Learning The Ropes - Day 1 - Professional Liability Fund

Learning
The Ropes
A Practical Skills & Ethics Workshop
for new admittees & lawyers entering private practice
October 31, 2012
November 1, 2012
November 2, 2012
This seminar qualifies for
15.25 MCLE credits
(10.25 Practical Skills, 2 Ethics [including
1 Child Abuse Reporting Credit] and
3 Introductory Access to Justice Credits).
Oregon Convention Center
Portland, Oregon
Sponsored by the
OSB Professional
Liability Fund

Day 1 – Wednesday, October 31, 2012
Day 1 qualifies for 6 MCLE Credits (5 Practical Skills Credits and 1 Introductory Access to Justice Credit).
8:00 – 8:30 Registration/Check-In – Oregon Convention Center
777 NE Martin Luther King Jr. Blvd, Portland – 503-235-7575
8:30 – 9:20 How to Develop a Successful Practice and Avoid Legal Malpractice/PLF Coverage Overview
Learn how to reduce your risk of being sued.
Ira R. Zarov, Professional Liability Fund Chief Executive Officer
Barbara S. Fishleder, Professional Liability Fund Director of Personal and Practice Management Assistance/
Oregon Attorney Assistance Program Executive Director
9:20 – 10:00 Client Communication and Other Practice Management Survival Tips
Sheila M. Blackford, Professional Liability Fund Practice Management Advisor
Chris L. Mullmann, Assistant General Counsel, Oregon State Bar Client Assistance Office Manager
10:00 – 10:15 BREAK
10:15 – 11:15 Recognizing and Representing Clients with Mental Health Impairments
(1 Introductory Access to Justice Credit)
Meloney C. Crawford, JD, CADC III, NCAC II, CGAC II, Oregon Attorney Assistance Program Attorney Counselor
Mike Long, JD, MSW, CEAP, Oregon Attorney Assistance Program Attorney Counselor
Douglas S. Querin, JD, LPC, CADC I, Oregon Attorney Assistance Program Attorney Counselor
11:15 – 11:45 Who Ya Gonna Call?
What to do when you’ve made a mistake.
Bruce Lee Schafer, Professional Liability Fund Director of Claims
11:45 – 12:15 Alternative Dispute Resolution – Mandated and Voluntary
Court-mandated arbitration/mediation and other alternative dispute resolution options.
Lisa Almasy Miller, Miller Mediation and Arbitration
12:15 – 1:30 Lunch/Meet the Judges (Lunch included in registration fee)
This luncheon gives you the unique opportunity to meet judges and ask questions.
CHOOSE ONE OF EACH OF THESE CONCURRENT SESSIONS:
1:30 – 2:15 Domestic Relations
Gilbert B. Feibleman
Feibleman & Case
2:15 – 2:20 Transition
2:20 – 3:05 Tort Litigation
Jane Paulson
Paulson Coletti Trial Attorneys PC
3:05 – 3:10 Transition
3:10 – 3:55 Civil Motion Practice
Lindsey H. Hughes and Peter D.
Eidenberg
Keating Jones Hughes PC
Learning The Ropes - Day 1
OR
OR
OR
1:30 – 2:15 Criminal Law
Robert G. Thuemmel
Thuemmel, Uhle & Eder
2:15 – 2:20 Transition
2:20 – 3:05 Estate Planning and Administration;
Guardianships; and Conservatorships
Heather L. Guthrie
Dunn Carney Allen Higgins & Tongue LLP
3:05 – 3:10 Transition
3:10 – 3:55 Bankruptcy
Johnston Mitchell
Coers Mitchell Law LLC

Day 2 – Thursday, November 3, 2012
Day 2 – Thursday, November 1, 2012
Day 2 qualifies for 5.75 MCLE Credits (3.25 Practical Skills Credits and 2 Ethics Credits [including 1 Child Abuse Reporting
Credit]), and .5 Introductory Access to Justice Credit
8:00 – 8:30 Registration/Check-In – Oregon Convention Center
777 NE Martin Luther King Jr. Blvd, Portland – 503-235-7575
8:30 – 10:00 The Ethics of Practice Management and General Practice Tips (.5 Practical Skills Credit and 1 Ethics Credit)
Topics include trust accounting, conflicts, protecting client confidentiality, and managing client files.
Dee Crocker, Beverly Michaelis, and Sheila M. Blackford
Professional Liability Fund Practice Management Advisors
10:00 – 10:15 BREAK
CHOOSE ONE OF TWO TRACKS:
12:15 – 1:30 Networking Luncheon (Lunch included in registration fee)
Practitioners and Bar leaders will be joining you for roundtable discussions about practicing in various
areas of the law.
1:30 – 2:30 Employment Law and Conscientious Communication (.5 Introductory Access to Justice Credit and .5
Practical Skills Credit )
Even if you don’t advise clients in this area of law, you are an employer or an employee. Employment law
is crucial to understanding your rights and responsibilities. It also offers great insight into how to
improve communication with your colleagues and clients.
2:30 – 2:40 BREAK
Creating a Firm
10:15 – 11:15 Setting Up and Running
a Law Practice
Client intake, file management, mail
handling, docketing, conflict procedures,
billing, and resources.
Beverly Michaelis, Professional Liability
Fund Practice Management Advisor
11:15 – 12:15 “If I Only Knew” – Practice Tips and
Advice from Practitioners
Picking a location, practice area, and
practice arrangement; writing a business
plan; and getting and keeping clients.
Amy J. Cross
– family law, trusts and estates
Marc A. Johnston
– litigation
Ian G. Shearer
– bankruptcy
Learning The Ropes - Day 2
Clarence M. Belnavis, Fisher & Phillips, LLP
Joining a Firm
10:15 – 10:45 Tips for Lawyers Joining Firms
Dee Crocker,
Professional Liability Fund
Practice Management Advisor
Amber Hollister,
Oregon State Bar
Deputy General Counsel
Shari R. Gregory, LCSW, JD
OAAP Attorney Counselor/Assistant
Director
10:45 – 12:15 Success Tips from Associates and
Partners
Ben Eder,
Thuemmel, Uhle & Eder
Grace Y. Lee,
Stahancyk Kent & Hook PC
Megan I. Livermore,
Gaydos, Churnside & Balthrop
2:40 – 3:40 Recognizing Child Abuse and Fulfilling Your Duty to Report (1 Child Abuse Reporting Credit)
Amber Hollister, Oregon State Bar Deputy General Counsel
Charlene Sabin, MD, Behavioral Pediatrician, Portland, Oregon
OR

(No refunds will be issued for cancellations after October 24, 2012.)
Sorry - no credit cards accepted / no proration for attendance at only a portion of the program.
Attendance at the full program qualifies for 15.25 MCLE Credits (10.25 Practical Skills Credits, 2 Ethics Credits [including
1 Child Abuse Reporting Credit], and 3 Introductory Access to Justice Credits). You may register for the full program
or for any portion. Attendance at the full program will satisfy the MCLE requirements for new admittees’
first reporting period.
REGISTRATION DEADLINE – October 24, 2012
Space Is Limited – Register Early!
Your $65 registration fee entitles you to attend the full program. Return this registration form and a $65 check made
payable to the PLF to: Professional Liability Fund, P.O. Box 231600,Tigard, Oregon 97281-1600, Attn: DeAnna Z.
Shields. Lunch is included and will be provided on October 31 and November 1. For information about accommodations
for persons with disabilities, please call DeAnna Z. Shields at 503-639-6911 or 1-800-452-1639.
Learning The Ropes - Day 3
Day 3 – Friday, November 2, 2012
Day 3 qualifies for 3.5 MCLE Credits (2 Practical Skills Credits and 1.5 Introductory Access to Justice Credits).
8:00 – 8:30 Registration/Check-In – Oregon Convention Center
777 NE Martin Luther King Jr. Blvd, Portland – 503-235-7575
8:30 – 9:30
Courtroom Do’s and Don’ts
Successful courtroom protocol and procedures.
The Honorable Edward J. Jones, Multnomah County Circuit Court Judge
The Honorable Jean Kerr Maurer, Multnomah County Circuit Court Judge
9:30 – 10:15 Negotiation Tips, Tricks, Traps, and Tools
Christopher J. Drotzmann, Davis Rothwell Earle & Xochihua PC
Xin Xu, Law Office of Xin Xu
10:15 – 10:30 BREAK
10:30 – 12:00 Bridging the Cultural Gap (1.5 Access to Justice Credits)
Lee Po Cha, Immigrant and Refugee Community Organization
Djimet Dogo, Immigrant and Refugee Community Organization
Victoria Libov, Immigrant and Refugee Community Organization
Cecilia Martinez, Victim Assistance Coordinator, Yamhill Co. Courthouse
Chanpone P. Sinlapasai, Moderator, Marandas & McClellan LLC
q Creating a Firm q Joining a Firm
Please indicate which track you plan to attend on November 1:
_ _ _ Business Transactions _ _ _ Elder Law _ _ _ Family Law _ _ _ Real Estate
_ _ _ Business Litigation _ _ _ Debtor/Creditor _ _ _ Estate Planning _ _ _ Litigation
_ _ _ Appeals _ _ _ Criminal Law _ _ _ Employment Law _ _ _ Intellectual Property
Areas of law you are most interested in for roundtable luncheon on November 1.
Please indicate your first choice (#1) and second choice (#2) on the following list:
E-mail: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ City/State/Zip: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Firm Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone No.: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Bar No.: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
q I would like vegetarian lunches. (PLEASE NOTE: no vegan option will be available.)
q November 2, 2012 – 8:30 a.m. - 12:00 p.m.
q November 1, 2012 – 8:30 a.m. - 3:40 p.m.
q October 31, 2012 – 8:30 a.m. - 3:55 p.m.
Please indicate which days you plan to attend:
Oregon Convention Center
Portland, Oregon
REGISTRATION FORM
Learning The Ropes
SPONSORED BY THE OREGON STATE BAR PROFESSIONAL LIABILITY FUND

S EMINAR F ACULTY
Clarence M. Belnavis received his J.D. from Howard University School of Law. He is a partner in the
Portland, Oregon office of Fisher & Phillips, LLP. He has substantial experience handling various types of
employment litigation including disability, racial, and gender discrimination; retaliation; sexual harassment;
and wrongful discharge. He also represents employers in wage and hour claims, employment class actions
and traditional labor matters. Clarence began his legal career serving as a law clerk in the Office of the
General Counsel for the Department of the Navy, and he served as a judicial intern for Judge A. Burnett,
Superior Court, Washington, D.C. He has been named one of Portland's "40 Under 40" by the Portland
Business Journal, and he has been repeatedly recognized in Oregon Super Lawyers for his work in labor and
employment law. Clarence has also been listed in Chambers USA, America's Leading Business
Lawyers since 2006 and he has been listed in The Best Lawyers in America since 2009.
Sheila M. Blackford received her J.D. with Tax Law Concentration from McGeorge School of Law. She is
a practice management advisor for the Professional Liability Fund (PLF) where she provides confidential
assistance to lawyers and their staff on office systems, technology, conflict systems, and other crucial
malpractice avoidance techniques. Prior to 2005 when she joined the PLF staff, Sheila was in the private
practice of law as a sole practitioner, and has been a teacher and bank marketing director. She is very active
with the American Bar Association Law Practice Management Section (LPM) where she is currently Editorin-Chief
of Law Practice magazine and Section Chair of the Magazine Board. She is a member of the LPM
Section Council and serves the LPM Ethics Task Force Committee; the eLawyering Task Force; and the
State and Local Bar Outreach Committee. She teaches Law Practice Management at University of Oregon
School of Law as an adjunct faculty.
Lee Po Cha is the Immigrant and Refugee Community Organization (IRCO) Associate Director. Mr. Cha is
a former Hmong refugee from the country of Laos. He came to Oregon in 1978 and received his Master’s
degree in Business Administration from Marylhurst University. Mr. Cha has worked for IRCO for 28 years
and helped found the Asian Family Center, an IRCO program, in 1994. He also heads Project Interwoven
Tapestry, which is linking refugees and neighborhood groups; and IRCO’s Community Needs Assessment
Committee, which has organized annual Refugee and Immigrant Community Building conferences over the
past three years. Over the years, Mr. Cha has worked with numerous refugee and immigrant communities in
various capacities, including behavioral counseling of delinquent youth, gang-involved youth, teen parents,
youth with antisocial behavior and their families. He is a well-known cross-cultural trainer and has served
on the Multnomah County Commission on Youth and Families. Mr. Cha is also very active within his own
community both nationally and locally; he served as the president of the Hmong American Unity of Oregon,
the local Hmong MAA, and negotiated a community policing agreement between the Portland Police
Bureau and the Hmong community. He is multilingual in Hmong, Lao, Thai, and English.
Meloney C. Crawford is a graduate of Temple University School of Law (J.D. 1981). She was in private
practice for two years, marketed Westlaw® products for eight years, and worked for several years in
publishing as a writer and editor. In recovery since 1988, Ms. Crawford joined the OAAP staff in 1999. She
is certified as an alcohol and drug counselor both nationally (NCAC II) and in Oregon (CADC III) and is a
Certified Gambling Addiction Counselor (CGAC II). She is past president of the Addiction Counselor
Certification Board of Oregon (ACCBO), and continues to serve on its board of directors.
Dee Crocker has over 30 years of experience in the legal field, including 14 years as a legal secretary, three
years as a secretarial supervisor to over 50 legal secretaries, and three years as a law office manager. She is
a practice management advisor with the Professional Liability Fund (PLF), where she provides confidential
assistance to lawyers and their staff on office systems, technology, conflict systems, and other crucial

malpractice avoidance techniques. She is a past president of the Oregon Association of Legal Secretaries
and a past member of the Board of Directors of the National Association of Legal Secretaries. Ms. Crocker
is a contributing author to A Guide to Setting Up and Running Your Law Office, A Guide to Protecting Your
Clients’ Interests in the Event of Your Disability or Death, and A Guide to Setting Up and Using Your
Lawyer Trust Account, published by the Oregon State Bar Professional Liability Fund. In addition, Ms.
Crocker is the author of The Office Policy Manual and The Office Procedures Manual, published by the
National Association of Legal Secretaries; Basic Litigation Forms for Oregon Courts, published by the
Oregon Association of Legal Secretaries and endorsed by the Oregon State Bar; and The Litigation
Handbook for the Lawyer’s Assistant, published by West Publishing Company. Ms. Crocker joined the PLF
as a practice management advisor in 1992.
Amy J. Cross received her J.D. from University of Oregon School of Law. She has been in private practice
for six years and is a sole practitioner. Her law practice, Amy J. Cross, P.C., focuses on estate planning,
probate and trust administration, guardianships and conservatorships, and family law. Prior to private
practice in Oregon she was an associate at an estate planning and business law firm in Watertown, New
York and was an attorney advisor for the Social Security Administration.
Djimet Dogo is the Manager of Immigrant and Refugee Community Organization (IRCO) /Africa House, a
one-stop service center for African immigrants and refugees in Portland. Before that, Djimet worked as an
IRCO Career Coach for six years. Prior to coming to the United States, Djimet Dogo ran a Human Rights
Organization called Chad-Nonviolence in Chad, Central Africa. He arrived in Portland 13 years ago from
Chad, because the government threatened him for publishing a critical report about Chad’s practice of
extrajudicial killing of alleged criminals. In Portland, Dogo draws upon his skills as a human-rights activist
in Africa to seek assistance for Portland’s growing African refugee population. Dogo holds a B.A. in
English from the University of Chad and degrees in Peace, Human Rights and Conflict Resolution from
Austria, France and South Africa. He also earned a B.A. in Liberal Arts, a B.A. in Communication, and a
Master’s Degree in Public Administration at Portland State University. Dogo speaks French, Arabic, and
several African languages.
Christopher J. Drotzmann received his J.D. from Willamette College of Law. He has been in private
practice since 1996 and is a shareholder at Davis Rothwell Earle & Xochihua. His practice focuses on
construction defect defense, professional liability defense, and personal injury. Mr. Drotzmann is the past
chair of the Construction Defect Practice Group of the Oregon Association of Defense Counsel and was
included on the 2011 Oregon Super Lawyers ® Rising Stars List.
Ben Eder received his J.D. from the University of Oregon School of Law. He is currently a partner at
Thuemmel, Uhle and Eder, where he specializes in DUII jury trials. Mr. Eder authored the chapter on
conducting Department of Motor Vehicle Hearings for the DUII Notebook, published by the Oregon
Criminal Defense Lawyers Association. He has been recognized in the Oregon Super Lawyers ® Rising
Stars List for 2009-2012 and as a Daily Journal Up and Coming Lawyer in 2011.
Gilbert B. Feibleman received his J.D. from the University of the Pacific – McGeorge School of Law. Mr.
Feibleman is the managing shareholder for Feibleman & Case, where he has practiced family law since
1976. He has served as a pro tem judge throughout Oregon and is a frequent speaker, writer, and teacher on
the topic of ethics and family law, including presentations and/or articles for the Oregon Trial Lawyers
Association, the Oregon Judicial Department, Willamette University School of Law, the American
Academy of Matrimonial Lawyers, and the Bars of Oregon, Kentucky, Minnesota, Georgia, Washington,
Colorado, Alabama, and Illinois.

Barbara S. Fishleder received her J.D. from John Marshall Law School and her Bachelor of Business
Administration from the University of Michigan. She is the Professional Liability Fund (PLF) director of
personal and practice management assistance/executive director of the Oregon Attorney Assistance
Program. Her responsibilities include management of the PLF’s confidential programs [the Practice
Management Advisor Program and the Oregon Attorney Assistance Program (OAAP)] and educating
lawyers on malpractice traps (through seminars, practice aids, handbooks, and newsletters). Ms. Fishleder
is a contributing author to A Guide to Setting Up and Running Your Law Office, A Guide to Setting Up and
Using Your Lawyer Trust Account, and A Guide to Protecting Your Clients’ Interests in the Event of Your
Disability or Death, published by the Oregon State Bar Professional Liability Fund. Prior to her current
work at the PLF, Ms. Fishleder was a PLF Claims Attorney (1986-1989) and was in private practice (1979-
1986) specializing in insurance and workers’ compensation defense. She is on the board of directors of the
Oregon Lawyer Assistance Foundation.
Shari R. Gregory is a graduate of Wurzweiler School of Social Work (M.S.W. 1987) and Rutgers School of
Law (J.D. 1992) and received her Certificate of Business Management from Portland State University
(2003). Her counseling experience includes career counseling, mental health counseling, crisis intervention,
transition counseling, and alcohol and drug counseling. She was in private practice specializing in criminal
defense law for four years before joining the OAAP staff in 1999, served on the board of the Oregon
Women Lawyers (OWLS), and currently serves on the OSB Diversity Section Executive Board and as
Liaison to the OSB Affirmative Action Committee. She is the assistant director of the OAAP and a Licensed
Clinical Social Worker (LCSW).
Heather Guthrie received her J.D. from Lewis & Clark Law School. She is a partner at Dunn Carney Allen
Higgins & Tongue LLP, practicing in the estate planning and general business areas since May 2000. Her
estate planning and administration practice includes developing comprehensive plans for estates of all sizes,
probate and post-mortem trust administration, guardianships, conservatorships, and prenuptial and
cohabitation agreements. Her business practice includes representation of non-profit and for-profit entities,
including a niche focus serving the design professional community, and significant work in complex real
estate development financings.
Amber Hollister received her J.D. from the University of Washington School of Law. Ms. Hollister is the
Oregon State Bar’s deputy general counsel. In her role, she regularly provides prospective ethics guidance
to lawyers and serves as in-house counsel for the Oregon State Bar. Prior to working for the Oregon State
Bar, Ms. Hollister served as deputy general counsel to Governor Ted Kulongoski and worked at Perkins
Coie LLP in Portland. She clerked for U.S. District Court Judge Robert H. Whaley. Ms. Hollister currently
serves on the Oregon Women Lawyers (OWLS) Board of Directors and the Multnomah Bar Association
Professionalism Committee.
Lindsey H. Hughes received her J.D. cum laude from Willamette College of Law. She is a partner with
Keating Jones & Hughes, P.C. Ms. Hughes defends medical professionals in medical negligence cases, and
she regularly assists and defends lawyers in matters concerning professional liability. Ms. Hughes also
focuses on appellate litigation in state and federal courts. She currently serves on the Oregon Appellate
Rules and Oregon Uniform Trial Court Rules Committees, is the chair of the Oregon Association of
Defense Counsel Amicus Committee, and serves on the executive board for the Oregon State Bar Litigation
Section.
Marc A. Johnson received his J.D. from Gonzaga University School of Law. Mr. Johnson has been in
private practice for seven years and has been a sole practitioner for the past three years. His firm, Johnson
Law Firm, focuses on personal injury law, insurance coverage disputes, and business litigation. Mr. Johnson
is a board member of the Oregon State Bar New Lawyers Division.

Honorable Edward J. Jones received his J.D. from Lewis & Clark Law School and a B.A. from Reed
College. He spent nine years in private practice and 14 years as the director of Multnomah Defenders, Inc.
(MDI), a Portland defender office before his 1999 appointment to the Multnomah County Circuit Court.
Judge Jones is a past president of the Oregon Criminal Defense Lawyers Association.
Grace Y. Lee received her J.D. from the University of Arizona James E. Rogers College of Law. She
entered private practice in 2002 and is now a partner at Stahancyk, Kent & Hook, where she practices
domestic relations law. Ms. Lee is a member of the Oregon Law Institute Board of Directors and Oregon
Family Law Executive Committee. In 2012, she was voted as an Oregon Super Lawyers ® Rising Star.
Victoria Libov is an Employment Services Manager at the Immigrant and Refugee Community
Organization (IRCO) and has been with the agency for 17 years. Ms. Libov is originally from the former
Soviet Union and came to the United States as a refugee in 1991. Ms. Libov received her Master’s Degree
in education in Ukraine in 1977 and completed her Master’s Degree in social work from Portland State
University in 1996 with a focus on refugee mental health issues. She also co-authored a book titled, Mental
Health in Immigration in 1996. Ms. Libov is very involved in the community, including acting as an
Executive Committee member for the Slavic Coalition of Oregon.
Megan I. Livermore received her J.D. from Willamette University College of Law. Ms. Livermore practices
civil and commercial litigation, real estate, and creditors’ rights at Gaydos Churnside & Balthrop, where she
has been in private practice since 2006. Before going to law school, Megan worked in both the public and
private sector. She worked in the Director’s Office at the Oregon Department of Corrections and then
helped launch Digimarc, a successful Portland high-tech company where she spent seven years helping it
grow from startup to its initial public offering and beyond. Ms. Livermore is the president of Oregon
Women Lawyers (OWLS), secretary/treasurer of the Lane County Bar Association, a member of the Oregon
State Bar Diversity Section Executive Committee, and was included on the Oregon Super Lawyers ® Rising
Stars List for 2011-2012.
Mike Long is a graduate of Hastings College of Law, San Francisco, California (J.D. 1983) and Portland
State University (M.S.W. 1991). He was in the private practice of law in Portland between 1985 and 1990.
He worked in alcohol and drug residential treatment from 1990 to 1991 and as a therapist and crisis
counselor from 1991 to 1993 before joining the OAAP staff as an attorney counselor in 1994. Mr. Long is a
Certified Employee Assistance Professional (CEAP) and coauthor of Lawyers at Midlife: Laying the
Groundwork for the Road Ahead (DecisionBooks, Seattle: 2008).
Honorable Jean Kerr Maurer received her J.D. from of Santa Clara University School of Law. Judge
Maurer began her legal career in 1974, and worked as a prosecutor and a lawyer in private practice until
being appointed to the bench in 1996. She began her tenure as the first woman to serve as Presiding Judge
for Multnomah County in January of 2008. She has served as an adjunct professor at Lewis & Clark Law
School, the President of the Oregon Circuit Judges Association, and the President of the Gus Solomon Inn
of Court. In 2003, she was the recipient of the Multnomah Bar Association Award of Merit. She remains
an active member of local and statewide bar and judicial committees and organizations.
Ruben Medina, Jr. received his J.D. from Lewis & Clark Law School. Mr. Medina has been in private
practice for nine years. His firm, Law Office of Ruben Medina LLC, specializes in personal injury, criminal
defense, and workers compensation. Prior to private practice, Mr. Medina was a judicial clerk for the
Honorable David Gernant at the Multnomah County Circuit Court. He serves a growing number Spanishspeaking
clients and has served the needs of thousands of Spanish speakers throughout his career as an
attorney. He is a member of the Oregon Trial Lawyers Association, the Oregon Criminal Defense Lawyers

Association, the Multnomah Bar Association, and the Portland Area Business Association.
Beverly Michaelis received her J.D. from Lewis & Clark Law School. She is a member of the Oregon State
Bar with over 20 years’ experience in the legal field. Ms. Michaelis practiced with a personal injury firm in
Portland and provided pro bono legal services through the Volunteer Lawyers Project for over eight years.
She is a practice management advisor for the Professional Liability Fund, where she provides confidential
assistance to attorneys and law office personnel in docket control, software, conflict of interest systems, file
management, trust accounting, time management, and other practice management issues. Before joining the
Professional Liability Fund as a practice management advisor in 1996, she was placement director and
associate executive director of the Multnomah Bar Association for eight years. She is co-author of A Guide
to Setting Up and Running Your Law Office, A Guide to Protecting Your Clients’ Interests in the Event of
Your Disability or Death, and A Guide to Setting Up and Using Your Lawyer Trust Account, published by
the Oregon State Bar Professional Liability Fund.
Lisa Almasy Miller received her J.D. from Santa Clara University School of Law. She has been in private
practice for 29 years, specializing in civil litigation, domestic relations, and alternative dispute resolution.
Ms. Miller is currently a full-time mediator and arbitrator of civil disputes and family law matters. She
currently serves on the board of directors of the Oregon Lawyers Assistance Foundation (OLAF) and the
Clackamas County Bar Association. She is a member of the OSB Client Security Fund Committee, an
arbitrator and mediator for the OSB Fee Arbitration Program, and a member of the Multnomah County
Arbitration Program. She is a past member of the board of directors of the Professional Liability Fund.
Johnston Mitchell received his J.D. from Gonzaga University School of Law. Mr. Mitchell has been in
private practice for 17 years and is currently practicing at Coers Mitchell Law LLC. His practice focuses on
debtor/creditor rights and business litigation. Before entering private practice, he was a judicial law clerk for
the Honorable Elizabeth Perris. Mr. Mitchell is a member of the Professional Liability Fund Defense Panel.
Chris L. Mullmann received his J.D. from Hastings College of the Law, University of California. From
1972, he was an associate with Dunn Carney. From 1994 until 1993, he was a litigator and a partner with
Davis Wright Tremaine, specializing in public education law. While in private practice, he was actively
involved with the bar’s disciplinary system, serving as a member of the Disciplinary Board, Chair of Region
Five Disciplinary Board, and State Chair of the Disciplinary Board for two years. From 1994 until August
of 2003, he worked as assistant disciplinary counsel with the Oregon State Bar. In 2003, he became assistant
general counsel and the manager of the client assistance office. He has been an adjunct professor at Lewis &
Clark Law School since 1986, teaching Professional Responsibility, and he is a frequent CLE speaker on
legal ethics.
Jane Paulson received her J.D. from the University of Virginia. She has been in private practice since 1991.
Ms. Paulson is a partner at Paulson Coletti Trial Lawyers, P.C., where she practices plaintiff’s personal
injury, medical and dental malpractice, and product liability. Before entering private practice, she clerked
for the Honorable James M. Burns (U.S. District Court, District of Oregon). Jane had the honor of serving
on the Oregon Trial Lawyer’s Association (“OTLA”) Board 1995-2006, was one of Oregon's two American
Trial Lawyer Association Delegates 2000-2004, and was President of OTLA 2004-2005. She is an
Associate in the American Board of Trial Advocates (Treasurer 2011-present) and is listed in Best Lawyers
in America for personal injury and medical malpractice cases. Jane was invited in 2012 to join the
American College of Trial Lawyers and is one of a handful of women in Oregon in the College. She has
also served on the Oregon State Bar Affirmative Action Committee, the Oregon State Bar Procedure and
Practice Committee, and the Multnomah Bar Association Judicial Screening Committee. Jane is listed as
one of the Best Lawyers in America; an Oregon Super Lawyer ® (Oregon Top 50), one of Oregon's Top 25

Women Super Lawyers ® and one of Portland's Best Lawyers in Portland Monthly magazine.
Douglas S. Querin is a graduate of the University of Oregon School of Law (J.D. 1971) and George Fox
University (M.A. in Counseling 2006). He was in the private practice of law in Portland for more than 25
years, working as a trial lawyer in state and federal courts throughout the Pacific Northwest. He is an
adjunct professor with the Graduate Department of Counseling at George Fox University and at Portland
State University. He also serves on the Board of the Oregon Counseling Association. In recovery since
2002, Mr. Querin joined the OAAP staff as an attorney counselor in 2006. He is a Certified Alcohol and
Drug Counselor (CADC I), a Licensed Professional Counselor (LPC), and the 2008 recipient of the Oregon
Counseling Association Distinguished Service Award.
Charlene Sabin, M.D. did her pediatric residency at Oregon Health Sciences University from 1977-1981
and her child psychiatry fellowship from 1981-1983. Since 1983, Dr. Sabin has been a behavioral
pediatrician in Portland specializing in children’s mental health, children’s adjustment to divorce, and
children in foster care. She has also provided forensic consultations to the Department of Human Services -
Child Welfare, custody evaluations in the private sector, and consultations to community mental health
agencies.
Bruce L. Schafer received his J.D. from Emory University School of Law. Mr. Schafer has been the
Director of Claims for the Professional Liability Fund since 1991, serving as a claims attorney from 1986 to
1991. Before his employment at the Professional Liability Fund, Mr. Schafer worked as an assistant
prosecuting attorney in Toledo, Ohio and in private practice in Portland (1980-1986) with emphasis on
construction law, business litigation, and insurance defense. He is a member of the Litigation and
Alternative Dispute Resolution Sections of the Oregon State Bar. Mr. Schafer is a frequent author and
speaker on lawyer professional liability.
Ian G. Shearer received a joint J.D. and M.B.A. from Willamette University. He has been in private
practice since 2007. He currently practices bankruptcy law at Ian G. Shearer, Attorney at Law. Prior to
private practice, he was a real estate broker and legal recruiter.
Chanpone Sinlapasai received her J.D. from Lewis & Clark Law School. She is an attorney with Marandas
& Okamura. She represents clients regarding general immigration law matters including visas, citizenship
issues, deportation defense, and appeals. She previously worked at Catholic Charities Immigration legal
services as an attorney and accredited representative, conducting pro bono training to attorney volunteers.
Her work at Catholic Charities included assisting survivors of domestic violence, victims of crime, and
survivors of human trafficking. Ms. Sinlapasai has first-hand knowledge of the challenges an individual or
family can face when coming to a new country – her own family resettled in the United States as refugees
from Laos in 1980. Ms. Sinlapasai serves on the F.B.I. Multi-Cultural Advisory Committee, Department of
Justice Crime Victims’ Rights Advisory Committee and Victims of Crime Act, and is a board member of
Immigrant and Refugee Community Organization (IRCO).
Robert G. Thuemmel received his J.D. from the University of Oregon School of Law. He has been in
private practice for 30 years and is a partner at Thuemmel, Uhle & Eder. His practice focuses on criminal
defense. Mr. Thuemmel is a past president of the Oregon Criminal Defense Lawyers Association, as well as
a past board member of the OSB Professional Liability Fund.
Xin Xu received her J.D from the University of Oregon School of Law. She has been in private practice for
12 years, focusing on legal malpractice defense, securities litigation, and commercial litigation. Prior to
opening her own practice, The Law Office of Xin Xu, Ms. Xu was a shareholder at Kennedy, Watts,

Arellano & Ricks. Ms. Xu was selected for The International Trial Lawyers Association Trial Advocacy
Award (2000) and for inclusion on the Oregon Super Lawyers ® Rising Stars List for 2010-2012.
Ira Zarov received his J.D. from the University of Wisconsin. He is the chief executive officer of the
Professional Liability Fund, the legal malpractice carrier for Oregon lawyers in private practice. Prior to his
work at the Professional Liability Fund, Mr. Zarov served as a VISTA and staff attorney for Coos Curry
Legal Services in Coos Bay (1974-1976), worked as a program assistant with Legal Aid Services of Oregon
(1976-1985), was in private practice (1985-1987), and was executive director for Legal Aid Services of
Oregon (1989-2000). He is a member of the OSB Commission on Professionalism.

LEARNING THE ROPES
TABLE OF CONTENTS
How to Develop a Successful Practice and Avoid Legal Malpractice/
Chapter #
PLF Coverage Overview ................................................................................ Chapter 1
Client Communication and other Practice Management Survival Tips ................. Chapter 2
Recognizing and Representing Clients with Mental Health Impairments ............... Chapter 3
Who Ya Gonna Call? .......................................................................................... Chapter 4
Alternative Dispute Resolution – Mandated and Voluntary .................................. Chapter 5
Domestic Relations ............................................................................................. Chapter 6
Criminal Law ...................................................................................................... Chapter 7
Tort Litigation ..................................................................................................... Chapter 8
Estate Planning and Administration; Guardianships, and Conservatorships .......... Chapter 9
Civil Motion Practice .........................................................................................Chapter 10
Bankruptcy .........................................................................................................Chapter 11
The Ethics of Practice Management and General Office Tips ...............................Chapter 12
Setting Up and Running a Sole Law Practice ......................................................Chapter 13
“If I Only Knew” ...............................................................................................Chapter 14
Tips for Lawyers Joining Firms ...........................................................................Chapter 15
Success Tips from Associates and Partners ..........................................................Chapter 16
Employment Law and Conscientious Communication.................................................... Chapter 17
Recognizing Child Abuse and Fulfilling Your Duty to Report .............................Chapter 18
Courtroom Do’s and Don’ts ...............................................................................Chapter 19
Negotiation Tips, Tricks, Traps, and Tools ..........................................................Chapter 20
Bridging the Cultural Gap ................................................................................................ Chapter 21

CHAPTER 1
HOW TO DEVELOP A
SUCCESSFUL PRACTICE AND
AVOID LEGAL MALPRACTICE
Barbara S. Fishleder
Professional Liability Fund Director of
Personal and Practice Management
Assistance/Oregon Attorney Assistance
Program Executive Director

Chapter 1
HOW TO DEVELOP A SUCCESSFUL
PRACTICE AND AVOID LEGAL
MALPRACTICE
TABLE OF CONTENTS
Page #
How to Develop a Successful Practice and Avoid Legal Malpractice ............................... 1-1
I. Techniques for Avoiding Malpractice ............................................................................. 1-1
A. Client Communications are Crucial ..................................................................... 1-1
B. Reject Certain Clients and Cases ......................................................................... 1-2
C. Use Letters to Document Information and Clarify Your Relationship ................ 1-3
D. Understand the Conflicts of Interest Rules .......................................................... 1-5
E. Clarify Your Fee Arrangements; Use a Fee Dispute Checklist ........................... 1-6
F. Use a Double Calendar System............................................................................ 1-7
G. Avoid Personal and Financial Involvement with Clients .................................... 1-8
II. Resources Available to You............................................................................................. 1-8
A. Educational Material and Information ................................................................. 1-8
B. People Available to Assist You ........................................................................... 1-9
III. Suggestions For Avoiding Malpractice ......................................................................... 1-10
PowerPoint Slides ...................................................................................................................... 1-12
Frequently Asked Questions Relating to Coverage ................................................................... 1-18
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
Additional Resources
List of Free Practice Aids Available from PLF
Catalog/Order Form of Free CLE Tapes Available from PLF
OSB CLE Publications with Forms
OSB CLE Seminars Audio, Course Material & Video Sales
Resources That Will Help You in Your Practice

Engagement/Disengagement/Nonengagement Letters
List of Articles From Oregon State Bar Bulletin Column
PLF Update/Managing Your Practice
Recognizing Difficult Client Types, In Brief, September 2011
Check Scams Become Even More Sophisticated and Generally Have No PLF Coverage,
In Brief, March 2012

HOW TO DEVELOP A SUCCESSFUL PRACTICE
AND
AVOID LEGAL MALPRACTICE
I. Techniques for Avoiding Malpractice.
Your exposure to legal malpractice can be greatly reduced by making a habit of
(1) good client communications; (2) careful case selection; (3) careful client selection; (4)
extensive file documentation; (5) understanding and avoiding conflicts of interest; (6)
clarifying your fee arrangements and; (7) using a double calendaring system.
A. Client Communications Are Crucial.
Establishing and maintaining a good working relationship with your clients is one
of your best protections against a malpractice claim. Our statistics show that 55 percent
of malpractice cases are closed without payment to the client. This reflects a large
number of clients who have filed a legal malpractice claim even though their lawyer has
not made a mistake. For the most part, the filing of these claims by clients is a way for
the client to vent frustration with the way he or she has been treated by the lawyer. The
following are some suggestions that will help minimize your exposure to legal
malpractice claims:
1. Keep Your Client Informed.
Almost everything you do should be transmitted to your client, even if you just
send copies marked “for your information.” If there is little activity on the case,
send a brief status letter to your client. This will let your clients know that you
have not forgotten about them and will eliminate unnecessary phone calls to you
at your office.
2. Provide Your Clients with a Realistic Assessment of Their Case.
Let your client know your best guess of how long the case process will take and
approximately how much it will cost. Let the client know the weaknesses and the
strengths of the case. Explain your assessment of the case in terms the client can
understand: for example, a 70 percent chance of success also means that 3 times
out of 10 the client will lose.
3. Keep a Professional Attitude.
Remember that your client is paying for your services and you are providing a
service. You should treat your client with the same respect that you demand and
Caution: The information contained in these materials is general advice on how to avoid malpractice claims. It is
not advice on how to handle any specific problem. If you have a question about these materials or the information
provided in this seminar, please contact Barbara Fishleder at 503-684-7425 or 1-800-452-1639.
1-1

expect from other service providers. Try to remember how you feel about being
uninformed, being put on hold, or being forced to wait. Always:
a. Return phone calls promptly.
b. Be on time for appointments.
c. Avoid taking telephone calls during office conferences.
d. Give your client your full attention - do not interrupt your client’s
telephone call by speaking to people in the room.
e. Copy your client with your work product.
f. Show an interest in the client as a person.
g. Bill on a periodic, preferably monthly, basis.
4. Make Certain That Your Client Makes the Decisions in the Case.
It is your job to provide your clients with information. It is the clients’
responsibility to make the decision. DO NOT BE PRESSURED INTO MAKING
THE CLIENTS’ DECISIONS FOR THEM. Be sure that you are clear and
thorough in outlining the pros and cons of differing options; then let your client
decide how to proceed.
5. Never Proceed Without Your Client’s Permission.
Obtain express permission for all of the following:
a. Granting extensions to the adverse party.
b. Stipulating to evidence or testimony.
c. Case settlements.
d. Suggesting settlement figures to the other side.
e. Rejecting a settlement offer.
f. Agreeing to a continuance.
g. Concluding testimony in a litigation matter.
B. Reject Certain Clients and Cases.
Careful client and case screening can eliminate the threat of a legal malpractice
suit and greatly reduce the stress in your life. Evaluate potential clients and cases with
these factors in mind:
1. The client’s relationship to, and experience with, prior attorneys. Beware of
the client who constantly changes attorneys. Look out for the case that has
already been rejected by one or more attorneys.
2. The client’s attitude and relationship with other professionals such as doctors,
accountants, bankers, and lenders.
3. What is the client’s attitude towards the case? Does he or she wish to proceed
1-2

in the case because of the principle and regardless of cost? If you take this case,
you may find yourself pressed to pursue a case you do not believe in, or worse,
end up with sanctions imposed against you.
4. Has the client contacted multiple government representatives to plead his or
her case? Beware of this client.
5. Has the client come to you with a “done deal,” researched the case extensively
on his or her own, or caused the matter to be an emergency due to his or her own
delay? Does the client always communicate with you in writing?
6. Do you have adequate skill, expertise, and time to pursue this client’s case?
7. Are you handling this case simply because the potential client is a friend,
related to a friend, or knows a friend? These cases should be avoided unless you
have confidence in your ability to handle the case and have a good feeling and
attitude about the potential client. Would you take this case if this client walked
in off the street?
8. Are you and the client able to easily agree on a fee and retainer? If not, you
may be dealing with a client who is best off represented by someone else.
9. What is your “gut reaction” to this client? If your first impression of the client
(or his or her course of action) is unfavorable, think very carefully (i.e., reject the
case). Lawyers who are sued for malpractice almost always knew at the outset
that they should have rejected the case.
C. Use Letters to Document Information and Clarify Your Relationship.
Your scope of representation (or lack thereof) and your fee arrangements should
be thoroughly spelled out in an agreement given to your client at the beginning of your
relationship. If you are declining representation, that should also be documented.
Sample engagement and nonengagement letters can be downloaded from the PLF Web
site at www.osbplf.org.
1. Nonengagement Letters.
If you decline representation of a client, you should document your decision not
to represent the client. In some instances, you should give serious consideration
to sending the letter by certified mail, return receipt requested. If you reject the
case and the client later sues you for failing to represent him or her, how will you
prove that you advised the client that you would not be taking his or her case? A
nonengagement letter is strong proof on your behalf.
Consider these additional guidelines for your letters:
1-3

a. Generally explain to the client why you cannot accept the case.
b. Avoid commenting on the merits of the case.
c. If time limits apply to the case, advise the client that time
limitations do apply and that it is imperative that the person consult
another attorney immediately.
2. Engagement Letters.
If you choose to represent a client, be sure to give the client an engagement letter.
The engagement letter should contain the fee arrangements and a clarification of
what you are engaged to do. It should contain the following:
a. A description of the work to be performed.
b. An estimated range of fees.
c. Identification of specific costs that will be charged.
d. The hourly rates of individuals assigned to the case.
e. An explanation of how much the client is expected to pay and
when.
f. An explanation of billing practices, including charges for travel
time, telephone conferences, faxes, photocopies, or other items.
g. If you are holding trust funds, an explanation that you will transfer
money from the trust account when you send the bill.
The description of the work to be performed should clarify the scope of your
representation. Are you representing the client only on his or her personal injury
claim and not on his or her workers’ compensation claim? Are you representing
the client only on his or her workers’ compensation claim and not on his or her
discrimination claim? The client (and a court) should be able to decipher this
information from your engagement letter.
The engagement letter can be used as a fee agreement. If this approach is taken,
the client should sign the letter. Another approach is to have the client sign a fee
agreement in the initial interview and send a follow-up engagement letter to the
client afterwards.
3. Disengagement Letters.
If you wish to terminate the attorney-client relationship, be sure to comply with
all of the rules of professional conduct, including ORPC 1.16. Document the
termination. Consider sending the letter certified mail, return receipt requested.
Follow these guidelines:
a. Advise the client of the general reason for termination of the
attorney-client relationship.
b. Avoid commenting on the merits of the case.
c. Advise generally of time limitations and the need to obtain another
1-4

attorney.
d. Return client’s papers and a copy of the file. YOU SHOULD
RETAIN THE ORIGINAL FILE OR, AT A MINIMUM, A
COPY OF THE FILE.
4. Document Your Advice as You Proceed.
Your file should reflect the case history, status, and strategy. Imagine that you
suddenly and unexpectedly could no longer practice law. Do your files clearly
show what you agreed to do and what advice you gave?
Documenting the file is a way of communicating with your client as well as a way
of protecting yourself. Make sure that your client understands what is transpiring
and is kept fully informed. Consider these guidelines:
a. Keep your files well organized. This will help you and your staff.
It will also greatly reduce your stress.
b. Never proceed without your client’s permission. (See Section I.A.
on client communications.)
c. All important advice to the client should be confirmed in writing.
d. Document your advice to the client, especially if the client is
proceeding contrary to your advice.
e. Keep notes of telephone conversations and conferences. Make the
notes at the time of the conversation or immediately after.
f. Keep all settlement offers and demands on a separate sheet in your
files. Document the client’s authority and the communications
with the adverse party.
g. Analyze the capacity of your client and determine the best way to
document your advice. Should you have the settlement agreement
reported by a court reporter to verify your client’s consent?
Should your letter be sent certified mail, return receipt requested?
D. Understand the Conflicts-of-Interest Rules.
Thoroughly apprise yourself of the applicable rules of professional conduct,
including ORPC 1.7, 1.8, and 1.9 pertaining to conflicts of interest. Note that
representation of former or current clients is allowed only in specific situations and that
the client must give informed consent in writing. ORPC 1.0 defines “informed consent”
and “confirmed in writing.”
1-5

The following steps should be taken to avoid conflicts of interest:
1. Establish a fail-safe conflict system within the office. If a new client is
considered for representation, a memo should be sent around the office
identifying the client, parties involved, and nature of transaction. This memo
should request that all office staff and attorneys advise you of pertinent
information and problems. This measure should be taken in addition to the
conflict-of-interest system established in your office. If you need help
establishing a conflict-of-interest system, or if you want your current system
reviewed, call the Professional Liability Fund’s Practice Management Advisors,
Dee Crocker, Beverly Michaelis, or Sheila Blackford. All consultations are free
and confidential. Call Dee, Beverly, or Sheila at 503-639-6911 or 1-800-452-
1639.
2. Avoid suing prior clients even when allowed under the rules of professional
responsibility.
3. Take only one side in a dispute.
4. Receive your compensation in a transaction from only one side.
5. Avoid being both a director and the attorney for the corporation at the same
time.
6. Avoid dual representation. For example, do not represent a buyer and seller,
landlord and tenant, or trustor and beneficiary at the same time.
7. If dealing with an unrepresented party, send the party a letter documenting
whom you represent. Inform the unrepresented person that he or she should
obtain independent counsel.
8. Do not act as an escrow agent in any transaction in which you represent a
party. OSB Ethics Op Attorney as Escrow Agent No 2005-55.
9. If you are representing multiple plaintiffs or defendants, research the
applicable ethics rules. The Ethical Oregon Lawyer § 9 has an excellent
discussion on current client conflicts.
E. Clarify Your Fee Arrangements; Use a Fee Dispute Checklist.
Many legal malpractice suits result from counterclaims in response to an
attorney’s action to recover fees. The risk of being counter-sued for malpractice is
greatly reduced if you take the time to explain your fees to the client at the beginning of
your attorney-client relationship, document your agreement, and provide your client with
frequent (monthly) fee bills. Your fee bills should be specific and identify the specific
1-6

services rendered for the fee charged. Listen carefully to your client’s need for services
before you provide a quote of fees. Additionally, consider these guidelines:
1. As a general rule, avoid suing clients for fees. Offer to arbitrate the fee dispute
through the Oregon State Bar Fee Arbitration Program or consider other
alternative dispute resolution methods.
2. Enter into a written fee agreement early in the course of representation. This
can be separate from your engagement agreement, or made a part of it (see section
I.B.2.). Be sure that your billing practices include:
a. Providing the client with a written engagement and fee agreement.
b. Billings that are itemized so that the client can tell what is being
done on his or her behalf.
c. Billing periodically, preferably monthly.
d. Keeping an accurate time log reflecting daily efforts expended on
behalf of the client.
e. Keeping your compensation arrangement the same throughout the
case - do not change your method of compensation in the middle of
the case.
The Oregon State Bar Legal Management Section has published a collection of
fee agreements in the Oregon State Bar handbook Fee Agreement Compendium.
This handbook is available through the order desk of the Oregon State Bar 503-
684-7413 or 1-800-452-8260 ext. 413.
3. If you decide to sue a client for fees, use the following checklist:
a. Does your law firm stand to gain or lose a substantial amount of
money?
b. Was a good result obtained in the underlying case?
c. Has an uninvolved experienced attorney reviewed the file for
possible malpractice?
d. Have you offered to arbitrate the claim?
e. Will a judgment be collectable if obtained?
F. Use a Double Calendar System.
Failure to properly calendar is one of the leading causes of malpractice throughout
the United States. This type of malpractice can be avoided by following these
suggestions:
1. Every Case Must Be Calendared.
Each and every case in your office should be on your calendar. Calendaring
should include litigation time lines, preparation reminders, due dates and follow-
1-7

up dates. Smith and Mallen, in their treatise Preventing Legal Malpractice,
suggest a three-category system for calendaring:
a. dates that must not be missed (such as time limitations);
b. dates that should not be missed (such as follow-up dates); and
c. informational dates.
Take the time to enter the data correctly (e.g.) the statute of limitations is two
years from the date of the accident not two years from the client’s office visit).
2. Use a Dual Calendaring System.
You and your secretary should both calendar dates, keeping a matched calendar.
3. Review All Files Every 30 Days.
G. Avoid Personal and Financial Involvement with Clients.
Attorneys should avoid business transactions with clients. If you enter into a
business transaction with your client, be sure to comply with ORPC 1.8 and with the
Professional Liability Fund Coverage Plan (Exclusion h) which requires that you keep a
copy of the written disclosures and consents required by the rule.
The following guidelines should also be considered:
1. Do not give clients investment advice.
2. If you are going to accept stock in lieu of fees, make sure that your fee is
reasonable and review PLF coverage plan exclusions f and h.
3. Do not personally guarantee a client’s obligations or have the client personally
guarantee yours.
4. Avoid advancing costs whenever possible.
5. Do not date or have an intimate relationship with a client during the course of
your representation.
II. Resources Available to You.
A. Educational Material and Information.
1. The Professional Liability Fund office systems handbook, A Guide to
Setting Up and Running Your Law Office (2009).
2. The Professional Liability Fund handbook, Oregon Statutory Time
Limitations (2010).
1-8

3. The Professional Liability Fund handbook, Planning Ahead: A Guide
to Protecting Your Clients’ Interests in the Event of Your Death or
Disability (2011).
4. The Professional Liability Fund handbook, A Guide to Setting Up and
Using Your Lawyer Trust Account (2011).
5. The Professional Liability Fund In Brief, published quarterly.
6. CDs and DVDs on substantive areas of the law, practice management,
and personal assistance available through the Professional Liability Fund
and other law-related organizations such as the Oregon Attorney
Assistance Program, Oregon State Bar, Multnomah Bar Association,
Oregon Law Institute, and American Bar Association.
7. The Fee Agreement Compendium, published by the Oregon State Bar
Law Practice Management Section. To order, call the Oregon State Bar at
503-684-7413 or 1-800-452-8260 ext. 413.
B. People Available to Assist You.
1. The Professional Liability Fund claims attorneys - call the PLF claims
attorneys at 503-639-6911 or 1-800-452-1639 if you have made a mistake
or are concerned that you may be exposed to a legal malpractice claim.
2. The Professional Liability Fund practice management advisors - for
assistance with office systems, including docket control, tickler systems,
conflict-of-interest systems, mail handling, billing, trust accounting,
general accounting, time management, file management, client
communications, and computer systems. Call the PLF’s Practice
Management Advisors, Dee Crocker, Beverly Michaelis, and Sheila
Blackford, at 503-639-6911 or 800-452-1639.
3. The Oregon Attorney Assistance Program - for personal assistance for
yourself or for those you care about. OAAP offers support, resource
referral, and crisis counseling. Programs include assistance with
alcoholism, drug addiction, burnout, career satisfaction, depression,
anxiety, gambling addiction, procrastination, relationship issues, stress
management, retirement, and time management. Call the OAAP Attorney
Counselors, Meloney C. Crawford, Mike Long, Shari R. Gregory, and
Douglas Querin, at 503-226-1057 or 1-800-321-6227.
4. The Oregon State Bar General Counsel - call 503-620-0222 (or outside
Portland 1-800-452-8260) ext. 359 or 361, for assistance with ethics
questions.
1-9

III. Suggestions for Avoiding Malpractice.
A. Carefully select your clients and cases. Do not accept cases for which you
do not have adequate time, experience, or capital to complete.
B. Get your money up front or establish an alternative means for avoiding fee
disputes.
C. Know your own limits. Assess your knowledge, time, and energy. If you are a
new attorney, take advantage of the Lawyer to Lawyer services of the Oregon State Bar.
Access your local mentor program. Review legal and practical case problems with an
experienced attorney.
D. If you share space with another lawyer and do not want to be considered a “firm,”
make your independent status clear to your clients so as to avoid liability on the theory of
a “de facto” partnership. Call Barbara Fishleder at the PLF if you have questions about
sharing office space at 503-684-7425 or 1-800-452-1639.
E. When drafting legal documents, use a comprehensive up-to-date checklist as a
starting point for developing your document. Carefully read documents to make sure that
the document is appropriate for your client’s specific needs. Beware of boiler-plate
computer-generated forms!
F. If you receive a malpractice claim or complaint, call the Professional Liability
Fund immediately. Do not represent yourself. Speak with a Professional Liability Fund
claims attorney and discuss whether or not the mistake can be corrected. Let the claims
attorney guide you on how to tell your client about the possible error, and whether or not
you should continue to represent the client.
G. If you or someone you know needs personal assistance or is impaired in his or her
ability to practice law, get professional help at once. Call the confidential Oregon
Attorney Assistance Program (OAAP) at 503-226-1057 or 1-800-321-6227 and ask for
Meloney C. Crawford, Mike Long, Shari R. Gregory, or Douglas Querin.
H. Reach out for help.
1. Call the Professional Liability Fund for assistance and advice on how to handle
your potential claim.
2. Call the Professional Liability Fund for free help with your office systems.
3. Take advantage of the Oregon Attorney Assistance Program for
assistance with alcoholism, drug addiction, burnout, career satisfaction,
depression, anxiety, gambling addiction, procrastination, relationship
1-10

issues, stress management, retirement, and time management. Call the
OAAP Attorney Counselors, Meloney C. Crawford, Mike Long, Shari R.
Gregory, or Douglas Querin 503-226-1057 or 1-800-321-6227.
I. Don’t reinvent the wheel.
The Oregon State Bar and the Professional Liability Fund have numerous
excellent sample forms and practice aids. For information about practice aids available
from the PLF, call the PLF or visit www.osbplf.org and download the materials.
Caution: The information contained in these materials is general loss prevention advice and is not legal advice.
We encourage readers to conduct appropriate research to determine what actions should be taken given their
specific circumstances and to call the Professional Liability Fund for assistance.
1-11

Welcome to
LEARNING THE ROPES
presented by the Professional f Liability Fund
October 31, November 1‐2, 2012
Oregon Convention Center – Portland, OR
FREQUENCY OF CLAIMS BY AREA OF LAW
January 1, 2002 – December 31, 2011
AREA OF LAW PERCENT COUNT
Personal Injury
16% 1,306
Domestic Relations/Family Law 16% 1,270
Bankruptcy & Debtor‐Creditor
12%
986
Real Estate
11%
890
Estate Planning & Estate Tax
11%
834
Business Transactions/Commercial Law 9%
681
Criminal
7%
546
Workers’ Compensation/Admiralty 2%
193
Tax
1%
60
Securities
1%
53
Other
14% 1,107
100% 7,926
1-12
How to Develop a Successful Practice
&Avoid Legal Malpractice
Barbara S. Fishleder
Professional Liability Fund
Director of Personal and Practice Management Assistance/
Oregon Attorney Assistance Program Executive Director
COST OF CLAIMS BY AREA OF LAW
January 1, 2002 – December 31, 2011
AREA OF LAW
PERCENT
INDEMNITY PAID INDEMNITY PAID
PERCENT
EXPENSES PAID EXPENSES PAID TOTAL PAID
Personal Injury 19% $13,120,368 12% $6,920,921 $20,041,289
Real Estate 16% $11,290,833 13% $7,335,737 $18,626,570
Business Transactions/
Commercial Law
13% $9,254,368 16% $8,938,559 $18,192,927
Estate Planning & Estate Tax 12% $8,150,315 10% $5,713,448 $13,863,763
Domestic Relations/ Family Law 9% $6,219,726 9% $4,966,377 $11,186,103
Bankruptcy & Debtor Creditor 9% $5,974,215 9% $4,761,662 $10,735,877
Workers’ Compensation/
Admiralty
4% $2,639,752 2% $874,117 $3,513,869
Criminal 2% $1,544,697 3% $1,670,449 $3,215,146
Securities 2% $1,415,980 4% $2,476,992 $3,892,972
Tax 1% $665,169 3% $1,641,798 $2,306,967
Other 13% $8,859,723 19% $10,540,135 $19,399,858
100% $69,135,146 100% $55,840,195 $124,975,341

Case and Client Screening
Client Consent
Documentation
Realistic Expectations
CASE ACCEPTANCE CRITERIA
2. L E G A L KNOWLEDGE
• Are you current in the law?
• Do you need to associate another lawyer?
Is it in the best interest of the client
for you to handle this case?
1-13
“It’s more important to know what cases not to
take than it is to know the law.”
Abraham Lincoln
CASE ACCEPTANCE CRITERIA
1. LAWYER/CLIENT MATCH
What is a difficult client for you?
• Boxes of papers
• Attorney changers
• Know‐it‐alls
• Low Budget ‐ “Let me help”
• “Simple” case
• Clients with an “attitude”
CASE ACCEPTANCE CRITERIA
3. ECONOMICS
• Do you have adequate staff?
• Does the client understand the cost?
• Can you afford to take the case?
• Voluntary vs. involuntary pro bono

A R O M A
R
M
S
Frequent
In detail
Sign
Timely
1-14
“F” WORDS OF CASE AND CLIENT SCREENING
F ast
F ees
F inances
F riends
F lattery
F antastic!!
F rown
F
THE GRAPH OF GRATITUDE
LINE OF NORMAL GRATITUDE
* Proper time for financial arrangements or retainer
** Psychological time to render final bill
FEE$
1. Get money up‐front.
** Back at Office After Trial
I don’t know how to thank you enough ‐
You saved my business!
ONE DAY LATER
I’m so glad it’s over!
TWO DAYS LATER
I was great on the stand.
ONE WEEK LATER
They never had a chance.
ONE MONTH LATER
It was a snap ‐‐
I could have handled it myself.
KINDLY REMIT
Rushing me, huh!
PAYMENT DEMANDED
Who the h__ does he think he is?
COLLECTION SUIT BEGUN
That shyster!
COLLECTION SUCCESSFUL
I’ll tell the world about that crook!
2. Work out a fee agreement and stick
to it. If the client doesn’t withdraw.
3. Offer to arbitrate if you do end up in
a fee dispute.

