme Court accepted 5 Form B resignations from other attorneys. Here's the rundown of Form B resignations, as reported in the Oregon Bar Bulletin in 2011:

Continue reading "Oregon Supreme Court Disbars 3 Oregon Attorneys in 2011 and accepted 5 Form B resignations. " »

We love buying toys for children. Unfortunately, nearly 150,000 children per year go to the hospital because of toy-related incidents. As an Oregon attorney who practices Pediatric Law, I've come up with my top 6 things to consider when buying toys for that favorite child.

1. Age of the child - follow the label.

Don't buy your two-year-old niece a toy labeled, "Not recommended for children under three." Even though she may be the smartest two year old on the planet, that's not the point. Instead, the government-required labels exist because people have studied why all these kids get injured and occasionally die. For example, researchers know that children under age 3 put things in their mouths. Anything with a diameter of 1.75 inches or less can block their little airways when tots explore their new world with their mouths. Avoid toys with parts this small to minimize the risk of choking.

2. Age of other Children in the house.

What are the odds that a six-year-old boy old will leave his toys accessible to his two-year-old sister? Think about that when buying toys.

3. Avoid sharp toys and brittle toys that might become sharp.

Sharp toys are a problem, especially with children ages 3 through 5. Avoid buying them. When little Johnny opens his toys, inspect them for any unintentionally sharp edges from cheap manufacturing.

4. Loud Noises.

Some toys are loud enough to cause hearing loss. Watch out for items such as cap guns. Look for warning labels such as "Do not use indoors" or "Do not fire closer than one foot from the ear," and teach your children.

5. Propelled Objects & Flying Toys.

Flying toys, guns or other toys that shoot projectiles can become weapons by accident or intentionally. The eye you save might be your own, not just your child's. For toys intended to shoot, make sure the rubber or cork tips are securely fastened, and check them now and then. Avoid guns from which a child can substitute pencils or other items for the rubber-tipped darts, for instance.

6. Cords & Strings.

Long cords and strings are strangulation hazards for children. Not just toys, but also jackets and sweatshirts with strings. Cut off any draw strings longer than 3 inches. Never hang toys with long strings, ribbons or loops in cribs or playpens where children can get at them.

Follow these guidelines to preserve the joy of giving and avoid the tragedy of injury.

Jeff Merrick

Jeff Merrick is an Oregon Attorney who helps children injured by dangerous products and other causes. You may contact him at 503-665-4234.

Sometimes, we think that sexual harassment is a thing of the past because we all know better. Think again. Today, the Equal Employment Opportunity Commission (EEOC) announced a sexual harassment and retaliation settlement of $267,000 against Lakemont Homes, a real estate developer. Even after complaints, four women had to put up with vulgar sexual comments and unwanted touching or propositions.

But Lakemont Homes is not the only case. The EEOC has reported several other cases, including another settlement for $365,000 just 9 days ago. Merchant Management Systems, which processes credit card payments, agreed to pay after allegations that the owner engaged in various forms of harassment against 11 women, which included:

Yesterday, the Oregon Court of Appeals upheld an award of attorney fees against Allstate Insurance Company. The case, Sara Marie Zimmerman v. Allstate, highlights important information for every Oregon driver who gets hurt in a car accident caused by another driver who does not have enough insurance.

Sara suffered personal injury in a motor vehicle collision, and the person who hit her did not have enough insurance. Sara, like all of us in Oregon, has Underinsured Motorist Coverage (UIM). You may not know it, but if you have motor vehicle insurance in Oregon, then you have UIM coverage. She submitted information on the accident and her injuries to her own insurance company. Allstate did not pay the claim or accept coverage and consent to binding arbitration within six months. The six months is a critical deadline. When insurance companies miss it, then, the insurer must pay attorney fees to the injured person if it loses the arbitration or trial. (The statute is ORS 742.061.)

Sara beat Allstate at trial, but Allstate did not want to pay the attorney fees awarded by the trial court. Allstate appealed, arguing that Sara should have provided it more information before the six month clock starts, including information that we usually cannot get (before filing a lawsuit): The amount of insurance the other driver has. Oregon's Court of Appeals did not get sucked into that way around the statute, and it said: "Pay your customer."

Knowing these quirks of law, like how to set up the insurance company to pay your attorney fees with a timely proof of loss, is another reason to hire an attorney and not try to settle on your own. As this case shows, even your own insurance company will fight you if it thinks it can save money. So, feel free to call me if you were hurt in a car or truck accident and want representation.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, the Oregon Supreme Court ruled that a client could possibly sue his attorney nearly six years after the attorney allegedly screwed up, despite Oregon's two-year statute of limitations on legal malpractice lawsuits. The case of Darell Kaseberg v. Davis Wright Tremaine, LLP, includes an important discussion of the "discovery rule," which applies to many statutes of limitations, not just the one for legal malpractice claims. The Supreme Court ruled that the trial judge should not have thrown out the lawsuit because, on the evidence before it, a jury could have determined that a "reasonable person" would not have discovered that he had a legal malpractice claim until years after the attorney allegedly made a mistake.

