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

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.

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. " »

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.

Oregon's Supreme Court allowed a felon to sue the lawyer he hired to try to overturn his conviction on sex crimes. The lower courts had thrown out the case, because precedents held that a convict may not sue for legal malpractice until and unless the courts overturn the conviction. The Supreme Court agreed that for the criminal trial lawyer, that rule remains. But, in Keith Drollinger v. John Lamborn et. al., the court held that the "exoneration rule" does not apply to lawyers engaged after conviction to try to exonerate the convict. The case provides a good illustration of the elements of legal malpractice cases.

First, why is it that a person may not sue his or her lawyer for screwing up the criminal trial?

The answer illustrates the concept of legal harm. To win any civil case, one must show that (1) someone did something legally wrong, (2) it cause harm, and (3) the dollar value of the harm. For example, if someone drives through a red light and narrowly misses you, you many not sue the person, because you suffered no legal harm. Maybe you were scared, but you were not injured. In legal malpractice cases, one must show that if the lawyer had not screwed up, it would have made a difference. For criminal trial lawyers, if the person would have been convicted anyway, then there is no claim. So, the Oregon courts have held that before a convict may sue his criminal lawyer, he must first get his conviction overturned.

Second, did the lawyer do something legally wrong?

The allegations against the lawyer were pretty bad. The complaint alleged that the lawyer took a $5,000 retainer (1) to hire an investigator to find evidence to overturn the conviction, (2) take depositions of key witnesses and hire experts to develop evidence, (3) seek withdrawal of the guilty plea. After the lawyer signed the agreement and accepted the money, time passed, and there was an "apparent lack of activity." The court set a firm trial date and a deadline for pre-trial motions. One week before the motion deadline, the attorney told the client that he felt unqualified, and would seek a delay in the November motions and the February trial.

By December, the convict was in court against his lawyer, asking the court to force the lawyer to do the work he promised to do. The court denied the motion. Finally, in January, the lawyer asked the court for permission to quit, which the court granted. The convict faced a choice: (a) go forward to the February trial without a lawyer and without the evidence the lawyer was hired to obtain, or (b) dismiss the case and lose all chance of overturning the conviction. He dropped the case.

If those allegations are true, that type of neglect falls well below the standard of care an Oregonian has a right to expect from any trial lawyer, civil or criminal.

Next battleground for this case?

Now that the convict has the right to sue his lawyer, he still must prove that if a diligent lawyer had performed the work, then, "more likely than not," he would have achieved some post-conviction relief. In effect, he has to try the post-conviction relief case and show he would have won with new evidence. They call this "the case within the case" in legal malpractice lawsuits.

The other option the convict has is to sue the lawyer for breach of contract and, perhaps, other claims for not doing the work he contracted to do. However, the money damages would be more limited than if he wins his legal malpractice case.

I wrote this post to illustrate legal malpractice law. I did not write this to encourage people who have been convicted of crimes to contact me. So, don't waste your phone call. My legal malpractice cases involve allegations that the conduct of civil lawyers fell below the standard of care.

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.

Okay, I'll tell you how my week was.

I probably talked with between 12 to 20 people who thought they had cases, and I responded to probably another dozen people who filled out contact forms. Some of their problems were in my "wheelhouse:"

• Car Accident: a distracted driver crossed the center line and ran an oncoming driver off the road. The distracted driver's insurance company said, "No collision - no claim." I say, "Valid case."

• Bike-Car Accident: Car hit man on bike

• Sexual Harassment & Retaliation: Woman pressured by boss to have sex. When she stopped, the boss-owner continued sexual harassment and retaliated against her by treating her so badly that she had to quit

• Medical Malpractice: Man went to the hospital over 100 times before they diagnosed him correctly.

• Employment Law: Several people claimed wrongful termination or discrimination. Some may be right; some are definitely wrong.

• Legal Malpractice: at least two people thought their attorney malpracticed.

For clients with cases in court, I prepared motions and gathered evidence. I counseled clients on the next steps of the litigation and what mediation is all about. I read and wrote countless E-mails and letters to move litigation forward toward conclusion.

Some cases are in the stage between the forming our attorney-client relationship and filing a lawsuit or other claim. This is a critical stage. What is the appropriate approach? Are we ready to file? Can we improve the case before filing? Should we start with a letter seeking settlement? Should we file a complaint with the Bureau of Labor and Industries? Should the first salvo be a lawsuit?

Every person is different. Every situation differs. The key is apply a quarter-century of experience to work through what is best for each person. That's the fun part of the job. The not-so-fun part of the job is dealing with the occasional jerk, whether it's an insurance company lawyer or someone who gets angry at me because I offered a free opinion that what they think is a case is not something they can or should sue about.