1. Aggravation;
FEE$
Suing a client for fees will bring you:
2. A bad reputation with the client, client’s friends,
neighbors, … ;
3. Probably more expense and no money; and
4. More wasted time and energy.
VARIATIONS ON A THEME OF
CONSENT
1. I don’t like it
22. I don don’t t get it
3. I like it and I get it *
* Avoid having client feel trapped
1-15
MOST COMMON CLIENT COMPLAINTS
• Never Understood
• Never Listened
• Never Kept Me Informed

RESENTMENT
GRAPH OF CLIENT’S
RESENTMENT/UPSET
Baseline = average level of resentment
towards attorneys
TIME
DAY OF FIRST APPOINTMENT
LAWYER IMPATIENT
LAWYER SEEMS RUSHED
LAWYER NOT AVAILABLE
LAWYER SPEAKS QUICKLY
LAWYER LATE
FIRST FEW DAYS AFTER INITIAL
MEETING ON LEGAL MATTER
PHONE CALL NOT RETURNED
LAWYER NOT AVAILABLE
PHONE CALL NOT RETURNED
R.E.S.P.E.C.T.
1-16
“PATIENCE IS A MOST NECESSARY QUALITY FOR
BUSINESS. MOST PEOPLE WOULD RATHER YOU
HEARD THEIR STORY THAN GRANT THEIR
REQUEST.”
USE YOUR RESOURCES
Earl of Chesterfield

NONENGAGEMENT AND
DISENGAGEMENT LETTERS
(These should be used as part of your office routine)
• Confirm non‐acceptance of case (or withdrawal).
• Mention if time limitations apply … be general or be absolutely
SURE.
• Offer no opinions or evaluations unless it is your field. Emphasize
the need to retain another attorney.
• Consider whether or not your correspondence needs to be sent
through regular mail and CERTIFIED MAIL.
IN SUMMARY
• Select cases and clients carefully
• Establish clear fee arrangements
• Shift to the client’s viewpoint p
• Communicate fully with client
• Document your files
• Listen to your instincts
1-17
C Y A
Verbal Information = Lost Information
• 50% ‐ Lost in 48 hours
• 75% ‐ Lost in 3 days
• 95% ‐ Lost in a week
F U N!!

FREQUENTLY ASKED QUESTIONS RELATING TO COVERAGE
1. LAW CLERK/SUPERVISED ATTORNEY
Q. I have passed the Oregon State Bar, but I would like to work for a law firm doing
legal research. They do not want to pay my Professional Liability Fund coverage.
Am I permitted to do legal research without purchasing Professional Liability
Fund coverage?
A. You may perform legal research without purchasing Professional Liability Fund
coverage provided all of the work you do is supervised, you have no client
contact, you do not sign any legal documents or appear in court as the attorney of
record, and you make no strategy or case decisions. It is important that the
attorney for whom you are working reviews and supervises all of your work, and
that the client understands that you are not the attorney for the case.
Although doing legal research for attorneys does not violate your Professional
Liability Fund exemption, it is still possible that you may be joined in a lawsuit
for legal malpractice. To minimize the possibility of being joined in a lawsuit, we
recommend that you have no client contact and that all legal memos and legal
research be directed to the supervising attorney for review. (See Guidelines for
Law Clerk/Supervised Attorneys.)
2. EXEMPT – CAN I REPRESENT ANYONE?
Q. I am currently exempt from Professional Liability Fund coverage. May I represent
my brother and sister in a legal matter? How about my neighbor?
A. Attorneys who are otherwise exempt from PLF coverage may represent certain
family members (your spouse, parent, step-parent, child, step-child, sibling, or
any member of the attorney’s household). An exempt attorney also may represent
a business entity owned or controlled by one or more of these listed family
members. Note that representation of these individuals and businesses are
excluded under the terms of the PLF Claims Made Plan. An exempt attorney can
not represent friends, relatives, neighbors, or anyone besides the family or
household members listed above.
3. ENTERING PRIVATE PRACTICE MIDYEAR
Q. I am currently unemployed and do not require PLF coverage. If I enter private
practice during the next year, how much will I have to pay?
A. An attorney entering private practice mid-year is entitled to a proration of the
applicable PLF assessment. The proportionate assessment is based on one-twelfth
of the total assessment for each partial or full calendar month that the attorney is
in private practice for that year.
1-18

4. LEAVING PRIVATE PRACTICE MIDYEAR
Q. I am currently covered by the Professional Liability Fund. I plan to leave private
practice (i.e. work for the government or work as in-house counsel). What do I
need to be aware of?
A. An attorney leaving private practice mid-year is entitled to a prorated refund of
the applicable PLF assessment. The prorated refund is based on one-twelfth of
the total assessment for each partial or full calendar month that the attorney had
paid for PLF coverage for that year that falls after the date the lawyer becomes
eligible for exemption. There is no reduction, proration, or refund for any service
charge, late payment charge, or other PLF charges or fees paid or owed by the
attorney. A midyear request for exemption and prorated refund form can be
found on the PLF’s website at www.osbplf.org.
5. OCCASIONAL OUT-OF-STATE WORK
Q. I am an Oregon attorney, and I am licensed in Washington and Idaho. My
principal office is in Oregon, but occasionally I practice in these other states. Am
I covered for these activities?
A. Yes, your Professional Liability Fund Coverage Plan covers you for claims made
against you in any state and Canada, keeping in mind that your activity must
otherwise qualify for coverage under the PLF Claims Made Plan. A copy of the
PLF Claims Made Plan can be found on the PLF website at www.osbplf.org.
6. ONLY OFFICE OUT OF STATE
Q. I am a member of the Oregon State Bar and the Washington State Bar. My
ONLY office is presently in Washington. Can I participate in PLF coverage?
A. No. The PLF participation requirement is governed by ORS 9.080. This statute
mandates that coverage be given to all Oregon attorneys in private practice whose
principal office is in Oregon (likewise lawyers meeting these criteria must
participate). If you are an Oregon attorney whose principal office is in
Washington, we are not able to cover you. You may obtain professional liability
coverage from another carrier. For more information, see the PLF website at
www.osbplf.org and review PLF Policy 3.180. Also, if you have obtained your
Oregon license through reciprocity under the Rules for Admission of Attorneys in
Oregon, Rule 15.05(5), you must obtain professional malpractice coverage
substantially equivalent to Professional Liability Fund coverage, for any Oregon
legal work that you do.
1-19

7. MULTIPLE OFFICES
Q. I am a member of the Oregon State Bar and a member of the Washington State
Bar and have offices in both states. I spend part of the time in Washington and
part of the time in Oregon. I would like to be covered by the Professional
Liability Fund. Is it possible for me to obtain this coverage?
A. It depends on which office is your principal office under PLF rules. The
Professional Liability Fund Coverage Plan is governed by ORS 9.080 and PLF
Policy 3.180. ORS 9.080 mandates participation of Oregon attorneys in private
practice whose principal office is in Oregon. The determination of where an
attorney’s principal office is located will be made as of January 1 of each year
based upon the attorney’s activities during the prior 12 months and will rely upon
where you’ve spent the majority of your time (i.e. in the Washington office or the
Oregon office). PLF Policy 3.180 (B) and (E) defines what constitutes an office
and how to determine your principal office. A copy of PLF Policy 3.180 can be
found on the PLF website at www.osbplf.org.
8. IN-HOUSE COUNSEL/GOVERNMENT EMPLOYEE
Q. I am going to work for a government agency or private corporation. All the legal
services that I will be providing will be provided to this entity as an employee.
Can I obtain Professional Liability Fund coverage?
A. No, PLF coverage is limited to attorneys who are in private practice. All
activities within the scope of employment by a governmental, non-profit, or
private corporations are excluded from PLF coverage. Therefore, lawyers
working in these capacities file an exemption from PLF coverage. Of course any
private practice work undertaken outside the employment exemption would
require PLF coverage. If you are working for a government agency, review ORS
30.285 and 30.287, which require the government body to defend and indemnify
agents and employees.
9. IN-HOUSE COUNSEL PROVIDING LEGAL SERVICES TO THIRD
PARTIES
Q. I am working for a corporation that has decided to provide legal services to its
subsidiary corporation. I presently have an exemption based on in-house counsel
employment status. Will providing legal advice to the subsidiary corporation
violate my PLF exemption?
A. Your exemption from Professional Liability Fund coverage is based on your
status as an employee of the corporation. As long as the legal services that you
provide are within the course and scope of your employment, and the legal
1-20

services rendered are incidental to the corporation's purpose, your exemption is
not violated. (By incidental, we mean that the main purpose of the corporation is
something other than providing legal services).
It may be prudent to document your employer’s instructions to perform the
additional duties. This can be valuable later if there is a question whether or not
the activities were within the scope of employment (and your PLF exemption).
10. EXEMPT STATUS - SELF REPRESENTATION
Q. I am a member of the Oregon State Bar, and I am exempt from Professional
Liability Fund coverage. I would like to represent myself in a legal matter. Am I
permitted to do this without violating my exemption?
A. Yes, you are entitled to represent yourself without violating your exemption.
11. EXEMPT STATUS - PRO BONO
Q. I am exempt from Professional Liability Fund coverage, and I am interested in
doing pro bono work. Does pro bono work violate my exemption?
A. Generally, providing pro bono legal services constitute the private practice of law
and require PLF coverage. To allow exempt attorneys more volunteer options,
however, the Oregon State Bar and the Professional Liability Fund have created a
special Pro Bono Program. Lawyers who provide pro bono services through
Oregon State Bar certified programs are covered under the PLF Pro Bono
Coverage Plan. A list of OSB certified pro bono programs can be found on the
OSB website at www.osbar.org/probono/PLFCoverage.html. It is a good idea to
double check with the organization you are providing pro bono legal services for
to confirm that the program has malpractice coverage for volunteer attorneys.
12. PRO BONO/VOLUNTEER/"HOBBY"
Q. I am currently retired and exempt from Professional Liability Fund coverage. I
am interested in providing volunteer legal advice to my local recreation
organization, and I want to know if this will violate my Professional Liability
Fund exemption.
A. Your Professional Liability Fund exemption is based on the fact that you are not
in the private practice of law. You may provide legal services to an organization
provided you are an employee of that organization. Therefore, you may provide
the legal services you have described only if you have the status of an employee
in the organization.
1-21

13. ARBITRATION AND/OR MEDIATION -- EXEMPTIONS
Q. I am currently exempt from Professional Liability Fund coverage, and I would
like to do some arbitration and/or mediation. Am I required to have Professional
Liability Fund coverage?
A. No, as long as you confine your practice to arbitration and/or mediation work and
you do not represent any of the parties. Under these circumstances, you are not
required (and also not eligible) to obtain PLF coverage. If you provide mediation
services, you must comply with the Oregon Rule of Professional Conduct 2.4
relating to mediation. As a mediator or arbitrator who is not in the private practice
of law, you will want to make it clear to your ADR clients that you are not their
attorney. For suggestions on how to reduce this confusion, review the PLF
exemption guidelines for Alternative Dispute Resolution including mediator or
arbitrator, www.osbplf.org.
14. ARBITRATION AND/OR MEDIATION -- PLF COVERAGE
Q. I have Professional Liability Fund coverage, and I would like to serve as an
arbitrator and/or mediator. Does my Professional Liability Fund coverage include
coverage for claims arising out of my services as an arbitrator or mediator?
A. Yes. The Professional Liability Fund Coverage Plan includes coverage for your
services as an arbitrator and or mediator, provided your ADR services are offered
through your private law practice and not through a separate ADR entity.
15. ADDITIONAL COVERAGE
Q. Where can I get other coverage information?
A. Visit www.osbplf.org, and view the menu on the left side of the Home page under
“Primary Coverage.” For descriptions and information on exemptions, click on
“Policies and Forms.” Or, contact the PLF at 503-639-6911/1-800-452-1639 and
ask for Emilee Preble or Jeff Crawford.
1-22

Chapter 1
HOW TO DEVELOP A SUCCESSFUL
PRACTICE AND AVOID LEGAL
MALPRACTICE
Additional Resources
List of Free Practice Aids Available from PLF
Catalog/Order Form of Free CLE Tapes Available from PLF
OSB CLE Publications with Forms
OSB CLE Seminars Audio, Course Material & Video Sales
Resources That Will Help You in Your Practice
Engagement/Disengagement/Nonengagement Letters
List of Articles From Oregon State Bar Bulletin Column
PLF Update/Managing Your Practice
Recognizing Difficult Client Types, In Brief, September 2011
Check Scams Become Even More Sophisticated and Generally Have No PLF Coverage,
In Brief, March 2012

FREE FROM THE PROFESSIONAL LIABILITY FUND: WWW.OSBPLF.ORG
The practice aids listed below are available at no charge from the Professional Liability Fund at our web site
www.osbplf.org. You may view, save, and print individual documents in PDF format, or
download the entire collection of forms in Word for Windows.
For more information, go to www.osbplf.org, and click Practice Aids and Forms under Loss Prevention. 09/12
� Adoption 12/2011
Checklists for Stepparent,Adult,
Independent,Agency & Foreign
Adoption; Payment re Counseling
� Bankruptcy 11/11
Bankruptcy Checklist & Resources
� Business 11/11
Corporate Info Sheet
Disclosure Form ORPC 1:
Business Deals with Client
Sale of a Small Business Checklist
� Child Abuse Reporting 10/11
FAQs about Child Abuse Reporting
� Client Communication 10/11
E-mail, Voicemail, Receipts,
Transmittals, Client Status Report
� Client Relations 10/11
Admin & Billing Brochures
Client Relations Checklist
Client Service Questionnaires
Handle Inquiries/Interruptions
Notice to Clt re Theft of Equipmt
� Closing Your Law Office 11/11
Checklists and Forms, including
Law Ofc List of Contacts (Fillable)
Office File Tracking Sheet (Fillable)
� Conflicts of Interest 11/11
Conflict Self Audit (Fillable)
Disclosure & Consent Checklists
Disclosure & Consent Letters
Conflict of Interest Systems
Declined Prospect Info (Fillable)
Disclosure Form ORPC 1
Ethics Opinion 2005-50 Share Office
Request for Conflict Search
� Conservatorships 10/11
Conservatorship Cklist & Duties
Acknowledge Restriction of Assets
� Construction Liens 08/11
Checklists (Fed, State, Constn)
Lien and Bond Intake Checklist
� Contract Lawyering 07/12
Checklist and Resources
� Criminal 12/11
Criminal Case Checklist
Immigration Checklist: Crim Case
Indigent Task Force Report
� Departing a Firm 09/12
Articles & Checklists
Sample Letters & Ethics Opinions
Email Communication Tips
� Disaster Recovery 8/11
After Disaster Strikes Checklist
Managing Practice Interruptions
Protecting Your Firm
� Disclosure of Potential
Malpractice 10/05
Disclosure Letter to Client, Articles
Ethics Opinion No. 2005-61
� Disengagement Letters 10/11
Declining Representation; Closing
Letter; Unpaid Fees; How to Fire a
Client
� Docketing & Calendaring 7/11
Calendaring and File Tickling Systems
Calendaring Note
Diary / Tickler Systems and Follow-Up
Docket Checklist and Sheet (Fillable)
Supplementary Local Rules
� Domestic Relations 04/12
A packet of over 20 forms, with
checklists, sample letters,and more
� Engagement Letters 10/11
Contingent Fee Agreement & Alternate
Existing Client with New Matter
Engagement Letter & Fee Agreement
Retainer Agreement
� Entity Formation 10/11
Choice of Entity for Legal Practice
Ethics Opinion 2005-49 Disclose Status
Lawyers as PCs, LLCs & LLPs
� File Management 11/11
Articles-Client Files Revisited and
Setting Up an Effective Filing System
Declined Clients Info Sheet (Fillable)
Ethics Opinion No. 125
File Closing Checklist (Fillable)
File Documentation (Fillable)
File Retention and Destruction
New Client Information (Fillable)
� Financial Management 7/11
Billing and Time Slips
Business Essentials
Cash Flow Worksheet (6 & 12 month)
Daily Time Sheets (Fillable)
General Ledger
Start-Up / Monthly Budgets (Fillable)
Portland Multnomah Business Tax
� Guardianships 10/11
Guardianship Checklist and Duties
� Immigration 11/11
Resources for Immigration Lawyers
� Litigation 12/11
Sample Checklists, Letters, Time
Limitation Charts, & Interview Forms
� Mail Handling 10/11
Mail Handling-Paper Filing Systems
� Moving A Law Office 12/11
Checklist
� Nonengagement Letters 6/12
Not Representing / Not Monitoring
Funds Needed After Review
After Research or Investigation
Awaiting Further Instructions
Confirming Conversation
� Office Manuals 5/09
Manuals: Office, Policy, Procedures
Using Form Books
� Office Sharing 7/11
Checklists, guidelines, ethics opinions
� Office Systems Audit 10/11
Audit Checklist
� Opening a Law Office 8/11
Opening a Law Office Checklist
Article/Virtual Law Office
� Partnership / Of-Counsel 9/11
Partnership Agreement Checklist
Associate Agreement Checklist
Ethics Opinion 2005-29 Not to Compete
Of-Counsel Relationships
� Probate and Estate Planning 11/11
A packet of over 10 forms, including
checklists and sample letters
� Real Property 09/12
Foreclosure Mediation Requirements
Landlord-Tenant Form
Lead Paint Disclosure for Leases/Sales
Residential Transactions Checklist
Trust Deed Foreclosure Checklist
� Retiring from Law Practice 7/11
Checklist and Resources
� Selling a Law Practice 7/11
Checklist and Resources
� Staff 3/2012
Utilizing Paralegals; Appointments
Departing Staff, New Secretary Checklists
Confidentiality in the Law Office
Delegation Memo (Fillable)
Office Ethics and Legal Liability
Article: Finding Della
Reception – Duties and Article
� Technology 7/12
Application Service Providers
Checklist for Imaging Documents
Digital Signatures
Disclaimers for E-mail, Websites
How to Back up Your Computer
Managing Client E-mail
Our Paperless World/Electronic Records
Resources for Mac Users
Saving Text Messages
� Trust Accounting 11/11
25 Ways Protect Firm - Embezzlement
Accepting Credit Cards; IOLTA Accounts
Client Ldgr Card & Journal (Fillable)
F.A.Q.s re: Trust Account
Notice of Enrollment to OLF re: IOLTA
Rules for Washington Practitioners
Trust Account Reconciliation (Fillable)
Trust Accounting
� Workers’ Compensation 11/11
Disputed Claim Settlement Disclosure
Intake Form
Workers’ Comp Board Forms
The dates shown are revision dates.

� NO PHONE ORDERS PLEASE.
� You may print these yourself.
These practice aids are provided to help attorneys improve their practice. The material provided does not
establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic
and each attorney should conduct his or her own appropriate legal research. All copyrights reserved except that
permission is granted for Oregon lawyers to use and modify these documents in their own practices. These
materials may not be republished, sold, or used in any other form without the written consent of the Oregon State
Bar Professional Liability Fund. If you use these practice aids and have suggestions for improvement, please
contact Barbara Fishleder at 503-639-6911 or 1-800-452-1639. If you have questions, please contact Julie
Weber at 503-639-6911 or 1-800-452-1639.
If you do not have Internet access and would like to receive hard copies of the checked forms listed above, �MAIL this form to:
Attn: Julie Weber, PLF, PO Box 231600, Tigard, OR 97281 or �FAX: 503-684-7250.
Name Bar #
Firm Name (If applicable)
Street Address City State Zip
Phone

Professional
liability
fund
2010 Practice Management Update: An
Introduction to Internet-Based Practice
Managment Software: Sponsored by the OSB
SSFP Section, OMLA, and the OSB PLF, this
seminar explains the theoretical, practical, and
ethical issues relating to cloud computing. Also
included is an hour-long presentation of Tips,
Sites, and Gadgets presented by the PLF’s
practice management advisors. Presented on
July 9, 2010.
3 MCLE general or practical skills credits;
1 MCLE ethics credit
Access to Justice: Topics include recognizing
mental impairments, working with impaired
clients, multigenerational communication, and
working with clients from different cultural backgrounds.
Presented November 3 and 5, 2010,
as part of the Learning The Ropes program.
3 MCLE access to justice credits
Avoiding Legal Malpractice Claims: Topics
include frequently missed time limitations,
conflicts-of-interest disclosure letters, nonengagement
letters, case and client screening,
withdrawing from a case, and available
resources when you have made a mistake.
Presented February 25, 2005.
2.5 MCLE general credits. Expires
12/31/2012
Avoiding Malpractice in Family Law: Topics
include general malpractice traps, documentation,
pre- & post-nuptial agreements, pensions,
life insurance, taxes, bankruptcy and more.
Presented May 1, 2009.
3 MCLE general or practical skills
credits
Avoiding Malpractice When Filing and Serving
a Defendant: Topics include filing and service
tips and traps, commencing civil actions,
forms and methods of service, and requirements
of proof of service. Presented February
25, 2005.
2 . 2 5 M C L E g e n e r a l c r e d i t s .
Expires 12/31/2012
Bankruptcy Issues in U.S. District Court
Litigation: This CLE explores what happens
when a litigant in a multi-party federal lawsuit
files bankruptcy. Speakers include a bankruptcy
judge, federal judge, and bankruptcy practitioner.
Presented October 21, 2010.
1 MCLE general credit
Best Practices for Avoiding Conflicts and
Maintaining Confidentiality: Topics include:
how to set up a good system, answers to
frequently asked questions, and lessons from
the trenches. Presented March 15, 2006.
1 MCLE ethics credit. Expires 12/31/2012
CLE Seminars & Publications Catalog - www.osbplf.org
Phone: 503-639-6911 or 1-800-452-1639; Fax: 503-684-7250
The Professional Liability Fund offers a free lending library of CLE programs and materials to lawyers whose principal offices are in
Oregon. (A minimal fee is charged for materials and shipping if office is located outside of Oregon.) All items can be ordered from our
Web site: www.osbplf.org. You may order up to 5 programs at a time. Video programs (DVDs) must be returned within a specified
amount of time. Audio programs (CDs) may be kept, passed on, or returned to our office.
Building a Successful Practice Through
Improved Client Communication: Featuring
internationally known U.K lecturer, Tom Edge,
this presentation will teach you how to deliver
better service, work with challenging clients,
improve your listening skills, improve your law
office management techniques, and refine your
client communication skills. Presented June
18, 2004.
3 MCLE general credits. Expires
12/31/2012
Building and Maintaining a Profitable and
Efficient Law Practice: Featuring law firm
consultant Ann Guinn, this seminar will help you
analyze and understand your firm’s finances,
utilize appropriate fee agreements and billing
practices, develop a business plan and collect
fees. Presented March 16, 2012.
5.75 MCLE general or practical skills
credits, .5 MCLE ethics credit
Calendaring, Docketing, and File Tickling
Systems: Presented as part of the lunchtime
CLE series on practice management. Topics
include setting up a calendaring system, file
review, setting reminders, and follow-ups. Presented
on February 15, 2007.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Choice of Entity for Contract Lawyers and
Sole and Small Firm Practitioners: Provides
a general overview of considerations involved in
selecting various business entities. Presented
November 4, 2011.
.75 MCLE general credit
Corel WordPerfect X3 Tips: Presented as part
of the Practice Management Software Update
Brown Bag Series. Tips will include shortcuts
and differences from the previous versions.
Presented January 18, 2008.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Data Storage Security and Professional Responsibility
– Understanding Obligations Imposed
by New OSB Ethics Opinion 2011-188
The panelists discuss how cloud based computing
is utliized and give recommendations for
internet security best practices to stay in compliance
with rules of professional responsibility.
Presented January 18, 2012.
1 MCLE ethics credit
Employment Practices for Lawyers: Topics
include screening, interviewing, hiring
employees, applications, background checks,
discipline, warnings, and legal obligations in
terminations. Presented May 1, 2009.
3.25 MCLE general credits
Enjoy Parenting: Tips on how to balance connecting
with our children and setting reasonable
limits. Presented by Michael Gorsline, MA,
May 21, 2008.
NO MCLE credit
Ethics of Practice Management - Managing
Your Practice to Avoid Legal Malpractice
and to Comply with Ethics Rules: Topics
include trust accounting, conflicts, protecting
client confidentiality, and managing client files.
Presented as part of the Learning The Ropes
program, November 4, 2010.
1 MCLE ethics credit and .5 MCLE
practical skills credit
File Management: Presented as
part of the lunchtime CLE series on practice
management. Topics include keeping
files organized, using client intake forms,
establishing filing systems, arranging
for file storage, and more. Presented on
February 8, 2007.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Gambling: A Family Matter: This program is
presented by OAAP attorney counselor Meloney
C. Crawford who is also a certified gambling addictions
counselor. This program was presented
as part of the Challenges Families Face series
and was held on February 27, 2009.
No MCLE credit
Health Insurance Today, At 65, and In
Retirement: This seminar will help to answer
some of the concerns that have arisen among
retiring legal professionals regarding Medicare
and the availability of health insurance and longterm
care insurance on retirement. Presented
by the Oregon Attorney Assistance Program on
February 8, 2012.
3 MCLE personal management
assistance credits
Increasing Revenue: Updated Strategies for
Attracting New Clients and More Effectively
Managing and Existing Client Base: Presented
by the OSB Sole and Small Firm Practitioners
Section on June 15, 2011. This seminar features
Ed Poll of LawBiz ® Management who explains
the seven features of increasing revenue.
1.5 MCLE practical skills credits

Individual and Small Business Cases in
Chapter 11: This seminar was presented by
the New Lawyers Committee of the Debtor-
Creditor Section of the OSB. Topics included
basic pre-filing conisderations such as eligibility,
feasibility, and case planning. Also discussed
are post-filing considerations such as drafting
the plan and disclosure statements. Presented
on September 11, 2009.
3.25 MCLE general credits
Job Search 2010: Topics include effective
job search skills, approaches to networking,
resume and job interview tips, and using social
media and the Internet in a job seach. Presented
on May 17, 2010.
1.25 MCLE personal management
assistance credits
Judges Helping Judges: How You Can Help
Your Colleagues and Yourself: Judges are
constantly in the role of helpers and advisors.
This can be draining, especially when you are
also constantly having to make decisions with
less and less support and fewer and fewer resources.
This CLE tells you about the resources
available to help and how you can help each
other (and yourself) with difficult issues that
you face every day. Presented May 18, 2012.
1 MCLE personal management
assistance credits
Kids and Drugs: What Parents Need to
Know: Presented by Dr. Marvin Seppala,
Medical Director at Beyond Addictions in Beaverton.
This program was part ot the Challenges
Families Face series and was held on February
6, 2009.
No MCLE Credit
Law Office Paper Reduction and Document
Management: Strategies that Work: This
seminar covers everything you need to create
your own digital filing system, get your paper
under control, and take full advantage of Adobe
Acrobat. Presented April 20, 2012.
3.25 MCLE general or practical skills
credits
Lawyers Using iPads: Presented June 1,
2011 as part of Practice Management for Lawyers
Using iPads, Less Paper, and the “Cloud.”
Josh Barrett of TabletLegal and Black Helterline
LLP demonstrates how he uses his iPad in his
law practice for text editing, drafting legal agreements,
calendaring, e-mail, legal research, trial
preparation, and more.
1.5 MCLE general or practical skills
credits
Learning the Ropes 2011: A practical skills
program designed to orient new admittees
and lawyers entering private practice. Topics
include information on developing a successful
practice and avoiding malpractice, access to
justice presentations, practical tips from judges
and lawyers, and presentations on setting up
effective office systems. Presented November
2-4, 2011.
15.75 MCLE credits - 10.75 practical
skills; 1 ethics; 1 child abuse reporting;
3 introductory access to justice credits
Legal Productivity: Responsible Connectivity
– How NOT to Be Consumed by Technology:
This completely original session explores
the hazards of constant connectedness and
what attorneys can do to manage their risks.
Presented July 21, 2011.
1 MCLE general or practical skills credit
Legal Productivity: Seven Ways to Make
Your Law Firm More Efficient: Learn Highly
Effective tips and tricks for becoming organized,
prioritizing work, and eliminating interruptions.
Presented July 21, 2011.
1 MCLE general or practical skills credit
Less Paper (The Paperless Office)
Presented June 1, 2011 as part of Practice
Management for Lawyers Using iPads, Less
Paper, and the “Cloud.” Dee Crocker, PLF
Practice Management Advisor, provides tips and
advice on how to transition to a more sustainable,
“less paper” law practice.
1 MCLE general/practical skills credits
Malpractice Traps Involving Debtor/Creditor
Issues in Real Estate and Business Cases:
Topics discussed include: Foreclosure process,
document drafting, tax traps, and many other
issues. Presented Feb. 5, 2010.
3.5 MCLE general credits
Metadata: Complying with Oregon Formal
Opinion 2011-187: This seminar discusses
what is metadata, ethical duties regarding
metadata, and how to remove metadata from
documents. Presented January 27, 2012.
1.5 MCLE ethics credits
Meeting the Needs of Aging Parents: Issues
discussed include how to start the conversation,
keys to a successful aging plan, and whom to
include in the discussion. Presented by Lynne
Coon, MS, NCC, on May 14, 2008.
NO MCLE credit
Microsoft Outlook 2007 Tips: Presented as
part of the Practice Management Software Update
Brown Bag Series. Tips include shortcuts
and differences from the previous versions.
Presented January 11, 2008.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Microsoft Word 2007 Tips: Presented as part
of the Practice Management Software Update
Brown Bag Series. Tips include shortcuts and
differences from the previous versions. Presented
January 25, 2008.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Money Matters: This CLE offers the practice
management and communication skills needed
for effectively handling money matters. It
features Dee Crocker and Beverly Michaelis,
Professional Liability Fund practice management
advisors, and Brian Farr, MA, LPC, professional
financial counselor. Presented January
29, 2010.
2.25 MCLE practical skills credits and 1
personal management assistance
credits
Networking and Career Building for Lawyers.
Presented April 1, 2011. Co-Sponsored by the
Oregon Federal Bar Association and the OAAP.
This program features six networking and career
development workshops. Topics include private
practice, government, house counsel, and pro
bono work.
.75 MCLE personal management
assistance credits per workshop
Older Adults: Alcohol and Medication
Dependence. Presented as part of the Challanges
Families Face series. This program was
presented on February 13, 2009.
No MCLE credit
Oregon and Washington Construction Law:
Comparison and Contrast. Presented April
22, 2011 by the OSB Construction Law Section.
Topics include, statute of limitation and ultimate
repose, professional liability, lien and bond claim
deadlines and pre-claim requirements, retainage
liens and stop notices, and much more.
7.5 MCLE general credits
Overview of Programs, Services and Tools
of the Small Business Development Centers
(SBDC): This program discusses how
the SBDC can help businesses in all stages of
growth and development succeed. Presented
November 4, 2011.
.75 MCLE general or practical skills
PDFing: A Lawyers Guide to Adobe Acrobat.
The master tool for PDFs is Adobe Acrobat; and
while many lawyers own it very few learn to take
advantage of its full capabilities. Learn how to
apply document security, scan to PDF, archive
e-mails, combine files, create trial notebooks,
document binders and more. Presented April
20, 2012.
3.25 MCLE general or practical skills
credits
continued on next page

Practical Contract Lawyering: Topics include
practice management systems for a contract
lawyer, contractor vs. employee distinctions,
tax issues, PLF coverage, and ethical considerations.
Presented May 1, 2008.
4 MCLE credits - .75 general, 2.5
general or practical skills, .75 ethics.
Expires 12/31/2012
Practical Law Office Solutions for Sole and
Small Firms: Topics include technology solutions
and evaluation tools, solutions for e-mail
and time management, electronic discovery,
and transitioning to the paper-less office.
Featuring Sharon Nelson and John Simek, coauthors
of The 2010 Solo and Small Firm Legal
Technology Guide: Critical Decisions Made
Simple. Presented May 8, 2009.
5.25 MCLE general or practical skills
credits
Practicing in the Cloud – From Intake to
Invoicing: Presented June 1, 2011 as part of
Practice Management for Lawyers Using iPads,
Less Paper, and the “Cloud.” Jack Newton,
co-founder of Clio, discusses practicing in the
cloud. Topics: Overview of what “the cloud” is,
the ethics of cloud computing, and using the
cloud for managing your practice from intake
to invoicing. A hands-on demonstration of Clio
is included
1.5 MCLE general/practical pkills
and .50 ethics credits
Practicing in the Cloud with RocketMatter ®
Learn how to run a paperless office, get bills
out on time, and organize your law firm with
RocketMatter ® . Presented July 21, 2011.
No MCLE credit
Practicing Law with Attention Deficit Disorder:
Topics include “Understanding ADD,”
presented by Alan Kaiser, LCSW, PMHNP;
“Treating ADD with Neurofeedback,” presented
by John McManus, M.Div., Ph.D.; and “Getting
Organized with ADD,” presented by Harriet
Steinberg, RN, MN. Presented as part of a
three-week workshop in April/May 2005.
No MCLE credit
Professionalism and the Legal Profession:
Presented as part of the Learning the Ropes
program, November 5, 2008.
1.5 MCLE ethics credit. Expires
12/31/2012
QuickBooks 2007 Tips: Presented as part
of the Practice Management Software Update
Brown Bag Series. Tips include shortcuts and
differences from the previous versions. Presented
January 4, 2008.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Recognizing Child Abuse and Fulfilling Your
Duty to Report: Presented November 5, 2010,
as part of the Learning the Ropes program.
1 MCLE child abuse reporting credit
Reducing the Pressure: Topics include managing
stress caused by technology, working
with difficult people, tools for stress management,
time management, and managing debt.
Presented April 2008.
4 M C L E c r e d i t s – 3 p e r s o n a l
management assistance, 1 practical
skills. Expires 12/31/2012
Retiring or Changing Careers? How to Leave
Your Law Practice Well: Topics include how
to make a smooth transition, closing your own
firm, checklists, resources, and disposition of
files and records. Presented March 8, 2006.
1 MCLE general or practical skills
credit. Expires 12/31/2012
Riding the Waves of LIfe in the Law: A
discussion of strategies to achieve balance,
prioritize tasks and get time on your side. Presented
November 4, 2011.
.5 MCLE general or practical skills credit
Road to Office Organization CLE Series:
Topics include examining and defining causes
of disorganization, tips for structuring an organized
office, and developing time management
techniques. Presented as a three-week series
January 2005.
3 MCLE general or practical skills
credits. Expires 12/31/2012
Smart Isn’t Enough - Improving Your
Personal and Professional Effectiveness:
This seminar will help you live and work more
effectively by understanding and using your
personal intelligence. Presented by Kenton
R. Hill, EdD, CNC, work performance coach,
and Alisa Blum, MSW, workplace trainer/consultant,
on October 3, 2008. NOTE: There is
a $25 charge for this program, which includes
a copy of Dr. Hill’s book, Smart Isn’t Enough:
Lessons from a Work Performance Coach.
Payment must be received or your order will
not be processed.
5 MCLE personal management
assistance credits. Expires 12/31/2012
Solo by Choice in the Current Economy:
Presented by Carolyn Elefant, author and
creator of MyShingle.com. and Beverly Michaelis,
PLF Practice Management Advisor.
Topics include setting up a practice, practice
area selection, managing an office, and
more. NOTE: There is a $30 charge for this
program, which includes a copy of Carolyn
Elefant’s book, Solo By Choice: How to be the
Lawyer You Always Wanted to Be. Presented
November 20, 2009.
4.75 MCLE general credits and .5
ethics credits
Strategies for Balancing Work and the
Rest of Your Life: Featuring internationally
known U.K. lecturer, Tom Edge, this presentation
give you tips for managing stress,
encourage you to set goals, and guide you
in finding the balance that is right for you.
Presented June 18, 2004.
3 MCLE personal management
assistance credits. Expires 12/31/2012
Stress Hardiness for Lawyers and Judges:
Learn how to better cope and face the stress
of the legal profession. Presented April 7,
2011 NOTE: This CLE is a fund raiser for Oregon
Lawyer Assistance Foundation (OLAF)
a 501©(3) that provides grants to Oregon
lawyers who are unable to afford needed
mental health or addiction treatment. Please
submit your donation to OLAF, PO Box
231600, Tigard, Or 97281-1600. Suggested
donation: $100. All donations welcome.
3 MCLE personal management
assistance credits
Survival Tips for Organizing Your E-mail
and Practicing in eCourt. Tips on how to
organize and optimize your e-mail and how
to avoid malpractice in an eCourt practice.
Presented February 9, 2011.
1 MCLE general or practical skills
credit
Taking Care of Ourselves (While We’re
Busy Taking Care of Others) - Stress
Reduction for Professionals in Conflict
Resolution: Improve the way we handle
stress, strengthen mental clarity, and enhance
productivity. Co-sponsored by the
MBSA and the OAAP. Presented by Dr. Alan
Wallace and Michael Zimmerman, JD, on
October 31, 2008.
5 MCLE personal management
assistance credits. Expires
12/31/2012
Taking Control of Your Career: Featuring
Kathy Morris, JD. Topics include career transitions,
assessing your career strengths, a
panel discussion on transition strategies, tips
for successful change, ideas for networking,
and experiences with finding job satisfaction.
Presented September 20, 2004.
3.5 MCLE personal management
assistance credits. Expires 12/31/2012
The Attorney as Employer: Employment
and Tax Law Considerations: Topics
include workers compensation, employee
requirements, independent contractor
requirements, and other issues of being an
employer. Presented September 15, 2011.
3.0 MCLE general or practical skills
credits
The Next Stage: Planning NOW for the
Retirement YOU Want: This workshop will
examine the financial, business, practical,
and emotional aspects of retiring from the
practice of law. Presented on February 4,
2011. NOTE: There is a $25 charge for this
program, which includes a copy of Mike
Long’s book, Lawyers at Midlife: Laying the
Groundwork for the Road Ahead. Payment
must be received or your order will not be
processed.
5.5 MCLE general credits

The One for All: What Every Practitioner
Must Know About the Servicemembers’ Civil
Relief Act. - This CLE will help you understand
the SCRAs provisions, your responsibilities to
the court under the Act, and how to proceed if
a servicemember is on the opposing side of
your case or is your client. Speakers include
a practitioner panel and a judges panel. Presented
March 6, 2009.
3.25 MCLE general credits
TimeMatters - Basic and Advanced: Presented
by Dee Crocker, this seminar discussed
and demonstrated many of the features of this
software including set-up, security, classification,
phone call tracking, customizing forms,
document management, and many others.
Presented February 18, 2010.
5.25 MCLE general or practical skills
credits
Tips and Traps for the Small Firm Employer:
Topics include; wage and hour issues; how to
avoid employee lawsuits, employee handbook
basics; and differences between independent
contractors and employees. Presented November
4, 2011.
1.5 MCLE general credits
Tips in 60 Minutes: Office management tips,
resources and web sites. Presented July 9,
2010. NOTE: This program is included in the
2010 Practice Management Update seminar
listed on page 1.
1 MCLE general or practical skills
credit
Tips, Sites, and Gadgets: Topics include tips
to keep your office up-to-date and running
smoothly, useful resources and Web sites;
and gadgets that you can use to improve your
law practice. Presented February 18, 2011.
1.5 MCLE general or practical skills
credit
Transitions: Challenge or Opportunity?:
This seminar explores why each new transition
seems unique, how to manage change,
and how to recognize opportunity in transition.
Presented February 24, 2012.
2 MCLE personal management assis-
tance credits
Trust Accounting: Your Financial and
Ethical Responsibilities Presented May 12,
2011 by PLF Practice Management Advisors
Beverly Michaelis and Dee Crocker, followed
by Q & A session with OSB General Counsel.
Topics include: setting up a lawyer trust account,
key trust accounting concepts, proper
record keeping, implementing safeguards,
monitoring the IOLTA account, and accepting
credit cards.
3.25 MCLE ethics credits
What Can You Do When Someone in Your
Family Experiences Depression, Anxiety
or other Health Issues? Featuring Dr. Cliff
Johannsen who has extensive experience as
a mental health practitioner. This program was
part of the Challenges Families Face series and
was held on February 20, 2009.
No MCLE credit
What Do You Want to Do With Your Law Degree
and How to Get There: Featuring Hindi
Greenberg, JD. Topics include: discovering
career options, steps to career development,
and stages of a legal career. Presented May
11, 2007. NOTE: There is a $25 charge for this
program, which includes a copy of The Lawyers
Career Change Handbook, - More than 300
Things You Can Do With a Law Degree. Payment
must be received or your order will not
be processed.
4.5 MCLE personal management
credits. Expires 12/31/2012
What Every Lawyer Needs to Know About
Bankruptcy: This presentation focuses on
the most commont bankruptcies, Chapter 7
and Chapter 13. Presented November 4, 2011
1 MCLE general credit
What Lawyers and Judges need to Know
About Compassion Fatigue – and the
Strategies to Prevent It: Presented April 7,
2011 Lawyers and judges – particularly those
in criminal, family, juvenile, and tort law – are
frequently exposed to stories of human trauma,
including domestic violence, child abuse, sex
abuse, assault, devastating accidents and
other horrific incidents. Exposure to this type
of information can, over time, increase your
risk of developing secondary traumatic stress
and compassion fatigue. This CLE offers helpful
strategies to prevent the development of
compassion fatigue.
3 MCLE personal management
credits
Work and Worth: Navigating Your Way in the
Profession Featuring Debora Landforce, MS,
this seminar discusses job satisfaction among
women lawyers, recognizing a damaging work
context, understanding what motivates you and
why. Presented January 27, 2006.
1.25 MCLE personal management
assistance credits. Expires 12/31/2012
PUBLICATIONS
Check appropriate p below for publication(s) you wish to
receive. Fill out name and delivery address information
on attached order form.
p A Guide to Setting Up and Running
Your Law Office (2009 Revision)
p A Guide to Protecting Your Clients’
Interests in the Event of Your Disability
or Death (2011 Revision)
p A Guide to Setting Up and Using Your
Lawyer Trust Account (2011 Revision)
p Oregon Statutory Time Limitations
Handbook (2010 Revision)
Updated revisions for all 4 handbooks
are available on our Web site at
www.osbplf.org.

