Oregon Personal Injury Lawyer Blog

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

I found the classic book, Getting to Yes: Negotiating Agreement Without Giving In, on my bookshelf last week, and I read it again. Considering less than 1% of civil lawsuits in Multnomah County, Oregon result in a trial by jury, every trial attorney needs to negotiate effectively. I have the second edition, written by Fisher, Ury and Patton of the Harvard Negotiation Project. This post highlights the key concepts in their approach.

The authors urge negotiators to reject bargaining over "positions." A "position" refers to a statement such as "I will take no less than $100." If that is true and if the buyer cannot pay $100, then there is no point in negotiating. On the other hand, if the person - secretly - would take $60, then staking out the position of no less than $100 could prevent a favorable settlement, especially if the other person is prepared to pay up to $95.

But if price seems to be the only thing over which to bargain, then what can negotiators do other than toss out numbers and try to bluff the other side as to the price they'd actually pay or accept? The authors set forth a four-part process.

First, separate the people from the problem. We need to deal with both. The above "problem" to be solved could be stated as follows: "I'd like to sell this item, and you desire to buy it. How can we come up with an acceptable price." However, If a negotiator stakes out a position such as "no less than $100," then we need to deal with the issue of him defending his position and his integrity. In my law practice, we often need to address the real emotions of my clients for which there is no dollar value. The failure to address "people" and "problem" as real and separate issues can confuse the process and lead to failure or less-satisfactory results.

Second, one needs to identify interests. At first glance, there seems to be nothing to discuss other than price: I want to pay less and you want to receive more. But further discussions might reveal other interests. For example, the buyer might not have more than $50 now, but will receive some money after he sells something. The seller might want to delay receipt of income until January 1. The buyer might need to spend money on shipping. The Seller might have regular delivery routes.

By identifying interests, negotiators then move into the third phase of the method: invent options for mutual gain. In this example, the options become apparent: consider payments over time and discounted or free delivery. Nevertheless, there is still the issue of price.

Here is where the authors insist on developing and using objective criteria instead of just talking tough. If the seller says, "It was my grandfathers, I cannot sell it for less than $100," The buyer must refocus to, "I understand, but let's determine what is a fair price for non-related people." [I've used my own examples in this post, not the authors'.] Bargain over the process: how one can we determine a fair market value that we each might be able to accept. Try to get commitments on process. This avoids taking a position and then defending it. Agreeing on an objective process does not, necessarily, bind the parties to the result of the process, although that is a possible solution, too. The authors point out that the more negotiators can separate ego and feelings from an objective process, the better the chance of agreement.

The authors acknowledge that not everyone wants to "play" their game of negotiating over principles instead of positions. They discuss the concept of hard and soft negotiation and offer suggestions on how to deal with different situations.

I'm glad I re-read the book. It is a good reminder of how to move negotiations forward when things bog down. Attorneys who represent people need to be especially well versed in negotiation tactics because most people have only negotiated car purchases. By contrast, insurance company claims adjusters negotiate all the time. Insurance companies know the tricks. Consequently, to achieve fair value for a claim, people need to make sure their own attorney is skilled at preparing for settlement discussions and negotiating.

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.