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

I tell my litigation clients, "I HOPE the attorney for the other side is a really good attorney." That's because a good attorney will know the law, understand the how the facts fit in, and properly counsel their client on the risks and benefits of proceeding with each phase of the litigation. Dumb and / or inexperienced lawyers only increase the cost of litigation, which only benefits the attorneys.

I'm involved in a case now that should never have gone to court. The opposing party should have paid my client. We asked for the correct amount, which was far less then the costs of litigation. We had to sue. A good attorney would have told the defendant to pay the amount due on time. Maybe he did, and the client ignored him. I don't know.

The amount was small. In Oregon, a case under $50,000 must first go through an arbitration process. We won at arbitration. Now, the other side owes us attorney fees far in excess of the amount the defendant owes my client. A good attorney would have told his client to pay the award, and maybe he did. But the defendant appealed, which will only cost the defendant more money for attorney fees.

The Oregon State Bar regulates lawyers. If an attorney takes Ten Cents from a client trust account, he or she is in big trouble. If an attorney costs someone several thousands of dollars because of bad advice. . . ., then it's usually up to the client sue for legal malpractice.

I think the Oregon State Bar should have a program for identifying substandard lawyers. Once identified, the attorneys should get additional training. If their substandard practice continues, we should yank their licenses to practice law.

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

Members of the Oregon State Bar must have legal malpractice insurance through the Professional Liability Fund. The minimum coverage is $300,000. (Patent attorneys can practice with permission from the US Patent office, and need not be members of the Oregon State Bar, and they may or may not have insurance.) Although the attorney is responsible for the care of the client, sometimes it is someone in the office who screwed up. This post discusses when mistakes are covered by the Oregon attorney's malpractice insurance.

A too-common error is serving a complaint late - missing the statute of limitations (or missing some other time deadline). Sometimes, it is a secretary or assistant who makes the mistake. Since the assistant messed up, is the attorney responsible? And is it covered by insurance? Yes. Yes.

The error is covered if committed by a person for whom the attorney is responsible and, at the time, the attorney was covered by insurance and the attorney's main law office was in Oregon. So, errors by secretaries and assistants are covered. But there is an exception.

What if the assistant is an attorney? Here's one situation. There are a lot of unemployed young law graduates who passed the Oregon State Bar. Some are serving as paralegals because they need the job and some attorneys need help that costs less than hiring someone as an associate attorney.

Another situation is when an attorney licensed in another state has a client with a matter in Oregon. Sometimes, the non-Oregon lawyer will associate with an Oregon lawyer for purposes of the one case only. What happens if the non-Oregon lawyer screws up the case?

Errors committed by the following are NOT covered by insurance provided by the Professional Liability Fund:

- Attorneys from another state, and
- Attorneys who claim that they are exempt from coverage by the PLF, such as an inactive member of the bar.

In conclusion, generally, if an Oregon lawyer handled your case and either the attorney caused you harm because of negligence, or if some assistant caused the mistake, then the mistake is probably insured and you should be able to recover.

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.

Oregon's Professional Liability Fund insures all attorney members of the Oregon State Bar against legal malpractice. Recently, the PLF published its annual report. Here are some of the highlights:

In 2010, there were 938 new claims against Oregon attorneys. Cost per claim is rising, $19,500 is the average for the first half of 2011 compared to $19,000 for 2010. Speculation on the cause for the high rate of claims and the higher cost to settle them includes the fact that many recent graduates are starting practices and displaced attorneys, also, are starting their own practices. Some attorneys are probably stretching past their comfort zones, leading to mistakes, which leads to malpractice claims.

The top six areas of law leading to attorney malpractice claims are Personal injury (17%), Domestic relations / family law (16%), Bankruptcy (12%), Real Estate (11%), Estate Planning & Estate Tax (10%), and Business Transactions / Commercial law (9%).

What happens when a client makes a claim? From 2001 through 2010, claims resolved as follows:

• 19% of the time the PLF fixed or "repaired" the problem.

• 26% of the time the PLF settled before a lawsuit.

• 12% of the cases settled or were dismissed during litigation.

• 4% went to judgment.

• The remainder of the claims were abandoned (22%) or denied (17%).

And the bad news for me: the premiums for legal malpractice insurance are going up.

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

Yesterday, the Oregon Supreme Court suspended attorney Anthony Robert Lopez, Jr. for eight instances of misconduct, including mishandling personal injury settlements. Attorney Lopez's bad conduct provides reminders of what clients should expect from their attorneys. It also illustrates an important difference between legal malpractice and attorney misconduct that does not amount to malpractice.

Most of the issues involved personal injury settlements. An attorney must (1) promptly inform clients of settlement offers, (2) obtain court approval when settling a child's injury claim (usually), (3) explain how settlement funds will be used, and (4) disburse the funds within a reasonable time. Often, doctors or others who have provided services or funds to the injured person because of the car accident have a claim against the settlement. The lawyer needs to deal with those claims and liens.