Professional
liability fund
2010 Practice Management Update: An
Introduction to Internet-Based Practice
Management Software
o CD o DVD
Access to Justice
o CD o DVD
Avoiding Legal Malpractice Claims
o CD o DVD
Avoiding Malpractice in Family Law
o CD o DVD
Avoiding Malpractice When Filing and
Serving a Defendant
o CD o DVD
Bankruptcy Issues in U.S. District Court
Litigation
o CD o DVD
Best Practices for Avoiding Conflicts and
Maintaining Confidentiality
o CD o DVD
Building a Successful Practice Through
Improved Client Communication
o CD o DVD
Building and Maintaining a Profitable and
Efficient Law Practice
o CD o DVD
Calendaring, Docketing, and File Tickling
Systems
o CD o DVD
Corel WordPerfect X3 Tips
o DVD
Choice of Entity for Contract Lawyers
and Sole and Small Firm Practitioners
o CD o DVD
Data Storage Security and Professional
Responsibility
o CD o DVD
Employment Practices for Lawyers
o CD o DVD
Enjoying Parenting
o CD o DVD
Ethics of Practice Management
o CD o DVD
File Management
o CD o DVD
CLE Order Form
All items below can be ordered at www.osbplf.org.
Gambling: A Family Matter
o CD o DVD
Health Insurance Today, At 65, and In
Retirement
o CD o DVD
Increasing Revenue
o CD o DVD
Individual and Small Business Cases in
Chapter 11
o CD o DVD
Job Search 2010
o CD o DVD
Judges Helping Judges
o CD
Kids and Drugs: What Parents Need to
Know
o CD o DVD
Law Office Paper Reduction and Document
Management: Strategies That Work
o DVD
Lawyers Using iPads
o DVD
Learning the Ropes 2011
o CD
Legal Productivity: Responsible Connectivity
- How NOT to Be Consumed by
Technology
o CD o DVD
Legal Productivity: Seven Ways to Make
Your Law Firm More Efficient
o CD o DVD
Less Paper (The Paperless Office)
oCD o DVD
Malpractice Traps Involving Debtor/Creditor
Issues in Real Estate and Business
Cases
o CD o DVD
Meeting the Needs of Aging Parents
o CD o DVD
Metadata: Complying with Oregon Formal
Opinion 2011-1876
o CD o DVD
Microsoft Outlook 2007 Tips
o DVD
Microsoft Word 2007 Tips
o DVD
Money Matters
o CD o DVD
Networking and Career Building for
Lawyers
o CD o DVD
Older Adults: Alcohol and Medication
Dependence
o CD o DVD
Oregon and Washington Construction
Law: Comparison and Contrast
o CD o DVD
Overview of Programs, Services and
Tools of the Small Business Development
Centers
o CD o DVD
PDFing: A Lawyers Guide to Adobe
Acrobat
o DVD
Practical Contract Lawyering
o CD o DVD
Practical Law Office Solutions for Sole
and Small Firms
o CD o DVD
Practicing in the Cloud - From Intake to
Invoicing
o DVD
Practicing in the Cloud with
RocketMatter ®
o DVD
Practicing Law with Attention Deficit
Disorder
o CD o DVD
Professionalism and the Legal
Profession
o CD
QuickBooks 2007 Tips
o DVD
Order form and more programs on next page.
rev 5-2012

Professional
liability fund
Recognizing Child Abuse and Fulfilling
Your Duty to Report
o CD o DVD
Reducing the Pressure
o CD o DVD
Retiring or Changing Careers? How to
Leave Your Law Practice Well
o CD o DVD
Riding the Waves of Life in the Law
o CD o DVD
Road to Office Organization CLE
Series
o CD o DVD
Smart Isn't Enough: Improving Your
Personal and Professional Effectiveness
$25 o CD o DVD
Solo By Choice in the Current Economy
$30 o CD o DVD
Strategies for Balancing Work and the
Rest of Your Life
o CD o DVD
Stress Hardiness for Lawyers and
Judges
o CD o DVD
Oregon Lawyers Assistance Foundation
fundraiser, donations welcomed.
Survival Tips for Organizing Your E-
Mail and Practicing in eCourt
o CD o DVD
Name: Bar No.:
Street Address: (UPS will not deliver to PO Boxes)
City/State/Zip:
CLE Order Form www.osbplf.org
All items below can be ordered at www.osbplf.org.
Taking Care of Ourselves (While We’re
Busy Taking Care of Others)
o CD
Taking Control of Your Career
o CD o DVD
The Attorney as Employer: Employment
and Tax Law Considerations
oCD o DVD
The Next Stage: Plannning NOW for the
Retirement YOU Want $25
oCD o DVD
The One for All: What Every Practitioner
Must Know About the Servicemembers’
Civil Relief Act
o CD o DVD
TimeMatters – Basic and Advanced
o DVD
Tips and Traps for the Small Firm
Employer
o CD o DVD
Tips in 60 Minutes
o CD o DVD
Tips, SItes, and Gadgets
o CD o DVD
Transitions: Challenge or Opportunity?
o CD o DVD
Trust Accounting: Your Financial and
Ethical Responsibilities
o CD o DVD
Residential Address: o Yes o No (Required for UPS Shipping) Phone:
What Can You Do When Someone in
Your Family Experiences Depression,
Anxiety, or other Health Issues?
o CD o DVD
What Do You Want to Do With Your Law
Degree and How to Get There $25
o CD o DVD
What Every Lawyer Needs to Know
About Bankruptcy
o CD o DVD
What Lawyers and Judges Need to Know
about Compassion Fatigue and the Strategies
to Prevent It.
o CD o DVD
Work and Worth: Navigating Your Way in
the Profession
oCD o DVD
If you do not have Internet access, check the box(es) above to indicate which materials and format you wish to receive.
Return this form (and check if applicable) to: Julie Weber, Professional Liability Fund, P.O. Box 231600, Tigard,
Oregon, 97281. Please Note: orders requiring payment will not be processed if payment is not included.
rev 5-2012

OREGON STATE BAR
CLE PUBLICATIONS WITH FORMS ON DISK
(2012)
The following forms are available to download individually free of charge in Word or
WordPerfect format at the OSB BarBooks TM online library. You can access BarBooks TM from the
OSB home page at www.osbar.org. You can also purchase these forms in complete sets on CD,
with or without the legal publication binder. See the pricing information below. For complete
descriptions and ordering information, visit the OSB web site at www.osbar.org.
ADMINISTERING TRUSTS IN OREGON
407.KB 2007 1 vol. w/out binder (w/forms on CD) $66
407.KT 2007 1 vol. w/binder and forms on CD $81
ADVISING OREGON BUSINESSES
412.KB 2010 1 vol. w/o binder and forms on CD $165
412.KT 2010 1 vol. w/ binder and forms on CD $175
413.KT All 5 volumes w/ forms on CD $585
ARBITRATION AND MEDIATION
420.KT 1996 2 vols w/ 2008 supp and forms on CD $98
420.08KS 2008 supp and forms on CD $72.50
BANKRUPTCY LAW
425.KT 1999 2 vols w/2007 supp. (w/ forms on CD) $118
OREGON CIVIL LITIGATION MANUAL
430.KT 2004 2 vols w/ 2009 supp. and forms on CD $137.50
430.09 KS 2009 supp. w/forms on CD $57.50
OREGON CIVIL PLEADING AND PRACTICE
435.KB 2012 2 vols w/o binders with forms on CD $255
435.KT 2012 2 vols w/binders and forms on CD $285
CONSUMER LAW IN OREGON
445.KT 1996 2 vols w/2005 supp and forms on CD $90
CRIMINAL LAW
460.KT 2005 3 vols w/ 2006 legislative supp and forms on CD $290
460.06KS 2006 legislative supp. with forms on CD $45
ELDER LAW
467.KT 2000 1 vol w/ 2005 supp and forms on CD $215
467.05KS 2005 supp w/ forms on CD $65

ETHICAL OREGON LAWYER
470.KB 2006 1 vol w/o binder (w/ forms on CD) $72.50
470.KT 2006 1 vol w/ binder and forms on CD $87.50
FAMILY LAW
485.KT 2002 3 vols w/ 2008 supp and forms on CD $114
485.08KS 2008 supp w/ forms on CD $58
FEDERAL CIVIL LITIGATION IN OREGON
487.KT 2009 2 vols with forms on CD $94.50
FEE AGREEMENT COMPENDIUM
488.KB 2007 1 vol softbound w/ forms on CD $38
FORECLOSING SECURITY INTERESTS
490.KT 1997 1 vol w/ 2005 supp and forms on CD $52.50
GUARDIANSHIPS, CONSERVATORSHIPS, & TRANSFERS TO MINORS
492.KB 2009 1 vol softbound w/ forms on CD $105
JUVENILE LAW
501.KT 2007 1 vol w/ binder, forms on CD $114
UNIFORM CIVIL AND CRIMINAL JURY INSTRUCTIONS
CIVIL VOLUME
555.KT 2005 1 vol w/2006-2011 supp. with forms on CD $280
555.10KS 2011 supp. with forms on CD $55
CRIMINAL VOLUME
565.KT 2009 2 vols. w/ 2011 supp. and forms on CD $305
565.10KS 2011 supplement and forms on CD $50
REAL PROPERTY SERIES
Documentation of Real Estate Transactions
541.KB 2008 1 vol w/o binder (w/ forms on CD) $132.50
541.KT 2008 1 vol w/ binder and forms on CD $147.50
Principles of Oregon Real Estate Law
543.KT 1995 1 vol w/ 2003 cum supp and forms on CD $155
Real Estate Disputes
540.KT 1993 1 vol w/ 2002 cum supp and forms on CD $124
Regulation and Taxation of Real Estate
544.KT 1995 1 vol w/ 2003 cum supp and forms on CD $80
REAL PROPERTY SERIES DISCOUNT
545.KT All five books with supplements and CDs $500

OREGON STATE BAR
CLE SEMINARS AUDIO, COURSE MATERIALS & VIDEO SALES
FORMS ON DISK
(2012)
For complete descriptions and ordering information for the following programs, visit the Oregon
State Bar’s website www.osbar.org.
Basic Estate Planning and Administration
Audio CDs w/course materials & forms on CD or flash drive $195 (BEP10.KCD), DVD
w/course materials & forms on flash drive $325 (BEP10.KDV)
Documenting Oregon Businesses: From Start to Finish
Audio CDs w/course materials & disk $215 (DO809.KCD), DVD w/course materials &
disk $345 ((DO809.KDV)
Drafting LLC Operating Agreements
Audio CDs w/course materials & disk $215 (LLC09.KCD), DVD w/course materials &
disk $345 ((LLC09.KDV)
Handling Domestic Relations Cases (DRC10)
Audio CDs w/course materials & forms on flash drive $215 (DRC10.KCDF), DVD
w/course materials & forms on flash drive $345 (DRC10.KDVF)

RESOURCES
The following is a list of resources you may find helpful during your practice:
OREGON STATE BAR PROFESSIONAL LIABILITY FUND (PLF). The PLF provides free
educational materials ranging from malpractice avoidance to time management solutions. The PLF also
has practice aids and handbooks that are available at no charge. In addition, the PLF’s Practice Management
Program will send a practice management advisor to your office at no charge to help you set up or improve
your law office systems. To download free practice aids and forms or order low- or no-charge audio and
video programs on tape or disk, visit the PLF’s Web site, www.osbplf.org. For more information, call
503-639-6911 or 1-800-452-1639.
OREGON ATTORNEY ASSISTANCE PROGRAM. The Oregon Attorney Assistance Program
(OAAP) is a free and confidential assistance program for all Oregon lawyers. Programs include assistance
with alcoholism, drug addiction, burnout, career satisfaction, depression, anxiety, gambling addiction,
sexual addiction, procrastination, relationship issues, stress management, time management, and other
distress that may impair a lawyer’s ability to function. For additional information or to access the program,
visit the OAAP Web site at www.oaap.org or call the OAAP attorney counselors at 503-226-1057 or 1-800-
321-6227.
PRACTICE TIPS FOR AVOIDING MALPRACTICE. The PLF periodically publishes an electronic
newsletter, In Brief. This newsletter is filled with information on how to avoid legal malpractice in specific
areas of law. Technology updates, practice tips, and resources of interest to Oregon practitioners are also
included. Past issues of the In Brief are available on the PLF Web site, www.osbplf.org, or call 503-639-
6911 or 1-800-452-1639 for more information.
SAMPLE DISCLOSURE AND CONSENT LETTERS AND CHECKLISTS. Peter R. Jarvis, Mark
Fucile, and Brad F. Tellam have prepared an excellent collection of disclosure and consent letters with
checklists that are available to download from the PLF Web site, www.osbplf.org.
OREGON WOMEN LAWYERS. OWLS has 10 regional chapters in the state. The chapters hold
luncheons that include guest speakers and also allow for networking opportunities. OWLS publishes a
quarterly newsletter on topics of concern to women lawyers called the AdvanceSheet. For information,
contact OWLS at 503-595-7826, via e-mail at info@oregonwomenlawyers.org or visit their Web site,
www.oregonwomenlawyers.org.
OREGON WOMEN LAWYERS CONTRACT LAWYER REFERRAL SERVICE. OWLS
coordinates a service for lawyers who are seeking contract work and attorneys who wish to hire contract
lawyers. For information, contact OWLS at 503-595-7826 or visit their Web site,
www.oregonwomenlawyers.org.
THE COMPLETE GUIDE TO CONTRACT LAWYERING 3 rd Ed, 2003. Authors Deborah Arron and
Deborah Guyol look at temporary legal services from the perspective of the contract attorney and the hiring
law firm. The book addresses ethical considerations, malpractice liability, independent contractor vs.
employee status, and other topics of interest. To order, contact Niche Press, 4701 SW Admiral Way, PMB
#278, Seattle, Washington 98116, 1-206-229-9754, or visit www.lawyeravenue.com. ($24.95)

NATIONAL ASSOCIATION OF LEGAL SECRETARIES OF OREGON. NALS of Oregon provides
information on Oregon recording and filing fees through a subscription service that is updated annually. For
more information, visit the NALS of Oregon Web site at http://www.nalsor.org or write to NALS of
Oregon,
PO Box 983, Portland, Oregon 97207 or NALS of Portland, PO Box 13, Portland, OR 97207.
AMERICAN BAR ASSOCIATION GENERAL PRACTICE, SOLO AND SMALL FIRM DIVISION.
This section offers a journal for general practitioners. It also has a publication catalog that lists books of
interest to general practitioners. Call the Publication Order Desk at 1-800-285-2221 or visit the ABA’s Web
site at www.americanbar.org.
AMERICAN BAR ASSOCIATION LAW PRACTICE MANAGEMENT SECTION AND
PUBLICATION CATALOG. This section publishes a journal geared to law practice management and
also publishes books of interest to those who are running their own practices. Some of the particularly
relevant books published by this section of the ABA include Flying Solo: A Survival Guide for the Solo and
Small Firm Lawyer, 4 th ed.; How to Start and Build a Law Practice, 5 th ed.; Keeping Good Lawyers: Best
Practices to Create Career Satisfaction; Through the Client’s Eyes: New Approaches to Get Clients to Hire
You Again and Again, 2 nd ed.; The Lawyer’s Field Guide to Effective Business Development; The Lawyer’s
Guide to Records Management and Retention; Winning Alternatives to the Billable Hour: Strategies That
Work, 2 nd ed.; Making Partner: A Guide for Law Firm Associates, 3 rd ed.; and Information Security for
Lawyers and Law Firms. For information on the Law Practice Management Section, call 1-312-988-5634.
To inquire about ordering ABA publications, call 1-800-285-2221. Information on ABA member services
and resources is also available on the Web at www.americanbar.org. To order ABA law practice
management books at a discount go to www.osbplf.org
LOCAL BAR ASSOCIATIONS. Local bar associations have many resources to offer. They are often a
good source of information on what is happening at the local courthouse, and they sometimes hold monthly
CLEs or social gatherings. In addition, they sometimes offer group insurance coverage. Presidents of local
bar associations are listed in the OSB Membership Directory and on the Oregon State Bar’s web site.
FOR ADDITIONAL INFORMATION ON THE OREGON STATE BAR
RESOURCES AND SERVICES LISTED BELOW, VISIT THE OSB WEB SITE AT
www.osbar.org.
LAWYER TO LAWYER PROGRAM. This program connects Oregon attorneys working in unfamiliar
practice areas with experienced attorneys willing to offer informal advice at no charge. For names of
resource attorneys and more information about Lawyer to Lawyer, call 503-620-0222 or 1-800-452-8260,
ext. 408.
SOLE AND SMALL FIRM PRACTITIONERS SECTION. The OSB has a sole and small firm
practitioners section to provide networking and continuing legal education opportunities for attorneys in solo
or small firm practices. For information, call the OSB, 503-620-0222 or 1-800-452-8260, ext. 305.
LAWYER REFERRAL SERVICE. This service distributes referrals to lawyers who register with the
service. Attorneys registering with the service are allowed to charge $35 for the initial consultation. The rate
charged after the initial consultation is at the lawyer’s discretion. For information or current registration
fees, contact the OSB at 503-684-3763 or 1-800-452-7636.

ETHICS AND MALPRACTICE AVOIDANCE UPDATES. The Oregon State Bar Bulletin periodically
includes articles written by the OSB General Counsel’s office on ethical issues commonly faced by
practitioners. The PLF also regularly contributes articles on ethics, practice tips, and procedures for avoiding
malpractice. Past issues of the Bulletin are available on the bar’s Web site.
ETHICS OPINIONS/INQUIRIES. Ethics issues can often be resolved by reviewing the OSB Formal
Ethics Opinions. The complete ethics opinions are maintained on the OSB’s Web site. Also, check CLE
materials such as The Ethical Oregon Lawyer. The OSB General Counsel’s office provides ethics opinions
and answers to ethics inquiries. The information is free. Call the OSB at 503-620-0222 or 1-800-452-8260.
MEMBERSHIP SECTIONS. OSB members are welcome to join any of the various subject matter
sections. Participation in relevant sections can be a great help in developing a practice. The OSB
Membership Directory lists the various sections and their leaders. For more information, call 503-620-0222
or 1-800-452-8260, ext 385.
OSB RESOURCE DIRECTORY. The OSB Resource Directory is often overlooked as a resource. It
contains useful information on OSB services, the Oregon courts, and other legal organizations. The full texts
of the Oregon Rules of Professional Conduct and the PLF’s Claims Made Plan are also included in this
publication. New admittees should automatically receive a copy from the OSB. It is also available on the
OSB’s Web site at www.osbar.org along with an online version of the OSB Membership Directory that is
updated daily.
FORMS ON DISK. Many of the OSB CLE programs include materials with forms and the option of
purchasing the forms on disk in Word or WordPerfect. OSB CLE publications and forms are also available
on CD-ROM. For more information, call the OSB Order Desk at 503-431-6413 or 1-800-452-8260, ext.
413.
SAMPLE FEE AGREEMENTS. A collection of fee agreements, including agreements tailored to specific
areas of law, is available through the OSB Law Practice Management Section Fee Agreement Compendium.
The publication is available through the OSB Order Desk at 503-431-6413 or 1-800-452-8260, ext. 413.
NEW LAWYERS DIVISION. This division of the OSB offers low-cost CLEs and other networking
opportunities at chapter meetings throughout the state. For more information, call the OSB at 503-620-0222
or 1-800-452-8260, ext. 426.
OSB BARBOOKS TM ONLINE LIBRARY: The BarBooks TM online library is a free member benefit
included as part of your regular bar dues, with publications in numerous practice areas. As an active or
active pro bono member of the Oregon State Bar, you may download any of the forms and jury instructions
included in the BarBooksTM library, as well as the PDF of any book included in the library. New or revised
publications include Oregon Civil Pleading and Practice, 2011 Ethics Opinions Supplement, Uniform Civil
and Criminal Jury Instructions, and 2012 Oregon Legislation Highlights. BarBooksTM offers free one-hour
Web conference training sessions every month, accredited for 1 Practical Skills MCLE credit. Email Linda
Kruschke at lkruschke@osbar.org for more information. To access BarBooksTM, log in on the OSB home
page at www.osbar.org.

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OREGON STATE BAR BULLETIN
PLF UPDATE*/MANAGING YOUR PRACTICE ARTICLES
(Download back issues (from 2000 to present) of the Bar Bulletin on the Bar’s website www.osbar.org)
ITEM # ARTICLE TITLE/subheading AUTHOR/DATE
1. Technology Matters: Highlights from the
2012 ABA Techshow
2. Sorting Out Social Media: Tools and
Etiquette
3. Zero Tolerance for e-Filing Error: Avoid
Committing Malpractice, with a Few Clicks
of Your Mouse
4. On a Shoestring: Affordable Software for
Lawyers
5. Business Essentials: Tips for the Small
Firm and Sole Practitioner
6. Unbundling in the 21 st Century: How to
Reduce Malpractice Exposure While
Meeting Client Needs
7. Social Media Safety: Avoiding Pitfalls in
the Kingdoms of Facebook, Linkedin, and
Twitter
8. In Search Of: Evaluating Legal Research
Tools
9. To Catch a Thief: How a Partner or
Employee Can Steal from your Firm
Dee Crocker
June 2012
Beverly Michaelis and Sheila
Blackford
May 2012
Beverly Michaelis
February/March 2012
Dee Crocker
January 2012
Sheila Blackford, Dee Crocker &
Beverly Michaelis
May 2011
Beverly Michaelis –
August/September 2010
Sheila Blackford – June 2010
Dee Crocker – April 2010
Beverly Michaelis – January 2010
10. Home Alone: Where to Hang your Shingle Sheila Blackford – November 2009
11. SaaS in the Office: Internet Based Case
Management and Billing Software
12. The E-mail Blizzard: Tips for Taming Your
Inbox
13. Make the Right Match: What If You Only
Represented Clients You Like
14. How to Fire a Client: Do’s and Don’ts When
Ending Representation
Dee Crocker – August/Sept. 2009
Sheila Blackford – April 2009
Beverly Michaelis - July 2008
Beverly Michaelis – July 2007
15. Plan Ahead – Are you prepared for the unthinkable Beverly Michaelis – July 2005
16. Put it in Writing – Although it seems like a lot of
letter writing, it is the better way to practice law
Carol Wilson – December 2002

ITEM # ARTICLE TITLE/subheading AUTHOR/DATE
17. Billing Problems?: Getting clients to pay your fees
without suing them
18. To Hire or Not to Hire - Planning Now Can
Avoid Problems Later
19. What's a Lawyer to Do? - When a Law Firm
Becomes a Former Law Firm
20. Office Sharing - To Check or Not to Check, That is
the Question
21. It Isn’t a High Priority – A rundown of some
errors that are sure to get you in trouble
22. Why Tempt Fate – Charging non-refundable fees
often leads to legal malpractice claims, ethical complaints
and fee disputes
23. Who's Calling? - Your Receptionist / Secretary
Could be the Best Marketing Tool You Have
Barbara S. Fishleder & Jeff
Crawford – May 2000
Carol Wilson - April 1997
Barbara S. Fishleder - May 1995
Barbara S. Fishleder - December
1994
Carol Wilson – October 1994
Barbara S. Fishleder – May 1994
Carol Wilson - January 1994
24. Of Counsel Barbara S. Fishleder – January
1992
25. The “R” Words Barbara S. Fishleder – December
1991
26. Avoiding Malpractice Barbara S. Fishleder – April 1991
27. Dealing Conservatively with the
Fiduciary
u:\common\lp\lp assistant\pma\osb bulletin articles by pmas.doc
Barbara S. Fishleder – June 1990

THIS ISSUE
September 2011
Issue 110
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Recognizing Difficult Client Types
Dealing with a difficult client can result in an
ethics complaint or a malpractice claim. So confirm
that your client understands the important
information and document it! To reduce your
risks further, learn to recognize these types of
difficult clients and how to handle them.
● The angry or hostile client. The angry
or hostile client came into your office that
way. Anger that the client cannot appropriately
express, mixed with aggression, creates hostility
just below the surface, expressed in snappish,
rude, or contrary behavior. Once legal
representation has commenced, the anger or
hostility may be dialed up several notches. You
or your staff may become the target of misdirected
anger. When a deposition or court date
is imminent, this client can create more than a
tension headache. Consider discussing your observations
of the client’s anger with him or her,
and consider suggesting that the client seek assistance.
● The vengeful or zealous client. For
the vengeful client, cost is not a consideration;
it is the principle of the matter. In this client’s
mind, there has been a great wrong, and you
have been selected as the instrument to correct
it. This client sees you in a role you’d be wise
to refuse. If you have a high sense of idealism,
you may find it difficult to resist the siren song
that could lure you onto the rocks of unethical
conduct. If you feel enmeshed in this client’s
crusade, withdraw.
● The overinvolved or obsessed client.
This client thinks about the case 24/7. If you ask
for notes or documentation, the client produces
a filled notebook and expects you to read it –
ASAP. The key word is “expect.” Establish rea-
sonable expectations at the outset. Provide the
client with a legal file and hole-punched copies
of everything to put into it. If you don’t meet or
exceed this client’s expectations, you may not
get paid, and the client may report you to the bar
for neglecting the case.
● The emotionally needy or dependent
client. This client may seem emotionally
fragile, insecure, lacking confidence, dependent
on others, and now reliant upon you. Do not
settle into the role of decision maker. Your role
is to be an advisor about choices available to
the client. You may find it personally painful to
watch your dependent, emotionally needy client
struggle with making a decision, but you need to
tolerate your own discomfort as well as that of
your client. Warmly encourage this client to go
home, think through the matter, and talk it over
with another trusted personal advisor, therapist,
or religious officiant. Advise the client to get a
good night’s sleep and call you the next day after
spending some time in reflection.
● The secretive, dishonest, or deceitful
client. If your client is secretive, then
information that you need to formulate the correct
advice is being hidden from you. If your
client is dishonest or deceitful, you will be told
incorrect facts. How can you represent this client
adequately? You can’t. Lawyers have run into difficulty
when they have been taken advantage of
by unscrupulous clients. If you discover that your
client has lied to you, terminate the representation
as soon as you can under applicable ethics rules.
Your professional reputation is too important to
risk on one client.
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

● The depressed or mentally ill client. The depressed
client may not be able to sufficiently engage with the
legal process. The mentally ill client may not have the capacity
to understand and make informed decisions, and it may
require the appointment of a representative. Avail yourself of
help for dealing with these types of clients, including those
who practice guardianship law and the Oregon Attorney Assistance
Program.
● The unwilling client. This client will not believe
your advice because it does not match the advice the client
wants to hear. Clients often come to lawyers to determine the
consequences of actions they have already taken or have decided
to take. Also, many clients are just unwilling to follow
or accept the advice their lawyers give. Put your advice in
writing, including the likely outcomes of following as well as
rejecting this advice. If they choose not to follow it, at least
they do so knowing the consequences.
Sheila Blackford
Plf Practice ManageMent adviSor
This article was adapted from Law Practice, July/August
2010, volume 36, number 4, published by the American Bar
Association. Reprinted with permission.
September 2011 – Page 2
www.osbplf.org

THIS ISSUE
March 2012
Issue 112
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Check Scams Become Even More Sophisticated
and Generally Have No PLF Coverage
Over the last few years, many lawyers have
fallen victim to various financial scams. These
scams generally involve the lawyer being given a
check for a large amount of money, often without
having to do a lot of legal work. Sometimes the
transaction is rushed, has very unusual facts, or
involves sending money to a foreign country –
but not always.
In a recent, highly sophisticated scam, the
scammer posed as a client claiming to be owed
money for remodeling a local high-end home.
The scammer sent the lawyer the contract for
remodeling services and asked the lawyer to
collect the debt from the homeowner. The scammer
stole the identity of several people, and, as
a result, the names and addresses he used were
verifiable on the Internet. After a series of communications
that seemed legitimate, the debtor
(a co-conspirator) agreed to pay the debt and
gave the lawyer a cashier’s check. When the
lawyer contacted the scammer and advised that
the payment had been made, the lawyer was instructed
to deposit the check, take the lawyer’s
fee, and send the rest to the scammer. The lawyer
was unaware that the cashier’s check was
counterfeit. The scammer and co-conspirator
were counting on the lawyer depositing the
phony check and issuing a check from the lawyer’s
trust account BEFORE the counterfeit
check was discovered. This would allow the
scammer to get money from the lawyer’s trust
account (i.e., money belonging to the lawyer’s
legitimate clients) without giving the lawyer
any money at all.
There are many ways you can protect yourself
against these extremely hazardous scams, including:
● Scrutinizing the form of retainer and payment;
● Screening clients and cases carefully;
● Verifying that the instrument you are given
is legitimate;
● Verifying that the issuing financial institution
is legitimate;
● Asking your bank specific questions about
whether the check has cleared and whether
the account has, in fact, been funded.
This goes beyond whether the funds are
“available.” (See resource articles listed
in the sidebar);
● Asking your bank to investigate the authenticity
of the check, if there is any
question whether it might be counterfeit;
● Waiting for the funds to be honored and
collected by the issuing bank. Wait at
least ten days before authorizing any
disbursement from a lawyer trust account
if: (1) the transaction is with a
new client or one you are unsure about;
(2) the amount of the check is large
compared with the extent of legal services
provided; (3) the check is from an
unknown third party; or (4) any aspect
of the transaction raises your suspicion;
● Reading the resources listed in the sidebar;
and
● Calling the PLF to discuss the situation
with one of the claims attorneys.
If you fall for a scam of this nature, beware
that it is most likely not covered by your PLF
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

plan. A good rule of thumb is: If it seems too good to be
true, if it involves easily earned money, and/or if anything
about the situation seems odd – BEWARE and CARE-
FULLY investigate. Remember the definition of “What is a
Covered Activity” under Section III of the PLF Coverage
Plan excludes coverage for these administrative activities.
Our thanks to the PLF claims attorneys and the PLF practice
management advisors for their assistance with this alert.
Avoid Check Scams – Read
These Resources!
“Check Scams Continue to Plague Lawyers,” Beverly
Michaelis, http://oregonlawpracticemanagement.com,
February 28, 2012
“Check Scams Becoming More Sophisticated,”
Sheila Blackford, In Brief, November 2010
“Scammers Take Aim at Lawyers: How to Avoid
Becoming the Next Victim,” Helen Hierschbiel, Oregon
State Bar Bulletin, May 2010
“Check Scams Target Lawyers,” Kimi Nam, In Brief,
November 2008
“Changes to PLF Claims Made Plan [New Exclusion for
Check Scams],” Jeff Crawford, In Brief, December 2011
“Avoid a Claim” Blog, Dan Pinnington,
http://avoidaclaim.com, practicePRO
March 2012 – Page 2
www.osbplf.org

CHAPTER 2
CLIENT COMMUNICATION AND
OTHER PRACTICE MANAGEMENT
SURVIVAL TIPS
Sheila M. Blackford
Professional Liability Fund
Practice Management Advisor
Chris M. Mullmann
Oregon State Bar
Assistant General Counsel
Client Assistance Office Manager

Chapter 2
CLIENT COMMUNICATION AND
OTHER PRACTICE MANAGEMENT
SURVIVAL TIPS
TABLE OF CONTENTS
Page #
POWERPOINT SLIDES ............................................................................................................. 2-1
GETTING HELP: CONFLICTS, CONFIDENTIALITY AND CONSULTING YOUR
COLLEAGUES, IN BRIEF, JUNE 2011 .................................................................................... 2-4

Sheila M. Blackford
Professional Liability Fund
Practice Management Advisor
CLIENT COMMUNICATION
AND OTHER PRACTICE
MANAGEMENT SURVIVAL TIPS
Chris M. Mullmann
Oregon State Bar
Assistant General Counsel
Client Assistance Office Manager
9 of the 11 Hot Spots for New
Lawyers involve Communication
1. Gaining Competence [RPC 1.1]
2. Client Decisions [RPC 1.4; RPC 1.2(a)]
3. Procrastination [RPC 1.3]
4. Communication [RPC 1.4(a) and (b)]
5. Fees [RPC [ 1.5(a), (),( (b), ),()() (c)(1) and ( (3)] )]
6. Client Confidences [RPC 1.6, RPC 1.0 (g)]
7. Other People’s Money [RPC 1.15‐1(d) and (e)]
8. Candor to the Court [RPC 3.3(a)(1) and RPC 1.6 and RPC 1.16]
9. Truthfulness to Others [RPC 4.1 and Rule 1.6]
10. Dishonesty [RPC 8.4(a)(3)]
11. Asking for Help [RPC 8.6(a)]
What new lawyers need to know about
ethics to avoid a Bar complaint
�Delivery of funds or property, accountings,
and RPC 1.15‐1(d) and (e)
�False statements to the courts and RPC
33.3(a)(1) 3(a)(1)
�Transactions with persons other than clients
and RPC 4.1
�The dishonesty rule and RPC 8.4(a)(3)
�Written advisory opinions and RPC 8.6
2-1
There are 11 Hot Spots for New Lawyers
9 HOT SPOTS FOR NEW LAWYERS
INVOLVE COMMUNICATION
What new lawyers need to know about
ethics to avoid a Bar complaint
�Competence and RPC 1.1
�Abiding by client’s decisions and RPC 1.2(a)
�Diligence and RPC 1.3
�Communication and RPC 1.4(a) and (b)
�Fees and RPC 1.5
�Client Confidences and RPC 1.6
Client Decisions [RPC 1.4; RPC 1.2(a)]

Communication [RPC 1.4(a) and (b)] Fees [RPC 1.5(a), (b), (c)(1) and (3)]
Client Confidences [RPC 1.6, RPC 1.0 (g)]
Candor to the Court [RPC 3.3(a)(1) and
RPC 1.6 and RPC 1.16]
2-2
Other People’s Money [RPC 1.15‐1(d) and (e)]
Truthfulness to Others [RPC 4.1 and Rule 1.6]

Dishonesty [RPC 8.4(a)(3)] Asking for Help [RPC 8.6(a)]
RESOURCES
• Oregon State Bar – General Counsel &
Deputy General Counsels
• OSB Professional Liability y Fund – Claims
Attorneys
• OSB Professional Liability Fund –Practice
Management Advisors
• Oregon Attorney Assistance Program –
Attorney Counselors
2-3
Questions?

THIS ISSUE
June 2011
Issue 110
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Getting Help: Conflicts, Confidentiality, and
Consulting Your Colleagues
Whether you are a new lawyer who is unsure
about a matter or an experienced practitioner
handling an unusual situation, odds are you’ve
reached out for help. Maybe you picked up the
phone to talk to your mentor or you posted a question
on a LISTSERV. Whatever you did, you may
not have given much consideration to confidentiality
or conflicts of interest.
Oregon Formal Opinion 2011-184 seeks to
address these issues. Here are the scenarios laid
out in the opinion:
Lawyer A participates in a mentoring program
for new lawyers. Lawyer B is Lawyer A’s mentor
and is not in Lawyer A’s law firm. Lawyer A
wishes to discuss a matter concerning one of his
clients with Lawyer B.
Lawyer C is a sole practitioner. She encounters
an unusual situation in a case she is handling
and wishes to receive advice on how to proceed
from knowledgeable colleagues who participate
in her LISTSERV.
May Lawyer A disclose information relating
to the representation of his client with Lawyer B?
May Lawyer B consult regarding Lawyer A’s
client matter without first checking for conflicts
of interest between Lawyer A’s client and any client
of Lawyer B’s firm?
May Lawyer C relate the details of the unusual
situation she has encountered to other lawyers
who participate in her LISTSERV?
Resolving the Dilemma
Lawyers who seek advice and lawyers who
give advice “must exercise care to avoid violating
their duties to their respective clients.” It does
not matter how the discussion arises: in a formal
mentoring relationship, in casual conversation, or
on a LISTSERV.
Considerations for the
Consulting Lawyer
The ethics opinion addresses this situation:
“Consultations that are general in nature and
that do not involve disclosure of information relating
to the representation of a specific client do
not implicate Oregon RPC 1.6. For instance, there
would be no violation of the rule in a LISTSERV
inquiry seeking the name or citation for a recent
case on a subject relevant to a client matter or
to discussions about an issue of law or procedure
that might be present in a client matter. Similarly,
inquiries or discussions posted as hypotheticals
generally do not implicate Oregon RPC 1.6. Accordingly,
Lawyer A might safely pose a question
to Lawyer B, or Lawyer C might post an inquiry
on a LISTSERV, as a hypothetical case.
“Framing a question as a hypothetical is not
a perfect solution, however. Lawyers faces (sic)
a significant risk of violating Oregon RPC 1.6
when posing hypothetical questions if the facts
provided permit persons outside the lawyer’s firm
to determine the client’s identity. Where the facts
are so unique or where other circumstances might
reveal the identity of the consulting lawyer’s client
even without the client being named, the lawyer
must first obtain the client’s informed consent
for the disclosures.
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.
2-4
. . . .
“A lawyer should avoid consulting with another
lawyer who is likely to be or become coun-

sel for an adverse party in the matter. In the absence of an
agreement to the contrary, the consulted lawyer does not assume
any obligation to the consulting lawyer’s client by simply
participating in the consultation. The consulting lawyer
thus risks divulging sensitive information to a client’s current
or future adversary, who is not prohibited from subsequently
using the information for the benefit of his or her own client.
This should be a particular concern to Lawyer C if she posts
her inquiry to a LISTSERV, whose members may represent
parties on all sides of legal issues.” (Emphasis added.)
What Should a Consulting Lawyer
Do to Minimize the Risks?
Obtain an agreement that the consulted lawyer will maintain
client confidentiality and not engage in representation
adverse to the consulting lawyer’s client.
Considerations for the
Consulted Lawyer
A consulted lawyer assumes no obligations to the consulting
lawyer’s client by virtue of the consultation. However,
even a consultation premised on hypothetical facts can
cause problems. Assume new Lawyer A asks experienced
Lawyer B how a tenant can void a lease. Lawyer B advises
Lawyer A how to proceed, and Lawyer A’s client repudiates
the lease. Lawyer B later learns that the landlord whose
lease was repudiated is a client of his firm. If Lawyer A and
Lawyer B have no confidentiality agreement, Lawyer B must
tell the firm’s client about the consultation and its possible
consequences. If Lawyer A and Lawyer B entered into a confidentiality
agreement, then Lawyer B and his firm would be
disqualified from continuing to represent the landlord.
What Should the Consulted Lawyer Do?
● Get the identity of Lawyer A’s client prior to consultation.
● Run a conflict check.
● Seek an agreement from Lawyer A that the consultation
will not create any obligations by Lawyer B to
Lawyer A’s clients.
Oregon bar members are encouraged to read the opinion
in its entirety. If you need help setting up a conflict of interest
system, contact the Practice Management Advisors at the
Professional Liability Fund for assistance.
Beverly A. MichAelis
PlF PrActice MAnAgeMent Advisor
2-5
June 2011 – Page 2
www.osbplf.org

CHAPTER 3
RECOGNIZING AND REPRESENTING
CLIENTS WITH MENTAL HEALTH
IMPAIRMENTS
Meloney C. Crawford, JD, CADC III, NCAC II, CGAC II
Oregon Attorney Assistance Program
Attorney Counselor
Mike Long, JD, MSW, CEAP
Oregon Attorney Assistance Program
Attorney Counselor
Douglas S. Querin, JD, LPC, CADC I
Oregon Attorney Assistance Program
Attorney Counselor

Chapter 3
RECOGNIZING AND
REPRESENTING CLIENTS WITH
MENTAL HEALTH IMPAIRMENTS
TABLE OF CONTENTS
Page #
OREGON ATTORNEY ASSISTANCE PROGRAM BROCHURE .............................. 3-1
IDENTIFYING AND WORKING WITH IMPAIRED CLIENTS ............................... 3-3

Providing Completely
Confidential Assistance to
Lawyers and Judges for
Over 30 Years
Oregon
Attorney
Assistance
Program
503-226-1057
1-800-321-OAAP (6227)
www.oaap.org
WHAT IS THE OREGON ATTORNEY
ASSISTANCE PROGRAM?
The Oregon Attorney Assistance Program
(OAAP) is a confidential service funded by
the Professional Liability Fund for all Oregon
lawyers and judges. We provide assistance with
and referral for problem alcohol, drug, and/or
other substance use; stress management; time
management; career transition; compulsive
disorders (including problem gambling); relationships;
depression; anxiety; and other issues that
affect the ability of a lawyer or judge to function
effectively. The OAAP is also available to Oregon
law students.
OAAP attorney counselors are lawyers and
professionally trained counselors. As a result,
we are able to establish a unique rapport with
members of the legal community.
COMPLETELY CONFIDENTIAL
All communications with the OAAP are completely
confidential and will not affect your
standing with the Professional Liability Fund
or the Oregon State Bar. No information
will be disclosed to any person, agency, or
organization outside the OAAP without the
consent of the lawyer or judge accessing the
program. Contacts with us are kept strictly
confidential pursuant to ORS 9.568, PLF
Policies 6.150 - 6.300, OSB Bylaw Article 24,
3-1
ORPC 8.3(c)(3), Oregon Code of Judicial Conduct
JR 2-104(c) and Judicial Code of Conduct
for United States Judges Canon 3B(5). The only
exceptions are: 1) to avert a serious, imminent
threat to your health or safety or that of another
person and 2) to comply with legal obligations
such as ORS 419B.010 and ORS 124.060 (child
abuse and elder abuse).
ARE THERE ANY COSTS?
All of our services are free, except for a nominal
fee charged for some workshops and seminars. If
additional professional help is needed, we can serve
as a referral resource.
HOW DO I RECEIVE ASSISTANCE?
Call us. We are here to help.
OAAP ATTORNEY COUNSELORS
Meloney C. Crawford, JD, CADC III, NCAC II, CGAC II
meloneyc@oaap.org
Mike Long, JD, MSW, CEAP
mikel@oaap.org
Douglas S. Querin, JD, LPC, CADC I
douglasq@oaap.org
Shari R. Gregory, LCSW, JD
OAAP Assistant Director
sharig@oaap.org
503-226-1057
1-800-321-OAAP (6227)
OAAP EXECUTIVE DIRECTOR
Barbara S. Fishleder
503-684-7425/barbaraf@oaap.org

Meloney C. Crawford is a graduate of Temple
University School of Law (JD 1981). She was in
private practice for two years, marketed WEST-
LAW products for eight years, and worked for
several years in publishing as a writer and an
editor. In recovery since 1988, Ms. Crawford
joined the OAAP staff in 1999. She is certified
as an Alcohol and Drug Counselor both
nationally (NCAC II) and in Oregon (CADC
III), and is also a Certified Gambling Addiction Counselor
(CGAC II).
Mike Long is a graduate of Hastings
College of Law, San Francisco, Californ
i a ( J D 1 9 8 3 ) a n d Po r t l a n d St a t e
University (MSW 1991). He was in private
legal practice in Portland between 1985 and
1990. Mr. Long worked in alcohol and drug
residential treatment from 1990 to 1991 and
as a therapist and crisis counselor from 1991
to 1993 before joining the OAAP staff in 1994.
He is a Certified Employee Assistance Professional (CEAP) and
a coauthor of Lawyers at Midlife: Laying the Groundwork for
the Road Ahead (Decision Books, Seattle: 2008).
Douglas S. Querin is a graduate of the
University of Oregon (JD 1971) and George
Fox University (MA in Counseling 2006).
He was in the private practice of law in
Portland for over 25 years, working as a trial
lawyer in state and federal courts throughout
the Pacific Northwest. In recovery since
2002, Mr. Querin joined the OAAP staff in
2006. He is a Licensed Professional Counselor
(LPC) and a Certified Alcohol and Drug Counselor
(CADC I). Mr. Querin is the 2008 recipient of the Oregon
Counseling Association Distinguished Service Award.
Shari R . Gre g o r y i s a g r a d u a t e o f
Wu r z w e i l e r S c h o o l o f S o c i a l Wo r k
(MSW 1987) and Rutgers School of Law (JD
1992) and received her certificate of Business
Management from Portland State University
(2003). Her counseling experience includes career
counseling, mental health counseling, crisis
intervention, transition counseling, and alcohol
and drug counseling. She was in private practice
specializing in criminal defense law for four years before
joining the OAAP staff in 1999. She is the assistant director
of the OAAP and a Licensed Clinical Social Worker (LCSW).
3-2
THE OAAP OFFERS HELP FOR…
• Problem alcohol, drug, and/or
substance use
• Recovery support
• Burnout and stress management
• Career transition and satisfaction
• Depression, anxiety, and other
mental health issues
• Compulsive disorders including
gambling, sex, and Internet
addiction
• Procrastination
• Relationship issues
• Retirement planning
• Time management
To speak with an attorney counselor or
for more information:
503-226-1057
1-800-321-OAAP (6227)
www.oaap.org
520 SW Yamhill
Suite 1050
Portland, Oregon 97204

IDENTIFYING AND WORKING WITH IMPAIRED CLIENTS
I. Introduction
1. What is the OAAP and what can they do for me? Frequently Asked Questions about the Oregon Attorney
Assistance Program
a. Doesn’t the OAAP just work with “problem” lawyers?
b. Who needs to know?
c. I might need help, but I’m afraid to ask.
d. I’m concerned about my non-lawyer spouse. Can you help me?
e. What if I’m a law student, or not in Portland?
2. SOME ANSWERS
a. The legal profession can be stressful, and lawyers frequently are affected by the problems of their
clients (secondary trauma). We offer help to lawyers experiencing a variety of issues. We’re a safe,
confidential resource. You can make an appointment to come in or call us on the phone, or even e-mail!
b. We are completely confidential, assured by statutes
i. ORS 9.568; ORPC 8.3(c)(3); OSB Bylaw Article 24; and PLF Policies 6.150, 6.200, and 6.300.
ii. What gets SAID at the OAAP; STAYS at the OAAP. You control the confidentiality. We don’t
communicate with your firm, your spouse, the OSB or anyone else unless you ask us to! We are
excluded from the requirement to report misconduct. In addition, lawyers at OAAP support
groups or other programs that learn about attorney misconduct are exempt from reporting to
the OSB.
c. We are a voluntary program
i. We offer help, brief counseling and referrals to lawyers, but do not force it upon others.
d. We provide services to Oregon lawyers, judges, law students and their family members.
e. We are available statewide; If you can’t come to us, we’ll come to you.
3. What else does the OAAP do?
a. Career Issues -Little known fact: about half of the work we do at the OAAP is career related.
i. Practicing in the Wrong Firm –have a job, wrong fit
ii. Changing Area of Practice –you may not like what you do
iii. Leaving the law behind—doing something different with your law degree
iv. Retirement—might not think about it now, but you could plan for the future
b. Becoming the Best Lawyer you can be
i. “Get it Done” –dealing with procrastination and organization
ii. Stress Management/Mindfullness
iii. Connecting with mentoring and practice management
c. Other Areas of Concern
i. Divorce Support Group
ii. Adult Children of Dysfunctional families
iii. Outside referrals to therapists
4. WHY Do People Call A Lawyer?
a. -injury, lawsuit, divorce, bankruptcy
b. -at best, clients are stressed, anxious
3-3

c. -looking to you for help
d. -other clients, however, present additional challenges
5. Working with the Impaired Client: Overview
a. Recognizing Signs of Impairment
b. Types of Impairment
i. Addiction
ii. Mental Health
c. Working with Your Impaired Client
6. Recognizing Signs of Impairment
a. Don’t have to be a diagnostician
b. Realize that there can be more than one impairment going on
c. Taking time at first can make the long run more productive
II. Working with Clients with Mental Health Impairment
1. Recognizing Mental Health Problems (more common)
a. Mood Disorders:
i. Anxiety
ii. Depression
iii. Bipolar Disorder
b. Personality Disorders
2. Signs of Anxiety Disorder (from DSM IV)
a. Excessive Anxiety or Worry
i. more days than not
ii. at least six months
iii. Irritability
iv. Restlessness, Keyed-up, On edge
v. Muscle tension
vi. Sleep disturbance; easily fatigued
vii. Panic attacks
3. Signs of Depression
a. Feeling Sad, Hopeless, Worthless
b. Loss of interest in activities once enjoyable
c. Difficulty focusing or concentrating
d. Changes in :
i. Energy (agitation or lethargy)
ii. Sleep Habits (insomnia or sleeping too much
iii. Eating (eating too much or too little; losing or gaining weight)
iv. Recurrent Thoughts of Death or Suicide
e. How long?
i. Experienced over two weeks or more,
ii. including at least “a” or “b”
iii. Different from usual mood
iv. Not related to bereavement
v. Causing a problem in everyday work or home life
3-4

4. Signs of Bipolar Disorder (Manic phase)
a. Persistently Elevated Mood: Elated, Euphoric, Expansive
i. Grandiosity, Inflated Self Esteem
ii. Hyper-talkative
iii. Racing thoughts- flight of ideas
iv. Decreased need for sleep, distractible
v. Danger to self & others
5. Personality Disorders
a. Defined as:
i. Enduring Patterns
1. inner experience (perceiving, thinking)
2. and behavior (acting)
ii. Deviating markedly from the expectations of the culture
b. Difficult to change
c. Can find strategies to work with them
6. How to talk and work with clients with mental health impairments:
a. Intake
b. get the big picture
c. reassure
7. Helping impaired clients make it through their case
a. Learn client's medical and mental health history
b. Urge clients to continue medications and treatment
c. Obtain case postponements if clients are too impaired
d. get a release
e. tell the court it is for “health reasons”
f. contact opposing counsel
g. know your judge
8. Tips for Communicating with an Impaired Client
a. Do Not Argue or Confront a “red flag” client
b. Roll with Resistance
i. Emphasize how getting outside help will benefit them
ii. Acknowledge challenges
iii. Focus on strengths
c. Use concrete terms in plain English
i. Avoid “legalese”
d. Talk slowly
e. Ask the client to repeat or rephrase what you told them
9. Have your client professionally evaluated.
a. produces an assessment that your client can --or cannot-- aid and assist
b. can show mitigation
10. USE: Active Listening Techniques
a. Pay attention
b. Show that you are listening
i. Brief acknowledgement (“yes…” “then what happened?”)
c. Provide feedback
i. Restate what you’ve heard
3-5

ii. Ask questions to clarify
iii. Summarize
11. Write Down Times for Appointments, Court Dates
a. Give reminder calls
12. Contract with client to get treatment and /or therapy
a. enables you to focus on their case, rather than personal issues
b. can stabilize with appropriate medication
13. Create a safe environment for your clients
a. treat them with dignity and respect
b. validate their feelings, coach them, be empathetic
c. allow them to cry
14. Depression—suicidal ideation
a. Depression and/or substance use disorders place individuals at high risk for suicide
b. Do not hesitate to ask a depressed client if they are thinking about hurting themselves
c. Do not leave them alone
d. Do they have a plan?
e. Way to carry out plan ?
f. Urge them to seek help
i. doctor
ii. emergency room,
iii. or call 911.
g. Eliminate access to firearms or other means, including unsupervised access to medications.
h. National Hotline: 1-800-273-TALK (8255)
i. toll-free number
ii. available 24 hours a day, every day
III. Working with Clients with Substance Use Disorders
1. Signs of Chemical Abuse/Dependence
a. Failure to fulfill major role obligations
work, school, home
b. Use in hazardous situations
c. Substance-related legal problems
d. Continued use despite adverse consequences
e. Tolerance* (need to use more)
f. Withdrawal* (anxiety, nausea, shakiness, sweating)
2. Recognizing Alcohol/Drug Problems
a. Observe Physical Symptoms:
i. Odor of alcohol, redness or flushing in face
ii. Gastro-intestinal complaints
iii. Shakiness, tremors
iv. Lethargy, sleepiness OR
v. Jumpiness, hyperactive qualities
b. Conduct Casual Interview
c. Ask about problems w/ relationships, school or job, accidents, arrests
i. Then ask about substance use
3-6

3. Action and Referral: Chemically Impaired
a. Advise to Abstain
b. Suggest Assessment by Specialist
c. Suggest Private Counseling
d. Treatment (Inpatient or Outpatient)
e. Support Groups (AA, NA, Women for Sobriety, Smart Recovery, Alcoholics Victorious)
4. Cognitive Impairments
a. Occur with both drug and alcohol use
b. Cause communication problems
c. May be mistaken for opposition
d. Can persist even after substance use has stopped
i. Depending on the amount and length of use
ii. Weeks or months
5. Types of Cognitive Impairments
a. Memory
i. Forgetting appointments
ii. Vague on details
b. Temporal Horizon
i. Difficulty projecting into the future
ii. Problems with time
c. Understanding
i. Over-literal thinking
ii. Not understanding figures of speech and complex terms
d. Fixation on Irrelevant Details
6. Strategies
a. Establish your role
i. Analyze the situation
ii. Provide possible solutions
1. Could include “do nothing”
iii. Give advice on the consequences of the actions
iv. Client decides on course of action
1. Difficult clients may want you do decide for them
2. Don’t do it—have them designate someone else in their life to help
3. Your job is to help them understand the choices
b. Document Thoroughly
i. Including
1. Phone calls
2. Voice mail
3. E-mail
4. Client instructions to you
ii. Keep enough detail to be useful
1. All exchanges related to the matter
2. Client, File name
3. Contact with, date
4. Nature (phone call, meeting, etc)
5. How long
6. Who said what & Instructions given
3-7

c. Stay calm and clear
d. Manage expectations from the start
i. Service
ii. Time
iii. Costs
iv. Results
e. Keep your staff in the loop
7. Final Tips: REMEMBER
a. You can always ask for help
b. Take a team approach to assisting a client with difficult issues
c. Consider what resources are available to you.
d. Call the Oregon Attorney Assistance Program
i. CONFIDENTIAL, EXPERIENCED, FREE
ii. Accessible Statewide
iii. 1-800-321-OAAP (6227)
3-8

CHAPTER 4
“WHO YA GONNA CALL?”
Bruce Lee Schafer
Professional Liability Fund Director of Claims

Permanent Relationship
• Yearly Premium
• Loss Prevention Services
• OAAP Services
• C L A I M S
PLF Claims Staff
• All are attorneys
• All in prior private practice
(minimum 5 years)
• All experienced at PLF
(12 attorneys—over 132 Years at PLF)
1000
4-1
Likelihood of Claim in 2012
• 1,000 Claims
• 400 Incidents
• 1,400 TOTAL
• 7,000 ATTORNEYS
• CHANCES ARE ABOUT 1 IN 5
(20%)
The PLF is Not the Enemy
• Discreet and confidential
• Not judgmental
• Separate from OSB discipline

Client Doesn’t Know
There Is A Problem
• Analyze the problem
• Contact PLF
• Notify excess carrier
• Consider “repair” possibilities
• Consider the ethical issues
• Inform the client
Actual Claim by Client
or Non-Client
• Notify PLF and excess carrier immediately
• Respond p ppromptly p y
C O O P E R A T E
Don’ts
• Don’t try to set aside own default.
• Don’t directly negotiate with client, if
you make a mistake.
• Don’t contact claimant or claimant’s
attorney without first consulting with
PLF.
• Don’t testify in deposition without first
consulting with PLF.
4-2
Informing Client of
Potential/Actual Problem
• Call PLF first
• Facts only
• No opinions
• Recommend independent legal advice
• Discuss ethical issues
• Send confirming letter
Let the Professionals Help You!
• Do not communicate with claimant
or claimant’s attorney without first
consulting PLF or retained defense
attorney. tt
• Accept your role as covered party
and client.
Don’ts
• Don’t set aside own default. Most
likely will be unsuccessful or worse.
• Don’t directly negotiate with client.
Unethical ORPC 11.8(h). 8(h)
• Don’t contact claimant or claimant’s
attorney. More stress. Risk of
admissions. Nothing good.
• Don’t testify in deposition. Set up.
Confidentiality.