The facts are these. Mr. Kaseberg's attorney, Iain Levie, settled a dispute during trial. They parties informed the judge that they had come to terms and stated the terms on the record in open court. An important term for Mr. Kaseberg that the other party (the Wheelers) release a property lien within two weeks. That critical deadline was not stated on the record and not put into the final paperwork. When the Wheelers did not release the lien on time, it allegedly cost Mr. Kaseberg over $250,000. At the time, Attorney Levie told Kaseberg he had a "great case" for breach of contract against the Wheelers. Years later, when Kaseberg hired a lawyer for the breach of contract claim, the new attorney discussed the possibility of a legal malpractice lawsuit.

The trial court held that Kaseberg should have known within about two weeks of the settlement that his attorney should have done more to make sure the Wheelers removed the lien within two weeks.

Oregon's Supreme Court said, in effect, "Not so fast, my friend." The statute of limitations begins when a reasonable person should have known three things: (1) that he suffered a loss, (2) what conduct caused the loss, and (3) that the conduct is something that can be sued over ("tortious conduct"). Although the Mr. Kaseberg knew that the Wheelers did not remove their lien within two weeks, Kaseberg believed the problem was with the Wheelers, not with his own attorney. In fact, attorney Levie, himself, reinforced that belief when he said Kaseberg had a "great case" against the other party. So, the Oregon Supreme Court held that a jury - not the trial judge -- needs to decide whether a reasonable person should have discovered the claim sooner.

But that was not the end of the story. The court gaveth, and the court, tooketh away. The court hinted that Kaseberg might still lose his legal malpractice lawsuit. On the timing issue, the court noted that more evidence could be submitted regarding what a reasonable person should have known. On the merits, the court indicated that even though Attorney Levie did not specify a deadline for the Wheeler's lifting the lien, the deadline was probably implied by the other facts. In other words, the court was suggesting that even though Kaseberg might be able to get past the statute of limitations, it is not so clear that he has a winning claim against attorney Levie.

For people who think their attorney messed up, the bigger point is to ask questions and get answers as soon as you can. Don't put off potential claims for years. The risks are not worth it. If you think your Oregon attorney committed legal malpractice, feel free to call me.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Today, a pleasant woman from Oregon called because she thought she has a legal malpractice case. A law firm had agreed to represent her son against a school district, alleging that the school district is responsible for the bullying and suffering of her child. Her former lawyer quit abruptly, and she could not find another lawyer to take the case so soon before trial. She thought she had a legal malpractice case against the attorneys because the court dismissed her son's lawsuit last week.

I did not get into the details of her son's case against the school district because I first wanted answer the "So what?" question.

In every civil action, there are basically three questions: (1) Is someone legally at fault? (2) Did that person cause a loss? and (3) What is the dollar value of the loss? The first "so what" question was whether her son still had the right to pursue his claim against the school district. When she told me that the case was dismissed "without prejudice," I told her that I would not be representing them in any legal malpractice case. Here's why.

When a case is dismissed, "without prejudice," it means that the court did not decide that either side won or lost. It means that the injured person may file another lawsuit about the same problem - IF - any applicable time limitations have not expired. So, if there is still time for her son to file the lawsuit, they can start again. If he has a million-dollar case, he probably still has it. If the case was worth $0, then it is still worth $0. Nothing much was lost by the dismissal -- maybe some costs that might need to be spent again for filing fees, for example.

Going back to the three questions, my snap decisions were: (1) I don't know if the lawyer committed malpractice; we did not get into the details. (2) If the lawyer caused a loss, it was probably only some court costs in the case (unless the time limit has already expired to present the claim the beginning). (3) The value of those costs would not justify my involvement in a legal malpractice lawsuit.

Conclusion: you have to have losses before you file a lawsuit for money to compensate for losses. Sounds simple, but, often, people get upset and want to sue first without thinking about what, really, is at stake.

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234

The above is not legal advice. I cannot give you sound advice without knowing more information. It is intended to raise some issues for you to discuss with your own lawyer.

Last week, I wrote about a great book on negotiations. This week, I write about a terrible one. 112 Ways to Succeed in Any Negotiation or Mediation: Secrets from a Professional Mediator is not worth 112 minutes of your time. It is not even worth 12 minutes of your time.

Here's one of those secrets that only a professional mediator could possibly know: "The secret to making the best opening offer, which allows the continuation of the negotiation process, is that there is no secret, just good judgment under the circumstances." (p. 67).

The book is a collection of seemingly random thoughts, 112 of them. (I guess; I did not actually count them.) The number gets so high because several of the thoughts are redundant or contradictory. One example of redundancy: on page seven, the author discusses the benefits of buying coffee or lunch for your opponent. On page 73, he urges readers to establish a friendly rapport with your opponent early by "giving a gift or doing a favor for someone[.]" And how's this for providing guidance to negotiators? Let's see if you can square the following bits of advice. (a) "Your competence in your field is an important source of power in your negotiation. Maximize that power." (p.70) (b) "In negotiations, it never pays to reveal your true intelligence or your true position. It's better to let the other side underestimate your skills." (p. 83).

Several of the tips are intended to be practical reminders. For example, the author reminds us to bring food and drink to a mediation session. Here's a few more secrets that, perhaps, the author could add to the next edition. Tip number 113: Don't forget to zip up your pants. Number 114: Show up on time. Number 115. . .

Jeff Merrick, Oregon Trial Attorney
Injury & Employment Law
503-665-4234