Mr. Lopez settled some minors' claims without court approval, which was conduct prejudicial to the administration of justice. When he paid himself out of the unapproved settlement, that constituted collecting an illegal fee.

Mr. Lopez failed to deal properly with payments to medical providers, which constituted a failure to provide competent representation.

If the clients suffered monetary losses from this type of conduct, then they would have a legal malpractice claim against the attorney. However, if the clients got all the money to which they were entitled and it was just a matter of delaying the final payments to others, then there is no attorney malpractice. That's because, for any claim of negligence, one must suffer "damage" before you can go to court and sue.

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, the Oregon Supreme Court ruled that homeowners may sue the contractor who built their home for negligence; they did not need to rely only on a breach of contract claim. In Abraham v. T. Henry Construction, the distinction was important because, by the time the homeowners discovered the construction defects, the time had expired for a breach of contract lawsuit.

Generally, when someone breaches a contract, it does not matter whether the breach is intentional or negligent. If you do not live up to your bargain, then you must pay the other person for the monetary loss caused by your breach. Often, the person hurt by the breach may only sue for breach of contract, but there are exceptions.

The first exception is when a "special relationship" exists between the parties. The lawyer-client relationship, for example is considered a special relationship of trust. That's why a client may sue his or her attorney for legal malpractice, not just breach of contract. Other special relationships include those between people and their doctors, architects, engineers, and trustees.

Another exception to the general rule that one may sue the other side of a contract only for breach of contract is when there is some standard of care or conduct independent of the contract. Here, Mr. and Mrs. Abraham alleged that both (1) common law negligence established an independent duty of care and (2) Oregon's building code sets a standard independent from the contract. They alleged that the contractor failed to meet either standard, and that failure caused water damage to their house. Oregon's Court of Appeals relied on the building code to find an independent standard to support a negligence claim.

Oregon's Supreme Court agreed that Mr. and Mrs. Abraham could sue in negligence, but not just because of the building code. The court reminded us that when a builder's negligence causes property damage, then even people who did not contract with the builder may sue. Just because you hired the builder does not mean you lose your right to sue for negligence. The homeowner might have both a claim for breach of contract and for negligence.

When applying the law to the facts in this case, the court said the homeowners could proceed with their negligence suit under the general common law claim that their contractor failed to exercise reasonable care to avoid foreseeable property damage.

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

Oregon has suffered high unemployment, including for lawyers. Young people graduate law school in debt and cannot find work. Some decide to open their own law practice, which concerns me because law schools do not teach people how to practice law. This means that people who hire freshly-minted lawyers must beware.

In decades past, most of us could find jobs with big firms or experienced attorneys. In effect, many of my generation enjoyed a type of apprenticeship, even though no one called it that. Our responsibility grew only as we grew in our knowledge and skill.

Unfortunately, some young lawyers "don't know what they don't know." I've received many calls from people who believed their attorney committed legal malpractice, causing them to lose their right to sue or suffer a bad result at trial. I've helped some of them recover their losses from their former attorney.

The good news for consumers that Oregon requires all lawyers to have malpractice insurance of $300,000. Also, leaders in the bar recognize the problem of inexperienced lawyers practicing law, and we are trying our best to match them up with experienced mentors.

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

Yesterday, the Oregon Court of Appeals held that a person must respond timely to a summons and complaint even though overwhelmed by other personal and business issues.

In Estrelia Saldivar v. Ken Roberts and Bridge Homes, LLC., Ms. Saldivar sued for fraud, misrepresentation, unfair labor practices and conversion. Defendant did not respond, and her attorney obtained a default judgment. Only after her attorney garnished defendant's bank account did he show up in court and ask to lift the default judgment because of "excusable neglect."

Mr. Roberts told the court of his personal problems: divorce, terrible economic times for his real estate business, a barrage of other certified letters demanding things. He confessed that he should have responded, but that he was overwhelmed. The trial judge gave him a break, recognizing that this has truly been an unusual time of recession.

I've been critical of the unfairness of holding plaintiffs to tight time deadlines imposed by the statute of limitations, but letting defendants off the hook. It is to the point where we lawyers think it is a waste of time to default defendants, because it so easy overturn the default judgment. On this occasion, however, the Court of Appeals said the trial judge abused his discretion; he was too easy on defendant.

The court explained that personal problems might be enough IF they amount to psychiatric problems making a person incapable of taking care of affairs. However, Mr. Roberts did not claim that. Instead, Mr. Roberts, basically, said that this claim never rose to the top of his "to do list."

I notice that Mr. Roberts was not represented by an attorney in the Court of Appeals. I suppose that defense lawyers will learn from this case. In the future, when defendants want to lift a default judgment, they better submit a note from a psychologist saying that the defendant was, effectively, paralyzed.

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.