UPSIDE • Objective confidential professional
assistance
•Avoid risk to coverage
•Improved repair potential
•Assistance in decision-making
•Reduced risk of ethics violations
4-3
• Confidentiality
• Relieve pressure; avoid isolation
• Avoid making the problem worse
DOWNSIDE

CHAPTER 5
ALTERNATIVE DISPUTE
RESOLUTION – MANDATED AND
VOLUNTARY
Lisa Almasy Miller
Miller Mediation and Arbitration

Chapter 5
ALTERNATIVE DISPUTE RESOLUTION
TABLE OF CONTENTS
I. TYPES OF ARBITRATION ................................................................................................... 5-1
A. Court-annexed (mandatory) ....................................................................................... 5-1
B. Contractual ................................................................................................................. 5-1
C. Voluntary .................................................................................................................... 5-1
II. PROCEDURE IN COURT-ANNEXED ARBITRATION .................................................... 5-1
A. Referral to arbitration ................................................................................................. 5-1
B. Selection of arbitrator ................................................................................................. 5-2
C. Pre-hearing procedure ................................................................................................ 5-2
D. Scheduling of hearing ................................................................................................ 5-2
E. Compensation of arbitrator ......................................................................................... 5-3
F. Pre-hearing statement of proof ................................................................................... 5-3
G. Conduct of hearing ..................................................................................................... 5-3
a. Informality....................................................................................................... 5-3
b. Admissibility of documents, etc ..................................................................... 5-4
c. Miscellaneous .................................................................................................. 5-4
H. Awards ....................................................................................................................... 5-4
a. Form and content............................................................................................. 5-4
b. Filing of award ................................................................................................ 5-4
I. Post-award procedure .................................................................................................. 5-4
a. Error in award ................................................................................................. 5-4
b. Costs and fees award ...................................................................................... 5-4
c. Exceptions to costs and/or fees ....................................................................... 5-5
d. Request for trial de novo ................................................................................. 5-5
e. Judgment on arbitration award ........................................................................ 5-6
f. Procedure at trial de novo ................................................................................ 5-6
g. Consequences after trial de novo .................................................................... 5-6
III. TYPES OF MEDIATION ................................................................................................... 5-7
A. Civil case mediation ................................................................................................... 5-7
1. Court-annexed: ................................................................................................ 5-7
a. Authority: ........................................................................................... 5-7
b. Procedure ............................................................................................ 5-7
c. Enforceability ...................................................................................... 5-8
2. By agreement of the parties ............................................................................. 5-8
a. Authority: ............................................................................................ 5-8
b. Procedure: ........................................................................................... 5-8
B. Domestic relations case mediation ............................................................................. 5-8
1. Court-annexed: ................................................................................................ 5-8
a. Authority ............................................................................................. 5-8
b. Procedure ............................................................................................ 5-8
c. Fees ...................................................................................................... 5-9

d. Pendente lite relief .............................................................................. 5-9
e. Mediation process ............................................................................... 5-9
f. If mediation does not resolve the dispute ............................................ 5-9
2. By agreement of the parties .......................................................................... 5-10
3. CAVEAT: (Domestic Violence) ................................................................... 5-10
C. Ethical Issues in Mediation ...................................................................................... 5-10
IV. PRETRIAL SETTLEMENT CONFERENCES ............................................................ 5-10
A. Authority ................................................................................................................... 5-10
B. Procedure .................................................................................................................. 5-10
C. Technique ................................................................................................................ 5-11
D. Materials ................................................................................................................ 5-11
E. Preparation ................................................................................................................ 5-11
F. Penalties ................................................................................................................ 5-12
G. Ethical Issues in Mediation ....................................................................................... 5-12
V. REFERENCE JUDGES ................................................................................................... 5-12
A. Authority .................................................................................................................. 5-12
B. Procedure .................................................................................................................. 5-12
VI. RESOURCES .................................................................................................................... 5-13
VII. TOP TEN TIPS FOR PREPARING CLIENTS FOR ARBITRATION ..................... 5-14
VIII. TIPS FOR SELECTING AN ARBITRATOR ............................................................ 5-16
IX. MANDATORY ARBITRATION – A SPRINT TO THE FINISH ............................ 5-17
To view these chapter materials and the additional resources below, go to www.osbplf.org, find
the left side of the home page, find CLE, then click on programs on CD/DVD, find Learning The
Ropes, then click on download handout. Program handouts and additional handouts are
organized by chapter.
Additional Resources
Dispute Resolution Department Forms
Request for Settlement Conference
Confidential Settlement Information - Civil Cases
Confidential Settlement Information - Domestic Relation Cases
Multnomah County Supplemental Local Rule 7.075
Certificate of Alternative Dispute Resolution
UTCR Chapter 13 - Arbitration

I. TYPES OF ARBITRATION
A. Court-annexed (mandatory)
1. Statutory basis: ORS 36.400 to 36.425; UTCR Chapter 13
2. a. Civil cases in all counties, where the only relief claimed is
money or damages not exceeding either $25,000 or $50,000 (at the election of the county=s
judges), exclusive of attorney fees, costs and interest on the judgment. Although the statute and
applicable court rules are silent on the issue, most judges also find a case subject to arbitration if
the punitive damages requested make the total greater than the jurisdictional amount.
b. Domestic relations cases in all counties where the only contested issue
is division of property.
B. Contractual
1. Statutory basis: 36.300 to 36.365 and ORS 36.450 to 36.558 (International).
2. May be based on written contract or agreement in writing.
3. Typically apply to commercial, securities, banking, insurance and construction
contracts.
C. Voluntary
1. Parties may agree to utilize procedure in ORS 36.400 to 36.425.
2. ORS 36.410 allows waiver of amount to use court-annexed procedure.
3. Parties may also agree to procedure such as American Arbitration Association
and its rules and rates or any other private group.
II. PROCEDURE IN COURT-ANNEXED ARBITRATION
A. Referral to arbitration
1. (a) UTCR 13.060(1) controls assignment of a case into arbitration. The title of
the pleading must contain either the words AClaim Not Subject to Mandatory
Arbitration,@ or ASubject to Mandatory Arbitration.@ Effective August 1, 2000, a
party indicating that the case is not subject to mandatory arbitration is making a
certification under ORCP 17, and may be sanctioned under that rule for a false
certification.
(b) Any party may file a notice that the case isn=t subject to arbitration; (via a
motion for exemption from arbitration under UTCR 13.070).
(c) The court may order the case removed from mandatory arbitration under ORS
36.405(2).
2. Case may become subject to arbitration after motion practice or if issues that
are not subject to arbitration (such as custody and support) are resolved, leaving
arbitrable issues (such as property and debt allocation).
3. Some Local Rules require party filing pleading making case not subject or
subject to arbitration to notify the court clerk/administrator and filing the
appropriate motion if the transfer is not made automatically (e.g. Multnomah
County SLR 13.035(3)).
4. The defendant may move to transfer case into arbitration after hearing upon
motion supported by affidavits and documentation, if the court finds that Ano
objectively reasonable juror could return a verdict in favor of the claimant in
excess of the amount@ established as the maximum for the jurisdiction ($25,000 or
$50,000). ORS 36.415 (2). [Logically, a plaintiff could apply for the same transfer
into arbitration for a counterclaim which meets the same test.]
5. In small claims proceedings referred to arbitration, the plaintiff is required to
file a complaint with the court, and serve by mail a summons and copy of the
complaint on the defendant, and is not limited to the small claims amount but
must relate to the small claims controversy. The defendant must then file an
appearance within 10 days. ORS 46.465. Since the amendments of the 1997
5-1

Legislature, small claims may be referred to mediation, if the court has a program,
rather than arbitration.
6. In small claims proceedings filed after 9/9/95 referred to arbitration, the parties
may not be represented by attorneys in an arbitration unless a counterclaim filed
by the defendant under ORS 46.461. ORS 46.415(4)
B. Selection of arbitrator
1. The parties may select an arbitrator by stipulation. UTCR 13.080(1)
2. The court furnishes a list of proposed arbitrators, and each judicial district has
Supplemental Local Rules (SLR) that governs procedure.
3. An arbitrator must be assigned within 19 days of referral to arbitration. UTCR
13.080(3)
4. Some Local Rules allow issuance of a second list of arbitrators if one or more
listed attorneys have conflicts, decline to serve or there are more than two parties
to the arbitration. Some Local Rules allow the judge to select the arbitrator if
parties disagree. (e.g. Multnomah SLR 13.055(5)).
5. Attorneys should review any information in court file regarding arbitrator if the
arbitrator is an unknown quantity, and ask others regarding the proposed
arbitrator=s qualifications, etc.
C. Pre-hearing procedure
1. Arbitrator=s general authority is found in UTCR 13.100.
2. Arbitrator handles all motions, including motions for Summary Award except
whether the case is subject to arbitration or the arbitrator=s qualifications. UTCR
13.100(1).
3. CAUTION: Some SLRs, such as Multnomah SLR 13.042, provide that if the
first appearance by a defendant is a motion directed to the complaint or a
dispositive motion, it shall be heard by the court before the case is referred to
arbitration. But if the case has already been referred to arbitration prior to the
filing of such a motion, the arbitrator shall hear it. (The purpose of this is to avoid
unnecessary expense if the case is just going to be dismissed anyway.)
4. Arbitrator=s determination of motions applies only during arbitration, but if the
arbitrator=s decision on a pretrial motion will prejudice a party on trial de novo
(such as waiver of a privilege or discovery of privileged materials), the court has
authority upon appropriate motion. UTCR 13.030(3)
D. Scheduling of hearing
1. Hearing must generally be held within 49 days from selection of arbitrator.
UTCR 13.160(1), however, this time frame may be revised pursuant to
Supplemental Local Rules. For example, Multnomah County’s Supplementary
Local Rule 13.1665 provides that a hearing must be scheduled to take place not
later than 91 days from date of assignment to arbitration.
2. The arbitrator controls the scheduling of the hearing, and must concur in a
stipulation to postpone the hearing. UTCR 13.160(2). Judge must approve
continuance beyond 49 (or in Multnomah County, 91) days from selection of
arbitrator. See accompanying article concerning the policy in Multnomah County
about the scheduling/rescheduling of arbitrations in light of the new civil case
management program.
3. Although court administrator may give notice of impending dismissal for
failure to comply with court rules regarding scheduling, notice of selection of
arbitrator and date of hearing, get a court order approving scheduling beyond 49
days to avoid potential malpractice. Opposing party may Alie in the weeds@ and
then argue the case should be dismissed with prejudice (without leave to reinstate
or refile).
5-2

E. Compensation of arbitrator
a. Hourly rate of arbitrator and maximum fees are set by Arbitration Commission
in each county. UTCR 13.120(1) The arbitrator may suggest higher fees or more
require more hours than the Commission has approved, and if the parties
disagree, the court decides. UTCR 13.120(3)
b. Each party is required to tender a pro rata share of the preliminary payment
within 14 days of the arbitrator=s appointment. UTCR 13.120(2). Note that the
arbitrator cannot allow a party to appear or participate in a hearing if they have not
paid their share of the arbitration fee. ORS 36.400(4).
c. In the event the fee exceeds the tender, the arbitrator is to refund the balance
and account to the parties. Id.
d. Many arbitrators charge for the time spent hearing motions, dealing with
scheduling, and reading materials prior to hearing, even if case settles prior to
hearing. Moral of story: Notify arbitrator of settlement as early as possible; settle
case before fees and other documents submitted.
e. If a party is indigent, ORS 36.420 allows waiver in whole or in part, deferral in
whole or in part, or both, of the fees required of any party. If the fees are waived,
the arbitrator may be paid out of a (small) fund administered out of the State Court
Administrator=s office. Any deferral or waiver must be obtained before the
arbitration hearing, with a certified copy being presented to the arbitrator. UTCR
13.120(3) Obviously, if a fee is waived or deferred for one party, and another
party is then required to pay the fee as a part of the cost bill, distribution of the
sums collected should be allocated based upon who actually paid.
f. CAVEAT: If an attorney representing a party doesn=t collect and forward the
fee to the arbitrator, the court may hold the attorney liable for them, even though
ORS 36.420(3) says it is the obligation of a party. If the case is subject to
arbitration, get those funds in trust before signing on as trial attorney.
F. Pre-hearing statement of proof
a. Due to arbitrator and all other parties at least 14 days prior to date of
arbitration. UTCR 13.170.
b. Comprehensive list of exhibits, witnesses and scheduling issues that will
impact the arbitration.
c. A party failing to comply with UTCR 13.170(1) may not present at the hearing
any witness or exhibit required to be disclosed or made available, except with the
permission of the arbitrator. UTCR 13.170(2) Most arbitrators will give some
latitude, especially for rebuttal witnesses, but such is rare.
d. TIP: Since these rules allow the other party, upon request, to inspect and copy
the other party=s exhibits, take time before the hearing to see what evidence awaits
you, and what you might not have to produce yourself. This is a far more liberal
policy than state court procedure generally.
e. Parties are also required to furnish the arbitrator, on same timetable as Prehearing
Statement of Proof, copies of the pleadings and other relevant court file
documents. UTCR 13.170(3)
G. Conduct of hearing
a. Informality
i. Hearings are designed to be informal and expeditious, but the arbitrator
sits in the same position as a judge hearing a case without a jury: the
arbitrator is to exercise reasonable control over the mode and order of
witnesses and evidence presentation. UTCR 13.180
ii. The hearing may be recorded electronically or otherwise by any party or
by the arbitrator, but the cost of such recording is not recoverable on the
cost bill. UTCR 13.180(3) TIP: You may wish to record the hearing if
5-3

you=re concerned about the continuing availability of a witness, or believe
you can obtain impeaching testimony which might be helpful in trial de
novo.
b. Admissibility of documents, etc .
i. Subject to their being listed in the prehearing statement of proof ,
virtually all documents which might otherwise be excluded as hearsay are
admissible in arbitration. UTCR 13.190
ii. Even if not listed, if an exhibit has Acircumstantial guarantees of
trustworthiness,@ the arbitrator may admit it. UTCR 13.190(2)(g)
iii. The party introducing a document need not call the author, and the
opposing party may subpoena the author or maker, at that party=s own
expense, for cross-examination. UTCR 13.190(3)
c. Miscellaneous
i. Arbitration proceedings are open to the public, and the arbitrator is
charged with notifying the court of the date and continuances of the
hearing. ORS 36.420(2), 36.42(1), UTCR 13.160(2)
ii. Any party may record or report the hearing. UTCR 13.180(3)
H. Awards
a. Form and content
i. Award must be in writing on court-prepared form, signed by arbitrator.
UTCR 13.210(1)
ii. Findings of fact, conclusions of law and written opinions are not
required, but often are helpful in a complicated or high emotion case.
UTCR 13.210(3)
iii. Must be sent to all parties within seven (7) days of conclusion of
hearing, and arbitrator shall establish procedure for determining attorney
fees and costs. UTCR 13.210(5)
iv. For post 9/9/95 cases, any decision and award that require the payment
of money must comply with ORCP 70 A(2)(b). ORS 36.420(3)
b. Filing of award
i. Filed within 14 days of conclusion of arbitration hearing, unless an
extension of time has been requested by arbitrator and granted by court
administrator. UTCR 13.220
ii. Arbitrator may file and serve an amended award only Ato correct an
obvious error made in stating the award@ if done within the time for filing
an award, or upon application of the court to amend. UTCR 13.220(3)
I. Post-award procedure
a. Error in award
i. Arbitrator may correct obvious error in award if done within 14 days of
conclusion of arbitration hearing. UTCR 13.220
ii. Arbitrator may only amend award after that time with approval of
court. Id.
b. Costs and fees award
i. The arbitrator has the authority to determine costs, fees and interest.
UTCR 13.100(10). ORS 20.190 (2), (7) allows the prevailing party a
prevailing party fee of $275.00.
ii. The award must include costs and attorney fees Awhere allowed by
applicable law,@ and interest (prejudgment and postjudgment) UTCR
13.190(4). Koster Remodeling & Construction, Inc. v. Jataka, 155 Or App
142 (1998) interprets an arbitration proceeding as a Asuit or action,@
allowing the arbitrator or court to award attorney fees under a contract
provision containing such language.
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iii. For guidance on attorney fee cases involving self-insurers and UIM
benefits, see Haynes v. Tri-Met, 161 Or App 555 (2003); for proof of loss
under ORS 742.061, see Foust v. American Standard Insurance Co., 189
Or App 125 (2003).
c. Exceptions to costs and/or fees
i. Exceptions only involve attorney fees and/or costs and does not affect
the award made on merits of case ORS 36.425(6)
ii. Either mechanism must be filed with the trial court administrator and
served on other parties within 7 days of filing of award. It asks the court
either to award a different amount of attorney fees or costs (more or less),
or that the court vacate or award attorney fees when the arbitrator=s
judgment is challenged in making or failing to make any award. Failure to
file the challenge/exceptions waives use of this section.
iii. The party opposing the challenge, if any, has seven days from the
filing of the challenge/exceptions to file a response with the court and
serve it on all parties. Failure to file a response waives the respondent=s
ability to argue regarding the challenge/exception.
iv. The court has 20 days from the filing of the decision and award (NOT
the challenge/exception) to rule on the motion; failure to rule on the
motion within that time is deemed a denial of the challenge. Id. See
Loving v. Portland Postal Employees Credit Union, 124 Or App 373
(1993) and Sylvester v. Abdalla, 137 OrApp 26 (1995).
v. Under Koster Remodeling & Construction, Inc. v. Jataka, supra, the
trial court is not required to give any deference to the arbitrator on any
questions of law on entitlement to attorneys fees.
vi. TIP: Since the cost bill and affidavit for arbitration are often not filed
in the court file, a party challenging/excepting to attorney fees and/or costs
should attach those to the challenge/exception so the court knows what the
argument is about.
vii. TIP: Neither the rule nor the statute require a hearing on the
challenge/exception, so don=t request one. Ashley v. Garrison, 162 Or App
585 (1999).
viii. Even though the arbitrator=s underlying award is not challenged, and
exceptions are made to an award of attorney fees and/or costs under ORS
36.425(6), a party dissatisfied with the court=s action on such exception
may appeal from the judgment, with appellate review limited to the
attorney fee issue. Deacon v. Gilbert et al, 164 Or App 724, 995 P2d 557
(2000).
d. Request for trial de novo
i. A party against whom the award was filed or a party whose claim for relief
was greater than that awarded may request a trial de novo before the circuit
court. ORS 36.425( 2).
ii. The request must be in writing and file with the clerk a written notice of
appeal and request for trial de novo on all issues, with proof of service on all
parties. Id., UTCR 13.250(2)(a)
iii. When cases are consolidated for arbitration, and if a party requests a trial
de novo within 20 days of the filing of the arbitration award, any other party
may also file a request for trial de novo within 20 days of the filing of the
award or within two judicial days after the service of the initial request for
trial de novo. UTCR 13.250(2)(b).
iv. A party requesting a trial de novo must deposit with the clerk the sum of
$150 (or obtain a waiver or deferral of such fee) ORS 36.425(2)(c)
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v. A party is entitled to a trial de novo even if such party did not appear at or
participate in the arbitration. Main Street Asset Corp. v. Cunningham, 98 Or
App 346 (1989); Krause v. Andersen, 108 Or App 191 (1991); Treverton v.
Arnold, 188 Or App 461 (1993), and Monroe v. Harmon. 158 Or App 196
(1999).
vi. The filing of a premature request for trial de novo (before the arbitrator
files the award) is a valid request, and the court must act on it. Ray Klein, Inc.
v. Preheim, 178 Or App 71(2001).
vii. The filing of a request for trial de novo is subject to ORCP 10 C; 3 days
will be added to the 20 days if service of the request is made by mail. Guess
v. Lee, 198 Or App 304 (2005).
e. Judgment on arbitration award
i. If no party files a request for trial de novo, the award becomes a final
judgment of the court. ORS 36.425(3), UTCR 13.240
ii. The court may set aside a judgment upon an arbitration award, but may not
do so for the sole purpose of extending the time for appeal. Old Republic
Surety Co. v. McIlwain, 115 Or App 615 (1992).
iii. A judgment upon an arbitration award is not appealable. Loving v.
Portland Postal Employees Credit Union, supra.
iv. An order denying a motion for relief from a judgment entered in an
arbitration award is appealable, even though the judgment itself was not
appealable, since no request for a trial de novo had been filed within the
requisite 20 days. Green Seasons Turf v. Shiva=s, 125 Or App 227 (1993).
f. Procedure at trial de novo
i. If a trial de novo is requested, the arbitration award is sealed, is not known
to the judge nor jury, and is not opened until after the factfinder has rendered a
decision. UTCR 13.260
ii. TIP: Nothing in the statute or rules preclude the fact of an arbitration from
being disclosed nor any evidence or testimony being brought up or used in the
trial de novo.
g. Consequences after trial de novo
i. If a party Aappealing@ the award improves the position at trial over the
arbitration award, the $150 deposited with the request for trial de novo is
returned (ORS 36.425(c)).
ii. If a party appealing the award improves the position at trial over the award,
the court rules on attorney fees and costs under ORCP 68.
iii .If a party appealing the award does not improve its position, the party is
not entitled to its own attorney fees (if available by law or contract) and shall
be taxed the reasonable attorney fees and costs of the other parties, whether
incurred before or after the arbitration. If a party appealing the award does not
improve its position, and it had no entitlement to attorney fees or costs by law
or contract, the party shall be taxed the reasonable attorney fees and costs of
the other parties incurred after the filing of the arbitrator=s award. ORS
36.425(4) CAUTION: The Legislature used only the terms Aplaintiff@ and
Adefendant@ in its amendments. It is assumed that Aplaintiff@ will be
interpreted as a party demanding affirmative relief, such as a complaint or a
counterclaim or crossclaim, and a Adefendant@ will be interpreted as a party
defending against a claim for affirmative relief.
iv. Any award of attorney fees under subsection (iii) by the court shall not
exceed 20% of the judgment if it is the defendant who failed to improve its
position, or 10% of the amount claimed in the complaint, if it is the plaintiff
who failed to improve its position. See CAUTION in preceding paragraph.
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III. TYPES OF MEDIATION
v A party whose position was not improved may not recover attorneys fees
incurred before the filing of the arbitration award, and is responsible for the
other party=s or parties= attorney fees, costs and disbursements incurred after
the filing of the award, in amounts set forth under subsections iii. and iv,
supra. In addition, for purposes of determining whether a party has improved
its position at trial, the court shall not consider any money judgment or other
relief granted on claims asserted by amended pleadings made after the filing
of the decision and award of the arbitrator. ORS 36.425(7).
vi. TIP: If you=re plaintiff=s attorney, don=t overstate your damages in the
complaint, or you=ll risk 10% of it for attorney fees if you lose. If you=re
defendant=s attorney, don=t appeal an arbitration award unless you=re prepared
to lose an additional 20% of the judgment if you don=t Aguess right.@
vii. In small claims proceedings, if the defendant who requested a jury
trial does not prevail, the court shall award to the plaintiff reasonable attorney
fees. Unless authorized by contract or statute, the attorney fees awarded may
not exceed $1,000. If the defendant asserted a counterclaim requiring transfer
to circuit court, and the defendant does not prevail, the court shall award
reasonable attorney fees to the plaintiff. ORS 46.465(4) and (5).
viii. In an unpublished opinion, the Supreme Court refused to award attorney
fees in a wage claim appeal in addition to those allowed under ORS
36.425(5)(b). Suehs v. Value Mobile Homes, Inc. SC S45022 (October 9,
1998.) The Court of Appeals has held that a party may not recover attorney
fees on appeal, if that party has obtained judgment for the maximum attorney
fees allowed under ORS 36.425(4)(b) and (5)(b). Williams v. Cabinet
Masters, Inc., 335 Or 49 (2002).
A. Civil case mediation
1. Court-annexed:
a. Authority:
i. ORS 36.100 to 36.190; model SLR (adopted in Douglas and Jackson
counties; recommended by Multnomah Bar Association for
Multnomah County in slightly different form); and Oregon
Administrative Rules (OAR) 718-40-000 to 718-40-110
ii. Multnomah County SLR 13.075 (for arbitration-eligible cases)as an
alternative to arbitration
b. Procedure
i. In counties which have adopted universal mediation of all civil cases
(or a smaller class of civil cases), the court may refer any circuit court
case to mediation. A party may object to the referral to mediation, and
the court shall remove it from mediation. ORS 36.185. The court may
send out a list of potential mediators and assist the parties in selecting
the mediation, or the parties may select a mediator by agreement. ORS
36.190(2), 36.200(2) and (3).
ii. If the court maintains a list of mediators, they must qualify for the
list per ORS 36.200 and the Oregon Administrative Rules (OAR),
supra.
ii. The parties arrange for a mediation at a mutually convenient time
and place, with fees either being the going rate for the mediator or, if a
civil mediation program is in place, being set by the Mediation
Commission under the jurisdiction=s Supplemental Local Rule. ORS
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36.200(4).
iv. Unless agreed to in writing by the parties, the parties= legal counsel
shall not be present in mediation sessions, but may be included in
mediation discussions at the mediator=s discretion, with the consent of
the parties. ORS 36.195 (1) and (2).
v. Court mediators are to encourage parties to obtain legal advice and
review of documents prior to signing a mediated agreement. ORS
36.195 (4); RPC 2.4 (Lawyer Serving as Mediator)
vi. During the period of mediation, all trial and discovery times and
requirements are tolled and stayed, effective on the date of the referral
to mediation. The court has discretion to retain existing pretrial order
dates, trial dates or dates relating to temporary relief, even though the
case is in mediation. ORS 36.190(3).
vii. If an agreement is reached, the mediator is to notify the court
within 10 days of the completion of the mediation. If the parties do not
reach agreement, the mediator is to notify the court of that fact, but
cannot make a recommendation as to the resolution of the dispute
without the written consent of all parties or their attorneys. ORS
36.195(5).
c. Enforceability : In Kaiser Foundation v. Doe, 136 Or App 566 (1995),
mod 138 Or App 428 (1996), rev den 324 Or 394 (1996), the Court of Appeals
upheld the enforceability of an oral agreement reached in mediation. The
Court held that the attorney accepting the settlement offer on behalf of his
client had authority; that it was not conditioned on the agreement being
reduced to writing, and that the Memorandum of Agreement was clear enough
for enforcement.
2. By agreement of the parties
a. Authority:
i. ORS 36.190(1) by written stipulation of the parties prior to trial
ii. The parties= contract may provide for mediation, either prior to
filing of a lawsuit, or as a condition to proceeding with litigation.
b. Procedure:
i. Upon identification of a dispute, either party may suggest mediation,
or may seek, as a method of enforcing a contract provision, court
assistance in mandating a mediation.
ii. Typically, if the contract containing a mediation clause does not
specify a procedure, the parties will use a private mediation service,
whose procedure and fees are used. Resources for mediators are in the
Oregon State Bar Dispute Resolution Section directory, directories
published by the Oregon Mediation Association, and the yellow pages.
B. Domestic relations case mediation
1. Court-annexed:
a. Authority :
i. ORS 107.755 to 107.785; SLR in judicial districts with mediation
programs (most SLR are in chapter 13)
ii. ORS 107.179 (for joint custody)
iii. OAR 718-30-000 to 718-30-100, and 718-40-000 to 718-40-120.
b. Procedure :
i. Upon filing of a petition for dissolution, separation, annulment,
filiation or an original custody proceeding, the clerk will check to see
if there any minor child(ren) whose custody, parenting time or
5-8

visitation is or may be in dispute. Except for domestic violence cases,
temporary custody cases, or upon a finding of good cause, the court
must require all cases involving custody, parenting time or visitation to
attend a mediation orientation session prior to a court hearing. Each
circuit court must provide mediation services for such cases. ORS
107.555 Also, many SLR require a return to mediation if a
subsequent motion to modify custody or visitation is filed. Some
counties allow mediation without the filing of a motion for
modification, if the mediable issue is parenting time or visitation, not
custody.
ii. In some counties, the mediator(s) is/are employees of the county,
the county mental health division or on contract to the county to
provide those services. In other counties, the parties may be required
to seek out mediators to attempt to settle custody and visitation.
iii. The court clerk may advise the parties to make arrangements with
the mediator for the initial session; or the county may have a rule
which requires that the parties attend an orientation session, either by
the mediator or a judge. The parties are then seen in mediation
immediately, or on a subsequent day.
iv. Some courts may also provide and maintain a list of mediators for
financial issues, whose mediators must meet qualifications required
under the Oregon Administrative Rules.
c. Fees
i. In counties in which the mediation service is a part of the county
structure, the fee arrangement may vary. One or two sessions may be
free, with any other ones requiring payment of a per hour cost.
ii. In other counties, the entire mediation process is Afree,@ although the
increased filing fees will have covered that cost.
d. Pendente lite relief
i. If the local rule precludes a court hearing until mediation has been
attempted, it may also allow a party to seek immediate relief if there is
abuse or actual or threat of taking the child out of the jurisdiction.
ORS 107.555
ii. ORS 107.097 is applicable to pendente lite ex parte relief.
e. Mediation process
i. Most domestic relations mediators do not have attorneys involved in
the mediation. However, in special circumstances or where both
parties wish legal representation, attorneys may participate with the
agreement of all, including the mediator.
ii. If the parties have not had attorneys involved in the mediation, and
the mediator types up the form of their agreement, they are responsible
for having their attorneys review the agreement. ORS 107.765. In
some counties, the agreement doesn=t become binding until both
parties have signed it; in other counties, the agreement is signed by the
parties and sent to the court for signature unless a party revokes it prior
to the court=s signing.
f. If mediation does not resolve the dispute
i. If no settlement is reached after mediation, the mediator reports that
fact to the court and to the parties= counsel, but may not make a
recommendation to the court on the issue of child custody or visitation
unless the parties or their counsel consent in writing. ORS 107.765(2).
ii. All communications made in mediation proceedings are
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confidential, and the mediator may not be called to testify without the
parties= consent. ORS 107.179(4), 107.785.
iii. In some counties, if the mediation is unsuccessful, another mental
health counselor may conduct a custody or visitation study, to
recommend the appropriate disposition by the court. Nothing said in
the mediation sessions should be available to the individual conducting
the study.
2. By agreement of the parties : The parties may agree in a marital settlement
agreement or elsewhere, that any subsequent controversies over visitation or custody
shall first be submitted to mediation. In lieu of a procedure different from that
outlined above, the court-annexed procedure is typically used.
3. CAVEAT: There is concern that unrepresented litigants in mediation, whose
relationship with the other litigant has been marked by domestic violence, will be
disadvantageous to the battered partner. Issues include concerns for the party=s
safety and welfare during and after the mediation session, concerns about the
equality of bargaining positions, and the safety of the mediator. At the very
least, mediation sessions should be held in a safe place, such as the courthouse, so
security is available before, during and after the mediation session, if needed.
Any mediation plan adopted by a circuit court must address domestic violence
and intimidation issues.
C. Ethical Issues in Mediation
1. DR 5-106 allows attorneys to serve as mediators, and outlines the measures an
attorney mediator must follow to insure understanding of the participants.
2. Formal Ethics Opinion 2002-167 requires that an attorney mediator resign if a
party attempts in mediation to withhold certain information from another party. In
addition, an attorney mediator must be >competent= in the area(s) of law applicable to
the controversy.
IV. PRETRIAL SETTLEMENT CONFERENCES
A. Authority:
1. UTCR 6.200; ORCP 54 F
2. Supplemental Local Rule 6.012 (if applicable in that judicial district)
B. Procedure
1. If the judicial district has adopted a specific procedure for all or a type of case in
the district, that procedure will be set forth in the SLR 6.012. However, the rule may
not indicate the various techniques and preferences among the judges, if it is a multijudge
district. It may also not specify which type of cases, civil, domestic relations,
juvenile and/or criminal, are subject to either mandatory or voluntary settlement
conferences.
2. Mandatory conferences: The judicial district may have a rule which requires a
pretrial settlement conference before a judge in every case proceeding to trial,
typically within 45 to 90 days before the scheduled trial date. If it is a pretrial
conference under UTCR 6.200, however, the conference may be for purposes other
than settlement of the case, including discovery, scheduling, stipulations, etc. A
conference mandated under SLR 6.012 is more specifically designed for discussion of
settlement, although other matters may be addressed. Under ORCP 54F, any party or
the court on its own motion may schedule a conference, preferably before a judge
other than the one before whom the case will be tried.
3. Voluntary conferences: Even in judicial districts without an SLR, one or more
judges may be willing to host a settlement conference in specific cases. Or, the SLR
may indicate that a judge will be made available upon the request of a party, or by
5-10

stipulation of all of the parties.
4. Quasi-voluntary conferences: A conference under SLR 6.012 may require that, if
one party requests a conference, absent good cause to the contrary, the court will
require that all parties attend at least one conference. If the conference must be
continued to another date, that may be with the agreement of the parties.
5. If the court schedules conferences in all or a type of case, the clerk will send out
notices when the court is available. In districts where conferences are voluntary or
quasi-voluntary, one or more parties must request a conference, and cooperate in
scheduling it at the convenience of the parties and availability of the court.
C. Technique
1. Many judges conduct settlement conferences in the same fashion as mediators.
That is, they meet with all the litigants and their attorneys (and adjusters, if insurance
is applicable) initially and listen to each side explain his or her case. The judge then
breaks into caucuses, and hears each side=s views in confidence. The judge then
typically moves between the groups, conducting Ashuttle diplomacy.@
2. Other judges first meet with the attorneys, then the attorneys and their clients, and
occasionally have everyone meet together during the course of the conference.
3. A third group of judges do not like (or feel comfortable with) meeting the litigants,
and focus their energy only on the attorneys.
4. Knowing which of the above (or other methods) is that preferred by the assigned
judge is critical to utilizing the conference process successfully. TIP: If there are
particular facts or factors which make one technique preferable to another, let the
judge know prior to the conference. For example, if your client is paranoid or
particularly savvy, the judge may wish to adjust the order of meeting with the
parties, or the manner in which the discussions are held.
D. Materials
1. Some judges have specific forms to capture the important facts and details of the
lawsuit, particularly ones which would not be available from reading the court file.
Most judges do not want or require copies of any pleadings in the file. See Request
Form for Settlement Conference from Judge Kristena LaMar, Confidential Settlement
Information Form – Civil Cases from Judge Kristena LaMar and Confidential
Settlement Information Form – Domestic Relations Cases from Judge Kristena LaMar
(all of the forms are self-explanatory and are available as resources on the PLF
Website, www.osbplf.org, click on NEWS.)
2. Any documents or information submitted to the judge are not filed in the court file
(although some attorneys slide over that, and file them with the clerk. Not a good
idea if they contain anything confidential.) Information conveyed to the judge in
caucus (without the other side present) is to be held confidential by the judge until and
unless its disclosure is authorized to the other side(s). TIP: Just in case there might
be opportunity for misunderstanding, be sure to mark the information Confidential;
Not to be Disclosed to Any Person but the Court, so there is no inadvertent spilling of
beans.
3. If there are trial exhibits, photographs, medical reports, accident reports or other
salient documents, append them, and be sure they are returned at the conclusion of the
conference, if needed. TIP: Do not include illegible documents, papers already
appended to pleadings, or unedited depositions. Summarize (faithfully and
accurately) long depositions; highlight portions of documents whose existence or
interpretation are critical to contested issues in the case.
E. Preparation
1. Facts. It is important that counsel have the amount of liens, medical expenses,
wage loss, and other financial data summarized accurately prior to the conference. If
not already provided, bring copies of bills and statements.
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2. Parties. Often, it is critical to settlement of the case that persons other than the
named litigants attend the conference. These include lien holders, friends and
relatives whose input is necessary to achieve settlement, and occasionally experts
whose opinions are needed. The latter include child psychologists in child custody
cases, structured settlement experts in large personal injury cases, and accountants in
partnership dissolution disputes, as examples.
3. Clients. The judicial system is a large, frightening unknown to all but the most
sophisticated litigants. It is usually intrusive, often expensive, and always
unpredictable. A judicial settlement conference, like other forms of alternative
dispute resolution, is no different. The roles of the attorneys and the judge are
unclear, and parties may fear that their statements will be used in a trial setting. TIP:
If possible, get your client a tape of a sample settlement conference. If that is not
possible, spend some significant time preparing them for what will happen, who will
be in attendance, and the alternatives if the case does not settle at the conference.
Prepare them for the need to negotiate, and establish what the client=s goals are in
settlement, taking into account the costs and risks of trial.
4. Judge. Each judge brings a different style, background and set of preferences to a
settlement conference, just as in the courtroom. TIP: Get to know the preferences of
the judge in whose presence the conference will happen. If possible, tag along with a
more experienced attorney at a conference, and don=t hesitate to ask questions of the
judge and his or her staff.
5. Preliminary discussions. At least one county (Multnomah) has an SLR which
requires that the parties (through counsel) have attempted to negotiate the case to
resolution, and have reached an impasse, before requesting a conference. TIP: Pick
up the phone or pen, and make an overture toward settlement before you think of
court (or private mediator) involvement. Negotiation has been around longer than
mediation, and it has worked for centuries. Try it!
F. Penalties
1. Some Supplemental Local Rules (Multnomah County SLR 7.075, for example)
permit the sanctions to be imposed for a misuse of ADR mechanisms. See copy of
rule, attached.
2. In Jones v. Emerald Homes, Inc., 188 Or App 471, rev den 336 OR 125 (2003), the
Court of Appeals affirmed the trial court award of an enhanced prevailing fee under
ORS 20.190(3) for the defendant=s failure meaningfully to participate in judicial
settlement conferences, and for failure to make a reasonable offer.
G. Ethical Issues in Mediation
1. Since judges are attorneys, arguably they are required to comply both with the
Code of Judicial Conduct, and the Code of Professional Responsibility.
2. DR 5-106 allows attorneys to serve as mediators, and outlines the measures an
attorney mediator must follow to insure understanding of the participants.
3. Formal Ethics Opinion 2002-167 requires that an attorney mediator resign if a
party attempts in mediation to withhold certain information from another party. In
addition, an attorney mediator must be >competent= in the area(s) of law applicable to
the controversy.
V. REFERENCE JUDGES
A. Authority : ORS 3.300 et seq
B. Procedure :
1. A reference judge is an attorney (or retired judge) approved by the Supreme Court
5-12

VI. RESOURCES
to act as a regular judge, sitting without a jury. ORS 3.300.
2. Reference judges are used most often when (1) the docket is backed up and a
speedy (or firm) trial date is unlikely or (2) the expertise of a particular person will be
helpful in resolution of the case.
3. When it is agreed that a reference judge should hear the case, the parties can either
request assignment by the presiding judge of a judicial district, or contact the
reference judge directly. ORS 3.305.
4. Scheduling of the trial, and arrangements for a place and court reporter are made
by the reference judge. The parties may have the proceedings recorded by audio tape
in lieu of a court reporter. ORS 3.311(5).
5. A reference judge may apply contempt sanctions to any person subpoenaed by the
parties to a hearing, except may not impose punitive sanctions. ORS 3.311(7).
6. Within 20 days of the conclusion of the hearing, the reference judge mails copies
of the proposed written report, and the parties have 10 days thereafter to object and
suggest modifications or corrections. A hearing may be held on the objections or
suggestions. ORS 3.315.
7. After the objections are resolved, the judge files the original report with the
presiding judge, and any judgment based upon the report has the same effect as a final
judgment of the circuit court, and may be appealed. ORS 3.315(7).
8. The compensation of the judge and the expenses of trial are to be estimated and
deposited prior to the hearing, with disbursements made by the clerk to the judge.
Compensation is, unless agreed otherwise, the same rate as about a day of a circuit
judge=s salary (5% of the gross monthly salary or $355 per day). ORS 3.319.
A. "Alternative Dispute Resolution Deskbook", published by the Oregon Judicial Conference, found
in many law libraries. Contains a compilation of the local supplemental rules in each judicial district
with ADR programs, as of February, 1997.
B. Arbitration and Mediation Handbook (Oregon CLE 1996 Rev and Supp 2008). Includes chapters
on Mediation (civil and domestic relations), Procedures to Compel Arbitration, Evidence in
Arbitration, Judicial Enforcement and Review of Arbitration Awards and Arbitration under
PIP/UM/UIM Provisions in Automobile Insurance Policies.
C. Civil Litigation Manual (Oregon CLE 2004 Rev and Supp 2009). Includes chapter on practice in
civil cases on Negotiation and Settlement.
D. Civil Pleading and Practice (Oregon CLE Rev 2006). Includes chapters on Arbitration and
Mediation.
E. Family Law (Oregon CLE Rev 2002 & Supp 2008). Includes chapter on Mediation.
F. Federal Civil Litigation in Oregon (Oregon CLE Rev 2009) Includes chapters on Settlement
Conferences and Settlements, and Alternative Dispute Resolution.
G. Request Form for Settlement Conference from Judge Kristena LaMar (available as a resource on
the PLF Web site, www.osbplf.org. click on NEWS)
H. Confidential Settlement Information Form - Civil Cases from Judge Kristena LaMar (available as
a resource on the PLF Web site, www.osbplf.org. click on NEWS)
I. Confidential Settlement Information Form - Domestic Relation Cases from Judge Kristena LaMar
(available as a resource on the PLF Web site, www.osbplf.org. click on NEWS)
J. Multnomah County Supplemental Local Rule 7.075
K. Certificate of Alternative Dispute Resolution from Multnomah County Circuit Court (this form is
in the Multnomah Supplemental Rules in the appendix)
5-13

TOP TEN TIPS FOR PREPARING CLIENTS FOR ARBITRATION
1. Take the time to explain to your client what to expect in arbitration. Remember
that this is probably the first time the client has ever been through something like
this. In the client’s mind, arbitration is akin to going to court. What is routine
for the lawyer, is nerve-wracking for the client. Nervous, edgy clients tend to
make mistakes while testifying. This may adversely impact their credibility.
You want your client to be able to make their very best “appearance” as a
witness.
2. Take the time to go over the complaint (or answer) allegations with your client.
All too often, clients have no idea what their lawyers alleged on their behalf.
They get very confused when they are asked on cross-examination: “Isn’t it a fact
you are alleging…?” Your client should know what “their” position is before
the hearing. (By going over the allegations ahead of time, you might even
discover that your position varies from your client’s.)
3. Be sure your client has a copy of his/her deposition prior to the hearing and has
reviewed it. Explain how the deposition is likely to be used by the other side’s
lawyer. Prepare them for any inconsistencies in their testimony that you expect
to be elicited by opposing counsel.
4. If you represent a client in a personal injury action, go over their medical records
with them ahead of time. Be sure to point out the “problem” issues in the
records that you expect to be elicited by opposing counsel.
5. Arrive at the hearing at least ten minutes ahead of time. Give your client the
opportunity to settle in and get used to the surroundings before the hearing
starts. If you arrive late or right when the hearing is scheduled to begin, you
have not only inconvenienced the arbitrator but you have also flustered your
client right from the start. Remember, you want your client to be able to make
their very best “appearance” as a witness.
6. Give some thought to how you position your client at the hearing. Your client’s
back should not be turned to the arbitrator.
7. Instruct your client to direct their testimony to the arbitrator as much as possible.
Eye contact is important for establishing credibility.
8. Be sure your client understands that engaging in a verbal battle with opposing
counsel during cross-examination will not inure to their benefit.
5-14

9. Advise your client to stop testifying if opposing counsel raises an objection.
Explain that the arbitrator will make a ruling and the client will be advised as to
whether s/he can complete their response.
10. Inform your client that the arbitrator may ask him/her questions. Explain that
an evasive response given to a question propounded by the arbitrator is a major
faux pas.
5-15

TIPS FOR SELECTING AN ARBITRATOR
by Lisa Almasy Miller
There are a lot of advertisements these days in the Bar publications about fulltime
neutrals. Many of these folks are lawyers disenchanted with litigation, billable
hour requirements, client disloyalty, large firm politics, etc. Many are former judges
who have presided over trials and settlement conferences and assume their knowledge
and skills are directly transferable to presiding over arbitrations. The options are
numerous. So, how does one decide on a particular arbitrator?
• Experience: The experience of your arbitrator does count! By this I mean
not only that your arbitrator has experience as an arbitrator and knows the procedural
and evidentiary rules that apply to arbitrations, but also that that person has experience
and knowledge in the type of case being presented. Years ago, I was handling a
personal injury case that went to arbitration. The arbitrator had been picked off a list of
arbitrators issued by the Court. Supposedly that person knew tort law. However,
when the arbitrator asked for an explanation of what was meant by “comparative
negligence” I knew I was in trouble. Remember that the arbitration may be a substitute
for your client’s “day in court.” The client needs to feel confident that the arbitrator
understands the law pertaining to their case.
• Demeanor: Over the years I have represented many people who have told
me in no uncertain terms that they will not go to Court; others have undoubtedly felt
that way but have not admitted it openly; still others will go to Court if all other options
fail. Regardless of your client’s feelings about litigation, two things are certain – they
want to be treated with respect and feel that the process was fair. It is therefore
important to pick an arbitrator whom you believe will address those needs
appropriately. Be sure to pick an arbitrator who will (1) listen carefully; (2) be
respectful; (3) remain objective; and (4) have the presence and confidence to assure your
client the justice system is working for them.
• Results: The purpose of “alternative dispute resolution” is to get a case
resolved to avoid the cost (financial and emotional) of going to Court. Chances are
your client is not particularly eager to go to Court and would like to get their case
resolved. Your client probably has no interest in incurring the cost of both arbitration
and trial. You therefore want to select an arbitrator who can get the job done. Check
with your colleagues about an arbitrator’s reputation; don’t, however, base your
decision to use (or not use) a particular arbitrator because of one person’s reaction to
one result with that arbitrator. Keep in mind that the result may have been the right
result based on the facts of the case, including the credibility of the parties involved.
5-16

MANDATORY ARBITRATION – A SPRINT TO THE FINISH
Lisa Almasy Miller
By now, those of you who handle civil litigation in Multnomah County know
about the Civil Case Management Process that Judge Nan Waller spearheaded since
taking the helm as Presiding Judge. You know that all cases filed on or after February
1, 2012, are subject to the new case management process which includes civil cover
sheets, initial case management conferences and trial readiness conferences. What you
may not know is how these new rules impact your handling of cases that are referred to
mandatory arbitration (i.e., those cases where the damages sought by the Plaintiff are
plead at $50,000 or less).
Section Chapter 36 of the Oregon Revised Statutes and Chapter 13 of the
Uniform Trial Court Rules govern mandatory arbitration. Despite the fact that UTCR
13.160 provides that “[a]pproximately two months are allocated for the arbitration
process,” the reality is that in recent years, the average time-to-award is over 240 days
from the filing of the case. That’s eight months! As a result, those cases that ended up
being appealed after arbitration were well over a year old by the time they got tried.
This is one of the reasons the new Civil Case Management procedures became
necessary.
Under the new rules, the hearing in cases referred to arbitration must take place
within 180 days of the date of filing. Additionally, arbitration awards must be filed
within 205 days of filing. Judge Edward Jones, who is currently in charge of the
arbitration department, has stated in writing: “Starting with cases filed after February 1,
2012, the court will not approve the setting or resetting of arbitration hearing dates to
any date more than 180 days from the filing of the case.”
It bears repeating that the hearing and award filing deadlines are based on the
date the Complaint was filed – not the date the case was transferred to arbitration.
So what does this mean for you litigators? It means two things: (1) you’ll have to
fast track your arbitration cases; and (2) plan to go to arbitration without, perhaps, all of
the discovery you’d like to have.
By fast tracking your case, I mean the following:
• Service of your complaint on all defendants will have to be done as
expeditiously as possible after the complaint is filed. You cannot docket
your case for 30 days to follow up on service.
• Extensions in filing a first appearance, if granted, will have to be limited to
a few days. Why? Because if Defendant’s first appearance is a Rule 21
motion, time will be eaten up waiting for a motion hearing.
5-17

• Documentary discovery requests and responses thereto will need to be
handled promptly. (Perhaps, for example, as plaintiff’s counsel you may
want to serve your request for production with the complaint, and as soon
as defense counsel is identified, send copies of all documents you know
will be requested of you.)
• Determining a date for depositions of the parties will need to be handled
very early on so as to accommodate the lawyers’ schedules.
• Kill two birds (or even three!) with one stone, and talk about the selection
of an arbitrator and a date for a hearing as you organize the discovery.
You don’t have to wait for the court’s list of arbitrators to be generated
before discussing which arbitrator you’d like.
• While you’re at it, talk about what stipulations, if any, you might reach so
the issues in the case can be narrowed.
• Come to arbitration with your costs and attorney fee petition prepared
(just in case you win) since the arbitrator has limited time to get those
issues resolved.
Then, with respect to case preparation, ask yourself whether you need to take a
half-day deposition, or can you get what you really need in one hour? (Finding an
available hour in one’s schedule is likely to be easier to accomplish than half a day and
you can always agree to a second, more thorough deposition down the road if
necessary.) Do you need to take the deposition of the defendant or fact witnesses in an
admitted-liability case? Is it necessary to get a medical examination of the plaintiff or is
it something that can be obtained after the hearing if there is an appeal? Limiting
discovery to the essentials is something that is easily accomplished as long as both sides
cooperate with one another and act professionally.
So, what happens if opposing counsel does not cooperate and you’re faced with a
hearing date with little or no discovery? Will you get a set-over? The simple answer is,
yes, but only if the new date is within 180 days of the filing date. If the date you want is
more than 180 days out, your request will be denied. You will then have two options:
(1) go to the hearing with what you have and present the best case possible, or (2) do
not appear for the hearing, get an award filed against you for not participating, and file
an appeal and request for trial de novo after the award is filed. Of course, there are
many good reasons to go to arbitration on the smaller cases (cost-effectiveness, no need
to call expert witnesses, less intimidating for clients, etc.) so failing to participate in
arbitration has some significant drawbacks.
The new rules are going to take some getting used to – that’s the nature of any
new procedure. But the 180-day window is manageable as long as both sides work
with each other to get the necessities done in a timely and efficient way. Just get on
those running shoes and approach the case as a sprint, not a marathon.
5-18

Chapter 5
A LTERNATIVE DISPUTE RESOLUTION
Resources
Dispute Resolution Department Forms
Request for Settlement Conference
Confidential Settlement Information - Civil Cases
Confidential Settlement Information - Domestic Relation Cases
Multnomah County Supplemental Local Rule 7.075
Certificate of Alternative Dispute Resolution
UTCR Chapter 13 - Arbitration

7.075 PARTICIPATION IN APPROPRIATE DISPUTE RESOLUTION
(1) Every civil and family law case shall be subject to subsection (2) of this rule except for
civil cases which are subject to SLR 7.011.
(2) All parties and their attorneys, if any, are required to participate in some form of
appropriate dispute resolution, beyond negotiation directly or indirectly to reach a joint
settlement, including, but not limited to, arbitration, mediation or judicial settlement conference.
The parties must sign and file, within 270 days from the filing of the first complaint or petition in
the action, a certificate (See Form 05-31, Page 101, Appendix of Forms) indicating that the
parties have participated in such ADR mechanisms. If the action is fully disposed of in the circuit
court within 270 days from the filing of the first complaint or petition in the action, no certificate
need be filed under this rule.
(3) The requirements of this rule shall not require mediation or arbitration of a case otherwise
exempt from arbitration or mediation requirements by statute, but the parties and attorneys, if
any, of any case so exempted shall be required to participate in a judicial settlement conference.
(4) The court may impose sanctions pursuant to UTCR 1.090 against any party who fails to
comply with subsection (2) of this rule, or who
(a) fails to attend a scheduled mediation session, arbitration hearing or judicial settlement
conference;
(b) fails to act in good faith during the mediation, arbitration or judicial settlement
conference;
(c) fails to submit on a timely basis paperwork required as a part of the mediation,
arbitration or judicial settlement conference; or
(d) fails to have a principal necessary to approve the resolution of the case present or
readily available, by telephone or other means, at the time of the mediation, arbitration or
judicial settlement conference, unless, in advance, the court grants the party or attorney
leave from compliance with this subsection of the rule.
(5) Nothing in this rule restricts or removes the constitutional right of the parties to a trial.
Supplementary Local Rules
Fourth Judicial District, Circuit Court of the State of Oregon for Multnomah County
Effective February 1, 2012

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR MULTNOMAH COUNTY
)
Plaintiff(s) ) Case No.
)
vs. ) CERTIFICATE OF ALTERNATIVE
) DISPUTE RESOLUTION
)
Defendant(s) )
PURSUANT TO Multnomah County SLR 7.075:
The parties signed below certify that they have complied with the rule by participation in arbitration,
mediation, a judicial settlement conference, or some other form of appropriate dispute resolution. The parties
participated in the following forms of dispute resolution (check any that apply):
� Judicial Settlement Conference
� Arbitration
� Mediation
� Other (describe)
Signatures and Date of Signing
_____________________________________
Party Date Party’s Attorney Date
_____________________________________
Party Date Party’s Attorney Date
_____________________________________
Party Date Party’s Attorney Date
_____________________________________
Party Date Party’s Attorney Date
_____________________________________
Party Date Party’s Attorney Date
_____________________________________
Party Date Party’s Attorney Date
05-31 (2002) CERTIFICATE OF ALTERNATIVE DISPUTE RESOLUTION (See SLR 7.075(2))
Supplementary Local Rules
Fourth Judicial District, Circuit Court of the State of Oregon for Multnomah County
Effective February 1, 2010
111

CHAPTER 13—Arbitration
13.010 APPLICATION OF CHAPTER
(1) This UTCR chapter applies to arbitration under ORS 36.400 to 36.425 and Acts
amendatory thereof but, except as therein provided, does not apply to any of the following:
(a) Arbitration by private agreement.
(b) Arbitration under any other statute.
(c) Matters exempt by ORS 36.400.
(d) Any civil action exempt from arbitration by action of a presiding judge under ORS
36.405.
(2) This UTCR chapter on arbitration is not designed to address every question that may arise
during the arbitration hearing. These rules give considerable discretion to the arbitrator.
The arbitrator should not hesitate to exercise that discretion.
13.030 ARBITRATION COMMISSION
(1) Each court must establish an arbitration commission.
(2) The function of the arbitration commission is to supervise the arbitration program and to
give advisory opinions relating to arbitration.
(3) The arbitration commission must include both judge and attorney members and, as an ex
officio member, the court administrator.
13.040 RELATIONSHIP TO COURT JURISDICTION AND APPLICABLE RULES
(1) A case filed in the circuit court remains under the jurisdiction of that court in all phases of
the proceedings, including arbitration. Except for the authority expressly given to the
arbitrator by these rules, all issues shall be determined by the court of jurisdiction.
(2) Until a case is assigned to the arbitrator, Oregon Rules of Civil Procedure apply. After a
case is assigned to an arbitrator, these arbitration rules apply except where an arbitration
rule states that a Rule of Civil Procedure applies.
(3) Once a case is assigned to arbitration, all motions against the pleadings, all motions for
discovery, and all similar pretrial motions not then resolved will be submitted to the
arbitrator only and determined by the arbitrator. The arbitrator's determination, however,
will apply only during the arbitration proceeding. If a request for trial de novo is filed, such
matters may be raised again. If the arbitrator's decision on a pretrial motion will prejudice
a party on trial de novo, that party may file an appropriate motion with the court.
13.050 ARBITRATION WHEN CASE ALREADY SET FOR TRIAL
(1) Cases will not be assigned to arbitration within 63 days of the set trial date, except by
order of the court.
UTCR 8/1/12 13.1

(2) A court order is not necessary if by stipulation the parties agree upon an arbitrator and
agree upon a hearing date at least 28 days before the scheduled trial date.
13.060 PLEADINGS IN CASES SUBJECT OR NOT SUBJECT TO ARBITRATION
(1) All civil actions (including domestic relations cases described under ORS 36.405(1)(b)) will
be assigned to arbitration unless one of the following occurs:
(a) The title of a pleading contains the words "CLAIM NOT SUBJECT TO MANDATORY
ARBITRATION" in compliance with subsection (3) of this rule.
(b) Any party files a notice, prior to the assignment to arbitration, that the case is not
subject to mandatory arbitration. The notice must state grounds sufficient to exempt
the case from mandatory arbitration.
(c) The court orders the case removed from mandatory arbitration under ORS
36.405(2).
(2) Notice under part (1)(a) or (1)(b) of this rule does not prevent any party from asserting by
appropriate motion, that the case is subject to mandatory arbitration.
(3) A party must place one or the other of the following in the title of a pleading in the case
(including a claim, counterclaim, cross claim, third-party claim, petition, and response):
"SUBJECT TO MANDATORY ARBITRATION" or "CLAIM NOT SUBJECT TO
MANDATORY ARBITRATION." When a party places the "NOT SUBJECT" language in
the title of the pleading, the party gives notice to the court and other parties that the case
is exempted from mandatory arbitration either clearly by statute or under these rules. This
language must not be in the title of a pleading for any other purpose. A party's signature
on pleadings containing such language constitutes the party's certificate of such notice
under ORCP 17. In all other instances, the party will place the language in the title
indicating the case is subject to mandatory arbitration.
13.070 EXEMPTION FROM ARBITRATION
Within 14 days after notification by the court that the case is assigned to arbitration, any party
seeking exemption from arbitration must file and serve a "Motion for Exemption from
Arbitration."
13.080 ASSIGNMENT TO ARBITRATOR
(1) The parties may select an arbitrator by stipulation.
(2) At the time of giving notice of the assignment to arbitration, the trial court administrator
shall furnish a list of proposed arbitrators as well as a copy of the procedures for the
selection of arbitrators and for setting an arbitration hearing. The procedures for selection
of arbitrators shall be established by the arbitration commission.
(3) An arbitrator shall be assigned under (1) or (2) of this rule within 21 days after the
assignment to arbitration.
UTCR 8/1/12 13.2

13.090 ARBITRATORS
(1) Unless otherwise ordered or stipulated, an arbitrator must be an active member in good
standing of the Oregon State Bar, who has been admitted to any Bar for a minimum of five
years, or a retired or senior judge. The parties may stipulate to a nonlawyer arbitrator.
(2) An arbitrator who is not a retired or senior judge or stipulated nonlawyer arbitrator must be
an active member in good standing of the Oregon State Bar at the time of each
appointment. During any period of suspension from the practice of law or in the event of
disbarment, an arbitrator will be removed from the court's list of arbitrators and may
reapply when the attorney is reinstated or readmitted to the bar.
(3) Arbitrators will conduct themselves in the manner prescribed by the Code of Judicial
Conduct.
13.100 AUTHORITY OF ARBITRATORS
An arbitrator has the authority to do all of the following, but may exercise the authority conferred
only after the case is assigned to a specific arbitrator and any disputes over the assignment
have been settled:
(1) Decide procedural issues arising before or during the arbitration hearing, except issues
relating to arbitrability or the qualification of an arbitrator. The court may entertain a
challenge to the qualification of an arbitrator on grounds that could not be discovered prior
to assignment of the arbitrator to the case.
(2) Invite, with reasonable notice, the parties to submit trial briefs.
(3) After notice to the parties, examine any site or object relevant to the case.
(4) Issue a subpoena, enforceable in the manner described in ORS 36.340.
(5) Administer oath or affirmations to witnesses.
(6) Rule on the admissibility of evidence in accordance with these rules.
(7) Determine the facts, apply the law and make an award; perform other acts as authorized
by these rules.
(8) Determine the place, time and procedure to present a motion before the arbitrator,
including motions for Summary Award (known as Summary Judgment under ORCP).
(9) Require a party, an attorney advising each party, or both, to pay the reasonable expenses,
including attorney fees, caused by the failure of such party or attorney or both, to obey an
order of the arbitrator.
(10) Award attorney fees as authorized by these rules, by contract or by law.
UTCR 8/1/12 13.3

13.110 ARBITRATOR'S OATH
Arbitrators will be required to execute the following oath in writing on a form provided by the trial
court administrator at the time of appointment:
I solemnly affirm that I will faithfully and fairly hear and examine the matters in controversy
and that I will make a just award to the best of my understanding.
13.120 COMPENSATION OF ARBITRATOR
(1) The arbitration commission shall establish a compensation schedule for arbitrators. If the
arbitrator suggests that extraordinary conditions justify a different fee, and the parties
concur, the fee may be adjusted accordingly. If the parties, or any of them, do not concur,
the arbitrator shall direct an inquiry to the court for determination of the appropriate fee.
(2) Within 14 days of the appointment of the arbitrator, each party must tender to the arbitrator
a pro rata share of the preliminary payment for the arbitrator. Any deposit in excess of the
arbitrator's actual fee will be refunded to the parties. Regardless of whether the arbitration
hearing is conducted, the parties must pay a proportionate share of the arbitrator's fee.
The arbitrator must submit to each party an itemized statement.
(3) Relief from the payment of arbitration fees, in whole or in part, as provided for in ORS
36.420(3) must be applied for immediately upon a case or a small claim becoming eligible
for arbitration. The court will provide the arbitrator with a copy of any order waiving or
deferring all or any part of the fees.
(4) Any dispute as to the amount of the arbitrator's fee must be submitted to the court.
(5) The arbitrator's fee may be considered a recoverable item of costs.
(6) At the conclusion of the arbitration process, the court may enter a judgment in the
arbitrator’s favor and against any party who has not paid the arbitrator’s fee in accordance
with the schedule established under paragraph (1).
13.130 RESTRICTIONS ON COMMUNICATION BETWEEN ARBITRATOR, PARTIES AND
ATTORNEYS
Unless all parties otherwise agree, no disclosure of any offers or settlement made by any party
shall be made to the arbitrator prior to the announcement of the award. Neither counsel nor a
party may communicate with the arbitrator, regarding the merits of the case, except in the
presence of, or on reasonable notice to, all other parties.
Except for Judicial Rules 3, 4, and 5 of the Code of Judicial Conduct, all rules of professional
conduct concerning Bench and Bar apply in the arbitration process.
13.140 DISCOVERY
Discovery shall be conducted in accordance with Oregon Rules of Civil Procedure, and all
motions shall be determined by the arbitrator. The arbitrator shall balance the benefits of
discovery against the burdens and expenses. The arbitrator shall consider the nature and
UTCR 8/1/12 13.4

complexity of the case, the amount of controversy, and the possibility of unfair surprise that may
result if discovery is restricted.
13.150 SUBPOENA
In accordance with the Oregon Rules of Civil Procedure, a lawyer of record or the arbitrator may
issue a subpoena for the attendance of a witness at the arbitration hearing or for the production
of documentary evidence at the hearing.
13.160 SCHEDULING OF THE HEARING
(1) The arbitrator shall set the time, date and place of hearing and shall give reasonable
notice of the hearing date to the parties and comply with ORS 36.420. The arbitrator shall
also give notice of the hearing date and any continuance to the trial court administrator.
(2) A court may adopt a supplementary local rule establishing a deadline for the arbitration
hearing and a process for obtaining a postponement or continuance. A supplementary
local rule may not allow the arbitration process to extend more than six months from the
date the case is assigned to an arbitrator. In the absence of a supplementary local rule
adopted pursuant to this section, the requirements set forth below in sections (3) and (4)
shall apply.
(3) Except for good cause shown, the hearing must be scheduled to take place not sooner
than 14 days, or later than 49 days, from the date of assignment of the case to the
arbitrator. The parties may stipulate to a postponement or continuance only with the
permission of the arbitrator. Such postponements or continuances must also be within the
49-day period. Any continuances or postponements beyond such period require the
arbitrator to obtain approval of the presiding judge. The arbitrator must give notice of any
continuance to the trial court administrator.
(4) Continuances and postponements shall not be granted except in the more unusual
circumstances. Approximately two months are allocated for the arbitration process. The
arbitrator is given the power to enforce the rules and will be required to maintain the
schedule.
13.170 PREHEARING STATEMENT OF PROOF
(1) At least 14 days prior to the date of the arbitration hearing, each party must submit to the
arbitrator and serve upon all other parties all the following:
(a) A list of all exhibits to be offered showing or accompanied by a description of the
document and the name, address and telephone number of its author or maker and
complying with UTCR 13.190(2)(c). Each party, upon request, must make any
exhibits available for inspection and copying by other parties.
(b) A list of witnesses the party intends to call at the arbitration hearing with their
addresses and telephone numbers and a statement of the matters about which each
witness will be called to testify.
(c) An estimate as to the expected length of the hearing.
UTCR 8/1/12 13.5

(2) A party failing to comply with this rule, or failing to comply with a discovery order, may not
present at the hearing any witness or exhibit required to be disclosed or made available,
except with the permission of the arbitrator.
(3) Each party must also furnish the arbitrator, at least 14 days prior to the arbitration hearing,
with copies of pleadings and other documents contained in the court file which that party
deems relevant.
13.180 CONDUCT OF HEARING
(1) Arbitration hearings shall be informal and expeditious. The arbitrator shall exercise
reasonable control over the mode and order of interrogating witnesses and presenting
evidence so as to do the following:
(a) Make the interrogation and presentation effective for the ascertainment of the facts.
(b) Avoid needless consumption of time.
(c) Protect witnesses from harassment or undue embarrassment.
(2) A witness shall be placed under oath or affirmation prior to presenting testimony, a
violation of which oath shall be deemed contempt of court, in addition to other penalties
that may be provided by law. The arbitrator may question the witness. The extent to
which the rules of evidence will be applied shall be determined in the discretion of the
arbitrator.
(3) The hearing may be recorded electronically or otherwise by any party or the arbitrator.
The cost of such recording is not a recoverable item of cost.
13.190 CERTAIN DOCUMENTS ADMISSIBLE
(1) The documents listed in subsection (2) of this rule, if relevant, are admissible at an
arbitration hearing, but only if:
(a) The party offering the document has included in the prehearing statement of proof a
description of the document and the name, address and telephone number of its
author or maker, at least 14 days prior to the hearing; and
(b) The party offering the document promptly has made available, after request, to all
other parties, all other documents from the same author or maker.
(2) The following documents are subject to this rule:
(a) A bill, report, chart or record of a hospital, doctor, dentist, registered nurse, licensed
practical nurse, physical therapist, psychologist or other health care provider on a
letterhead or a printed bill.
(b) A bill for drugs, medical appliances or other related expenses on a letterhead or a
printed bill.
(c) A bill for, or an estimate of, property damage on a letterhead or a printed bill. In the
case of an estimate, the party intending to offer the estimate must forward with the
UTCR 8/1/12 13.6

prehearing statement of proof under UTCR 13.170 a statement indicating whether or
not the property was repaired, and if it was, whether the estimated repairs were
made in full or in part, attaching a copy to the receipted bill showing the items of
repair and the amount paid.
(d) A police, weather, wage loss or traffic signal report or standard life expectancy table.
(e) A photograph, x-ray, drawing, map, blueprint or similar documentary evidence.
(f) The written statement of any witnesses, including the written report of an expert
witness which may include a statement of the expert's qualifications, and including a
statement of opinion which the witness would express if testifying in person, if it is
made by affidavit or by declaration under penalty of perjury.
(g) A document not specifically covered by any of the foregoing provisions, but having
equivalent circumstantial guarantees of trustworthiness, the admission of which
would serve the policies, purposes and interests of justice.
(3) Any other party may subpoena the author or maker of a document admissible under this
rule, at that party's expense, and examine the author or maker as if under crossexamination.
13.200 ABSENCE OF PARTY AT HEARING
(1) The arbitration hearing may proceed and an award may be made in the absence of any
party who, after due notice, fails to participate or to obtain a continuance or postponement.
(2) If a defendant is absent, the arbitrator shall require the plaintiff to submit evidence
sufficient to support an award.
(3) In a case involving more than one defendant, the absence of a defendant does not
preclude the arbitrator from assessing as part of the award damages against the
defendant or defendants who are absent.
(4) The arbitrator, for good cause shown, may allow an absent party an opportunity to appear
at a subsequent hearing before making an award.
13.210 FORM AND CONTENT OF AWARD
(1) The award must be in writing and prepared on a form prescribed by the court and signed
by the arbitrator.
(2) The arbitrator shall determine all issues raised by the pleadings, including a determination
of any damages, costs and attorney fees where allowed under applicable law.
(3) Findings of fact, conclusions of law and written opinions are not required.
(4) The award must contain the caption of the case and all the following information:
(a) The date of the hearing, if any.
(b) The prevailing party and the amount of relief awarded.
UTCR 8/1/12 13.7

(c) Whether any part of the award was based on the failure of any party to appear and
the identity of that party.
(d) The name and office address of the arbitrator.
(e) Provision for costs and for attorney fees where allowed under applicable law.
(f) Interest in accordance with applicable law specifying the rate of interest and the date
from which it accrues.
(5) Within 7 days after the conclusion of the arbitration hearing, the arbitrator shall send the
award to the parties without filing with the court and shall establish procedures for
determining attorney fees and costs.
(6) In dissolution cases, the arbitrator shall send the award to the parties within 7 days after
the conclusion of the arbitration hearing and shall direct a party to prepare and submit a
form of judgment. The arbitrator, upon request of any party, shall give the parties an
opportunity to be heard on the form of judgment. The arbitrator shall then approve a form
of judgment and file the award, along with the approved form of judgment, per UTCR
13.220.
1988 Commentary:
It is the intent of the Committee that 13.210(2) applies in dissolution cases.
1994 Commentary:
The Committee intends that the arbitrator determine all costs to which the prevailing party may
be entitled, including the prevailing fee and share of the arbitrator's fee.
13.220 FILING OF AN AWARD
(1) The arbitrator shall file the award with the trial court administrator, together with proof of
service of a copy of the award, upon each party within the following times after the
completion of the arbitration hearing:
(a) In dissolution cases within 21 days.
(b) In all other cases within 14 days.
(2) An arbitrator may request an extension of time for filing of the award by presenting a
written ex parte request to the trial court administrator. The trial court administrator may
grant or deny the request, subject to review of the presiding judge. The arbitrator shall
give the parties notice of any extension granted.
(3) The arbitrator may file with the trial court administrator and serve upon the parties an
amended award to correct an obvious error made in stating the award if done within the
time for filing an award or upon application to the court to amend.
UTCR 8/1/12 13.8

(4) After the award is filed, the arbitrator must return all documents and exhibits to the parties
who originally offered them. All other documents and materials relating to the case must
be delivered to the trial court administrator. The parties must retain all exhibits returned by
the arbitrator until a final judgment is entered in the case.
13.240 JUDGMENT ON AWARD
If no request for trial de novo is filed within the time established by ORS 36.425(3), the
arbitration decision and award will be entered and have the effect provided in that statute.
13.250 REQUEST FOR TRIAL DE NOVO
(1) A party who qualifies under ORS 36.425(2) may obtain a trial de novo on the case
determined by completing the service, filing, payment of trial or jury fee and deposit as
required under ORS 36.425(2).
(2) In addition to the provisions under ORS 36.425 relating to a trial de novo, the following
provisions apply:
(a) In addition to filing a written notice of appeal and request for trial de novo with the
trial court administrator, the party must serve on the parties a copy of the written
notice of appeal and request for a trial de novo filed with the trial court administrator,
and proof of such service must be filed with the trial court administrator.
(b) When cases are consolidated for arbitration and a party has filed an appeal from the
arbitration award in one or more of the consolidated cases, any other party who
otherwise qualifies under ORS 36.425(2) may serve and file with the trial court
administrator a request for trial de novo, with proof of service on all other parties,
within 20 days from the filing of the arbitration award or within two judicial days after
the service of the initial written request for trial de novo, notwithstanding the lapse of
20 days from the filing of the arbitration award.
(c) If the trial de novo request is withdrawn, or abandoned, such appealing party must
obtain permission of the court or there must be a stipulation of all parties to the
abandonment of the appeal and the terms thereof.
(d) Cross appeal is not necessary to preserve issues raised in a counterclaim, because
the trial de novo encompasses all claims raised by any party in the particular case
appealed.
(e) The court may assess statutory costs against a party who withdraws a request for
trial de novo.
13.260 PROCEDURE AT TRIAL DE NOVO
The trial court administrator must seal any award if a trial de novo is requested. Neither judge
nor jury will be informed of the arbitration result. The sealed arbitration award will not be
opened until after the verdict is received and filed in a jury trial or until after the judge has
rendered a decision in a court trial.
UTCR 8/1/12 13.9

13.280 TRIAL DOCKET
Every case assigned to arbitration shall maintain its approximate position on the civil trial docket
as if the case had not been assigned to arbitration, unless, at the discretion of the court, the
docket position should be modified.
13.300 PRETRIAL SETTLEMENT CONFERENCES AND ARBITRATION
Cases assigned to arbitration or the pendency of an arbitration hearing does not exclude a case
from participating in a court pretrial settlement conference.
UTCR 8/1/12 13.10

DOMESTIC RELATIONS
Gilbert B. Feibleman
Feibleman & Case
CHAPTER 6

C h a p t e r 6
D O M E S T I C R E L A T I O N S B A N O V E R V I E W
T A B L E O F C O N T E N T S
I. INITIAL INTAKE ........................................................................................................... 6-1
A. Confronting Emotionally Charged Issues ............................................................ 6-1
B. Fee Agreements ................................................................................................... 6-1
C. Evaluate Your Client............................................................................................ 6-1
D. Outline Temporary and Final Judgment Issues ................................................... 6-1
II. MOTION PRACTICE ..................................................................................................... 6-1
A. Automatic Restraining Orders. ............................................................................ 6-1
B. Temporary Protective Orders of Restraint. .......................................................... 6-2
C. Temporary Orders and Limited Judgments ......................................................... 6-2
D. Family Abuse Prevention Act .............................................................................. 6-4
III. EX PARTE COMMUNICATION .................................................................................... 6-5
A. Judicial Ex Parte Communication ....................................................................... 6-5
B. Ex Parte Communication With Opposing Party .................................................. 6-6
IV. TIPS AND TRAPS .......................................................................................................... 6-7
V. POWERPOINT SLIDES ............................................................................................... 6-13
To view these chapter materials and the additional resources below, go to www.osbplf.org, find
the left side of the home page, find CLE, then click on programs on CD/DVD, find Learning The
Ropes, then click on download handout. Program handouts and additional handouts are organized
by chapter.
Additional Resources
Short Sheets on Family Law
The following resources can be found at www.osbplf.org, select Practice Aids and Forms,
then Domestic Relations
Client Relations and Attorney Fees from the Trenches
The Art of Divorce Settlement Negotiations
Forms, Pleadings, and Rules

I. INITIAL INTAKE.
DOMESTIC RELATIONS – AN OVERVIEW 1
A. Confronting Emotionally Charged Issues.
B. Fee Agreements. A retainer contract is essential to define the nature and
scope of representation. Discuss attorney fees from the outset.
C. Evaluate the client.
D. Outline your plan with client: temporary issues vs final Judgment issues.
II. MOTION PRACTICE: EARLY DETECTION IS ESSENTIAL.
All dissolution of marriage and separation proceedings begin with a Petition,
Summons, Confidential Information Form (UTCR 2.130) and Vital Statistics form. There
are only a few court-mandated forms. The statutes and Uniform Trial Court Rules –
Chapter 8 set out the rules.
There are several excellent resources for forms. Sample forms are available at
the OSB PLF website:
www.osbplf.org
Reference to forms can be found in the Oregon State Bar CLE Book on FAMILY LAW
along with any supplements. Also, packets of forms prepared for use by
unrepresented parties, but useful for attorneys as well, are available from courthouse
clerks. If you join the Family Law Section of the Bar, you can also access the Family
Law Listserve.
However, by the time these documents are filed with the court, the preliminary
issues that may present problems in the case should already have been carefully
analyzed by counsel. In virtually every case, you will be called upon to assess your
client, the case, and possibly the opposing counsel. This assessment will provide the
basis for determining what motions may be required at the time of the filing of the case.
Failure to file the appropriate motions in a timely manner (often at the outset of the
case) can result in serious detriment to the clients’ interests. The issues to be analyzed,
at the outset of the case, usually fall within the following categories:
A. Automatic Restraining Orders. The 2003 Legislature created what
appears to be an automatic mutual restraining order with respect to property, prohibiting
both parties from disposing, hiding, or selling real or personal property.
1 Earlier versions of these materials were prepared by Carol Westendorf, Herb Trubo and Lilian Bier, who
have graciously permitted me to adapt and reprint them for this program. Thanks also to Stephanie
Wilson, attorney at law, for her contributions to this article.
6-1

PRACTICE TIP: The problem is that it is not really an order. Therefore,
in addition to serving the notice with your summons, you should obtain an
Ex-Parte Order adopting the language of the Restraining Order so that
there is actually a court order binding the parties.
There are exceptions that permit sale or access of accounts for personal
necessities, business necessities, and attorney fees. Read it carefully as it is not as
restrictive as some lawyers may think. However, a more detailed or expansive order
might be appropriate to your case, and counsel should consider filing a motion and
scheduling a hearing for such an order.
B. Temporary Protective Order of Restraint (“Status Quo Order”). The
placement of the children must be examined as part of the initial consultation. Counsel
must try to determine whether this is a case where a parent may attempt to relocate the
children without notice to the other parent. If so, it is imperative that counsel obtain a
status quo order, which prohibits either party from removing the children from the state,
interfering with the present placement, hiding, or secreting the children from the other
parent, interfering with the parent’s usual contact, or changing the child’s place of
residence. ORS 107.097 (The court may also issue a status quo order in a modification
case, see ORS 107.138, however that cannot be obtained ex-parte and the rules are
different).
In some cases, where the children might be in “immediate danger,” a temporary
custody order may be appropriate.
PRACTICE TIP: The provisions of ORS 107.097 are very specific and
must be observed precisely. They require information as to where the
children have lived for the past ninety days, a definition of the children’s
schedule, and notice for a hearing to contest the order. It is imperative
that counsel carefully and accurately report this information to the court.
The information required under ORS 109.767 (the UCCJEA) must also be
provided. A careful reading of these statutes is essential prior to
attempting to file a status quo order.
Be sure that you provide notice before going ex parte, and where required, have
your client available. Given the exceptional circumstances justifying an emergency
custody order, try to get more than one supporting affidavit of the circumstances.
C. Temporary Orders and Limited Judgments (ORS 107.095). The relief
under this statute is broad, allowing temporary orders regarding use of the family home,
temporary custody, establishment of a parenting plan, child and spousal support,
payment of debts, and payment of suit money to prosecute the divorce.
PRACTICE TIP: The Court of Appeals has issued an unpublished letter
opinion which says that the financial matters need to be in the form of a
Limited Judgment and the other matters need to be in the form of a
Temporary Order. Some counties will not sign an order/judgment unless
they are separated.
6-2

A thorough examination of these issues at the beginning of the case will assist
counsel in assessing whether the case may need extensive judicial involvement, and
the attendant expense. These factors, in turn, will help you determine whether you wish
to undertake representation. Consider the following:
1. Is this a case where the “have-not” spouse is likely to be cut off
entirely by the other party, without funds to pay basic expenses? If so, an immediate
motion for temporary relief from the court may be needed.
2. Is this a case where the “custodial” parent is likely to cut off the
other parent, allowing little or no parenting time? If so, an immediate motion seeking
the establishment of a parenting plan may be needed. Alternatively, if your client is still
living with his/her spouse, get a Stipulated Limited Judgment signed before your client
leaves the home. This keeps leverage for your client and avoids fees.
PRACTICE TIP: The right to child and spousal support and the right to
have contact and parenting time with the children are absolutely critical
issues. Failure to address them at the beginning of the case can be
extremely problematic. In certain counties, it requires a period of weeks
(sometimes months) simply to get on the motion docket. Therefore, it is
imperative that counsel file the motions early if temporary relief is needed.
Counsel against delay based on what may be overly optimistic assurances of the
client that the other side will soon begin to “behave” and that “things will calm down.” If
cooperation is not forthcoming, after reasonable efforts, file your motions and negotiate
after the filing. The simple filing of the motion can have significant impact when the
other party realizes that he or she will be explaining to a judge why the children have
been unsupported or withheld from the other parent.
PRACTICE TIP: Remember that filing a Motion seeking payment of
temporary child or spousal support requires the filing of a Uniform Support
Declaration (USD) with the accompanying documentation (wage stubs,
daycare statements, tax returns, etc.). The Responding USD is not due
until fourteen days before hearing.
An updated Uniform Support Declaration must also be filed with the court in the
final trial on the merits as well. An understanding of the Uniform Child Support
Guidelines is also essential, both in motion and trial practice, as this will control the
award of child support under Oregon law. Any deviation from the Guidelines must be
supported by one of the limited deviation factors set forth in the Guidelines, and the
practitioner must be prepared to plead and present the client’s case for deviation in a
clear and cogent form. The current Guidelines, the commentary, and the Child Support
Calculator is now available online, as well, at:
http://www.oregonchildsupport.gov/professionals/index.shtml
3. Does the client have sufficient funds to pay his or her legal fees, or
6-3

to retain necessary experts (real property appraisers, business appraisers, actuaries to
value pension plans, and personal property appraisers)? If not, a motion under ORS
107.095 for attorney fees and suit money may be necessary to prepare or defend the
case.
PRACTICE TIP: Far too many lawyers wait this one out, hoping that
family members will come to the assistance of the client or that the other
side will cooperate. If you represent the “have-not” spouse and can
foresee that the client is in need of funds for both attorney fees and expert
valuations, and the “have” party will not cooperate, file your motion early.
Failure to do so will leave you in the unenviable position of: (1) having to
withdraw for lack of payment of fees (which the court may or may not
allow, depending on the age of the case); (2) staying on the case, and
preparing for trial without funds for badly needed experts; or (3) staying on
the case and funding the experts and attorneys fees yourself, with slim
hope of payment at the conclusion of the case. Contact Gil Feibleman at
gil@feiblemancase.com for materials on client relations and getting your
fees.
4. Always check the practice of the county in which you are filing your
action, to determine where and how things are done.
D. Family Abuse Prevention Act (“FAPA” Order under ORS 107.700).
The FAPA order may be the most necessary and the most abused statute in
family law. When used appropriately, it can be the best (and possibly only) protection
for your client. When abused, it can result in inappropriate awards of temporary
custody, monetary payments, as well as damage to reputation and significant
deprivation of rights. Counsel must try to make an early (and hopefully accurate)
assessment of prior abuse in the marital home and the potential for future abuse. Every
client, after initial screening, should be advised of the procedures for obtaining a FAPA
order and the repercussions of the application. The client who is likely to be accused of
abuse should also be cautioned immediately about the devastating effects of a FAPA
order and how to avoid having one entered or upheld.
PRACTICE TIP: The issues involving FAPA’s are complex, and there is
an overlap of Oregon law with federal law in certain areas. For example,
under federal law, entry of a domestic abuse restraining order can result in
the loss of use of a firearm, to the dismay of hunters, security guards,
police officers, and others who routinely use them. The Oregon Revised
Statute also allows entry of a special “emergency monetary assistance”
order. In addition, entry of a FAPA now gives rise to a legal presumption
that “it is not in the best interests and welfare of the child to award sole or
joint custody of the child to the parent who has committed the abuse.”
See ORS 107.137(2). These points are particularly important, since
FAPAs can be entered ex parte with a subsequent right to a hearing if
requested. Thus, the former practice of simply allowing the order to
continue, without contest, now requires much closer scrutiny.
6-4

III. EX PARTE COMMUNICATION
A. Judicial Ex Parte Communication. As noted, many of the above issues
require early detection and quick action in order to protect the client. Domestic relations
practice presents many opportunities for ex parte motion practice. The unique nature of
the practice, in which the support and custody of children is of paramount concern, often
dictates expediency. Still, counsel must be very cautious to ensure that the ethical
requirements of ex parte practice are observed. See RPC 3.5(b). RPC 3.5 strictly limits
the situations in which a lawyer may have contact with a judge. It provides that a lawyer
shall not communicate ex parte with such a person during a proceeding unless
authorized to do so by law or court order. Written communications to a judge require
prompt delivery of a copy of the writing to the opposing counsel or the adverse party (if
the other party is not represented). Oral communications must be upon adequate
notice to opposing counsel or to the adverse party if not represented by counsel.
Many counties’ local rules discuss prompt delivery of adequate notice. For
example, the existing Multnomah County Supplemental Rule requires a party seeking
“ex parte relief” in dissolution matters to provide “two (2) working days notice to the
opposing party of the date, time, and court where the relief is sought.” Multnomah
County Supplemental Rule 8.041(3). Washington County Supplemental Rules require
that any motion presented ex parte must have attached to it a certificate of service
showing the date, time and manner of service upon the opposing party and requires
specific language to be included in the certificate of service. It further provides that
when service is completed, it must be completed at least 24 hours prior to the ex parte
appearance. Washington County Supplemental Local Rule 5.061(3). Generally, give
the professional courtesy of at least 2-3 days of notice even when the local rule may
require only one day of notice.
PRACTICE TIP: Ex parte contact with a judge is a violation of not only
the RPC’s but the experienced divorce lawyer’s code of ethics. Late night
faxes, inadequate notice, the “I called and left a message on your voice
mail” notices, all followed by entry of substantive ex parte orders for which
there was no opportunity to be heard, are an absolute breach of fair play.
They will draw the ire of seasoned practitioners more quickly than any
other error you may make, and will often draw a complaint to the Oregon
State Bar, as well. No matter what the notice rules say, err on the side of
expanding them. Letters to judges, appearances at ex parte, and any
other types of ex parte communication will do more to damage your
reputation than any other single act amongst a Bar of closely knit
attorneys with very long memories. Put simply: If your client needs ex
parte relief, provide adequate notice, in writing, so that the other party will
have an opportunity to appear and defend. Doing so will save not only
your reputation, but significant legal fees that might otherwise have to be
spent wrangling with opposing counsel to “undo” the order.
B. Ex Parte Communication with the Opposing Party. The second most
frequent problem with ex parte communication arises when an attorney has ex parte
communications with a represented party. You cannot have any contact with a party
6-5

who is represented by an attorney, absent the representing attorney’s consent. This
can arise in a number of settings in the divorce arena:
1. Opposing party contacts you on the telephone, just to discuss a few
details, and you speak with that party. If you know there is a lawyer involved, there can
be no contact of this sort. You must advise the party that you cannot speak directly with
him or her so long as he or she is represented by counsel. Query: What if the party
tells you he has seen a lawyer, just to answer a few questions, but hasn’t retained that
lawyer? I would recommend declining speaking with the party until you determine for
certain that the other lawyer is, in fact, not representing the party.
2. Your client doesn’t mention that the other party has retained
counsel, and you send the entire service package, with accompanying letters, to that
party. This may or not be a problem. Ex parte communication is problematic only if the
existence of opposing counsel is known to you. If you suspect there is another lawyer
on the case, investigate before having contact with the other party. If necessary, call
that attorney and ask if he or she represents the party. Check OJIN records to make
sure a party’s former attorney withdrew, or still has no attorney.
3. You call your client’s home, who still lives with his or her spouse
(not that uncommon a scenario), and the spouse, who is represented by counsel,
answers the phone and immediately tries to engage you in substantive conversation.
You should hang up the phone and notify opposing counsel. Try to have a cell phone
number for your client and a separate P.O. Box number to avoid this problem.
4. You have been dealing with a lawyer throughout the case, and your
client tells you that the spouse has fired that lawyer. Let’s say you get a letter from the
opposing party stating that the lawyer has been fired, and instructing you to send
communication directly to him or her. However, you have not received a formal notice
of withdrawal or other communication from the attorney. Here again, you should have
no contact with the party until you call the other lawyer and verify that he or she has
been removed from the case. Insist that the withdrawal is filed with the court and
reflected on OJIN.
5. You are having a hard time getting cooperation from the opposing
spouse and his or her lawyer is of no help (counsel might, in fact, be a hindrance). You
know that if you could just get word to the opposing party how “reasonable” your
position is, the case might settle. You also suspect that the other lawyer may not be
transmitting your letters or conveying offers. Therefore, you suggest your client sit
down with his or her spouse, and you explain to your client exactly how to negotiate the
issues. Such an approach would be inadvisable. Remember that the rule provides that
you cannot communicate in any way with a represented party or “cause another” to do
so.
PRACTICE TIP: A related issue involves just how much communication
you can have with an unrepresented (pro se) party as well. You are
allowed to communicate with an opposing party who has not retained
counsel. Obviously, in a divorce case, the interests are in conflict, and this
6-6

IV. TIPS AND TRAPS.
is a continuing problem in cases where the other party is unrepresented.
For this reason, it is imperative that you avoid providing any sort of advice
to a pro se opponent. Further, virtually every communication you have
with an unrepresented party (and every oral one as well) should be in
writing and contain a clear reminder that you are representing only the
interests of your own client, that you cannot offer legal advice to the
unrepresented party, and that he or she should obtain his or her own
independent counsel to represent his or her own interests.
The above points are lessons that are well (and, in most cases, quickly) learned.
It only takes one or two cases of kidnapping, dissipated assets, hungry and dependent
children, and deprivation of a client’s parenting time to discover that certain domestic
relations issues must be dealt with promptly and correctly. The learning curve on these
issues, while painful, is not particularly high.
Presuming the practitioner has survived the learning curve and continues to
practice family law, there is yet another learning curve that is much higher. The
following are some suggestions gleaned from many years of domestic relations
practice. To the extent you find even one that you can use, it may help guard you from
malpractice or ethics violations, or at least may simply make your daily practice a bit
more enjoyable.
Also, excellent checklists (some of which are incorporated into these materials)
and form letters are available at the website of the Professional Liability Fund in the
Loss Prevention Material section: http://www.osbplf.org/
Useful materials on international family law issues can be found at www.iaml.org,
which is the International Academy of Matrimonial Lawyers. All Academy members
speak English, which gives you instant international resources.
Useful materials and articles on a far range of family law issues can be found at
www.aaml.org. The American Academy of Matrimonial Lawyers are highly regarded
lawyers from all 50 states which gives you instant access to a referral source on
interstate matters.
A. Select your clients very carefully, and do not take every case that
walks in the door. This is the #1 point of consensus among virtually all experienced
divorce lawyers. For a more detailed analysis of this issue, an article regarding client
relations and attorney fees are part of the on-line materials available to you through this
program. The nature of the practice is that divorce clients are often angry, hurt,
disappointed, and simply at their worst. Their ability to make decisions is very often
compromised. That said, if you do not like the client in the initial interview, and have the
gut feeling that you might not be able to work with him or her, do not take the case. It
will not get any better as the case progresses. If the client has unrealistic expectations
or wants you to be more (or less) aggressive than you believe is appropriate, don’t take
the case.
6-7

If the client is too hostile/hurt/stubborn/foolish or whatever to accept your advice
(or to let you control and manage the case), the same advice applies: drop the client.
Make this determination as early as possible, since the rules regarding withdrawal in the
middle of the case can be tricky. A court may refuse to allow you to withdraw from
representation if the case is close to trial and such withdrawal would result in prejudice.
Thus, be very, very careful about the clients you select, and if a problem client does slip
through, get rid of that person early, while you still can without difficulty.
B. Have a firm understanding with your client about fees, and make the
client remain current in payment throughout the case. This is probably the #2
agreed-upon point. It is imperative that you send out current bills (no less often than
every thirty days), and that you insist that your client pay you as the case proceeds.
Consider establishing your billing system so that you can accept credit cards. Legal
bills that go unpaid, with a “final” billing of thousands of dollars presented at the end of
the case, are probably the number one cause of malpractice claims. Indeed, many
malpractice claims are nothing more than “sour grapes” fee disputes. It is much easier
to find fault with the legal work done in a case when the client still owes the attorney
several thousand dollars.
Further, the hourly cost of performing your work is the number one controller of
unreasonable behavior among divorcing spouses. It’s easy to have one lawyer lob
written missives, take unreasonable positions in court and refuse to cooperate with
discovery, hide the children (and the assets) when one has no idea how much these
antics are costing. The failure of attorneys to bill their clients (and to make them pay)
during the pendency of the case often accounts for the protracted litigations that are far
too costly and common in divorces. The bottom line is that you must set your retainer,
stick to it, and require that your client remain current with payments. The clients will
quickly get the idea that unreasonable behavior benefits no one when they understand
that they are paying for it.
PRACTICE TIP: As a related matter, there are practitioners who would
say that it is unwise to ever sue a client for a fee, and certainly not within
the two-year malpractice window. The connection between fee disputes
and malpractice claims cannot be overstated. For what it’s worth, fee
disputes with clients are also a very common cause of Oregon State Bar
complaints.
C. Beware the client who has had a change of lawyers in the middle of
the case. One change is cause for concern, two changes is a serious caution, and
three changes is a red light. When a client approaches you, always take a serious look
at the previous lawyer’s letters in the file (and don’t accept the case without seeing that
file). If the legal work looks sound, or if the attorney has a good reputation, it is probably
the client who is the problem. Often, the conflict between the client and lawyer is
apparent from the written communication (for example, letters regarding unpaid fees).
D. Be cautious about hanging out your own shingle. While there is no
consensus about the advisability of managing a family law practice as a sole
practitioner, there is no question that, as a new attorney, the opportunity to work with
6-8

experienced lawyers on a daily basis can be invaluable. Domestic relations is a
minefield of forms, rules, and practices which vary even among the local judiciary.
There is no substitute for the ability to directly observe an expert over an extended
period of time. Divorce law may also require substantial courtroom work, and the court
docket is filled with “show cause motions” and trials. The ability to observe a seasoned
trial lawyer, before embarking on your own trial work, can be very helpful.
E. Observe appropriate boundaries (both your own and the client’s).
This pointer is one of the most difficult; it is critically important that if you are to survive
in a family law practice and if you are to be an effective advocate for your client: Your
client needs to respect your boundaries, and you need to establish those boundaries
with the client, at the onset of the case. Always tell the client what he/she “needs” to
hear, not what he/she “wants” to hear. Firm working hours, hours that do not allow for
late-night calls at your home, for example, are critical. Making your client know that you
are not on call 24/7, that you will return client calls in a timely manner – considering the
demands and emergencies of your other clients – is critical. Making your clients
understand that you are not their counselor, minister, mother, father, babysitter, friend,
or anything other than their lawyer, is also critical. Be prepared to make appropriate
referrals to mental health professionals for clients who are not coping well with the
process. Be prepared to be firm (to the point of absolute bluntness) to protect your
boundaries if you find the client encroaching upon them. Do not let your clients
manipulate you into making their decisions for them. You are the advisor, and they are
the decision maker.
Make sure you are not encouraging your clients to overstep the boundaries of a
healthy attorney-client relationship. Family law practitioners have the opportunity to
make a significant difference in the client’s life, but at the same time, it is absolutely
imperative that you, as the lawyer, understand that you did not create this client’s
problems, and you do not own them. The inability to separate your own life from your
client’s is probably the biggest single reason for attorney burn-out in the domestic
relations area. If your temperament is such that you cannot observe these boundaries,
this may not be the area of practice for you.
F. Observe and honor the grieving process of your clients. This pointer
is unique to family law cases, but understanding will be very helpful in managing your
practice. It is well established that the death of a marriage results in the same stages of
grieving as the death of a family member or loved one. Subject to variations in minor
shades, all divorcing couples basically proceed through three successive stages: (1) An
initial shock or disbelief stage (where it may be unrealistic to expect much from your
client by way of processing, gathering documents, or even moving forward); (2) The
anger stage (where you can expect your client to do some acting out and where you
must be prepared to exert the maximum leadership and control of the case); and (3)
The acceptance stage (where the most productive work is done, and where the case is
most likely to be successfully settled). This is not to say that we always have the luxury
to await the final acceptance stage, as we must continually be moving the case forward
and preparing it for settlement or hearing. It is to say, however, that counsel must
recognize that divorce cases are simply like no other, and cannot be treated like
contract disputes, securities litigation, or personal injury cases. The family law client is
6-9

often threatened (sometimes with the very loss of his or her children or the ability to
support him or herself), unsophisticated, frightened, angry, and confused. An
understanding of the emotional stages will assist the attorney in knowing when to push
and when to back off, when to rely on the client to assist in the case, and when to
attempt serious settlement negotiations.
G. Return your clients’ phone calls. This states the obvious. But
remember, in family law cases, your client may well be waiting beside the phone,
unable to work or think, until you call the client back. Your client may be waiting to hear
whether he or she will be able to have the Thanksgiving holiday with the children,
whether the support check is in the mail, or whether the custody evaluator has offered
up an opinion and recommendation. A bad exchange between the parents may just
have happened, possibly in front of the children, and the client may feel it is imperative
to speak to you. The client will certainly believe his or her problem to be the most
critical of the day. Still, it is interesting to note that when clients give their attorneys bad
review, or in some cases sue them, the most often listed complaint is that the attorney
“didn’t even care enough about me to return my calls.” For that reason, if you are
inaccessible or cannot return your calls for any reason, have your assistant return the
call just to let the client know that you are temporarily unavailable, that you are aware
that the client has called, and will be back in touch very shortly. Remember, it is not the
particular advice you give the client that is remembered at the conclusion of the case,
but the impression you gave. Were you “available” and did you “care enough” to return
that call?
H. Discovery. ORS 107.089 governs discovery a party must provide to the
other party. Even if you feel you will default the opposing party, comply with the statute
to avoid the default being set aside and the Judgment vacated. Explain the seriousness
to the client to produce discovery and the requirement of complete disclosure. Don’t be
afraid to supplement with a standard request for production for both financial and
parenting and custody documentation, like emails, diaries, calendars, and medical or
psychological records. Do your requests early.
Don’t forget that you can file Motions to Compel or send out Subpoenas for
documentation, including requests for loan applications, employer’s records or bank
records. Hire experts well in advance of trial. Depositions are expensive, but can be
revealing.
I. Get the experts you need to help you prepare the case. This one should
be self explanatory. A divorce case will often require the use of an actuary (to value the
pension), a real estate appraiser (to value the home and other property), a personal
property appraiser (to value the furnishings), a business evaluator (to value the family
business), and a child psychologist or social worker (to undertake a custody and
parenting time evaluation). An accountant may be needed to sort out the tax
consequences of spousal support, give advice on the allocation of tax carry-overs, help
with awards of dependency exemptions, and compute tax brackets and retirement
plans. The divorce attorney is not an accountant, business valuator, mental health
professional, or property appraiser, and cannot perform these functions. The attorney is
the contractor of the case: counsel spots the issues, hires the experts where needed,
6-10

gathers and reviews discovery, manages the client and the case, and acts as an
advocate. Clearly, the failure to retain appropriate expert assistance in a divorce
proceeding is a very common ground for malpractice suits, as this can result in missed
or misvalued assets, serious tax errors, improperly divided pensions, inappropriate
custody awards, and any other number of problems. Get the fee for the expert ahead of
time from your client.
J. CYA, in writing, when the client ignores your advice. This is a
corollary to the above point regarding experts, since clients may simply refuse to pay
more money to value their estate or to evaluate parenting issues. Clients may refuse to
follow the advice of competent counsel regarding the division of the estate, payment of
child support, or any other number of issues. They may refuse to value the business,
either because they think they know what it’s worth, their spouse told them what it is
worth, or they don’t care (at that time, at least). Obviously, the attorney cannot advance
the fees to value the estate or hire the psychologist or social worker, nor can the
attorney force the client to accept advice. The lawyer can, however, place in writing the
appropriate advice, along with a written confirmation that the client has chosen to ignore
that advice. A simple letter stating, “I have told you to value the business and you have
told me you do not wish to spend the money to do so,” could actually save the lawyer
from subsequent malpractice claims when the case goes sideways.
The same principle is at work in cases where the parties want a “quicky” divorce,
and neither wants to do any discovery because they “trust” one another and they
“already know” what assets and debts exist. Another variation is where the lawyer is
called upon to review an agreement reached in mediation, in which the lawyer did not
participate, did no discovery, and was never consulted, except to review the “final
document.” In such cases, a limited fee agreement may be in order. These
agreements generally provide that the attorney will not conduct discovery or analyze the
estate, but will review the agreement simply to determine whether it reflects the
agreement that the party believes was reached in mediation. These sorts of
agreements, which are intended to address the relatively new concept of “unbundling”
legal services, are becoming more and more common as couples continue to mediate
their divorces, with a minimum of attorney assistance. In all events, if you, as the acting
attorney, are doing anything less than full discovery or other work normally warranted in
a divorce case, it is imperative that you so state, in writing, prior to allowing the client to
sign the final documents.
K. Do not prepare (or review) Qualified Domestic Relations Orders
(QDRO’s) unless you have the necessary training. This is a pointer that most
divorce practitioners feel strongly about. Preparation and review of a QDRO, which is a
document required to divide an ERISA qualified retirement plan [401(k)’s, Keogh’s, etc.],
and other orders, such as are required to divide PERS and many other sorts of
retirement plans, require an understanding of federal and state pension law. Unless
you have that knowledge, you are taking a serious risk, both for yourself and your client,
to try to prepare or review such an order. Further, because this issue deals with the
division of benefits that might not take place until the date of retirement, it can result in
latent liability for decades after the divorce. In virtually all cases, the prudent course of
action is to retain a pension or tax attorney to both prepare and review the QDRO or
6-11

other orders necessary to divide the retirement. Please note that this is not an issue
that can be handled by a simple letter regarding limited representation, as the
retirement has to be divided, if the Judgment so provides. If you cannot prepare the
order to do it (and the client certainly cannot do so), a qualified pension or tax attorney
must prepare the order. The clients simply have to understand that the cost of retaining
the expert to draft the order is a necessary part of the process.
L. Negotiation / Settlement / Trial. Once documentation has been reviewed
with your client, you may want to make an offer. Don’t forget that advocating for your
client can also include trying to settle a case to avoid your client incurring more fees in
the long run. Make good use of settlement conferences with judges or mediators by
writing a confidential settlement letter, so you don’t waste valuable mediation time. If
the opposing party won’t agree to your terms, at least a written settlement offer could
further your position for an attorney fee award.
M. Drafting the Judgment. Make up your own form of Judgment with all the
scenarios written in so you don’t forget any issues. Then, for each dissolution tailor the
language for your client’s fact pattern, deleting issues that do not apply. Always think
about modifications and appeals down the road, and plan accordingly in your findings of
fact. Make sure you address tax issues, retirement division, life insurance, and debt
responsibility, as well as custody and parenting time issues. Try to construct a
Judgment that timely separates the parties financially, both where debts and assets are
concerned.
N. Follow through. Follow through is important. Make sure the QDRO is
divided, life insurance information received, accounts divided, deeds recorded, and
Satisfactions of Judgment are filed with the court before you withdraw as counsel.
6-12

Learning the Ropes
The Basics of
Oregon g Family y Law
October 31, 2012
Finding Your First Job
�� Don’t give up – be persistent!!!
�� Year 1
�� �� Entering the Twilight Zone
�� My first paycheck
�� Developing a practice the hard way
�� How I became a Family Law Expert
6-13
Picking Your Specialty
�� Family law as specialty
��Ugly Ugly duckling to financial swan
�� �� Will you pick pick your specialty or will it
pick you?
The Top 10 Reasons to Practice
Family Law
#10 There are no right answers so
there are no wrong answers;
#9 There are ample opportunities to
be be creative;
#8 It’s never boring;
#7 I never had to watch Desperate
Housewives;
#6 It’s real life;
The Top 10 Reasons to Practice
Family Law
#5 You meet the nicest people (L);
#4 You meet the nicest people (C);
#3 You learn a little bit about a lot
of different areas;
#2 You can help children; and
#1 The Hugs

Course Materials
�� Printed Materials
�� Article on the Basics of Family Law
�� On line Materials
�� Feibleman’s Short Sheets on Family
Law
�� Article on Attorney Fees and Client
Relations
�� Sample Pleadings
How to Be Successful
�� Be very respectful to all courthouse
staff and especially the judges’ staff
�� Be very nice to your opponents’ staff
�� E Encourage E and d support t staff t ff b bonding di
�� Beg, Borrow and Steal Forms
�� Develop your own mentors
The 1 st Meeting with the Client
�� Be friendly (the human touch)
�� Balance Seriousness with Humor
�� Build confidence and trust by how
you you present present yourself
�� Written Fee Agreement
�� “You are giving a lot of money to a
total stranger who can’t promise you
anything”
�� Charge a large enough retainer
6-14
First Things First
�� Read the OSB Family Law Volumes
�� Read all of ORS Chapter 107
�� Read all of the UTCR
�� S Section ti 8 8 (f (family il l law) ) & S Section ti 5
�� Read all local Rules (wherever you practice)
�� Read “Feibleman’s Short Sheets on
Family Law” and also keep it on your laptop
�� Join the OSB Family Law Section and sign
up for the list serve
THE TOP 5 RULES TO BUILD
STRONG CLIENT RELATIONSHIPS
1) Listen to the client & show you
understand the client’s concerns
2) ) Demonstrate that you y know the law
3) Explain the legal process & the strategy
& how your office will handle the case
4) Confirm major advice in writing
5) Tell clients what they need to hear
rather than what they want to hear
The Cardinal Rule on Retainers
� “If their family who has known them their
whole life will not loan them money &
� their bank who knows their finances will
not tlloan them th money &
� their friends will not loan them money…
then
� why should you loan them money?”
� Bill All Your Time!

Laying, in my bed, I hear the
clock tick and think of you,
Caught up in lawsuits
insomnia is nothing new,
Downstairs at midnight midnight,
it’s coffee time
Read a briefcase of
documents
I’m Billing Time…
If you come to my office or
call my phone,
I’m Billing Time
If you stop me at parties to
whine and moan,
I’m Billing Time
If you come to my office or
call my phone,
I’m Im Billing Time
If you stop me at parties to
whine and moan,
I’m Billing Time
6-15
Sometimes you call me up
and beg me for free advice
You’re stealing from me
and wondering g why y I’m not
nice,
My mind, my time
are my merchandise,
Don’t make me say this
twice,
You say you want the best
but then you don’t pay the
fee,
Motion’s cost money
bbut t you thi think k th they should h ld
be free,
You cry, Oh Why is my bill
so high?
Well let me clarify,
If I think of you when I
am all alone,
I’m Billing Time
If you’re y late for
appointments,
I will be waiting…
And Billing Time…
Still Billing Time…

Divorce Petition Basics
Irreconcilable Differences & Jurisdiction
�� Child Custody & Parenting Time
�� Child Support
�� Health Insurance
�� Uninsured Expenses
�� Life Insurance or other security
�� S Spousal l S Support t
�� Direct or Indirect
�� Life Insurance or Other security
�� Modifiable or Non-Modifiable
Non Modifiable
�� Property Division (remember retirement & taxes)
�� Debt Division
�� Attorney Fees (cite ORS 107.105)
�� Case law does not require any special pleadings
Temporary Relief – ORS 107.095
� Suit money
� Custody & Parenting time
� Child and Spousal Support
� Restraint re: parties and children
� Note: this is like a FAPA but without abuse findings
� Moving out of the home (because of minor children)
�� If there are no kids kids, moving out of the home only because of
threats or assaults
� Restraint re: encumbering or disposing of separate or
joint property
� Note: this is duplicated in ORS 107.093
� Requirement of payment of secured debts
� Note: this applies only to installment liens and
encumbrances on property, not consumer debt.
� Use of real or personal property
� Note: (does this conflict with other subsections?)
FAPA’s & Temporary Relief
A General Judgment of Dissolution, legal
separation or annulment does supersede
contrary provisions of a FAPA order.
Temporary dissolution relief under ORS
107.095 only supersedes a FAPA order if
consolidated with the domestic case with
notice and opportunity to be heard.
6-16
ORS 107.093
� Statutory Restraining Order upon Service
ORS 107.093
� Read it closely and then seek more
restrictions by separate motion
Family Abuse Protection Act - FAPA
�� Read the short sheets FAPA section and bring
it to court
� To issue and affirm a FAPA order:
� the petitioner must have been the victim of
abuse;
� th the abuse b must t have h bbeen committed itt d by b
the respondent within 180 days preceding
the filing of the petition;
� there must be imminent danger of further
abuse to the petitioner; and
� that the respondent represents a credible
threat to the physical safety of the
petitioner .
SPECIAL RULES REGARDING
ALL CUSTODY, PARENTING
TIME AND CHILD SUPPORT
ORDERS (temporary and final)
� must "include provisions" which address
(not necessarily award) the issues of:
� Uninsured medical expenses
� Security or insurance to secure support
� Maintenance of health insurance for the child.

Experts
�� Contact experts early
�� Get money to pay for them
�� Typical experts:
�� Real Estate Appraisal
�� Personal Property???
�� Pension Valuations
�� Business Valuations
�� Custody & parenting evaluators
Pre Pre-Divorce Divorce Hearings
�� FAPA Hearing? (short and difficult)
�� Status Quo Hearing? (limited relief)
�� Custody Study Request? (ORS 107.425)
�� Temporary Relief Hearing? (short and focused)
�� The “affidavit only” counties (read local rules)
�� Limited Judgment for financial relief
�� Orders for other relief
�� Attorney Fees
�� Fees are usually deferred
�� Suit Money is not (lawyer vs. experts)
The Divorce Trial -1
� Setting the date
� Trial Time
Estimates
� Pay trial fee when
date set
� Request reporting
� Trial Memos (key
issues)
� Proposed Judgment
� redlines
� Proposed Findings
(helps you create a
checklist)
� ORCP Request vs.
suggested
� Evidence on every
issue to support
relief sought
6-17
Discovery
� ORS 107.089 lists the very basic discovery
needed for a divorce.
� 30 Days to comply
� Mutual requirement
�� It is insufficient where issues of business
valuation, spousal support or hidden assets/income
are involved.
� Read ORCP 36 - 43
� Depositions (are they really needed?)
� “To share or not to share, that is the question”
Negotiations
�� Who (the parties, the judge and the lawyer)
�� What (the issues)
�� How
�� By Phone
�� By Letter
�� By By Email
��WordPerfect WordPerfect and Word
��Excel Excel Spreadsheets
�� In Person (settlement conferences)
��Understand Understand the psychology of negotiations
�� When (Timing really is everything)
�� Where (Is there a home court advantage?)
The Divorce Trial -2
� Exhibits
� Original +3 &
Numbering
� Plan for admissibility
(copy relevant rules)
� SSummary Exhibits E hibit
� Objections (hearsay,
cumulative, relevant)
� Income, assets and
debts
� UTCR section 8
� Local Rules
� Witnesses
� Number
� Coordinate
� Live or Telephone
� Objections (leading
& hearsay)
� Experts
� Payment & hearsay
� Who cares if it’s
leading?

The Divorce Judgment
�Findings on all fact issues
�Checklist
�“The � The Devil is in the details” details
�Create a checklist
�Steal from others
�Getting it signed
�UTCR 5.100
Basic Tips for Attorney Claims
�� Simplify Your Attorney Fee Claims
�� Make Time entries issue specific
�� Open separate billing files for Contempt
�� Give the Court all it needs
��Statutory Statutory standards
��Facts Facts
��Create Create a table of issues and results
�� Don’t Miss Deadlines (14 days)
�� Protect your award with Findings
6-18
Time to Withdraw?
� Is case complete if:
� the DRO is not
submitted and
qualified?
� the life insurance
company has not been
notified?
� the State’s support
collection office has not
been notified?
� the judgment has not
been registered in other
states or counties
where the opposing
party owns real
property?
Questions?
Gilbert Feibleman
Salem, Oregon
�� Is case complete if:
� everything not done
to complete the
judgment?
� if titles need to be
exchanged or
recorded?
� you have not sent a
closure letter
advising client of
� what they need to do
� what you will &
� What you will not do
without being
requested?

C h a p t e r 6
D O M E S T I C R E L A T I O N S B A N O V E R V I E W
ADDITIONAL RESOURCES
Short Sheets on Family Law
The following resources can be found at www.osbplf.org, select Practice Aids and Forms,
then Domestic Relations
Client Relations and Attorney Fees from the Trenches
The Art of Divorce Settlement Negotiations
Forms, Pleadings, and Rules

“(not so) SHORT SHEETS” ON FAMILY LAW 1
- A Judge’s Aide Since 1994 -
Version September 16, 2012
E-mail gil@feiblemancase.com if you would like the latest versions
Updates available for Judges by e-mail via gil@feiblemancase.com
This document is the most current version of Feibleman’s Short Sheets on Family Law which
this office has provided as a handy reference to Judges throughout the state since 1994. It is also
posted on the Supreme Court’s judicial site and is also included in the Family Law Bench Book
provided at the New Judges Seminar sponsored by the Judicial Dept.
It is intended as an aid and handy reference for judges handling Family Law cases. The
"Short Sheets" cover the basic areas of family law from a judicial perspective, the key statutory cites,
recent changes in child support guidelines, recent legislative changes and specific cases that raise
or resolve important or unique issues.
Please discard any earlier versions and contact Gil Feibleman with any suggested changes,
corrections or questions. If you know of a Judge who wishes to be added to the mailing list, please
have them e-mail our office. We thank those many members of the bench who have added their
input since our first edition in 1994. Highlighted items relate to significant areas of note. New
for 2012 are major court decisions on compensatory support, settlements, inheritance and
business valuation. 2012 legislation is part of this version.
1 The Short Sheets have been a Family Law Judge's Aide since 1994. Gil Feibleman
has been recognized by his peers in the “Best Lawyers in America” since 2002, is a Fellow
and Past President of the Oregon Chapter of the American Academy of Matrimonial
Lawyers (AAML), a Fellow of the International Academy of Matrimonial Law (IAML), a
Founding and current Board member of the Oregon Academy of Family Law Practitioner’s
(OAFLP) and is a former Chair of the Oregon Sate Bar Family & Juvenile Law Section. He
is also a frequent local and national speaker and author on matters pertaining to family law
and legal ethics and served as 2010 State Chair of the Oregon State Bar Disciplinary
Board. He also has served as a pro-tem Circuit Court Judge in 8 Oregon counties.
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INDEX
BEFORE THE DIVORCE IS FILED
FAMILY ABUSE PREVENTION ACT (FAPA) ORS 107.700 et. seq. ................. 6
FAPA and Divorce in Multiple Counties
All Domestic Relations Orders and Judgments Do Not Supersede FAPA Orders
Child Custody Quirks
Deferring a Custody Decision
Pre-Existing Custody Orders
Modification
HEARINGS CHALLENGING FAPA ORDERS .................................. 7
PRESUMPTION OF CUSTODY FOLLOWS IN DIVORCE......................... 8
FAPA FINANCIAL SUPPORT .............................................. 8
OUT OF STATE FAPA ORDERS ............................................ 8
REQUIREMENTS IN ORDERS RE VIOLENCE AGAINST WOMEN ................. 8
RELIEF THAT CAN BE GRANTED .......................................... 9
“BRADY’ GUN CONTROL PROVISIONS ..................................... 9
TEMPORARY AND EX PARTE MATTERS
AUTOMATIC RESTRAINING ORDER UPON SERVICE ......................... 11
TEMPORARY RELIEF AFTER FILING OF THE DISSOLUTION................... 11
RESTRICTIONS ON EX-PARTE TEMPORARY CUSTODY BEFORE DISSOLUTION . . 12
STATUS QUO ORDERS ................................................. 12
BOTH ORS 107.097 AND ORS 107.138 SPECIFICALLY ADDRESS TEMPORARY
PROTECTIVE ORDERS OF RESTRAINT (I.E. “STATUS QUO ORDERS”)......... 13
DEFINITIONS OF TERMS ................................................ 13
PROCEDURAL ISSUES
DISCOVERY........................................................... 14
SPECIAL RULES REGARDING ALL CUSTODY, PARENTING TIME (VISITATION) 14
AND CHILD SUPPORT ORDERS
CHILD SUPPORT ORDERS .............................................. 14
HEARSAY EXCEPTION OF DOMESTIC VIOLENCE ........................... 14
STIPULATED JUDGMENTS AND WAITING PERIODS ......................... 14
JURISDICTION......................................................... 15
PLEADINGS IN DIVORCES .............................................. 15
THE DIVORCE JUDGMENT
DISSOLUTION JUDGMENT RELIEF ........................................ 16
ENFORCEMENT OF SETTLEMENTS ....................................... 18
STIPULATED JUDGMENTS .............................................. 18
CHILD SUPPORT RELATED QUESTIONS ................................... 19
How is Child Support Calculated?
What does the Court have to do in a Child Support Case?
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Which Child Support Rules Apply to Your Court File?
What are the Rules for Adult Children Between the Ages of 18 and 21
Years of Age?
Conditions for support for children between 18 and 21 Years of Age?
Child Attending School
Reinstatement
Can I Order a Party to Pay for College?
What Happens if the Child Receives Social Security or Other Benefits?
Assistance Payments
Who Gets the Tax Deductions and Tax Credits?
How do Overnights Play into the Current Rules?
What’s all this about Rebuttal and when do I apply for it?
Other Special Child Support Issues
What About Self Employed People?
Cash Medical Support and Uninsured Medical Expenses
Cost of Health Insurance
How is Overtime Treated
Income of New Partners
Wage Withholding
Who Collects and enforces Child Support?
Do I have to Order Life Insurance?
SPOUSAL SUPPORT QUESTIONS ........................................ 37
Transitional Spousal Support
Compensatory Spousal Support
Spousal Maintenance Support
Things to Watch Out for in Spousal Support Cases
LIFE INSURANCE ...................................................... 43
PROPERTY DIVISION ................................................... 44
PRESUMPTION OF EQUAL CONTRIBUTION ................................ 44
The Massee Twist
Kunze and Kunze
Commingling and Tracing
FOOTNOTE 12 IN THE KUNZE DECISION IS OF NOTE ........................ 45
CASES SINCE KUNZE .................................................. 48
SHORT MARRIAGES.................................................... 49
PREMARITAL ASSETS .................................................. 49
TAX CONSEQUENCES .................................................. 49
INHERITANCES AND GIFTS.............................................. 50
BUSINESS VALUATIONS...................................................................................................50
RETIREMENT ......................................................... 52
PERS Accounts
caudill and Caudill
Kiser and Kiser
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IRA’S and Tax Deferred Annuities
Is It Property or Income When Retirement is in “Pay” Status?
Present Valuation of Retirement Accounts
Other Retirement Issues
TRUST CREATION ..................................................... 54
STOCK OPTIONS ...................................................... 54
CHILD CUSTODY & PARENTING PLANS ................................... 55
The Best Interests Standard
CUSTODY STUDIES .................................................... 55
JOINT CUSTODY....................................................... 56
PARENTING PLANS .................................................... 57
PARENTING TIME/VISITATION DENIAL OR INTERFERENCE ................... 58
MOVING .............................................................. 58
INTERVENTION BY THIRD PARTIES ....................................... 60
Psychological Parents
Grandparents
UNIFORM CHILD CUSTODY, JURISDICTION AND ENFORCEMENT ACT
(UCCJEA) ....................................................... 62
DISSIPATION OF ASSETS AND INCOME ................................... 62
ATTORNEY FEES ...................................................... 63
EFFECTIVE DATES ..................................................... 63
AFTER THE DIVORCE .................................................. 65
APPEALS ............................................................. 65
Temporary Relief Pending Appeal
Trial Court Stays Pending Appeal
Court of Appeal Review
CONVERSATION OF SEPARATIONS INTO DIVORCES ........................ 65
ENFORCEMENT OF SETTLEMENTS
MODIFICATIONS ....................................................... 67
GENERALLY .......................................................... 67
AREAS AVAILABLE FOR MODIFICATION ................................... 67
PLEADING REQUIREMENTS ............................................. 68
EVIDENTIARY LIMITATIONS DURING HEARING ............................. 68
MILITARY EXCEPTIONS ................................................. 68
MODIFICATION OF SPOUSAL SUPPORT ................................... 68
Limitation on Compensatory Support Modification
MODIFICATION OF CHILD SUPPORT ...................................... 69
MODIFICATION OF PARENTING TIME ..................................... 69
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EXPEDITED PARENTING TIME ENFORCEMENT HEARING .................... 69
ARREARAGES AND CREDITS ............................................ 69
Foreign Orders
Social Security Credits
Credit When the Child is with the Other Parent
WHEN SOMEONE IS INCARCERATED ..................................... 70
ENFORCEMENT OF POST-JUDGMENT SETTLEMENTS ....................... 70
POST-DECREE RELIEF (EX-PARTE AND TEMPORARY)....................... 70
Post-Decree Temporary Custody
Post-Decree Status Quo Orders
HIDDEN ASSETS/REOPENING DIVORCES .................................. 71
Inadvertent Omission
Intentional Concealment
Case Law is Minimal
CONTEMPT ........................................................... 71
Contempt Statute of Limitations
The Court has no Jurisdiction Under ORCP 78 to Enforce A
Non-Support Money Judgment by Contempt
Out of State Violators
JUDGMENTS .......................................................... 73
WRITS OF ASSISTANCE ................................................ 73
MODIFICATIONS OF PENDING APPEAL .................................... 73
CONTINUING JURISDICTION............................................. 74
SUPPLEMENTAL JUDGMENTS FOR TEMPORARY RELIEF PENDING APPEAL .... 74
CONCLUSION ......................................................... 74
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BEFORE THE DIVORCE IS FILED
‘ FAMILY ABUSE PREVENTION ACT (FAPA). ORS 107.700 et seq.
‘ It is not unusual for some attorneys to send their clients in to obtain a Family
Abuse Protection Order (FAPA) prior to filing or a party has obtained an order
without the advice of counsel. The judicial department is supposed to provide
training in domestic abuse so this section will not address the misuse of the
statute or the dynamics of issuance of the initial ex-parte FAPA order. That has
not been a sufficient safeguard against misuse.
‘ Federal mandates and legislative mandates now create consequences from
such orders that go beyond the goal of ex-parte protection of a purported victim
and which will now impact the dissolution proceeding. Because of that, misuse
of the statute can have far greater consequences than ever before.
‘ FAPA AND DIVORCE IN MULTIPLE COUNTIES. There is a problem when the
FAPA order is in a county other than the county of divorce. ORS 107.722
consolidation provisions do not address this cross-county issue. Referral to
ORCP 53 does not solve the issue either. Use of ORS 107.449 to transfer the
file is inappropriate because a FAPA is not a modification (though some judges
use it anyway).
‘ ALL DOMESTIC RELATIONS ORDERS AND JUDGMENTS DO NOT
SUPERSEDE FAPA ORDERS. A General Judgment, Judgment of Dissolution,
legal separation or annulment does supercede contrary provisions of a FAPA
order. Temporary dissolution relief under ORS 107.095 does not supercede a
FAPA order unless the FAPA matter was consolidated with the domestic case
and the non-moving party was given notice and opportunity to be heard. UTCR
5.030 allows 14 days to respond to any such motion.
‘ CHILD CUSTODY QUIRKS.
‘ DEFERRING A CUSTODY DECISION. ORS 107.718(2) adds a
discretionary provision that allows the court to defer an award of child
custody if the court finds “exceptional circumstances exist that affect the
custody of a child.” If the court defers it must set a prompt hearing date
at the time it issues it’s FAPA order.
‘ ORS 107.716(2)(a) requires that hearing to be within 14 days
however if requested by the Respondent, the hearing must beheld
within 5 days of the request.
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‘ PRE-EXISTING CUSTODY ORDERS. ORS 107.722(2)(b) provides that
if a FAPA order modifies a preexisting custody/parenting time order (i.e.
a pre-existing divorce judgment), then the FAPA order relating to
custody/parenting time must specify a period in which those provisions
last and that can only be for so long as the court finds that the petitioner
has adequate time to obtain a modification of the prior order. At the end
of the time period that part of the FAPA order lapses.
‘ MODIFICATION. A party can request modification of custody or
parenting time provisions at any time. The court can award attorney fees
for the hearing. ORS 107.730.
‘ HEARINGS CHALLENGING FAPA ORDERS.
‘ ORS 107.718(1) states in part “when a person files a petition under ORS
107.710, the circuit court shall hold an ex-parte hearing in person or by
telephone on the date the petition is filed or on the following judicial date.” It is
not discretionary. A FAPA order entered without the moving party being present
at hearing in person or by phone violates the statute.
‘ There is a misconception that if there is an initial basis to grant a FAPA order it
then must be upheld at hearing. The Court of Appeals rejected that in Boldt and
Boldt, 155 Or.App. 244, 963 P.2d 719, 720 (1998). The court held that at a
contested hearing the Petitioner’s “...additional burden was to establish by clear
and convincing evidence that she was in immediate and present danger of
further abuse” citing Oregon State Bar v. Fowler, 278 Or. 169 (1977) as grounds
that injunctions are extraordinary remedies. The court noted that there was no
evidence of a cycle of abuse from which the Petitioner could not extricate herself
nor evidence that she feared repetition of the conduct. The current standard is
to show “By a Preponderance” that the person is in danger of “imminent
danger of further abuse.” ORS 107.710(1) & (2).
‘ There have been four (4) cases which have again made it clear that the court
cannot uphold a FAPA order on a mere claim of “fear. The court has outlined
the requirements in Roshto v. McVein, 207 Or.App. 700, 704-05, 143 P.3d 241
(2006) which were clarified in Fielder and Fielder, 211 Or.App. 688, (2007),
Hayes and Hayes 212 Or.App. 188, 157 P.3d 324 (2007) and Baker and Baker,
216 Or.App. 205, 173 P.3d 833 (2007).
‘ In 2012, a new case came down on the issue of cross examination. The
court’s reversal made it clear that the court cannot deny a party’s right to
cross examine witnesses. See Hemingway and Mauer, 247 Or.App. 603
(2012).
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The Hayes case referred to the prior cases and held that to issue and affirm a FAPA order:
(1) the petitioner must have been the victim of abuse;
(2) the abuse must have been committed by the respondent within 180
days preceding the filing of the petition;
(3) there must be imminent danger of further abuse to the petitioner; and
(4) that the respondent represents a credible threat to the physical safety
of the petitioner .
The Hayes court went on to states that “…even if a petitioner makes subjective
assertions of fear, a FAPA restraining order will not be affirmed when there is
insufficient evidence that the alleged conduct creates an imminent danger of
further abuse and a credible threat to the physical safety of the petitioner.”
Roshto v. McVein, 207 Or.App. 700, 704-05, 143 P.3d 241 (2006). Hayes and
Hayes, 212 Or.App. 188, 157 P.3d 324 (2007).
‘ PRESUMPTION OF CUSTODY FOLLOWS IN DIVORCE. ORS 107.137(2) creates
a rebuttable presumption that a FAPA order means that it is not in the child’s best
interests to be in the sole or joint custody of the FAPA Respondent.
‘ If the FAPA order does not award parenting time, then that “abuser” is not
entitled to notice that the victim and child are moving. The court needs to
be aware of this unintended consequence of a “no visit” FAPA order.
‘ Caveat: Because of the serious impact this has on a future divorce,
attorneys may be required to seek full custody hearings at the FAPA
stage which could reek havoc with court calendars yet it may be
malpractice to not do so.
‘ FAPA FINANCIAL SUPPORT. ORS 107.718(1)(h) allows for emergency monetary
relief to provide for the safety of the protected person and their children.
‘ OUT OF STATE FAPA ORDERS. Foreign FAPA orders can be registered just like any
other foreign judgment, however, a registered foreign FAPA is not enforceable if the
person restrained can show that the original court lacked jurisdiction, there was no
reasonable notice to be heard or under certain circumstances the order was issued
against the person seeking the order.
‘ Caveat: Could this same procedure be used for registering a FAPA order from
another county?
‘ REQUIREMENTS IN ORDERS RE VIOLENCE AGAINST WOMEN. ORS 107.716(5)
requires that any order that is continued at a hearing where the respondent had actual
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notice and opportunity to be heard must have specific language in the order above the
Judge’s signature to show compliance with the Violence Against Women Act (18 USC
2265). This is generally not being caught by courts in some counties. Judicial training,
with forms, is available electronically. In other words, the violence against women
certificate only is added to the order after a proper hearing where the order has
been continued.
‘ RELIEF THAT CAN BE GRANTED. ORS 107.718 details the remedies available in a
FAPA order. They include:
‘ Temporary custody
‘ Reasonable parenting time unless it is not in the child’s best interests
‘ Requiring a party to move
‘ Restraint from entering or being near a persons residence or other places
‘ Police help to obtain “essential personal effects”
‘ Restraint from intimidation, molestation or menacing
‘ Anything else the court thinks is necessary for safety
‘ Monetary assistance
‘ ORS 107.718(6)(c) permits a requirement of counseling or intervention programs
as conditions of parenting time.
‘ “BRADY’ GUN CONTROL PROVISIONS
There is an ancillary federal law where there is a firearms ban (including hunting weapons) that
is automatic if a FAPA order is upheld after a contested hearing where there is no ban if the
FAPA order is not challenged.
‘ Some circuits, other than the 9 th Federal Circuit have held that even a “set over”
request and order is enough of a “hearing” to trigger federal exposure.
‘ If the person has been convicted of “misdemeanor crime of domestic violence” there is
a Lifetime Ban which applies even in “Public Use” situations (i.e. law enforcement).
18 U.S.C. §922(d)(9) and §922(g)(9); §925
‘ Misdemeanor under State or Federal Law
‘ Involves physical force or deadly weapon, as an element
‘ Occurred between certain domestic relationships, as factually shown
‘ If the person is subject only to a FAPA order then the Ban lasts only during
pendency of protective order. The order must be one where:
‘ Individual is restrained from harassing, stalking, or threatening, or engaging in
other conduct that places victim in reasonable fear of bodily injury to self or child;
‘ Protected person is “intimate partner” (or partner’s child) as defined in federal
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law;
‘ Note that this is a narrower class than the domestic relationships covered
by the misdemeanor conviction liability, and narrower than relationships
protected under Oregon’s FAPA (i.e. spouse/former spouse; other parent
of joint child; current or past co-habitant).
‘ The Order must be issued after hearing of which defendant had notice and
the opportunity to participate (ex parte initial proceeding does not count); and
‘ The order must includes finding of credible threat to physical safety or explicitly
prohibit physical force by its terms.
‘ There is a “Public Use” exception (i.e. law enforcement is exempt).
‘ See 18 U.S.C. §922 (d)(8) and §922 (g)(8).
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TEMPORARY AND EX PARTE MATTERS
‘ AUTOMATIC RESTRAINING ORDER UPON SERVICE. ORS 107.093, a 2003
legislative act modeled after a similar Colorado Statute, creates an automatic
restraining order language upon filing and service of a Summons and Petition.
The 2007 amendment in ORS 107.093(6) makes violation punishable by civil
contempt. It remains in effect until final judgment or further order of the court.
‘ The Petition is required to have an acknowledgment by the Petitioner that they
are bound by the TRO.
‘ It purports to restrain both parties from 3 major things: 1) messing with
insurance, 2) changing beneficiaries and 3) “transferring, encumbering,
concealing or disposing of property” without written consent or court order. ORS
107.093(2)
‘ OTS 107.093(2)(d) allows for extraordinary expenditures if there is written notice
and an accounting. Consent is not required.
‘ It does have exceptions for attorney fees, taxes, therapy and support.
‘ This does not bar other restraining orders. The bill sponsors did not include
custody related provisions because ORS 107.097 already authorizes ex-parte
relief.
‘ TEMPORARY RELIEF AFTER FILING OF THE DISSOLUTION. This is authorized in
ORS 107.095 (divorce). The form of relief is now by way of a Limited Judgment,
however there is a dispute in the bar and bench about whether only financial relief can
be by a Limited Judgment, whereas all other temporary relief must be by order. See
ORS 107.095(2) which says that a Limited Judgment can be entered for support and
money awards but it does not say anything about custody.
‘ Despite ORS 19.255, ORS 107.095(2) specifically says this limited judgment is
not appealable until a general judgment is entered.
‘ As a Judge, you have authority to make orders for custody, parenting time
(visitation), child support, spousal support, suit money, exclusive use of assets,
make people move, etc. The specific subsections are:
‘ Suit money (i.e. money to fund litigation, including experts, in subsection
1(a)).
‘ Custody, parenting time and child support (subsection 1(b)). This also
applies in ORS 109.103 for paternity and ORS 109.119 for psychological
parents.
‘ Restraint regarding the parties and children (subsection 1(c)).
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‘ This is like a FAPA but without any requirements of abuse.
‘ Moving out of the home (because there are minor children) (subsection
1(d)).
‘ Restraint from encumbering or disposing of separate or joint property
(subsection 1(e)). Note this is duplicated in ORS 107.093.
‘ Requirement of payment of secured debts (section 1(f)).
‘ Note that this applies only to installment liens and
encumbrances on property, not consumer debt. Contrary to
custom, the statute does not authorize ordering payment of non
secured debt.
‘ If there are no kids, moving out of the home only because of threats or
assaults (subsection 1(g)).
‘ Spousal support (subsection 1(a)).
‘ Use of real or personal property (subsection 1(f)).
‘ Caveat: when you order temporary restraint under (1(c)) or kick
someone out of the house under (1(d)) and the person had notice
and opportunity for a hearing then the court must also include,
“when appropriate”, findings sufficient under USC 922(d)(8) or
(g)(8) “to bar the person’s ability to possess firearms and
ammunition or engage in activities involving a firearm.
‘ RESTRICTIONS ON EX-PARTE TEMPORARY CUSTODY BEFORE DISSOLUTION.
ORS 107.097(1) bars ex parte custody or parenting time orders except under ORS
107.097(3). That section states that there can be an ex-parte custody or visitation order
only if the party is present in court, the affidavit shows "immediate danger", and the
court finds on the facts presented in the testimony and affidavit that there is "immediate
danger." All three are required. Also:
‘ An ex-parte order should contain such information as to 24 hour
availability by phone number and a contact address.
‘ The other party is entitled to a hearing within 14-21 days of such a
request.
‘ The only issue at the hearing on the ex-parte order is whether there
was "immediate danger" when the order was granted, not best
interests. A separate hearing must be held on a motion for temporary
custody under ORS 107.095 to address best interests.
‘ The order must contain this notice: “Notice: You may request a hearing
on this order as long as it remains in effect by filing with the court a
hearing request in the form described in ORS 107.097(5).”
‘ STATUS QUO ORDERS. Both ORS 107.097 and ORS 107.138 specifically address
temporary protective orders of restraint (i.e. "STATUS QUO ORDERS"). Since 1995
these have been "statutorily" authorized as long as the motion and affidavit conform to
the Uniform Child Custody Jurisdiction Enforcement Act (hereafter UCCJEA) and the
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statute. The statute limits what can be contained in the order and therefore it is
incumbent upon the court to check these out since many lawyers present older forms
that exceed or are inconsistent with the court’s current authority for a status quo order.
‘ ORS 107.097(2) requires that a motion for a temporary protective order of
restraint must comply with ORS 109.767, the Uniform Child Custody
Jurisdictional Enforcement Act requirements. The supporting affidavit
should allege:
‘ The places, names and addresses of the child's residence and custodians
for the prior five years.
‘ whether the person has participated in any litigation begun by the child
‘ whether the party has knowledge of other pending legal matters.
‘ whether the party knows of any person who has had physical custody or
a claim to custody or visitation rights (in essence, the facts to establish
the home state).
‘ BOTH ORS 107.097 AND ORS 107.138 SPECIFICALLY ADDRESS TEMPORARY
PROTECTIVE ORDERS OF RESTRAINT (I.E. "STATUS QUO ORDERS").
These are now "statutorily" authorized as long as the motion and affidavit conform to
the UCCJEA and other requirements. The statute limits what can be contained in the
order and therefore it is incumbent upon the court to check these out since many
lawyers’ orders go way beyond status quo.
‘ There is a right to a hearing within 21 days and the only issue is what was
the status quo when the order was issued. In other words, if the status quo
had been kids with mom for 3 months and dad had them for a week when he got
the order, mom's house would be the status quo.
‘ Caveat: the Family Abuse Prevention Act (hereafter "FAPA") ORS
107.718(1)(a) requires an award of temporary custody which is ex-parte
relief contrary to the intent of ORS 107.097.
‘ In an initial divorce, you must show "immediate danger" to obtain ex-parte
custody but not in a FAPA proceeding. The FAPA could be abused to obtain
post-decree temporary custody. A FAPA petition also would allow the court to
temporarily bar visitation, but the issue of visitation even under FAPA is
discretionary.
‘ DEFINITIONS OF TERMS. ORS 107.138 defines “status quo” as how things
were for the prior 90 days. ORS 107.097(6) adopts 107.138 as a definition of
usual place of residence and also adopts ORS 107.138 definitions for the other
categories as well.
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‘ DISCOVERY
PROCEDURAL ISSUES
‘ ORS 107.089 makes it discretionary to serve the ORS 107.089 statutory
discovery request but if the ORS 107.089 request is served, the discovery
exchange is required within 30 days of service. ORS 107.089 does not limit
additional other ORCP discovery after 45 days. See ORS 107.089(5).
‘ ORS 107.089 lists the basic information needed for a basic divorce. It is
insufficient where issues of business valuation, spousal support or hidden
assets/income are involved. In those cases a broader request should be made.
‘ SPECIAL RULES REGARDING ALL CUSTODY, PARENTING TIME (VISITATION)
AND CHILD SUPPORT ORDERS
‘ ORS 107.106 requires that any order regarding custody, parenting time or child
support must "include provisions" which address (not necessarily award) the
issues of:
‘ Uninsured medical expenses
‘ Security or insurance to secure support
‘ Maintenance of health insurance for the child. You must decline to sign
an order that does not “address” such provisions either in the findings or
body of the Judgment.
‘ CHILD SUPPORT ORDERS. All child support orders must have a calculation exhibit
attached and include statutory notices. Make the lawyers do it right. See UTCR
8.060(2). You should not sign a Judgment that omits this requirement.
‘ HEARSAY EXCEPTION OF DOMESTIC VIOLENCE.
‘ ORS 40.460(26)(a) creates a hearsay exception in OEC 803 for domestic
violence (using an ORS 135.230 definition) reports made within 24 hours of the
violence.
‘ See also ORS 40.460(18)(a) for additional hearsay exceptions for FAPA cases.
‘ STIPULATED JUDGMENTS AND WAITING PERIODS.
‘ ORS 107.065(2)(b) allows a judge to waive the 90 day waiting period when a
stipulated judgment is submitted with an affidavit.
‘ ORS 107.115 terminates the marriage upon signing of the Judgment, not entry
or 30 days later.
‘ ORS 107.095(4) provides that if the parties stipulate to the entry of a judgment
and the waiting period has lapsed or been waived, the court can enter the
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General Judgment based on an affidavit setting forth:
‘ a prima facie case, and
‘ if there is child support or custody involved, then also the gross monthly
income of each party, the name of the party with whom the children
currently reside and the length of time they have so resided.
‘ JURISDICTION. ORS 107.135(10)(a) says that the courts of Oregon retain jurisdiction
irrespective of any change in domicile unless ORS 109.700 et. seq. applies (the
UCCJEA).
‘ PLEADINGS IN DIVORCES
‘ In Marriage of Triperinas, 185 Or.App. 283, 59 P.3d 586 (2002) the court held
that even though the wife raised the issue of spousal support for the first time in
her trial memorandum and did not request support in her pleadings “the trial
court's authority to fashion an equitable decree which is responsive to the
circumstances apparent from the record is not strictly confined to the relief
sought in the parties' pleadings." The court could exercise its discretion to award
any relief authorized by statute.
‘ The Triperinas, court also addressed the question of whether the trial court
abused its discretion in considering the issue of spousal support over husband's
objection that he had been unable to conduct discovery as a result of wife's
belated claim. It said the record showed it was not an abuse.
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‘ DISSOLUTION JUDGMENT RELIEF
THE DIVORCE JUDGMENT
ORS 107.105 describes the relief you can grant in a Judgment. The court can provide for
custody, visitation, child support, spousal support, division of assets and debts, attorney fees,
etc. Reading the statute is the best way to be prepared on the relief available. The specific
subsections are:
‘ Custody
‘ This issue can be bifurcated and decided first.
‘ ORS 107.137 states the factors the court is to consider.
‘ Parenting Time
‘ Parenting time for non-custodial parents. A plan is required.
‘ Visitation rights for non-parents petitioning under ORS 109.119 (people with
“emotional ties” or who have an “ongoing personal relationship such as
stepparents and grandparents).
‘ Either by way of an approved parenting plan under ORS 107.102 as created by
the parties or by court mandate under ORS 107.105(1)(b).
‘ Child support
‘ Note: ORS 107.108 deals with adult children aged 18-21.
‘ Support is under the support guidelines ORS 25.270 to 25.280 as implemented
in OAR137-050-0700 to 137-050-0765.
‘ Child support is not required for a child who is 18 and has ceased to be a “child
attending school” as defined by ORS 107.108, a minor who has become
emancipated, self-supporting or married. However the current OAR allow for
reinstatement if a child again becomes a “child attending school.”
‘ Although ORS 107.106 says the court must include provisions that “address”
issues of life insurance, health benefits and uninsured health expenses, it does
not specifically authorize it or require that it be granted.
‘ For example, a court could say it declines to order life insurance because
social security is sufficient security for a minor child’s support. That would
“address” the issue but not award it.
‘ The court could also require life insurance. Some judges are now
rethinking the amount of life insurance they are requiring and looking at
it as a post age 18 supplement to social security because often social
security benefits (through age 18) are usually in excess of the court
ordered support.
‘ Spousal support
‘ Transitional support
‘ Maintenance support
‘ Compensatory support
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‘ In 2008 and 2009, the Court of Appeals issued a number of opinions
regarding compensatory support and its just and equitable requirement.
(English and English, 223 Or.App. 196, 194 P.3d 887 (2008); Talik and
Talik, 226 Or.App. 67, 202 P.3d 267 (2009). The Supreme Court
ultimately addressed compensatory support in Harris and Harris, 349 Or.
393, 244 P.3d 801 (2010).
‘ Note that written findings are required and the court has to say what kind
or kinds of support it is awarding. The statute includes finding categories.
‘ ORS 107.105(1)(f) has buried in the long paragraphs language about support
that is awarded in lieu of property. Different rules apply, so it is important to read
it closely. In such a situation life insurance is mandatory. If the person dies
without the insurance, the support continues after death and is a claim against
the estate for monthly support, or the court can order a “present value” lump sum
of the support still due.
‘ Tax consequences are to be considered (ORS 107.105(2)).
‘ Delivery of personal property.
‘ Division of real property and personal property. ORS 107.105(1)(f).
‘ Full disclosure is required.
‘ The division is to be “just and proper”
‘ Jurisdiction applies to joint and separate property, marital and non-marital
property.
‘ Retirement interests are “property.” Disability is income and not property.
‘ Social security is not property.
‘ Irrespective of how title is held, there is a rebuttable presumption that both
spouses contributed equally to the acquisition of property during the marriage.
‘ There is also a presumption a homemaker has “contributed” to the acquisition
of marital assets.
‘ Tax consequences are to be considered in setting support and dividing property
(ORS 107.105(2)). In addition, ORS 107.105(1)(f) requires the court to consider
the “reasonable costs of sale of assets, taxes and other costs reasonably
anticipated by the parties” in making a just division.
‘ Caveat: The battle is over whether they are reasonably anticipated or
speculative. For example, retirement accounts, other than a ROTH
account, will always be taxed so adjusting for reasonable taxes is
appropriate. On the other hand the future sale of an asset may never
occur so costs of sale and taxes on that may be speculative unless the
record shows otherwise.
‘ Creation of trusts
‘ To manage property for the support of children.
‘ To manage property for the support of a party.
‘ Trusts can be modified if there is a “change of circumstances.” ORS
107.105(1)(g)(C).
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‘ Name changes to premarital name
‘ ORS 106.220 allows a married person to restore his or her prior surname without
the necessity of filing a motion or getting divorced.
‘ Money awards
‘ For unpaid awards (such as temporary support) in a prior limited judgment under
ORS 107.095.
‘ If not included in the general judgment, the limited judgment is still enforceable.
‘ Attorney Fees
ENFORCEMENT OF SETTLEMENTS
‘ ORS 107.104 and ORS 107.135(14) provides that settlements, whether in the form of
a stipulated Judgment or a Judgment adopting or resulting from a settlement (including
modification settlements), can be enforced either as a contract enforcement (i.e. outside
the divorce action), as a contempt or other domestic enforcement, or as both.
‘ Judicial Tip: When counsel presents a stipulated settlement “on the
record” have all sides also stipulate that the court has authority to resolve
any remaining issues (like an arbitrator), including the form of judgment,
without further testimony. This will allow you to prevent the settlement
from blowing up when one side has buyer’s remorse.
STIPULATED JUDGMENTS
‘ ORS 107.065(2)(b) states that an affidavit stating that the parties are entering into a
stipulated Judgment is adequate grounds to waive the waiting period.
‘ ORCP 67F allows for stipulated Judgments but ORS 107.095(4) still requires, if there
are minor children or support awards, an affidavit reciting the Petitioner’s gross monthly
income, the Respondent’s gross monthly income, the name of the person with whom
the children currently reside with and the length of time the children have primarily
resided with said person.
‘ There is no requirement that a separate motion be filed.
‘ The affidavit can be part of the judgment exhibits.
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CHILD SUPPORT RELATED QUESTIONS
‘ HOW IS CHILD SUPPORT CALCULATED?
‘ Child support is calculated pursuant to OAR 137-050-0700 et. seq which are the
rules implementing the ORS 25 statutes.
‘ These rules were substantially changed, effective January 4, 2010. The rules
include commentary which explains the rationale for many provisions, provides
examples and resolves many previously unanswered questions. New rules are
frequently issued. The 2010 changes also substantially increased most
support obligations.
‘ The OAR commentary explain the overall concepts applied to the guidelines.
‘ The DCS website provides a calculator to determine child support. Generally,
to calculate child support you take the gross income of both parties, look at a
chart to figure out the children's needs, then prorate the amount based on the
party’s percentage of the combined family income. These figures are adjusted
by the cost of child care, recurring medical expenses, the prorated out-of pocket
cost of insurance or rebuttal criteria.
‘ OAR 137-055-5110 addresses how to handle adult children calculations.
‘ WHAT DOES THE COURT HAVE TO DO IN A CHILD SUPPORT CASE?
‘ The court needs to make findings as to the parties’ incomes, cost of insurance,
day care, etc. and then direct the attorneys to prepare the support calculation.
‘ Be aware that Child Care, found in OAR 137-050-0735, skews the support level
and section (3) of the rule now sets a cap on child care credits though few
lawyers tell the judges about this provision.
‘ There is a schedule of the maximum chid care. Out of state costs are set
at the lowest in-state cost.
‘ The child care rule also makes clear that child care must be due to
“employment, job search, job training or education necessary to obtain a
job.” Child care that does not meet this criteria is not recognized under
the rule.
‘ WHICH CHILD SUPPORT RULES APPLY TO YOUR COURT FILE?
‘ The new 2010 rules apply to matters initiated or even pending on the
effective date.
‘ Caveat: When calculating retroactive support, the rules presume that
current income levels were present in the past and it is the duty of the
obligor to rebut that.
‘ WHAT ARE THE RULES FOR ADULT CHILDREN BETWEEN THE AGES OF 18 AND
21 YEARS OF AGE?
‘ ORS 107.108 was significantly changed in 2005 as it relates to “children
attending school” (adult children between 18 and 21). The changes have been
confusing and have created some unforseen problems for the courts. The 2010
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legislature did not fix these problems.
‘ Child Attending School. ORS 107.108 was substantially revised in 2005 which
provides support for children between the ages of 18 and 21 who are attending
school. The changes are comprehensive, technical, and difficult to summarize.
The amendments apply to all child support orders that currently contain
provisions for a child attending school. Some highlights are as follows:
(1) There is an extensive definitions section at ORS 107.108(1), which
replaced ORS 107.108(8). The term child attending school is defined to include
a requirement that the child “[i]s making satisfactory academic progress as
defined by the school that the child attends.” Please note, this does not require
the former standard of a “C average or better.”
(2) ORS 107.108(3) requires that the child is a party for purposes of
matters related to “this section,” and designates specific rights for the child
attending school. The child has the right to (a) apply for services under ORS
25.080, (b) request a judicial or administrative modification of the support
amount, and (c) receive notice of or participate in certain legal proceedings that
may affect the child’s rights if the child is between the ages of 18 and 21,
whether or not the child at the time qualifies as a child attending school.
(3) Regardless of child-attending-school status, any unmarried child
between 18 and 21 is now a necessary party to a judicial proceeding under ORS
107.085, 107.135, 107.431, 108.110, 109.103, or 109.165 in which the child’s
parents are parties and the court has authority to order or modify support for a
child attending school. ORS 107.108(4)(a).
(4) The child is required to provide written consent that allows each
parent ordered to pay support to obtain information directly from the school
relating to enrollment, standing, grades, and course load. ORS
107.108(6)(a)(B). This addresses the obligor’s inability to obtain information
when a child enrolls in school to qualify for support and soon thereafter ceases
attending or drops out.
(5) ORS 107.108(8) sets forth several scenarios that will result in the
suspension of a parent’s obligation to pay support to a child attending school.
ORS 107.108(9)(b) allows the Child Support Program to reinstate suspended
support without a court order upon a showing by the child that he or she is
attending school.
(6) ORS 107.108(12) allows a court to order the payment of child
support in accordance with a higher education savings plan as an alternative to
child support. This provision was added to address situations in which an obligor
has established a “tax-advantaged account” to pay “qualified higher education
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expenses of the child at eligible educational institutions.” Money from a higher
education savings plan may be used only for a list of qualified expenses and if
paid “in accordance with the plan” rather than distributed directly to the child.
Furthermore, the court may not require that such payments be made through the
Department of Justice. ORS 107.108(12)(b).
(7) ORS 107.108(14) includes a policy statement recognizing the
importance of continuing education for a child over the age of 18 who is not from
an intact family or has been removed from the home. The statement makes
clear that the law is generally intended to apply to children of divorced or
unmarried parents and is not an educational financing plan for children of intact
families, and that a support order for a child attending school is not intended to
cover the full cost of education.
‘ All orders for child support for an adult child entered on or after 10/3/97 are
required to be paid directly to the child, instead of the parent, unless good cause
is shown.
‘ OAR 137-055-5110 is very vague and states that a judicial finding
constitutes “good cause.” That means that if you, as the judge, order
support to still go to the parent, the OAR supports you.
‘ In 2010, the Guidelines changed the way an adult child may obtain a child
support award. Specifically:
‘ The Child Support Program will not establish orders for children over the
age of 18 (OAR 137-055-3485) or seek new orders against “obligees.”
This will be left to private practitioners. However, the child support
program will enforce orders against an obligee if one has been obtained
by a private practitioner in a court order.
‘ Under the new guidelines, all children, both minor and a child attending
school, are treated the same. This includes the application of parenting
time credits.
‘ In practice, if there is a parenting time credit (discussed in the section
below), the obligee is likely to have a $100 presumed minimum support
amount to the adult child.
‘ Rebuttal may be the most equitable way to address child support if there
is a child attending school situation, particularly if support is ordered
against both parties. Attorneys may run the calculation under the old and
new guidelines to put a dollar value on the rebuttal.
‘ When there are multiple children, the adult child’s portion is to be an equal prorata
share unless otherwise ordered.
‘ CAVEAT: When calculating child support for an adult child, for the sake
of the computation only, the guideline calculator imputes parenting time
for the adult child in the same percentages that parenting time is
calculated for the minor children, regardless of where the adult child is
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living. Thus a custodial parent of a minor child may be getting credit for
an adult child that does not live in that parent’s home at all. In many
cases, this will be inaccurate and a rebuttal will be appropriate to have the
calculation reflect the actual facts. This is a substantial change from
previous calculators and could change in 2011.
‘ An adult child eligible for support under ORS 107.108 as a “child attending
school” now has requirements to remain eligible to receive support. The child
must now:
‘ Make “satisfactory academic progress.” ORS 107.108(1)(c);
‘ Notify the paying parent when the child is no longer eligible; and
‘ Submit a DCS form to prove eligibility, to the parent and DCS which
shows “all the information necessary to establish eligibility” and that form
must be submitted within the first month of each term or semester.
‘ Reinstatement
‘ Reinstatement previously could only happen with the consent of the
obligor but now it is automatic as soon as the child complies with the
rules. ORS 107.108(9)
‘ ORS 107.108(8) allows for suspension but not termination if the child has
not given notice of intent to attend or continue school and the obligor has
given written notice of intent to stop paying for failure to attend school or
provide consent to get records under ORS 107.108(6)(B).
‘ CAVEATS:
‘ Caveat: Be aware that if there are other children, the support continues
to be collected at the full amount, it just is not split with the adult child.
‘ The DOJ stops collecting if they do not receive timely school data. If a
child fails to qualify as a child attending school and the order is a “class
order,” the DOJ would continue to bill the full monthly child support
amount for the minor children on the case. For example: class order for
$500 per month for 5 children, child over 18 fails to submit timely school
data, DOJ stops billing for that child but continues to bill $500 per month
for the remaining 4 children.
‘ The child is now a party pursuant to ORS 107.108(3) to any support
proceeding.
‘ ORS 107.108(4) makes the child a necessary party to any filing affecting
support and that is “regardless of whether the child is a child attending
school.”
‘ The statute does not mean support ends, just that DOJ won’t
forward the money to the child. In a “class” order involving more than
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one child this means that the support amount may not change without a
modification Supplemental Judgment even though the number of children
has gone down.
‘ ORS 107.108(13) makes the new rules applicable to all prior court orders
for support.
‘ CAN I ORDER A PARTY TO PAY FOR COLLEGE?
‘ The court cannot require a party to create an educational trust or require a
separate payment for college. Wiebe and Wiebe, 113 Or.App. 535, 833 P.2d
333 (1992) held that:
“...The educational expenses of a child may justify a deviation from the
presumed amount of child support provided by the guidelines, ORS
25.280; OAR 137-50-330(2), but those expenses are a part of, and not in
addition to, a child support obligation and are subject to the statutory
limitations of such an obligation.”
‘ The court can rebut the amount of support upwards in consideration of the cost
of college by addressing the “needs of the child” rebuttal factors. The guidelines
specifically allow the court to treat the whole case as a rebuttal once there is a
college age child if a court so chooses. See OAR 137-050-0760(1)(k).
‘ Wiebe also stands for the proposition that the court can enforce an agreement
to pay for college. ORS 107.104 would also support enforcement of such an
agreement.
‘ See ORS 107.108(12) about the impact of “higher education savings plans.”
‘ WHAT HAPPENS IF THE CHILD RECEIVES SOCIAL SECURITY OR OTHER
BENEFITS?
‘ Social Security or Veteran’s Benefit Payments. OAR 137-050-0740 of the
guidelines has specific instructions as to how to address SS or VB received on
behalf of a child due to the parent’s disability or retirement.
‘ The OAR has been changed a number of times since 1999 regarding how
to credit SS or Veteran’s benefits. In those situations, it is important to
check the most recent rules.
‘ The rule does not address death benefits or benefits received for a child’s
disability, however those benefits may be a rebuttal factor in OAR 137-
050-0760(1)(o).
‘ Also, only apportioned veterans benefits factor into the rule. For
example, Survivors and Dependents Educational Assistance do not factor
into this section because it is not a payment from the obligors benefit.
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‘ A party may also get credit for lump sum social security or veteran’s
benefit payments received by the child or representative payee. See
OAR 137-055-5520.
‘ Assistance Payments. Social Security and Veterans’ benefits should be
distinguished from those assistance payments referenced in ORS 25.245. A
parent who receives TANF (welfare), general assistance under ORS 411, or
Supplemental Security Income (SSI) is presumed unable to pay child support.
No support obligation will accrue unless the presumption is rebutted.
‘ CAVEAT: There are many tricky parts to this statute and if the issue is
raised it should be read carefully. For example, the presumption is
supposed to be raised by service of notice on the obligee who then can
object to the presumption and show, at hearing, that the obligor party has
the ability to pay support. ORS 25.245(7) allows for a credit against a
support arrearage for such period benefits were received by the obligor.
‘ WHO GETS THE TAX DEDUCTIONS AND TAX CREDITS?
‘ The IRS says the state court cannot say who gets the deductions and credits,
only they get to say. However, that does not mean the court cannot consider
them and make adjustments for them. Nor does it mean that Oregon courts
have respected the IRS feelings of supremacy.
‘ Willey and Willey, 155 Or.App. 352, 963 P.2d 141 (1998) discusses the
requirement of written findings when a court gives a non-custodial parent
the income tax exemption.
‘ But cases can be confusing. Sigler and Sigler, 133 Or.App. 68, 73, 889
P.2d 1323 (1995) states that the award of the deduction is discretionary
and does not require deviation. This was also cited in Tofte and Tofte,
134 Or.App. 449, 454, 895 P.2d 1387 (1995). However, Ranes and
Ranes, 118 Or.App. 264, 846 P.2d 195 (1993), in dicta, would seem to
infer otherwise.
‘ The guidelines assume the custodial parent has the typical tax dependency
deductions/exemptions.
‘ The OAR assumptions are that everyone is paying taxes since support is based
on gross (pre-tax) dollars. If a party pays no tax then OAR 137-050-0760(1)(n)
allows the court to consider that as another rebuttal factor.
‘ CAVEAT: The IRS no longer grants the deduction automatically to the
custodial parent. It presumes that whoever the child lives with more than
50% of the time gets the deduction.
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‘ HOW DO OVERNIGHTS PLAY INTO THE CURRENT RULES?
‘ Any new support order will make irrelevant prior orders of “shared” or “split”
custody. But when enforcing old orders, it may still be important. New OAR may
once again change this.
‘ The old rules defined time solely as "overnights" not hours. Grage and
Grage, 128 Or.App. 409, 412, 876 P.2d 350 (1994), even suggested
averaging two years of overnights to come up with a percentage to be
used in shared custody support calculations. See also Southwell and
Southwell, 119 Or.App. 366, 851 P.2d 599 (1993).
‘ Now the rules specifically address these issues in OAR 137-050-0730. If there
is a written parenting time agreement or order, then you normally will add the
overnights with each parent per child. You then multiply the total number of joint
children by 365 to get the total possible overnights and then divide the total
parenting time overnights by that figure. For example, if there were split custody
and 2 children, each parent would have 365 overnights or 50% each. That
applies equally to sole, joint or shared custody. The same system for each.
‘ The current rules, in OAR 137-050-0730(2)(c) specifically allow for other
non-overnight computation methods where it is fair such as where “a
parent has significant time periods where the child is in the parent’s
physical custody but does not stay overnight.”
‘ The court can also follow the actual parenting time if different from the
parenting plan. OAR 137-050-0730(5).
‘ If there is no written plan, then the parent with primary physical custody is
presumed to have the children 100% of the time. OAR 137-050-0730(4). This
is a significant change because it answers the argument often propounded that
support was set presuming a certain amount of visits.
‘ There now is a sliding scale adjustment that begins at 25% parenting time which
would does not encompass all local rule parenting plans. See OAR 137-050-
0730(6).
‘ Caveat: ONE PROBLEM is that the closer you get to equal time the lower
support gets thereby making more important the issue of how expenses
for clothes, camp, etc. should be divided. Prior to the 2010 changes,
OAR 137-050-0455(7) (which originally addressed parenting time credits)
stated that the credit reflects a presumption that the parent caring for a
child is incurring costs and therefore rebuttal may be appropriate if that
is not the case. The current OAR 137-050-0730(6) does not include the
same language.
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‘ WHAT’S ALL THIS ABOUT REBUTTAL AND WHEN DO I APPLY IT?
‘ OAR 137-050-0760 states the current rebuttal criteria. The particular facts of an
individual case will determine whether rebuttals are available and appropriate to
provide a just and proper support obligation (including child support, insurance,
cash medical support or uninsured medical expenses).
The 2010 child support guidelines represent a completely new approach and
make significant changes from past practices. As a result, the assumptions used
by parties and courts in drafting pre-2010 judgments may no longer apply to
2010 judgments. This is particularly true in areas involving uninsured expenses
and families with children attending school.
The grounds for rebuttal and the Peterson case (discussed below) exception are
essentially the same as they were before the new guidelines. The ability of the
court to rebut income, adjustments or the final amount of support remains intact.
‘ The only way you can order support different than the presumed guideline
amount is by following the rules. In the 2005 Thanhouser case, a judge was
again reversed for not following the rules when rebutting. The fault was as much
the lawyers as the judges but it is critical to follow the correct rebuttal process.
‘ The following summarizes the criteria for deviation from the presumed level of
support and the commentary gives further guidance:
‘ There is evidence of other resources of a parent.
‘ The reasonable necessities of the parent.
‘ The net income after withholdings required by law or employment affects
the ability to pay.
‘ A parent’s ability to borrow.
‘ There are other dependents that affect the presumption.
‘ A parent has special hardships such as medical or extraordinary visitation
travel related costs.
‘ The child has extraordinary or diminished needs.
‘ The custodial parent should stay home as a homemaker.
‘ How the tax consequences of child tax credits, earned income credits
deductions or spousal support consequences affect the presumption.
‘ There is a financial advantage from a spouse or domestic partner.
‘ There are financial benefits afforded from employment including
self/family employment.
‘ There is a child attending school or not living at home.
‘ There have been prior findings regarding the reason for the existing
order.
‘ The net income after payment of mutually incurred debts affects the
ability to pay.
‘ There is a tax advantage or special adverse tax effect of a party's income.
‘ Some income is a return of capital.
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‘ Note: The commentary now recognizes the Peterson catch all
exception. See below.
‘ All Judgments that deviate from the guidelines must state the presumed
amount. The proper place is in the findings.
‘ If you rebut the presumed amount, you must first make the finding that the
presumed amount is unjust or inappropriate, state the presumed amount
and then attribute amounts for adjustment to each applicable criteria. The
current guidelines provides a form for deviation and allows adjustment by
adjusting income, costs or merely the amount of support. Most courts do the
latter.
‘ The commentary to the new rules specifically recognize the holding of Peterson
and Peterson, 132 Or. App. 190, 888 P.2d 23 (1994), which held that:
‘ "...the [rebuttal] criteria are non-exclusive factors to be considered.
The directive remains that the court set a just and proper child
support amount.... The legislature has not expressly or implicitly said
that trial courts are forbidden from considering other non-enumerated
economic factors.... OAR 25.270(4) clearly requires that the determination
of child support amounts be based on economic factors that bear on the
needs and best interests of the children and the trial court's authority is
circumscribed to that extent." Peterson, 132 Or.App. at 200, 888 P.2d at
28-29 (1994).
‘ Thus, the Court can deviate from the guidelines for any economic factor that
bears on the needs and best interests of the children.
‘ "[T]he provision does not clearly require the Court to base a
departure from the presumption only on the criteria enumerated.
Thus, on its face, although the statute mandates "consideration" of
certain criteria, it does not forbid consideration of other factors."
Peterson and Peterson, 132 Or. App. at 195-196, 888 P.2d at 26 (1994).
Citations omitted.
‘ Caveat: Larkin and Larkin, 146 Or.App. 310, 932 P.2d 115 (1997)
held that rebuttal factors cannot include factors that the rules
already use in their calculations (i.e. spousal support).
‘ If you find that any of the criteria or "rebuttal as per Peterson" apply, then you
must make a finding on the record or in the order that it is unjust or
inappropriate to apply the guidelines and should state some reason (i.e.
make sure the reason fits the criteria) and apply a figure to each adjustment.
‘ OTHER SPECIAL CHILD SUPPORT ISSUES:
Page 27 SHORT SHEET ON FAMILY LAW

‘ Gross income is defined by the rule, however there is a distinction between
"return of capital" versus "return on capital." A return on capital, such as interest,
is covered under the rule as gross income. Return of capital (such as capital
gains from the sale of an asset) is not. Return of capital is discretionary and is
more properly considered as a rebuttal criteria.
‘ The rebuttal criteria also gives broad discretion to review expenses related to
any dependent of any age or relationship.
‘ WHAT ABOUT A MINOR CHILD WHO LEAVES HOME? In Dept. of Human
Resources v. McGraw, 68 Or App 834, 683 P2d 154, rev den 298 Or 238 (1984),
the Court of Appeals (Van Hoomisen, J.), said:
“The record here shows that father has legal custody of Tina. He provided
her with a home and support. She left that home without his permission
and, insofar as we can determine, without good cause. Tina is
"dependent" only in the sense that virtually every child is economically
dependent on parents or others. She is not dependent in the sense that
her father has unreasonably failed, refused or neglected to support her.
He has not deserted her; nor has he refused to support her. He is ready,
willing and able to do so in his home. Tina is not an abandoned child.
Rather, she abandoned her father. Nothing in the record indicates that he
abused her, placed unreasonable demands on her, drove her from his
home or encouraged her to leave in order to have the public assume his
obligation to support her. Indeed, the contrary appears to be true.
At best, the pertinent statutes are ambiguous. We decline to construe
them in a manner that we conclude would be deleterious to the parentchild
relationship and would surely work an economic injustice in many
cases. We do not believe that the legislature intended that a responsible
custodial parent should be required to underwrite a child's lifestyle
choices against that parent's reasonable wishes and advice or that it
intended the statutes to cover facts such as those found here.”
‘ WHAT ABOUT SELF EMPLOYED PEOPLE? Some judges have asked me to
comment on this topic. Self employed people often utilize appropriate and
inappropriate deductions on their taxes. The rebuttal criteria provide a basis to
make support adjustments for those benefits of employment (i.e. the value of a
company provided auto, a condo or travel expenses). However, those benefits
are not readily apparent from the tax returns. Some less scrupulous individuals
hide their income by deducting personal expenses as business expenses which
are then hidden in the Schedule “C” of the tax return or the corporate return.
Many such deductions are simply mislabeled to hide their true nature.
Deductions for vehicle purchases, having the business pay for fuel and personal
effects, use of business credit cards for personal expenses, rental property
Page 28 SHORT SHEET ON FAMILY LAW

depreciation etc. Court’s should be aware in both child and spousal support
cases that the income declared is not always the income that should be
considered.
‘ Cash Medical Support and Uninsured Medical expenses.
‘ This section was dramatically changed in 2010. The following are a list of
commonly asked questions and answers that are posted on the DOJ
website:
‘ In what form will medical support be ordered? The term “medical
support” is defined by ORS 25.321(7) as both cash medical support and
health care coverage (private or public). ORS 25.323(4) requires health
care coverage to be provided if it is available. If health insurance is not
available, ten cash medical support must be ordered unless findings are
entered indicating why cash medical support is not appropriate. If is not
necessary to include cash medical support language if there is health
insurance provided by that party.
‘ How is the amount of medical support determined? Under OAR 137-050-
750, the maximum amount of medical support that can be ordered is
determined by calculating the “reasonable in cost cap” for each party.
This is determined in most cases by calculating 4% of each party’s
“adjusted income” (there are some other criteria in the rule for low income
parties). The resulting calculation results in the maximum amount that
can be ordered for providing health insurance if it is available.
If health insurance is unavailable or exceeds the “reasonable in cost cap”
then cash medical should be ordered unless there is a finding that it is
inappropriate.
An example would be a party with $3000/ month of adjusted income. 4%
of $3000 is $120. This means that health care coverage will be ordered
if it is available and the cost for enrolling the children is $120 a month or
less. If health insurance is unavailable or costs more than $120 per
month, then cash medical support of $120/month would be ordered
instead.
‘ Can more than 4% of adjusted income be ordered for medical support?
OAR 137-050-750 permits ordering more than 4% if there are compelling
factors to do so. In the example in #2, if the cost of health insurance was
available to a party at $135, a finding could be entered that there are
compelling reasons to use 4.5% instead of 4%. This would be result in
a reasonable in cost cap of $135.
Page 29 SHORT SHEET ON FAMILY LAW

‘ How is medical support determined for low wage parties? Under ORS
25.323(7), parties earning minimum wage or less are exempt from cash
medical support obligations and are not required to provide health care
coverage. This determination is made by using the parties’ unadjusted,
gross income (first line of the calculator). Therefore a parent who has
unadjusted gross income of Oregon minimum wage or less is not required
to pay for medical support of any kind.
However, for parties that are above minimum wage, the amount of
medical support (health care coverage and/or cash medical support) is
calculated using adjusted income (line 1e of worksheet), which includes
the addition of spousal support received or the subtraction of spousal
support paid. See question # 6 and # 9.
OAR 137-050-0750 also provides that the amount of medical support may
not exceed a party’s income available for support. This is calculated and
shown on line 6a of the worksheet.
‘ Would being $1 over minimum wage create a Cash Medical Support
obligation? Yes, INCOME of one dollar over minimum wage would
qualify for medical support under ORS 25.323(7), but the amount of cash
medical support would depend on the facts of a particular case (OAR
137-050-750(2)).
‘ Would $1,000 in Spousal Support, in addition to a minimum wage
presumption, create a medical support obligation? The eligibility
determination for medical support under ORS 25.323(7) is based on a
whether a party’s INCOME is above minimum wage. Spousal support is
not considered income for purposes of the guidelines; it is an adjustment
to income. Therefore, paying or receiving spousal support does not affect
the medical support obligation threshold. However, in cases where there
is substantial spousal support, the parties could consider applying a
rebuttal to income to address this.
‘ What is contingent medical support? Is it mandatory? As noted in #3
above, ORS 25.323(3) allows (but does not require) orders to contain
contingent medical provisions. This means an order may provide that
when health insurance is available, it will be provided, but when it is
unavailable, cash medical will be provided instead. The change in the
type of medical support would occur without the need to modify the
order. Once a party notifies DCS that there has been a change in the
availability of health insurance, DCS would begin enforcing the type of
medical support that applies.
Page 30 SHORT SHEET ON FAMILY LAW

Thus, if the order contains contingent medical support language and DCS
learns that health insurance has become unavailable, the health
insurance provisions would be turned off and the cash medical provisions
would be turned on. Conversely, if we learn that health insurance has
become available, the cash medical provisions would be turned off and
the health insurance provisions would be turned on.
DCS intends to make these provisions a standard part of its orders, but
it is not required and may not be appropriate in all orders depending on
the facts of a particular case.
There is no presumption in favor of the use of contingent medical
support. On the contrary, contingent medical is purely optional for the
private bar and may be used or not at the election of the parties, counsel
or the courts. Electing not to use it does not require any special findings
or for the parties to rebut any presumptions. If you do not want it, do not
use it.
It is also worth noting that even if an order contains contingent medical
support language, a modification may nevertheless be appropriate at the
time of a change in the availability of medical support. For example, if
health insurance becomes unavailable because an obligor loses a job, the
income on which the order was calculated may no longer be correct and
the contingent cash medical amount that is built into the existing order
may be too high.
‘ Is it assumed that Cash Medical Support (CMS), if ordered, includes all
uninsured expenses? The first $250 per child per year of
uninsured medical expense is already factored into the basic child support
guideline scale. It is assumed that all other uninsured medical expenses,
in excess of $250, are included in the cash medical support
obligation. However, nothing in the amended statutes or new
administrative rules prevents practitioners from allocating uninsured
medical costs in lieu of cash medical. All that is required is that the
medical support clause include a finding that: "Cash medical support is
not being ordered because the parties have agreed to provide medical
support by sharing uninsured medical expenses in the following manner:
__________.
‘ Is the cost of Health insurance still factored into the calculation as it was
before? If not, are the parties still sharing the cost of health insurance as
part of the child support calculation? The cost of Health insurance is no
longer apportioned between the parties in the child support
calculation. The guidelines use each party’s adjusted income to calculate
Page 31 SHORT SHEET ON FAMILY LAW

a separate reasonable in cost “cap” (or limit) for each party (see question
#2 above).
Adjusted income is shown on line 1e of the worksheet. It is calculated by
taking gross income and adjusting it for spousal support received or paid,
union dues paid and a party’s individual cost to obtain health insurance
if the party must be covered in order to obtain insurance for the children.
‘ If a party is required to provide health insurance, would the support
judgment still provide for a division of the costs of uninsured expenses as
was traditionally done in the past? DCS takes no position on whether or
not uninsured expenses should or should not be ordered in addition to
health care coverage. The individual facts of the case should determine
if it is appropriate. See question # 7.
However, private orders could choose to require the provision of health
insurance and the payment of cash medical support to cover uninsured
expenses. ORS 25.323(3) provides that: "A medical support clause
may require that medical support be provided in more than one form, and
may make the requirement that medical support be provided in a
particular form contingent on the availability of another form of medical
support." There is a good faith argument that this language allows
ordering two different types of medical support (i.e. health insurance and
Cash medical) and that they may be ordered at the same time or as
alternative obligations dependent upon the availability of insurance.
Also, whether or not there is actually an “out-of pocket” cost for health
insurance may help influence whether private parties decide to have both
health care coverage and cash medical support. For example, in the
past, health insurance costs were factored into child support and courts
regularly ordered a sharing of the uninsured expenses. Under the new
guidelines, those costs are not factored and each party pays his or her
entire cost of providing health insurance if it is available. If health
insurance is a free employee benefit, a sharing of uninsured expenses
may still be appropriate and parties may choose to also require the
payment of cash medical support.
‘ Does the receipt or payment of spousal support change
the support calculation for medical support? As explained above, spousal
support does not affect income for purposes of determining if a party is
eligible to provide medical support under ORS 25.323. It can, however,
affect the amount of medical support for someone who is otherwise
eligible to pay it.
Page 32 SHORT SHEET ON FAMILY LAW

The reasonable in cost “cap,” which is used to determine the amount of
cash medical support, is calculated on ADJUSTED income. This includes
adjustments like spousal support, union dues and the cost to the parent
of insuring themselves if coverage is necessary to provide insurance for
the children. See questions # 2 and # 9.
‘ With a child attending school, do the guidelines address how the obligee
would pay that child or is rebuttal likely for a family with a child attending
school? The guidelines permit ordering both parents to pay the
CAS (child attending school) but the child support program does
not establish orders for children over the age of 18 (OAR 137-055-
3485) or seek new orders against "obligees." That will be left to private
practitioners.
The child support program will enforce orders against the obligee if such
an order has been obtained by a private practitioner in a court
order. Under the new guidelines, all children (both minor and CAS) are
treated the same. This includes the application of parenting time credits.
In practice, if there is a parenting time credit, the obligee is likely to have,
in most cases, a $100 presumed minimum support amount to the adult
child. This will depend on several factors including income disparity, the
amount of parenting time and the number of minor children.
Rebuttal may be the most equitable way to address child support if there
is a child attending school situation, particularly if support is being ordered
against both parties. You might consider running the calculation under
the old and new guidelines to put a dollar value on the rebuttal
‘ Are the child support figures on the Obligee's side of the calculator
intended to create an obligation? No, the support amounts listed on the
obligee's side of the calculator are informational only and are intended to
show the amount of support that would be ordered if PHYSICAL
CUSTODY of all minor children changed from the obligee to the obligor
with no other changes. ORS 416.416 was added during the 2009
legislature and allows orders to contains provisions reversing support
obligations if custody changes. It is a permissive provision and can be
used at the option of the parties, counsel or the courts. Whether it is used
or not, findings or rebuttals are not necessary. It may not be appropriate
in some cases where the facts make reversing the obligations unfair (i.e.
parenting time credits, rebuttals to income or costs, split custody, etc.)
Page 33 SHORT SHEET ON FAMILY LAW

‘ Under the new guidelines, can support be ordered from a custodial parent
to a non-custodial parent? Yes, a parent with primary or legal custody
may be required to pay support to the non-custodial parent. This happens
primarily when both parents qualify for parenting time credits and there
are significant income disparities.
A rebuttal may be appropriate in this situation to prevent a custodial
parent from having a support obligation.
‘ The Guidelines make clear that the presumed child support amount assumes
that the custodial parent (the obligee) is paying the first $250 per year per child
for uninsured expenses. See OAR 137-050-0750 and the following
Commentary.
‘ Therefore, it would seem that the proper approach for uninsured
expenses should be that the custodial parent pays the first $250 per child
per year and anything extra should be divided on some percentage basis.
‘ Under the rules it is no longer appropriate to arbitrarily make the obligor
pay for ½ of all uninsured expenses.
‘ Cost of health insurance. The guidelines for a support adjustment to be made
if your spouse or domestic partner is providing the insurance for the kids and the
other parent does not provide health insurance. OAR 137-050-0750(5).
‘ Only the pro-rata share attributable to the kids is credited. So if the
employer pays for the parent and there are two non-joint kids and one
joint kid, only 1/3 of the kids portion is credited.
‘ Accountings of the use of support can be required at any time under ORS 107.105(1)(c)
‘ How is Overtime treated?
‘ Sigler and Sigler, 133 Or.App. 68, 889 P.2d 1323 (1995) said that “parents are
obligated to work 40 hours per week and support their families - they are not
obligated to be slaves” before the court then decided to count overtime anyway.
‘ The California courts have rejected the requirement to work more than 40 hours
to support a child. In Re Marriage of Simpson, 841 P.2d 931, 4 Cal. 4 th 225, 14
Cal. Rptr. 2 nd 411 (1992) is an excellent decision explaining the inequity of
counting overtime.
‘ The previous guideline commentary to old rule OAR 137-050-0340 notes
that overtime may be considered or rejected on a case by case basis. If it
is transitory in nature and not intended to continue, or was merely to “catch up”
Page 34 SHORT SHEET ON FAMILY LAW

it may not be appropriate to count it. Otherwise its part of gross income.
‘ INCOME OF NEW PARTNERS may be considered under OAR 137-050-0760(1)(i) to
rebut the presumed amount of support. See Hardiman and Hardiman 133 Or.App. 112
(1995) 2 .
‘ WAGE WITHHOLDING. ALL NEW OR MODIFIED SUPPORT ORDERS are
required to be by wage withholding as per ORS 25.378 unless the court makes a
written finding pursuant to ORS 25.396 that there is good cause not to require
withholding.
‘ WHO COLLECTS AND ENFORCES CHILD SUPPORT? Payment is made through
the Division of Child Support, Department of Justice. OAR 137-055-1070 defines the
obligations of the Division of Child Support. Enforcement may be by the local D.A., the
DOJ or a private party.
‘ DO I HAVE TO ORDER LIFE INSURANCE?
‘ ORS 107.106 requires that any order for parenting time, custody, visitation or
support must include a provision addressing insurance or other security for
support. It does not require it.
‘ ORS 107.105(1)(f) has buried in it a section that states that if spousal support
is awarded in lieu of a share of property, then the court shall “so state on the
record and shall order the obligor to provide for and maintain life insurance” in
a commensurate amount.
‘ ORS 107.810 recites that it is the policy of the state to encourage support
obligors to provide life insurance adequate to continue support in the event of the
obligors death. ORS 107.820 et. seq. details the courts authority to require
insurance as security, require payments of premiums, order health exams, etc.
‘ Note: regarding insurance to secure child support, the court could make
a finding that social security is adequate to secure support through the
age of 18 and therefore only a small amount of insurance is needed to
secure post- age 18 support.
‘ Note: many lawyers ask the court to make the beneficiary a trust rather
than the spouse claiming the insurance to secure child support is for the
children. This is a faulty argument in that support is paid to the custodial
parent. If the obligor dies and life insurance is paid to make up for the
child support that is not being paid, it makes no sense that the custodial
parent would not receive that money just as he or she would have
2
Typically courts only look at the spousal income if the obligor or obligee claims
little or minimal income.
Page 35 SHORT SHEET ON FAMILY LAW

eceived support. That is to be distinguished from amounts meant to
secure child support for an adult child.
Page 36 SHORT SHEET ON FAMILY LAW

SPOUSAL SUPPORT QUESTIONS
‘ The 1999 legislature completely rewrote the law in this area and therefore cases
predating that statute do not label the nature of support. In considering
compensatory spousal support, the contribution must be substantial. If not, the
contribution is relevant to property division and maintenance support but not
compensatory support. The statute specifically directs the court to consider “the extent
to which the marital estate has already benefitted from the contribution” so that in those
circumstances that may be a reason to not award compensatory support, however the
Supreme Court’s first ruling on compensatory support in Harris 349 Or. 393, 244 P.3d.
801 (2010) has greatly expanded the definition of “significant contribution.” The award
must also be just. It will be interesting to see how “post Harris” cases look at this issue.
‘ The first case to address the statute was Austin and Austin,191 Or.App. 307, 82 P.3d
170 (2003).
‘ Austin held that: “ORS 107.105(1)(d)(B) does not limit an award of
compensatory spousal support to situations involving "enhanced earning
capacity." As noted, "enhanced earning capacity" is but one of a list of several
areas to which a spouse may contribute in order to meet the threshold
requirement for compensatory spousal support. Other areas to which a spouse
may make a "significant financial or other contribution" are the education,
training, vocational skills, and career of the other party. Nothing in ORS
107.105(1)(d)(B) requires that the contribution to the other spouse's education,
training, vocational skills, or career must have resulted, actually or potentially,
in an economic benefit in order for the court to consider whether an award of
compensatory spousal support is just and equitable under the statutory factors.
Rather, the text of the statute provides that, if it is shown that a spouse has
made a significant financial or other contribution to the other spouse's education,
training, vocational skills, career, or earning capacity, the court may consider
whether an award of compensatory spousal support is appropriate under the
circumstances.”
‘ In 2004 the Kollman case came out. It declined to award compensatory support
even when it assumed, for purposes of appeal, that the spouse had met the
threshold requirement under Austin to be awarded compensatory support. The
court stated that: “Nonetheless, husband is not entitled to compensatory support
because it would not be just and equitable. We may award compensatory
support only if it is "otherwise just and equitable in all of the
circumstances." Austin, 191 Or.App. at 314, 82 P.3d 170. ORS
107.105(1)(d)(B) "is more broadly directed toward assessing whether one
spouse is entitled to compensation for certain contributions made to the other *
* *." Austin, 191 Or.App. at 318, 82 P.3d 170.” 96 P.3d 884, at 892, 195
Or.App. 108, Marriage of Kollman, (2004).
Page 37 SHORT SHEET ON FAMILY LAW

‘ In 2005 the Garza case refined the analysis stating: “Thus, to be eligible for an
award of compensatory spousal support, a party must show that he or she made
a "significant financial or other contribution * * * to the education, training,
vocational skills, career or earning capacity of the other party." ORS
107.105(1)(d)(B). Even if the spouse meets that threshold requirement, the
trial court may make an award only if it is just and equitable in all the
circumstances, including the factors set out in the statute. Austin and Austin,
191 Or.App. 307, 314, 82 P.3d 170 (2003).” 118 P.3d 824 at 828, 201 Or.App.
318, Marriage of Garza, (2005).
‘ The Garza court went on to state: “...It is at least debatable whether that
is the nature of the contribution that is contemplated by the statute. See
Austin, 191 Or.App. at 314, 82 P.3d 170 (statute's focus is on
contributions to the other spouse's education, training, vocational skills,
career, or earning capacity). Wife points to nothing in the record that
[specifically] links those contributions to husband's education, training,
vocational skills, career or earning capacity; she simply contends that
contributing to the economic life of the family suffices.”
‘ In 2006 the Olesberg case came out. In the Olesberg and Olesberg case, 206
Or.App. 496, 136 P.3d 1202 (2006) the court did uphold a spousal support
award that had a $2,000 per month compensatory component.
‘ In 2008 and 2009, the appellate court’s issued a number of decisions on
compensatory support that have further clarified the court’s thinking in this area.
The court’s appear to be finding it easier to say there has been a “significant
contribution” but have shifted the focus, as noted in Garza, on the question of
whether it is “just and equitable in all the circumstances” to make a
compensatory award.
‘ In 2008 case of English and English, 223 Or.App. 196, 194 P.3d 887, the court
upheld a 10 year award of compensatory support in a 25 year marriage where
the parties had been separated for 11 years. The Wife’s contribution was in the
nature of being a homemaker and allowing Husband to pursue his career
unfettered by responsibilities. No other support was awarded. This was despite
an award of $728,000 in net assets.
‘ In 2009, the court decided Talik and Talik, 226 Or.App. 67, 202 P.3d 267 (2009).
The court denied compensatory support focusing on the just an equitable
argument. The court noted that Husband got the “long half” of the assets, left the
marriage debt free and could be self supporting.
‘ In 2009, the court denied compensatory support, also focusing on the just an
equitable argument, in Harris and Harris, 230 Or.App. 679, 217 P.3d 224 (2009).
The court noted that Wife received $750,000 in net assets, 9 years of
Page 38 SHORT SHEET ON FAMILY LAW

maintenance and transitional support and had already enjoyed many benefits
from her contribution, however the Harris Supreme Court reversed that decision.
‘ The 2011 appellate decision in Morrison, 240 Or.App. 656 (2011)
summarized the Supreme Court’s Harris decision as follows:
‘ “The Supreme Court first held that the wife's employment and her
household and child-care responsibilities were "'significant contributions'
to [the] husband's education and career sufficient to trigger consideration
of a compensatory spousal support award" under the statute. Harris, 349
Or at 408.
The Supreme Court then concluded, based on the nonexclusive list of
factors in ORS 107.105(1)(d)(B), that the wife was entitled to a
compensatory support award. In particular, the court noted that, in
considering "[t]he extent to which the marital estate has already benefitted
from the contribution," ORS 107.105(1)(d)(B)(iv), "the relevant inquiry is
how much the marital estate has already realized the benefits of the
spouse's contributions compared to how much the marital estate would
ultimately realize as the benefits of those contributions." Harris, 349 Or at
414. Applying that standard, the court pointed to the husband's
"remaining 17- to 27-year highly productive earning career," and
concluded that "the significant asset distribution and comfortable lifestyle
available to [the] wife for the 10 years preceding the divorce does not
offset completely the contributions [the] wife made to [the] husband's
education, career, and enhanced earning capacity." Id. at 415.
Finally, having concluded that the trial court should have awarded the wife
compensatory support, the Supreme Court set the amount and duration
of that award. In doing so, the court rejected the wife's contention that
"the contributing spouse should be awarded compensatory spousal
support in an amount that will fully realize all the benefits that the spouse
would have obtained had the marriage lasted throughout the other
spouse's entire earning career." Id. at 414. Instead, according to the
court, "the correct answer lies somewhere in between." Ultimately, the
Supreme Court concluded that an award of $2,000 per month in
compensatory support for 10 years would be just and equitable under the
circumstances. Id. at 417.”
‘ Based on this author’s understanding of Harris, (Note: I was the losing
attorney at the Supreme Court) this is how Compensatory Support will
now be handled.
‘ To qualify for consideration of a compensatory spousal support award,
the spouse making the claim must make “significant” contribution to the
Page 39 SHORT SHEET ON FAMILY LAW

‘
education, training or career of the other spouse. The Supreme Court
has suggested that it will follow a “Denton” analysis in this area and
broadly construe what a significant contribution is. That means, being a
good homemaker taking care of the kids may very well be a significant
contribution. There does not need to be any direct linkage between the
“contribution” and the enhancement of earning capacity.
‘ Even if there are “significant” contributions, under the current legislative
scheme any such contribution cannot be considered in a vacuum. The
compensatory spousal support statute requires that the analysis occur
within a framework that is not only influenced by the overall marital
property award but also the other support awarded and the disparity in
the parties income. Nothing is looked at in a vacuum and none of the
statutory criteria is more important than another.
‘ As part of that compensatory spousal support analysis, the court must
then determine what is “just and equitable,” which the statute provides
guidance for that consideration. The court must consider the other types
of spousal support awarded, the amount, nature and duration of the
contribution and any other facts that would be “just and equitable to
consider.”
‘ However, although the Supreme court gave guidance as to how one
determines eligibility for compensatory support, they gave little or no
guidance as to how you figure out the amount or duration. The trend
seems to be about 10 years in most recent cases.
‘ Two other Appellate cases of note are Hook which was issued before the
Supreme Court decision in Harris and Morrison, 240 OrApp. 656 (2011)
which was the first decision after Harris. Hook involved an appeal
where transitional, maintenance and compensatory support were
awarded by the trial court yet the court of appeals either extended
the duration of amount of each one on appeal. This is a good case
to read for a specific analysis of how to look at all three.
‘ In Morrison, the court of appeals cited both Harris and Hook. The
Morrison court did the same kind of arbitrary analysis as in Harris to come
up with an amount and duration saying:
Page 40 SHORT SHEET ON FAMILY LAW
“In setting the amount and duration of the award, we reject, as
did the court in Harris, wife's contention that the award should
be indefinite--that is, that she should essentially receive
compensatory support in an amount that will allow her to realize
all of the benefits that she would have obtained had the
marriage lasted until the end of husband's earning career.

Because husband is in his late forties, we can expect that his
earning career will last at least another decade. Accordingly, we
conclude that an award of $2,000 per month in compensatory
support for eight years is just and equitable under the
circumstances.”
‘ Judges are required to make specific findings as to the category and
the relevant factors for support. Stipulated Judgments must also make
such findings. Make the lawyers do their job by providing findings.
‘ There are three (3) kinds of spousal support:
‘ TRANSITIONAL SPOUSAL SUPPORT. It is for the purpose of allowing a
party to attain education and training necessary for advancement in the
job market. Factors to be considered are:
‘ Duration of the marriage
‘ A party’s training and employment skills
‘ A party’s work experience
‘ The financial needs and resources of each party
‘ The tax consequences to each party
‘ A party’s custodial and child support responsibilities
‘ Any other factor the court deems just and equitable.
‘ CAVEAT: This is really no different than awarding support in the
past to help a party become self-sufficient. Prior cases
awarding support for those purposes will still be useful guides.
‘ COMPENSATORY SPOUSAL SUPPORT. This is for the purpose of
compensating a significant financial or other contribution by one party
to the education, training, vocational skills, career or earning capacity of
the other party. It is not based on need.
‘ It addresses, in part, the former ORS 107.105(1)(d) which talked about
awarding support as “compensation” but never said how to do it.
‘ Factors to be considered are:
‘ The amount, duration and nature of the contribution
‘ The duration of the marriage
‘ The relative earning capacity of the parties
‘ The extent to which the marital estate has already benefitted
from the contribution
‘ The tax consequences to each party
‘ Any other factor the court deems just and equitable
Page 41 SHORT SHEET ON FAMILY LAW

‘ CAVEAT: Compensatory support cannot be modified unless there
is an involuntary, extraordinary and unanticipated change in
circumstances that reduces the earning capacity of the paying
spouse. ORS 107.135(3)(a).
‘ CAVEAT: This type specifically recognizes that a substantial
accumulation of assets to be divided may mean that the marital estate
has already benefitted and compensation can come solely from the
division of assets. Note case citations above for how this has been
applied in recent cases.
‘ SPOUSAL MAINTENANCE SUPPORT. This is for the purpose of
maintaining a party (i.e. not to compensate or to pay for a transition). It
can be for a definite or indefinite period and is more closely attuned to
pre-1999 spousal support that was not merely for educational transition.
The factors are similar to the prior statute. Factors to be considered are:
‘ The duration of the marriage
‘ The age of the parties
‘ The health of the parties (physical, mental and emotional)
‘ The standard of living established during the marriage
‘ The relative income and earning capacity of the parties
‘ A party’s work experience
‘ The financial needs and resources of each party
‘ The tax consequences to each party
‘ A party’s custodial and child support responsibilities
‘ Any other factors the court deems just and equitable.
‘ THINGS TO WATCH OUT FOR IN SPOUSAL SUPPORT CASES:
‘ Hidden or manipulation of income, particularly in self employed or family
business parties.
‘ Educational plans when there is no condition or reasonable likelihood of
actually pursuing education in good faith.
‘ Consideration of support being deductible to the payor and taxable to the
payee.
‘ Although most spouses can get from 6-36 months of health care, at group
rates, at their expense, through COBRA, this amount may go up substantially
after COBRA expires. If spousal support is to paid, it may all be eaten up by
insurance costs.
‘ The insurance laws changed in 1997 such that “PORTABILITY”
and Continuation coverage was available after divorce and was
usually far cheaper than COBRA plus it lasts forever.
Page 42 SHORT SHEET ON FAMILY LAW

‘ Loading up of "lifestyle debt" to avoid support (i.e. expensive homes, cars,
boats, etc.)
‘ The case law (actually a footnote in one case) says to look at gross income
and not net income in calculating support but most lawyers find disposable
income makes more sense. The appellate courts have been sensitive to
awards where child support, plus asset division payments and spousal
support take too much of disposable income.
‘ Equitable issues like dissipation or waste of assets are growing issues.
Although Oregon does not have a dissipation statute like some other states,
ORS 107.093 now recognizes the concept of dissipation while the divorce
pending. Other Oregon cases have applied dissipation principles but used
the word. Check www.feiblemancase.com for a nationally published article on
dissipation.
‘ LIFE INSURANCE. ORS 107.810 states that it is the policy for the state to
encourage support obligors to provide life insurance adequate to continue support in
the event of the obligors death. ORS 107.820 et. seq. expands in detail the courts
authority to require insurance as security, require payments of premiums, order
health exams, etc. The premium cost should be considered as taxable spousal
support since it is for the benefit of the obligee.
‘ CAVEAT: ORS 107.810 only authorizes the court to make the
obligated party to provide insurance, not both parties.
Page 43 SHORT SHEET ON FAMILY LAW

PROPERTY DIVISION
‘ ORS 107.105(1)(f) is the controlling statute. Generally property in Oregon is divided
equally though no statute requires it.
‘ There is case authority for unequal splits and usually that is for fact specific
reasons. The Court of Appeals calls it a “long half.”
‘ The statute requires you to divide all of the property "as may be just and
proper in all the circumstances." This gives you, as the judge, broad
discretion. Court of Appeals Cases over the past decade suggest a Teutonic
shift occurring in the area of equal division. More and more the courts are
looking at contributions by the parties.
‘ PRESUMPTION OF EQUAL CONTRIBUTION. There is a rebuttable presumption
of equal contribution by each party but the courts have held that a spouse who
works contributes both ways. This presumption only applies to marital property
(assets or increases in value acquired during the marriage). See Massee
comments.
CAVEAT: The statutory presumption presumes that a homemaker has
contributed to the acquisition of marital assets but it does not state that it is
presumed to be an equal contribution. Again look at Massee.
‘ THE MASSEE TWIST. The Supreme Court’s decision in Massee and
Massee 328 Or. 195, 970 P.2d 1203 (1999) began the change in property
analysis. Some interpret the decision to mean that fault is back when it
comes to homemakers. It is a very complicated decision and should be read
a few times.
‘ Massee appears to stand for the following:
‘ Marital appreciation is clearly a marital asset even if tied to
separate or premarital assets.
‘ The concept of recision in short term marriages is abandoned.
‘ Deficiencies of a homemaker may now be relevant in
determining whether he/she has “contributed” to the marital
estate.
‘ Courts are to determine the magnitude of that contribution yet
the court is to neither under or over value the homemaker
contribution.
‘ The question becomes the magnitude of each spouse’s
contribution to making the home.
‘ Since Massee, there have been a number of cases which have
interpreted, referenced or applied the analysis in Masse. See the
following cases: Gilbert-Walters and Walters, 177 Or.App. 133, 33
P.3d (2001) (standing for principle that where rebuttable presumption
of equal contribution has been overcome, presumption drops from
dissolution case and court divides marital property according to
Page 44 SHORT SHEET ON FAMILY LAW

magnitude of each spouse's contribution to acquisition of marital
assets; in other words, court distributes marital assets without regard
to any presumption, but in a manner that is just and proper in all
circumstances, including the proven contributions of parties to
acquisition of marital assets); See also Albers and Albers, 174 Or.App.
243, 23 P.3d 430 ( 2001); Terhaar and Terhaar, 171 OrApp 112, 14
P.3d 657 (2000); Ward and Ward, 165 Or.App. 426, 998 P.2d 691
(2000); Butler and Butler, 160 Or.App. 314, 981 P.2d 389 (1999); Hall
and Hall, 159 Or.App. 196, 977 P.2d 387, 159 (1999).
‘ Kunze and Kunze, 337 Or. 122, 92 P.3d 100 (2004)
‘ In 2004 the Oregon Supreme Court continued it’s property revolution in
Kunze and Kunze, 337 Or. 122, 92 P.3d 100 (2004) which restated and
clarified the current law of Oregon. The following are key instructive
excerpts:
‘ “If a party establishes that the property at issue is a marital asset then
the court must apply the rebuttable presumption of equal contribution
under ORS 107.105(1)(f) as its next step in the analysis... The
presumption directs the court that, unless proven otherwise, the court
must find that both parties have contributed equally to the acquisition
of marital assets... When the statutory presumption is not rebutted,
this court has determined that, absent other considerations, the "just
and proper" division of the marital assets is an equal division between
the parties. See Haguewood, 292 Or. 197, 206, 637 P.2d 1135 (1981)
(presumption of equal contribution suggests equal division appropriate
if division based upon presumption).”
‘ “If a party seeks to overcome that presumption, then that party has the
burden of proving by a preponderance of the evidence that the other
spouse's efforts during the marriage did not contribute equally to the
acquisition of the disputed marital asset. Id. In assessing whether a
party has satisfied that burden, ORS 107.105(1)(f) requires the court to
consider both economic and noneconomic spousal contributions,
including the contributions of a spouse as a homemaker. ORS
107.105(1)(f) (court shall consider contribution of spouse as
homemaker). Cf. Denton and Denton, 326 Or. 236, 243-44, 951 P.2d
693 (1998) (wife's willingness to relocate, as well as her economic and
domestic efforts, were contributions to husband's enhanced earning
capacity).”
‘ If a party ultimately rebuts the presumption that the other
spouse contributed equally to a disputed marital asset, then the
court decides how to distribute that marital asset without regard
to any presumption and, instead, considers only what is "just
and proper in all the circumstances," including the proven
Page 45 SHORT SHEET ON FAMILY LAW

contributions of the parties to the asset. Massee, 328 Or. at 205.
‘ When a party has proved that a marital asset was acquired free
of any contributions from the other spouse, however, this court
has determined that, absent other considerations, it is "just and
proper" to award that marital asset separately to the party who
has overcome the statutory presumption. See Pierson, 294 Or.
117, 123, 653 P.2d 1258 (1982) (so stating).
‘ “After the court makes its preliminary determination of the appropriate
division of the marital assets by applying the statutory presumption,
ORS 107.105(1)(f) next requires that the court consider what division
of all the marital property –- that is, both the marital assets and any
other property that the parties had brought into the marriage -- is "just
and proper in all the circumstances."
‘ “...the court's final inquiry as to the "just and proper" division
concerns the equity of the property division in view of all the
circumstances of the parties. See Seefeld and Seefeld, 294 Or. 345,
351, 657 P.2d 201 (1982).... “
‘ Although the inquiry into the "just and proper" division necessarily
includes consideration of the statutory factors, including the court's
determination under the presumption of equal contribution, that
inquiry also takes into account the social and financial objectives
of the dissolution, as well as any other considerations that bear
upon the question of what division of the marital property is
equitable. See Haguewood, 292 Or. at 206-07 (division of martial
property under former ORS 107.105(1)(e) (1981) requires
consideration of social and financial objectives of dissolution); Jenks
and Jenks, 294 Or. 236, 241-42, 656 P.2d 286 (1982) (statutory
presumption is only one factor in achieving equitable division of marital
property).
‘ “... this court has identified some of the equitable
considerations under ORS 107.105(1)(f) to include the
preservation of assets; the achievement of economic selfsufficiency
for both spouses; the particular needs of the
parties and their children; and, as discussed in more detail
below, the extent to which a party has integrated a
separately acquired asset into the common financial affairs
of the marital partnership through commingling. See
Richardson and Richardson, 307 Or. 370, 381-82, 769 P.2d 179
(1989) (considering economic self-sufficiency); Seefeld, 294 Or.
at 351 (considering needs of children); Jenks, 294 Or. at 242-43
(considering integration of asset); Haguewood, 292 Or. at 208
(considering preservation of assets).”
Page 46 SHORT SHEET ON FAMILY LAW

‘ NOTE THIS COMMENT, which is cited is almost every post-Kunze
case:
‘ “ The trial court's ultimate determination as to what
property division is "just and proper in all the
circumstances" is a matter of discretion. This court will not
disturb that discretionary determination unless it concludes that
the trial court misapplied the statutory and equitable
considerations that ORS 107.105(1)(f) requires.”
‘ The court then went on to apply the facts and to discuss the concepts
of Commingling and Tracing which are discussed elsewhere in the
short sheets..
‘ COMMINGLING AND TRACING.
‘ “...When a spouse has mixed a separately acquired asset with the joint
assets of the marital partnership –- for example, by depositing
separately acquired funds into an active account that also contains
joint funds –- then that act of commingling may preclude the court from
identifying that spouse's separate contribution with sufficient reliability
to rebut the statutory presumption that both spouses have contributed
equally to the disputed asset.” Kunze, 337 Or. at 138.
‘ “...Although ORS 107.105(1)(f) does not require the court to undertake
the task of tracing the parties' respective contributions when
commingling has made the identification of those contributions
unreliable, the fact that a party has commingled a separately acquired
asset with the shared finances of the marital partnership does not
create that difficulty in all circumstances. However, even if acts of
commingling do not preclude the court from identifying the source of a
disputed asset with sufficient reliability, the integration of a separately
acquired asset into the parties' joint financial affairs through
commingling may require the inclusion of that asset in the property
division for a different reason.” Kunze, 337 Or. at 139.
‘ “...In deciding whether the court should include a separately acquired
asset in the property division because of commingling, the court's
inquiry properly focuses upon whether a spouse demonstrated an
intent to retain that spouse's separately acquired asset as
separate property or whether, instead, that spouse intended for
that property to become the joint property of the marital estate....”
We caution, however, that acts of commingling do not mandate in all
cases the inclusion of separately acquired property in the property
division. Instead, the court must evaluate the extent to which a
spouse has integrated a separately acquired asset into the joint
Page 47 SHORT SHEET ON FAMILY LAW

finances of the marital partnership and also evaluate whether any
inequity would result from the award of that asset to that spouse
as separate property. Kunze, 337 Or. at 142.
‘ FOOTNOTE 12 IN THE KUNZE DECISION IS OF NOTE:
‘ In Massee, 328 Or. at 210, this court stated that "[i]t is not proper for the court
to focus solely on either the duration of the marriage or the extent to which
the parties commingle their financial affairs when dividing that marital
property." In so stating, this court intended only to caution that the court first
must apply the statutory considerations under ORS 107.105(1)(f), including
the presumption of equal contribution to marital assets, before applying
commingling as an equitable consideration.
‘ CASES SINCE KUNZE: These materials are not intended to be a case digest.
However, Kunze made such a change in property cases that it is important to
know that many appellate cases have been interpreting and applying Kunze. 3
however, in this author’s opinion the trend has been to cite Kunze, apply all
the principles but then still attempt to find an equitable result.
‘ On 3-21-07 the Court of Appeals issued another post-Kunze decision in
GANO-RIDGE . As has been the trend in post-Kunze cases, the court had a
lengthy Kunze discussion about history and sources of assets but in the end
made equitable adjustments such that the Wife got more. In effect, almost
doubling the Wife's property award. This continues a long line of post-
Kunze decisions where the court does it's Kunze analysis but then finds
a reason to equitably lessen the asset division disparity. In a rare act the
court also reversed the trial court's denial of attorney fees to wife citing the
fact that Husband got a lot more of the assets than wife.
3 See the following examples:
Marriage of Fields, 228 P.3d 614, 234 Or.App. 451 (2010)
Marriage of Francis, 157 P.3d 1201, 212 Or.App. 310 (2007)
Gano-Ridge and Ridge, 153 P.3d 151, 211 Or.App. 23 (2007)
Uwimana and Rwayaro, 149 P.3d 257, 209 Or.App. 693 (2006)
Marriage of Olesberg, 136 P.3d 1202, 206 Or.App. 496 (2006)
Marriage of Niman, 136 P.3d 105, 206 Or.App. 259 (2006)
Marriage of Timm, 117 P.3d 301, 200 Or.App. 621 (2005)
Marriage of Branscomb, 117 P.3d 1051, 201 Or.App. 188 (2005)
Winkler v. Winkler, 115 P.3d 948, 200 Or.App. 524 (2005)
Marriage of Ahearn and Whittaker, 113 P.3d 439, 200 Or.App. 29 (2005)
Mallorie and Mallorie, 113 P.3d 924, 200 Or.App. 204 (2005)
Marriage of Tsukamaki, 112 P.3d 416, 199 Or.App. 577 (2005)
Marriage of Kollman, 96 P.3d 884, 195 Or.App. 108 (2004)
Page 48 SHORT SHEET ON FAMILY LAW

‘ Caveat: The chief comment about these cases is despite the argument by the
court that the presumption of equal contribution had been overcome, the court
still found ways to make a partial distribution of the separate property to the
other spouse and often the distribution was not necessarily consistent with
the courts reasoning. Thus it still seems to hold that equity will prevail after
the dust settles, just that equity does not require as big a payment after
Kunze.
‘ SHORT MARRIAGES. In very short marriages (3 or less years) where it is easy to
restore the parties to their premarital position, some judges try. The appellate court
has decided that there is no longer any definition about length of marriages. They
now say you should look at the amount of commingling and choices made for the
common good. The more they commingle, have kids, buy and sell, etc. the less it
makes any difference. Massee rejects any attempt to have a judicial recision.
‘ PREMARITAL ASSETS. Each judge seems to establish their own standards about
what to do with premarital assets. Usually if they can be traced, most judges give
some kind of credit for them. However, the increase in value of a premarital asset is
usually divided though rebuttal may apply. The court has the authority to divide
anything (pre-marital or marital).
‘ Post Kunze cases continue to evolve this thinking.
‘ TAX CONSEQUENCES. Consider the tax consequences of assets, if there is
evidence on the subject.
‘ A principal residence can now be sold every two years and capital gains of up
to $250,000 individually or $500,000 jointly can be kept without tax. This is
part of the 1997 federal tax act. Therefore, a court can order the family home
sold and the debts paid without having a tax consequence.
‘ Exchanges between spouses, incident to a divorce, (even up to 6 years later)
are tax free.
‘ Depreciated assets will have a "recapture of depreciation" tax component to
valuation (i.e. rental properties).
‘ Tax deferred accounts like retirement, IRA, etc. should be reduced by some
applicable tax rate but there must be a stipulation or evidence. The
Alexander case is the premier case that authorized it. Alexander and
Alexander, 87 Or.App. 259, 742 P.2d 63 (1987). There have been about 4
cases since Alexander supporting a tax adjustment. Without a stipulation
expert testimony is required to lay the foundation.
‘ Further, they are "tax-deferred" items, and it is a certainty that taxes
will be paid. A house or stock, on the other hand, does not have to be
sold and they are not tax-deferred items because the taxable gain, if
any, arises only upon sale.
‘ There are now many kinds of IRA accounts under the 1997 tax act. The
court needs to be aware that different tax rules apply to different IRA’s.
Page 49 SHORT SHEET ON FAMILY LAW

‘ There is now a ROTH IRA which allows for tax free distributions 5
years after the contribution at age 59½, for $10,000 towards a first time
home purchase or in the event of death or disability. Therefore
Alexander may not apply.
‘ An EDUCATION IRA allows for tax-free distributions for “qualified
education expenses” and return of contributions.
‘ Congress keeps creating new plans so make the lawyers educate you.
‘ BUSINESS VALUATIONS are also difficult issues. There are many old cases on
issues of marketability discounts, minority discounts and valuation. However, in 2011
a new appellate decision was issued on valuation and covenants not to compete
which has a significant impact on future valuations. That case was Slater, 240
Or.App. 30 (2010). The Slater court adopted the majority rule in the nation that
selling the professional practice was kind of a fantasy and therefore it was not
reasonable to value the practice with the assumption there would be a covenant not
to compete, particularly when the spouse was intending to continue to work. Without
a covenant not to compete, the sale value is substantially less. The court held:
“The consequence of the foregoing is that the valuation of Slater Chiropractic
as a marital asset could not properly be predicated on an assumption that, at
the time of a putative sale, husband would be bound by a noncompetition
covenant, thus enhancing the value of the business. Or, stated conversely,
any valuation of Slater Chiropractic so predicated must concomitantly be
reduced by the value of the putative noncompetition covenant, corresponding
to the value of enhanced earnings above the business's tangible assets, which
are attributable to husband's individual skills, qualities, reputation, or
continuing presence.”
“In sum, we hold that the trial court erred in including the value of a
hypothetical noncompetition covenant when it valued Slater Chiropractic and,
consequently, erred in determining the value of the business. The difference
between the trial court's valuation of the business ($500,000) and our valuation
on de novo review ($230,795) is $269,205.”
‘ INHERITANCES AND GIFTS and the court’s treatment of those assets changed
when ORS 107.105(1)(f) was revised in January 2012. Pursuant to ORS
107.105(f)(D)(i), “property acquired by gift to one party during the marriage and
separately held by that party on a continuing basis from the time of receipt is not
subject to a presumption of equal contribution...” There is no longer a presumption of
equal contribution and essentially shifts the burden to the party attempting to claim an
interest in the inherited or gifted asset. The Court is still required to divide the marital
estate in a just and equitable fashion.
Page 50 SHORT SHEET ON FAMILY LAW

‘ Equity can result in some or all of the separate asset being divided. While
there are no current cases addressing the change to ORS 107.105 at this
point, past cases are still important to consider:
‘ In Albers and Albers, 174 Or.App. 243, 23 P.3d 430 (2001), the court
rebutted the presumption of equal contribution regarding an inheritance
wife received 2 years prior to marriage during a period of time in which
the parties cohabitated and commingled assets. The court concluded
that husband was not the object of donative intent and that wife's
inheritance was uninfluenced by husband. However, wife did not treat
all of her inheritance equally. She used some of her inheritance money
to purchase a house in Portland where husband and their children lived.
Husband did some remodeling of that house and also built a deck.
When that house was sold, the proceeds of that sale went into an
investment account under both wife's and husband's names.
Therefore, the joint investment account derived from the sale of the
Portland home constitutes a commingled asset and should be divided
equally between wife and husband. Several other investment accounts
were given to wife separately because they were from inheritance and
were not commingled.
‘ In Isham and Isham, 139 Or.App. 433, 912 P.2d 925 (1996) the court
concluded that wife overcame the presumption of equal contribution
with regard to a ranch she inherited from her father during the marriage.
The court then looked to whether it was just and proper to divide the
ranch regardless of the presumption. The court concluded that the
ranch had always been treated as a joint asset during the marriage.
The income from the ranch was put into joint checking account and
ranch expenses were paid from a joint account. Proceeds from the sale
of a marital home were invested into the ranch during the marriage.
The court determined that the ranch should be divided but that wife was
awarded a 1/3 of the ranch and the remaining 2/3 was equally divided
as a marital asset.
‘ In Rykert and Rykert, 146 Or.App. 537, 934 P.2d 519 (1997) the court
divided inherited funds and determined that the presumption was not
rebutted even though the assets were placed in wife’s name alone.
‘ One of the most recent decisions showing the court’s current
thinking on inheritances is Finear, 240 Or.App. 755 (2011). The
following quote sums up their analysis on an inherited asset:
Page 51 SHORT SHEET ON FAMILY LAW
“Generally, the presumption of equal contribution may be
rebutted by evidence that an asset was acquired "free of any
contributions from the other spouse." Kunze, 337 Or. at 135. In
the context of an inheritance, "contribution" means that the other

spouse influenced the acquisition of the inherited property. Olson
and Olson, 218 Or.App. 1, 9, 178 P3d 272 (2008) ("In order to
show that a spouse contributed to an acquisition of inherited
property, the contribution must have influenced the inheritance.").
We agree with the trial court and with husband that, in this case,
the presumption of equal contribution has been rebutted with
respect to the assets that husband inherited during the marriage,
as there is no evidence that wife made any contribution or had
any influence over the acquisition of the inheritance. Jenks and
Jenks, 294 Or. 236, 241, 656 P.2d 286 (1982) (the presumption
of equal contribution may be overcome by a finding that the
property was acquired by one spouse by gift or inheritance,
uninfluenced by the other spouse). In fact, in this case, neither
party influenced the inheritance; it came to husband not because
of the testator's donative intent, but by operation of law.
Wife contends that when, as here, neither spouse has
contributed to the acquisition of an inheritance, the parties'
contributions are, in effect, equal, and the presumption is not
rebutted. However, wife's underlying assumption that neither
spouse contributed to the inheritance is mistaken. Even in the
absence of evidence of husband's influence or of donative intent
on the part of the testator, husband "contributed" to the
acquisition of his inheritance by virtue of his legal
relationship to his uncle, which was the source of his right
to inherit the property. See Nightwine and Nightwine, 129
Or.App. 358, 362, 879 P.2d 877 (1994). Wife, in turn, made no
contribution. Thus, the presumption of equal contribution has
been rebutted, and the inheritance must be treated as husband's
separate asset in the division of marital property.”
‘ RETIREMENT. This is another tricky area. There are two basic kinds of Retirement
accounts, defined contribution (where the account balance is what you get either in a
lump sum or by annuity type payments) and defined benefit (where the benefit
amount is paid out over a life time and therefore the value must be determined
actuarially).
‘ PERS ACCOUNTS. PERS accounts can now be divided into separate
accounts and so usually you will just split the marital portion into two accounts
by a Domestic Relations Order and avoid all the actuarial problems. However,
this way the employee spouse can receive more benefits than the alternate
payee. An old-fashioned division which is tied to the employee spouse could
actually result in a more equal division.
‘ Caudill and Caudill, 139 Or.App. 479, 912 P.2d 915 (1990) suggests that a
Page 52 SHORT SHEET ON FAMILY LAW

defined benefit plan should be divided on a straight line "time rule" (i.e. total
value divided into a marital versus non-marital percentage) as opposed to the
previously used current actuarial value less time of marriage actual value.
This is now the preferred approach when the defined benefit is dependent on
the length of employment more than the amount of contribution.
‘ In Kiser and Kiser, 176 Or.App. 627, 32 P.3d 24 (2001) the court held that the
best method of dividing federal retirement benefits was to award the nonparticipant
spouse 50 percent of marital portion of monthly payments as they
became due, including the non-participant spouse’s share of marital portion of
interest earnings that accumulated between date of dissolution and actual
distribution date following the divorce.
‘ Unless accounts are divided equally, the potential tax and present valuation
are important issues which should be addressed by the lawyers.
‘ NOTE: Many plans (like PERS) now use a 12/31 valuation date
irrespective of what you order. Unless you specify the 12/31 date
following your order, the default will be 12/31 of the year prior to your
order. This can be a problem if you divide one spouse’s plan as of a trial
date and attempt to divide the PERS account the same day.
‘ IRA'S AND TAX DEFERRED ANNUITIES have the same tax problems but
are similar to defined contribution plans in the way they are treated for
valuation purposes.
‘ IS IT PROPERTY OR INCOME WHEN RETIREMENT IS IN "PAY STATUS?
In Colling and Colling, 139 Or.App. 16, 910 P.2d 1165 (1995), the court finally
answered the question of what do you do when the retirement is already in
"pay status." Is it property or income? The court answered that it can be
either depending on the facts but normally it is income. The court also said it
is not proper to count it as an asset and then use it to calculate support as
income too.
‘ PRESENT VALUATION OF RETIREMENT ACCOUNTS can be tricky. They
are interest rate sensitive in that when rates are low, the values are high.
When rates are high, the values are low. That means that you could value at
trial and by the time the decree is written it could lose substantial value
because of a rise in interest rates.
‘ When you do not equally divide retirement, present valuation will be an
issue and you should be sensitive to that issue. For example, in
wrongful death, they average and weight interest rates.
‘ Caveat: Federal retirement (i.e. FERS and CSRS) require a COAP
Page 53 SHORT SHEET ON FAMILY LAW

order, not a QDRO order and also it usually has a post-tax contribution
component. Although the entire retirement is taxed, there is an annuity
deduction allowed for the post-tax contributions. Since the deduction
must be taken over time it must be present valued as well. Thus the tax
rate used to reduce a retirement account may differ for this retirement
vs. others.
‘ Other retirement issues:
‘ Many government plans also have “thrift plans”, health insurance plans
and life insurance plans which are overlooked by attorneys and
spouses.
‘ TRUST CREATION. ORS 107.105(1)(g) permits the court to create a trust to
manage real or personal property allocated for the children’s support.
‘ STOCK OPTIONS
‘ In the case of Powell and Powell, 147 Or.App. 17, 934 P.2d 613 (1997), the
court addressed this difficult and technical issue. Currently there are materials
available as part of the Oregon State Bar's CLE on 1-19-96 entitled "Thinking
Outside the Lines: New approaches to Troubling Domestic Relations Issues."
The decision makes the analysis very case specific as to the nature of the
employee’s position and the stock option plan. The focus is on whether the
options are granted for future performance or past performance as they
relate to vesting schedules.
‘ In Taraghi and Taraghi, 159 Or.App. 480, 977 P.2d 453 (1999), the court
found that the “time rule” should be used to divide options as of the date of
separation where the Husband rebutted the presumption of equal contribution.
He was allowed to deduct taxes before distribution to the Wife of the shares to
be sold.
Page 54 SHORT SHEET ON FAMILY LAW

CHILD CUSTODY & PARENTING PLANS
‘ Custody is a case law area. The statue is not very helpful in custody matters since it
suggests that you consider what is relevant as well as the relationships between
everyone and whether a spouse has abused the other. ORS 107.102 requires a
parenting plan in every case. See below.
‘ THE BEST INTERESTS STANDARD. Generally, the custody approach is
primarily to look at what is in the child's “best interest.” ORS 107.105(1)(a)
provides for discretion in applying the factors of ORS 107.137 such as
emotional ties, interests of the parties, attitude towards the child, parenting
skills, relationships, abuse, psychological closeness, etc.
‘ ORS 107.137 has added to the other minimal custody criteria "the
willingness and ability of a parent to facilitate and encourage a close and
continuing relationship between the other parent and the child" as a
statutory custody factor (except sexual assault). This is in addition to
emotional ties, interest and attitudes of the parties toward the child, desirability
of maintaining existing relationships and abuse of one parent by the other as
statutory factors.
‘ ORS 107.718(6) and ORS 107.105(1)(b) requires that parenting time for a
non-custodial parent who has been found to have committed abuse (i.e. a
FAPA order) must have adequate provisions for the safety of the child and the
other parent.
‘ ORS 107.137(1)(e) creates a preference in a custody determination to the
child’s primary care giver if the care giver is deemed fit by the court.
‘ ORS 107.137(2) creates a rebuttable presumption that a FAPA order
means that it is not in the child’s best interests to be in the sole or
joint custody of the FAPA Respondent. Further, if the FAPA order
does not award parenting time, then that “abuser” is not entitled to
notice that the victim and child are moving.
‘ This 1999 addition does not apply if there is sexual assault or a pattern
of abuse is present and that the continued relationship endangers the
health or safety of the parent or child.
‘ CUSTODY STUDIES: Some courts have discretionary money for funding all or part
of a custody study. There are many counselors who do this kind of work but not a lot
who are truly independent and skilled at objective and thorough analysis. ORS
107.425 authorizes the study in virtually all family law matters.
Page 55 SHORT SHEET ON FAMILY LAW

‘ CAVEAT: ORS 107.425 specifically states that such reports are subject to
the “rules of evidence.” In other words, absent a stipulation, the report
cannot be read by the court before being admitted into evidence.
‘ CAVEAT: Another issue that often comes up is that there is no hearsay
exception for experts. An expert can rely on hearsay in forming an
expert opinion as long as it fits within OEC 703. However, absent a party
“opening the door” for the hearsay, that hearsay remains in admissible
in testimony and the report. Counsel usually let the report in once the
expert begins testifying and that does let in some hearsay but the
evidentiary standard still is that an expert cannot, merely because he or
she is an expert, start repeating what a child has said if it is being
offered for the truth of the matter.
‘ JOINT CUSTODY. ORS 107.169(3) says it cannot be ordered unless both people
agree. However, many aspects of joint custody are now a mandated
consideration.
‘ ORS 107.105(1)(a) states that “when appropriate, the court shall recognize the
value of close contact with both parents and encourage joint parental custody
and joint responsibility for the welfare of the children.”
‘ ORS 107.105(1)(b) states that if the parties cannot agree on a parenting plan
that “...the court shall develop the parenting plan in best interests of the child,
ensuring the non-custodial parent sufficient access to the child to provide for
appropriate quality parenting time...”
‘ ORS 107.105(1(b) also states that “the court shall recognize the value of close
contact with both parents and encourage, when practicable, joint
responsibility...and extensive contact between the minor children of the divided
marriage and the parties.”
‘ ORS 107.179 states that if one party pleads for joint custody and the other
objects then the court “...must proceed under this section.” The parties must
be sent to mediation and give them up to 90 days to work it out. The court can
bifurcate the divorce and try the rest. It is a statute worth reading.
‘ CAVEAT: It is suggested that you do not approve joint custody
parenting plans which do not address what is a joint vs. a sole
decision. Too many contempts or modifications result from vague
joint custody agreements.
‘ In Dominguez and Dominguez, 154 Or.App. 430, 961 P.2d 906 (1998) the
court ordered a 50/50 visitation schedule even though it was not joint
Page 56 SHORT SHEET ON FAMILY LAW

custody. This seems to reflect the evolving legislative and mental health
belied that more is better than less.
‘ 20 years earlier in Pergament and Pergament, 28 Or.App. 459, 559
P.2d 942, 943 (1977) the court stated “When a family is split by
dissolution of the marriage the child of necessity can be in custody of
only one parent and the custodial parent is given the primary
responsibility for rearing the child. Equity does not require that the child
be equally divided; the welfare of the child mitigates against such
approach. The desires of the father to develop a good father-son
relationship by more extended visits is commendable; but, having the
child spend half of its life on a piecemeal basis in each home could add
little to the stability and consistency in child rearing needed in the
formative years.
‘ PARENTING PLANS. The statutes talk about promoting contact and the importance
of it.
‘ Often attorneys will suggest modifications to the local parenting time rule. It
makes good sense to tailor the schedule to the parties (i.e. maybe a parent's
"weekend" is Monday and Tuesday).
‘ ORS 107.102 requires a parenting plan. Here are the highlights:
‘ There is additional statutory language of policy regarding parents
contact with their children.
‘ For purposes of divorce, the term "visitation" is out and the term
"parenting plan" is in however the statute specifies that this language
change does not change prior law or rights created by prior judgments
and orders.
‘ All proceedings to establish or modify relating to custody and visitation
will require a "parenting plan" to be filed with the court. It can be
general or specific but it "must set forth the minimum amount of
parenting time and access a non-custodial parent will have." There will
be no more orders saying “reasonable visitation”.
‘ The statute mentions areas that "may" be in a parenting plan such as:
‘ residential schedule
‘ holidays, vacations, weekends, in-service days
‘ decision making and information sharing
‘ relocation of a parent
‘ telephone access
‘ transportation
‘ methods for resolving disputes.
‘ If the parties cannot do it themselves, the court "must" develop a
detailed parenting plan which under ORS 107.102(4)(b) may ONLY
Page 57 SHORT SHEET ON FAMILY LAW

consider the best interests of the child and the safety of the parties.
CAVEAT: There is now an online link at the Oregon Judicial Department
website for PDF downloads of Parenting Plan Information. This
includes A Basic Parenting Plan packet, a Basic Parenting Plan
Guise, and a Safety Focus Parenting Plan Guide. Spanish
translations are also available. See
http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw
/parentingplan.htm
‘ The plan must consider the best interests of the child.
‘ The statute also requires each county to develop procedures for expedited
hearings to enforce parenting plans.
‘ ORS 107.105(1)(b) requires the court to “encourage joint responsibility”
and “extensive contact” "when practical.”
‘ PARENTING TIME/VISITATION DENIAL OR INTERFERENCE. ORS 107.135(11)
has been added which states that when you reconsider custody or parenting time
"the court may consider repeated and unreasonable denial of, or interference with,
parenting time to be a substantial change of circumstances".
‘ MOVING. ORS 107.159 makes it mandatory that reasonable notice be given of a
move more than 60 miles, however, the court now has discretion to waive notice, at
the time of a move, if there is good cause to suspend the requirement. Oregon used
to allow moves quite regularly but there has been a change in recent years.
‘ There are two different national trends in this area. New York and
California have taken different approaches, one supporting moves and
one opposing them. Oregon has not yet passed any statute on this
subject but the case law since the 2005 case of Cooksey and Cooksey,
203 Or.App. 157, 125 P.3d 57 (2005), has taken a more restrictive view.
‘ “When appropriate circumstances exist, a court may impose geographic
restrictions on the domicile of a custodial parent if the restrictions are in
the best interests of the child.” Sleight and Cazone, 100 Or.App. 325,
786 P.2d 202, 204 (1990)(citing Meier and Meier, 286 Or. 437, 445, 595
P.2d 474 (1979))(emphasis added). The paramount consideration is
what is in the best interests of the children after weighing all of the facts.
See Meier and Meier, 286 Or. 437, 445, 595 P.2d 474 (1979).
‘ A number of recent cases have demonstrated a clear Oregon trend.
Page 58 SHORT SHEET ON FAMILY LAW

‘ In Cooksey, 203 Or.App. 157, 125 P.3d 57 (2005), the issue was a
move from North Bend to Klamath Falls. The court denied the move
focusing on the relationships with extended family and the evidence that
the non-custodial parent could not take time from work to accommodate
drives to and from Klamath Falls.
‘ In Fedorov, 228 Or App 50 (2009), the issue was a move to Australia.
The court denied the move noting that the parental relationship would
be damaged by too little contact. Fedorov may not be as valuable as
an authority as many lawyers mat want as it was very fact specific and
in that case, an earlier modification had been settled on the promise
that there would be no move.
‘ In Henrickx and Matejsek, 231 Or.App. 50, 218 P.3d 137 (2009), the
issue was a move to Chicago. The court denied the move and
summarized the analysis of the prior cases stating:
“First, the focus is solely on the best interests of the
children. More specifically[,] * * * the focus is on the
question whether the children are 'better served' by
relocating. Meier and Meier, 286 Or. 437, 447-48, 595
P.2d 474 (1979).”
“Second, in evaluating the best interests of the children,
we examine the factors identified in ORS 107.137(1),
along with the legislative directive to promote strong
relationships between children and their noncustodial
parents. Cole v. Wyatt, 201 Or App 1, 8, 116 P3d 919
(2005).”
‘ The court then looked at the statutory factors and concluded that
“moving the child to Chicago inevitably would detrimentally affect
the child's relationships with father's wife, mother's family, and,
most significantly, with father, who would lose frequent, regular
parenting time, although he would continue to have the same
total amount of parenting time. As Knapp noted, the child
benefits from spending time with both her parents. Under the
circumstances and in light of the statutory policy favoring
frequent contact between minor children and their parents, we
cannot conclude that the potential loss of the child's relationship
with Taylor is so detrimental as to outweigh the inevitable
damage to all of the child's other relationships, especially her
relationship with father. In short, we cannot conclude that the
child's interests are better served by moving to Chicago than by
remaining in Klamath Falls.” Kerinckx, 231 Or.App. at 57-58.
‘ CAVEAT: It would appear that the HERINCKX court might have
allowed a move within Oregon that would permit regular contact.
What is clear from these cases is that there is a substantial
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‘ INTERVENTION BY THIRD PARTIES
evidentiary burden on the moving parent to establish that the
move is in the best interests of the child. Further, it would
appear that the economic issues of a parent’s spouse (i.e. a
move for your new spouses job) will be viewed differently than
economic issues of the parent (i.e a move for your own job). The
court’s appear to rely heavily on expert testimony.
‘ PSYCHOLOGICAL PARENTS
‘ ORS 109.119 was completely revised in 2001 as a response to the US
Supreme court decision known as Troxel. It still allows for intervention
to seek visitation by non-parents. The 2001 legislatures wholesale
changes to the statute make moot the Troxel reference to Oregon. In
O’Donnel-Lamont and Lamont, 335 Or. 655, 75 P.3d 898 (2004), the
Oregon Supreme Court upheld the new Oregon statute and made
clear that Troxel did not bar awarding custody to non-parents as
long as the statute was followed.
‘ In the case of Jensen v. Bevard, 215 Or.App. 215, 168 P.3d
1209 (2007), the court made clear that parents will not lose
control of their children merely because relatives helped care for
them.
‘ ORS 109.119(1) allows for intervention or a petition to seek relief by
non-parents as long as there have been “...established emotional ties
creating a child-parent relationship or an ongoing personal
relationships...”
‘ ORS 107.119(2)(a) presumes that the legal parent is acting in the best
interest of the child.
‘ ORS 107.119(2)(b) requires findings supporting rebuttal of the
presumption before relief can be granted to a non-parent.
‘ ORS 107.119(2)(c) says the presumptions is not retroactive. In other
words it does not apply to prior orders that have already been granted.
‘ ORS 107.119(3)(a) provides that if the relationship has been
established and rebuttal has been proven, the court can grant custody
or visitation if it is in the best interests of the child, including
temporary rights.
‘ ORS 107.119(3)(a) requires rebuttal by a preponderance. Before it
can grant custody, visitation, etc. to someone with “parent child”
relationship.
‘ ORS 107.119(3)(b) requires rebuttal by clear and convincing evidence
before visitation or contact rights can be granted to someone with an
“ongoing personal relationship”.
‘ CAVEAT: The burden of proof is lower when there is proof
of a parent child relationship than when there is an ongoing
Page 60 SHORT SHEET ON FAMILY LAW

personal relationship.
‘ ORS 109.119(4)(a) addresses statutory factors to be considered for
rebuttal and best interests for purposes of visitation. These include
detriment to the child, the legal parents contribution to the relationship,
interference with custodial relationships, denial of contact and whether
the moving party has been a primary caretaker (i.e. stepparent)
‘ ORS 109.119(4)(b) addresses statutory factors to be
considered for rebuttal and best interests for purposes of
custody or guardianship. These include:
‘ Inability or unwillingness to adequately care for the child
‘ Detriment to the child
‘ The legal parents contribution to the relationship
‘ Interference with custodial relationships
‘ Denial of contact
‘ Whether the moving party has been a primary caretaker
(i.e. stepparent)
‘ ORS 109.119(5) specifically talks about stepparent rights in
dissolutions and modifications.
‘ ORS 109.119(6) requires compliance with ORCP 33 (rules for
intervention), pleading of a prima facie case and mentions requirements
for applications under ORS 419B.875 (juvenile intervention).
‘ ORS 109.119(7) allows for custody studies as in ORS 107.445 as well
as attorney fees.
‘ ORS 109.119(8) has the definitions. The key points are that a “child
parent relationship” must have existed within the past 6 months
and an “ongoing personal relationship” must have existed for the
past year.
‘ GRANDPARENTS
‘ ORS 109.121 involving GRANDPARENTS RIGHTS was repealed in
2001 but ORS 109.332 provides for GRANDPARENT VISITATION IN
ADOPTIONS. 4
‘ A grandparent can file for visitation within 30 days of service of the
adoption petition.
‘ Visitation will be granted only upon a showing of clear and convincing
evidence that there had been a prior substantial relationship and that
4 The U.S. Supreme Court issued a decision in Troxel vs. Granville, No. 99-138 in June of
2000. The decision states that it is not attempting to make any broad statement about
grandparents rights. It struck a very narrow Washington statute which allowed anyone at anytime
to seek visitation. It cites Oregon’s former ORS 109.121 as an example of a more restrictive
statute. The case is instructive in that the court disapproved of the trial judge placing the burden
of proof on the parent instead of the non-parent. The 2001 legislatures wholesale changes to the
statute make moot the Troxel reference to Oregon.
Page 61 SHORT SHEET ON FAMILY LAW

the visitation will not substantially interfere with the adoptive family.
‘ Uniform Child Custody, Jurisdiction and Enforcement Act (UCCJEA). ORS
109.700-109.930. The former UCCJA was replaced in 1999 by the UCCJEA which
made the act consistent with the federal Parental Kidnaping Prevention Act (PKPA).
UCCJEA case law will not always be applicable to current cases due to the change.
The changes of note are:
‘ The child’s “home state” is even more critical in the jurisdictional analysis
regarding an initial custody order. Home state is where the child lived for the 6
months prior to filing.
‘ Judges must defer to the home state.
‘ Temporary emergency jurisdiction is only allowed until a proceeding can be
transferred to the home state and the purposes are limited (i.e. to protect the
child from violence). Once the home state issues and order, the temporary
emergency jurisdiction ends.
‘ The original state loses continuing jurisdiction when the child and both parents
move from the state. If a party remains in the state, the originating state must
issue an order that they no longer have jurisdiction before Oregon can assert
jurisdiction.
‘ Child custody proceedings now are defined as being just about anything that
involves custody or parenting time.
‘ There are specific provisions for civil enforcement of “custody” orders and
provisions for warrants to obtain physical custody by law enforcement if there
is a danger a party will flee with a child.
‘ CAVEAT: The case of Boss and Boss, 176 OrApp 410, 31 P3d 1116
(2001), reaffirmed the court’s approach of looking at “home state” as of
the date the action is filed and not the date the matter is heard. Further,
although the court has jurisdiction to defer to another state, it must
affirmatively do so and make findings.
DISSIPATION OF ASSETS AND INCOME
‘ DISSIPATION OF ASSETS AND INCOME Oregon cases on the subject have been
few but following other states the Oregon Courts have typically used an "attribution"
approach and attributed the dissipated income or asset to the offending party. If
proven, there are many options available to the court as remedies. It may be argued
that ORS 107.452, supra, demonstrates a legislative intent to harshly deal with those
that dissipate assets or income. Many ORS 107.093 statutory restraining order forms
actually use the word “dissipation” in the language.
‘ See article linked to our website at www.feiblemancase.com
ATTORNEY FEES
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‘ ATTORNEY FEES (the only advocacy part of this summary)
‘ It has gotten expensive to do a good job. Rates in the Willamette Valley for
lawyers who specialize are charging from $175/hr. to $375/hr. because it costs
so much to practice these days. In the tri-county area the rate is as high as
$250/hr. to $500/hr.
‘ In some local counties the courts seem reluctant to award much, if any,
attorney fees at all. Not all cases justify an award but it would be appreciated
by practitioners if the issue was seriously considered. Since ORCP 68 makes
the attorney fee issue a post-trial matter, lawyers are often caught in a
squeeze because we cannot put on evidence of why attorney fees are
appropriate at trial yet that is where the decision is usually made "whether”
attorney fees will be awarded.
‘ Consider making the determination of whether attorney fees should be
awarded in a post-trial forum (i.e. by affidavit or supplemental hearing).
‘ Family law lawyers have to determine income, identify assets, value assets,
consider tax effects on support and assets, work with accountants, draft
Domestic Relations Orders for pensions and a whole myriad of things just to
present a case without committing malpractice. The Oregon legislature has
added many new time consuming requirements and considerations.
‘ NOTE: If a party owns a Federal Thrift Plan, the court can issue a COAP order
that provides for payment of attorney fees from that account.
‘ ORS 107.445 addresses attorney fees in temporary matter, contempt and
petitions for support. The court is statutorily authorized to award the judgment
directly to the attorney.
‘ Attorney fees are now allowed in ORS 109.121 grandparent rights cases.
‘ ORS 107.837 allows for attorney fees to any party in a chapter 107
matter.
‘ EFFECTIVE DATES:
EFFECTIVE DATES
‘ The parties are now divorced the date the judge “signs” the Judgment. ORS
107.115(2).
‘ The property division is effective the date the Judgment is “filed.” ORS
107.105(3).
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Page 64 SHORT SHEET ON FAMILY LAW

‘ APPEALS
AFTER THE DIVORCE
‘ TEMPORARY RELIEF PENDING APPEAL. Under ORS 107.105(4) the court
can order, in a Supplemental Judgment, temporary relief pending appeal any
relief allowed under ORS 107.095.
‘ TRIAL COURT STAYS PENDING APPEAL. The trial court can now order a
stay pending appeal subject to specific statutory conditions, even after a notice
of appeal is filed.
‘ COURT OF APPEAL REVIEW. The court of appeals may review a
temporary order pending appeal in the same manner it could review any other
modification Supplemental Judgment. ORS 107.105(4).
‘ CONVERSION OF SEPARATIONS INTO DIVORCES
‘ 107.465 will require a motion, affidavit and order to show cause with at least
30 days prior service before a conversion from a Judgment of Separation can
occur. This is only available if it is filed within two years of the separation. The
conversion cannot alter vested rights such as property divisions.
‘ ORS 107.465(1) provides: that the court has the power within two years after
the entry of a judgment of separation, upon motion of a party and after service
of notice to the other party in the manner provided by law for service of
summons, to convert the separation to a dissolution of marriage but the
supplemental judgment cannot “set aside, alter or modify any part of the
judgment of separation that has created or granted rights which have
vested."
‘ Caveat: In Jones and Jones, 147 Or.App. 280, 936 P.2D 372 (1997) a
separation was converted to a divorce five years after the separation
Judgment and the court held the statute inapplicable and changed the
property division.
‘ ENFORCEMENT OF SETTLEMENTS
‘ ORS 107.104 and ORS 107.135(14) were enacted in response to an appellate
case that said that a settlement attached to the judgment merges into the
judgment and therefore cannot be enforced contractually. The statutes cureD
to that sole problem.
‘ ORS 107.104 makes it clear that the statute is designed “...to enforce the
Page 65 SHORT SHEET ON FAMILY LAW

terms of settlements described in section (2) of this section...” ORS
107.104(2) specifically limits its applicability to a “signed stipulated judgment,”
a “judgment resulting from a settlement on the record,” or a “judgment
incorporating a marital settlement agreement.” The key word is “judgment.”
‘ The statute then goes on to state that such judgments can be enforced as
contracts or as judgments.
‘ This view was recently affirmed by the Court of Appeals in Patterson and
Kanaga, 206 Or.App. 341 (2011). The Patterson court clearly addressed the
question by stating that “…this case requires us to determine the relationship
between ORS 107.104(1)(b), which provides that courts are to enforce the
terms of marital settlement agreements "to the fullest extent possible, except
when to do so would violate the law or would clearly contravene public policy,"
and ORS 107.105(1)(f), which provides that courts are to divide parties'
property at dissolution in a manner that is "just and proper in all the
circumstances."
In Patterson the parties had entered into a settlement agreement which had
been incorporated into a Judgment of Legal Separation. At the time of
divorce, the divorce court determined that the parties had intended the
separation agreement, as incorporated in the separation judgment, was
intended to bind the parties in a later divorce. This was thus an agreement
approved by the court in a judgment and therefore was entitled to later
enforcement regardless of its current “fairness” or the fact that it left the parties
in “dramatically different” financial circumstances.
‘ The court cited both McDonnal and McDonnal, 293 Or 772, 778, 652 P2d
1247 (1982) which predated ORS 107.104 and McInnis and McInnis, 199 Or
App 223, 230, 110 P3d 639, rev dismissed, 338 Or 681 (2005) which post
dated the statute. The court stated that “[p]arties "may and often do enter into
separate agreements regarding the terms of the dissolution," and a trial court
"is not obligated to approve such agreements; they always are subject to the
court's review for fairness and equity under the circumstances... But, once
approved by the court, "'agreements entered into by the parties are to be
enforced as a matter of public policy.'
The message to take from the statutes and Patterson is that parties are free to
negotiate an agreement that may appear “unfair” or beyond the trial court’s
normal authority to grant relief, and that, in of itself, does not make the
agreement violative of public policy. As the court stated, “[a]s we have
repeatedly held, the fact that a marital settlement agreement contains terms
other than those that a court could order absent the agreement does not
necessarily mean that the agreement violates the law or is clearly contrary to
public policy.” ORS 107.104(1)(b) "establishes a strong policy in favor of the
Page 66 SHORT SHEET ON FAMILY LAW

enforcement of settlement agreements that have been reduced to judgment in
the context of separation and dissolution disputes…" Patterson, 206 Or App at
351-52.
‘ See also Lemley, 188 P.3d 468 (2008) where the court specifically enforced a
post-judgment agreement.
‘ See also Baldwin, 168 P.3d 1233 (2007) where the court, in a post judgment
settlement, held that the lack of a signed agreement is not dispositive,
"[w]hen parties agree on the essential terms of a contract and there is nothing
left for future negotiations, the fact that they also intended there to be a future
writing that expresses their agreement more formally does not affect the
immediately binding nature of the agreement."
‘ The distinguishing facts of those two cases is that the settlements were not
bound by ORS 107.105(1)(f) requiring a court to enter a judgment that was
“just and proper in all the circumstances.” They were post judgment
settlements of disputes.
MODIFICATIONS
‘ GENERALLY
‘ The starting standard is a showing of a “substantial change in
circumstances.”
‘ ORS 107.135(11) states that “...the court may consider repeated and
unreasonable denial of, or interference with, parenting time to be a
substantial change of circumstances.”
‘ ORS 107.135(12) now allows the court to suspend or terminate parenting
time if the parent has abused a controlled substance and the parenting
time is not in the best interests of the child. The statute has strict
guidelines about reinstatement.
‘ All show cause orders must allow 30 days notice. ORS 107.135(1).
‘ AREAS AVAILABLE FOR MODIFICATION: trustees, custody, parenting time,
visitation, child support, spousal support, life insurance or health insurance. ORS
107.135(1)(a) and (c).
‘ It also allows the court to set aside or modify any prior enhanced earning
capacity award on certain conditions. ORS 107.135(1)(e).
‘ It also allows for termination of support for minor children who are selfsupporting,
emancipated or married. ORS 107.135(1)(c).
‘ It provides for suspension of future child support for an adult child who no
longer qualifies as a child attending school if the child is served. ORS
107.135(1)d).
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‘ If spousal support was to go down or end at a certain age based on an
assumption of certain retirement benefits and they fail to materialize, the court
can reconsider support. ORS 107.135(3)(b)
‘ PLEADING REQUIREMENTS.
‘ Under ORS 107.135(2), in a motion to change child support the party
needs to state in the motion, to the extent known:
‘ If there is any other support case pending in this or any other
jurisdiction.
‘ Whether there is any other support order in this or any other jurisdiction.
‘ The moving party also must include a certificate regarding any pending
support proceeding and any existing support order other than the one in
the motion.
‘ EVIDENTIARY LIMITATIONS DURING HEARING. “The movant is confined to the
grounds raised in his or her motion to modify...and the adverse party may object to
the evidence that tends to prove grounds not alleged.” Coughlin and Coughlin, 159
Or.App. 447, 979 P.2d 292 (1999) citing Brown and Brown, 4 Or.App. 621, 481 P.2d
643 (1971).
‘ MILITARY EXCEPTIONS. ORS 107.169(6) provides that being absent in the
military for up to 30 months is not a “change of circumstances.”
‘ MODIFICATION OF SPOUSAL SUPPORT. ORS 107.135(6) allows for modification
of Spousal support to be retroactive to the date of service just as in child support
modifications. It is discretionary to pick any date between filing or “...any date
thereafter.”
‘ If spousal support is terminated you MUST make findings as the why and
include them in the order. ORS 107.135(5). This ties into the new ORS
107.136 reinstatement provision.
‘ The 2007 legislature overhauled the reinstatement of spousal support statute.
‘ Reinstatement may be proper if the reason for the terminations ceases
and reinstatement is just an equitable.
‘ This author chaired the legislation committee and testified for the bill
before the Senate. Unusual in this statute is an example found in ORS
107.136(2)(b).
‘ Key provisions of the statute are that the court has discretion to
reinstate all or part of the remaining duration or monthly obligation.
Also a motion to reinstate must be made within 10 years of the date of
termination.
‘ Subsection (4) makes it clear that the court can consider the basis for
the original award, the basis for termination and the totality of the
circumstances in making its just and equitable decision.
Page 68 SHORT SHEET ON FAMILY LAW

‘ If a party has not tried to become self-supporting within 10 years of the
divorce the court can terminate the support. ORS 107.407. ORS 107.412.
This does not apply if the obligee is 60 at the time of hearing.
‘ LIMITATION ON COMPENSATORY SUPPORT MODIFICATION. This type
of spousal support cannot be modified unless there is an involuntary,
extraordinary and unanticipated change in circumstances that reduces the
earning capacity of the paying spouse. ORS 107.135(2)(a).
‘ If the modification is opposed and the sole basis is a voluntary
retirement or self-imposed curtailment of earning capacity, then it must be
denied if it is shown that the change was “not taken in good faith” but was for
the “primary purpose of avoiding the support obligation.” ORS 107.135(4)(b)
‘ ORS 107.135(4)(c) outlines good faith factors to consider.
‘ MODIFICATION OF CHILD SUPPORT. Support reviews are tied to the effective
date of the last order, not entry of the order.
‘ The court has discretion to make a modification retroactive to the date of
service but not the date of filing. ORS 107.135(6).
‘ The court can terminate or suspend support for interference with parenting
time. ORS 107.431(1) subject to the conditions of 107.431(d). But this is
subject to the UCCJEA (ORS107.431(3).
‘ MODIFICATION OF PARENTING TIME. ORS 107.431 addresses this issue.
‘ EXPEDITED PARENTING TIME ENFORCEMENT HEARING. ORS 107.434
established an expedited procedure so people don’t have to file contempts to see
their kids. Hearing has to be within 45 days of filing the motion.
‘ One remedy is to modify the parenting plan and exact statutory requirements
and penalties.
‘ On 1-1-07, new language replaces ORS 107.434.
‘ ARREARAGES and CREDITS.
‘ FOREIGN ORDERS. The 1999 Gayer and Gayer, 326 Or. 436, 952 P.2d
1030 (1998) has been supplanted by statute. An obligor can only object to
foreign orders if the amount is wrong. No objections for jurisdiction or fraud
are allowed. This would suggest that the legislature feels those issues should
be taken up at the originating court.
‘ SOCIAL SECURITY CREDITS. ORS 107.135(7)(b). allows for a credit
against an arrearage for certain social security benefits paid retroactively to a
child.
Page 69 SHORT SHEET ON FAMILY LAW

‘ CREDIT WHEN THE CHILD IS WITH THE OTHER PARENT. The court can
give a credit against child support arrearages if the parent had the child with
knowledge and consent of the other parent but this same statute does not
allow a credit if support was paid anyway. ORS 107.135(7)(a).
‘ Laches is not a defense to the payment of past-due child support obligations.
‘ WHEN SOMEONE IS INCARCERATED. ORS 416.425(12) will now provide for
automatic reinstatement on the 61 st day after release when support was modified due
to incarceration under that section of the code.
‘ ENFORCEMENT OF POST-JUDGMENT SETTLEMENTS. ORS 107.135(15) is a
legislative response to the Weber case and it basically says that if the parties enter
into a settlement and the court adopts it in the judgment, it can be enforced both as a
judgment and/or as a contract but all claims for relief have to be joined in the same
proceeding. ORS 109.165(2) allows the court to enforce settlements and Judgments
through domestic and civil courts. All are similar to ORS 107.104.
‘ POST DECREE RELIEF (EX-PARTE AND TEMPORARY). Usually you see this in
Temporary matters (ORS 107.095) when the divorce is filed or in post divorce
Modification matters (ORS 107.135).
‘ POST-DECREE TEMPORARY CUSTODY. ORS 107.139 allows the court
to grant post-decree ex parte modifications of custody or visitation only if:
‘ A parent is present in court.
‘ There is an affidavit from the parent alleging immediate danger to the
child.
‘ There is proof by clear and convincing evidence based on testimony
and affidavit, that the child is in immediate danger .
‘ Note: This standard only applies at the ex-parte phase.
‘ And there has been a good faith effort to confer with the other parent
about the purpose and time of the court appearance.
‘ The moving party must also provide a telephone number where they
can be reached “at any time of day or night" and also a contact
address.
‘ The other parent must be allowed a hearing within 14 days after a
request and the hearing on the ex-parte motion is limited to whether the
child was in immediate danger at the time of the order. This does not
impact a motion to modify under ORS 107.135.
‘ As a result, ex parte modification temporary orders for custody or
visitation is available only in limited circumstances and when there has
been a real effort to give the other party an opportunity to be present.
‘ POST DECREE STATUS QUO ORDERS. A "status quo" order can be issued
while the modification is pending. See ORS 107.138(1).
Page 70 SHORT SHEET ON FAMILY LAW

‘ However, there must be advance notice and an opportunity to be
heard before the court can grant an order and there must be 21
days notice before a hearing. You cannot issue a Temporary
Protective Order, post divorce, at the time the motion is filed.
‘ The hearing limited to the issue of what is the actual status quo. The
statute is discretionary. As a result, post-decree custody and status
quo issues will now be handled ex-parte only under very limited
conditions.
‘ NOTE: The 1999 legislature defined the status quo as where the
child has lived for the prior three continuous months. ORS
107.138(3)(a).
‘ Note that the standards for status quo orders are not the same
as for temporary orders under ORS 107.095.
‘ HIDDEN ASSETS/REOPENING DIVORCES. ORS 107.452 provides that when
somebody hides assets there is a specific statutory procedure to reopen and divide
them (including awarding them all to the non-offending spouse) as well as award
punitive damages and attorney fees. It is a very specific statute so it should be
referred to when the issue arises.
‘ Inadvertent Omission: The action must be filed within 2 years of discovery
but no later than 3 years.
‘ Intentional concealment: The action must be filed within 2 years of discovery
but no later than 10 years.
‘ Case law is minimal: There are only a few cases that address this statute.
‘ CONTEMPT. You are probably already familiar with the changes in the contempt
law. A little editorializing. In family law, lawyers look to the court to put teeth into the
Court orders (particularly in visitation and support issues). Violators have no fear of
jail time because it doesn't seem to happen. Even a night or weekend will get the
word out that you should obey the court. Only the state can seek confinement to
punish (punitive) but any attorney can seek confinement to force someone to act (i.e.
remedial). Punitive contempt is statutory and requires proof beyond a reasonable
doubt (and follows criminal procedures).
‘ CONTEMPT STATUTE OF LIMITATIONS. ORS 33.135(1) specifically limits
contempt actions to those acts which have occurred within two years of the
contempt unless the contempt is for failure to pay support, in which case there
is a 10 years statute of limitations.
‘ THE COURT HAS NO JURISDICTION UNDER ORCP 78 TO ENFORCE A
NON-SUPPORT MONEY JUDGMENT BY CONTEMPT.
Page 71 SHORT SHEET ON FAMILY LAW

‘ ORCP 78 is the Rule of Civil Procedure that applies to contempt
matters. ORCP 78B states: “The court or judge thereof may enforce
an order or judgment directing a party to perform a specific act by
punishing the party refusing or neglecting to comply therewith, as for a
contempt as provided in ORS 33.015 to 33.155.”
‘ However, ORCP 78C states in part that “Section B of this rule does not
apply to an order or judgment for the payment of money, except orders
and judgments for the payment of sums ordered pursuant to ORS
107.095 and 107.105(1)(i), and money for support, maintenance,
nurture, education or attorneys fees in:
C(1) Actions for dissolution or annulment of marriage or
separation from bed and board.
C(2) Proceedings upon support orders . . .”
‘ The Oregon Rules of Civil Procedure specifically provide that contempt
is not a viable enforcement tool for the payment of most money
judgments. By law, the courts have specifically granted the court the
right to seek enforcement of a limited number of money judgments, to
wit: child support, spousal support, attorneys fees and judgments
arising from ORS 107.095. ORS 107.105(1)(i) specifically delineates
that list which does not include equalization judgments or other money
judgments that are awarded in a divorce that are not related to spousal
support, child support, attorneys fees or temporary orders.
‘ In Drake and Drake, 36 Or.App. 53, 583 P.2d 1165 (1978) the court
enforced an obligation that the husband was required to turn over a
deed to the wife after the wife paid him his share of the equity. The
court distinguished this case from the “money judgment” cases by
stating: “The simple answer is that this is not an order for the payment
of money. It is an order to deliver a deed. Therefore, the ‘payment of
money’ exception within subsection (3)(a) does not apply for the
protection of the husband.” 36 Or.App. At 57.
‘ ORS 107.835 allows a party to waive personal service for future contempt
proceedings and accept substituted service (i.e. by mail or to an agent).
‘ OUT OF STATE VIOLATORS. A little known case (still good law) bars the
court from finding an out-of-state violator in contempt. The only real remedy is
either a contempt action where they are or some other applicable noncontempt
remedy.
‘ In the 2 nd Kantola case, the court repeated it’s earlier ruling that the
court had jurisdiction to modify but not to find an out of state party guilty
of contempt. The court stated: “On appeal by plaintiff mother, Kantola
v. Kantola, 10 Or.App. 266, 500 P.2d 263, on August 10, 1972, we
Page 72 SHORT SHEET ON FAMILY LAW

eversed on the grounds of comity that portion of the 1971 order
holding her in contempt because of the obvious enforceability
problems created by the mother's and the children's extrastate
domicile. However, we held the trial court properly exercised its
continuing jurisdiction to reduce the child support payments, citing ORS
107.135(1)(a).” Kantola, 13 Or.App. 187, 509 P.2d 39 (1973).
‘ JUDGMENTS
‘ Now that the new Judgment statutes have been in place for years we have
seen that not a lot really changed from the Judge’s perspective other than the
names of the Judgments.
‘ Chapter 18 of the ORS now covers 84 pages. That is too much material to
summarize here. Future Additions of the Short Sheets may address the key
issues raised by the 2003 legislative changes.
‘ WRITS OF ASSISTANCE ORS 107.437 authorizes the ex-parte recovery of a child
by the custodial parent. It allows for ex parte application by a person entitled to
physical custody to obtain relief.
‘ Application, by motion in the county of origin or by petition if the child is
elsewhere, is made in a county where the child is located or wherever a valid
custody order has been filed.
‘ The custody order must be certified.
‘ The court must find that:
‘ The applicant is entitled to physical custody
‘ The Order is valid and current
‘ The child is being withheld "in substantial violation" of the order
‘ The statute specifically bars using the procedure to enforce visitation rights
which suggests that the use of the term "physical custody" really means legal
custody. This is only to retrieve a child for the custodial parent.
‘ Query? Does this raise 4 th amendment issues regarding specificity of
locations to be searched (i.e. probable cause to search a location and
reasonable probability child will be found there)?
‘ MODIFICATIONS PENDING APPEAL
‘ The trial court can now order a stay pending appeal subject to specific
statutory conditions, even after a notice of appeal is filed. ORS 19.350.
‘ Domestic relations cases are now subject to all the provisions regarding stays
ORS 19.355.
‘ Motions to modify or reconsider spousal support, child support or
custody (possibly visitation) defined by statute as any order requiring a
showing of a change of circumstances may now be filed while an appeal
is pending.
Page 73 SHORT SHEET ON FAMILY LAW

‘ CONTINUING JURISDICTION. ORS 19.275 allows for continuing jurisdiction of
trial court in certain domestic relations cases:
‘ ORS 19.275(1) provides that in any motion that requires a showing of a
change of circumstances before the court may modify a judgment or decree,
may be filed with the trial court while an appeal from the judgment or decree is
pending before an appellate court.
‘ The filing of a motion under this subsection does not affect the right of the
appellant to pursue the appeal of the judgment or decree.
‘ ORS 19.275(2) provides that the trial court in its discretion may proceed to
hear and decide a motion under this section or may hold the motion in
abeyance pending disposition of the appeal.
‘ SUPPLEMENTAL JUDGMENTS FOR TEMPORARY RELIEF PENDING APPEAL
‘ ORS 107.105(4) allows for a SUPPLEMENTAL JUDGMENT to grant
temporary relief akin to ORS 107.095 temporary relief, while an appeal is
pending.
‘ This Judgment is also appealable under ORS 19.275.
CONCLUSION
This summary touches on many issues you may encounter in family law cases but we hope
it helps you as a quick reference in your family law cases. It is hard to still call these “short
sheets” when they have grown from 10 to 74 pages. Please feel free to call if there are
questions, corrections or if you feel additions would be useful to other judges.
Gil Feibleman
Page 74 SHORT SHEET ON FAMILY LAW

CRIMINAL LAW
Robert G. Thuemmel
Thuemmel, Uhle & Eder
CHAPTER 7

Chapter 7
CRIMINAL LAW
TABLE OF CONTENTS
Page #
TYPES OF CRIMINAL PRACTICES........................................................................... 7-1
WHY CHOOSE THIS STYLE OF PRACTICE? WHY NOT? ....................................... 7-1
WHAT’S THE PRACTICE LIKE? ................................................................................ 7-2
THINK YOU MIGHT BE INTERESTED IN IT? ......................................................... 7-3
YOUR FIRST CASE ..................................................................................................... 7-3
THINGS TO REMEMBER ........................................................................................... 7-3
To view these chapter materials and the additional resources below, go to www.osbplf.org, find the left
side of the home page, find CLE, then click on programs on CD/DVD, find Learning The Ropes, then click
on download handout. Program handouts and additional handouts are organized by chapter.
Additional Resources
What Defense Lawyers Need to Know About Immigration, In Brief, November
2010

I. Types of criminal practices:
Chapter 7
CRIMINAL LAW IN ONE HOUR
Bob Thuemmel
Thuemmel & Uhle
210 SW Morrison, Suite 600
Portland, OR 97204
(503) 227-4601
bthuemmel@qwest.net
We all think of the stereotype practice- criminal defense trial lawyer. While this breed is alive
and well, the practice of criminal law includes any of the following areas:
• Defense attorney – state or federal
• Prosecutor – state or federal
• Appellate attorney – defense
• Assistant attorney general
• Court appointed v. retained caseload
• Felony v. misdemeanor caseload
• Post-conviction relief attorney
One style may be better suited to some more than others. A person who likes research and
writing would automatically lean toward appellate work, while one who might like to be on
their feet in the courtroom would want to be a state court trial attorney, either on the
prosecution or defense side of the table.
II. Why choose this style of practice? Why not?
A. A criminal defense practice has these advantages over a civil practice:
• You can be your own boss and set the terms of your practice, subject to when the
courts expect you to show up.
7-1

• You can choose which cases to take and not to take. If you don’t care for a
particular client or their cause, tell them to see another attorney (exception: court
appointed cases).
• You can go to court. And have a trial. (A trial may be an endangered species in
the civil world.)
• You can make a major difference in people’s lives.
• You can fill a most important role in the justice system.
• You can make a living.
B. Some disadvantages of being a criminal defense lawyer may be:
• You’ll start out working hard, and for not much pay.
• You will have plenty of company (competition).
• You will have many opportunities to work for free.
• You will go to court a lot, and you may waste far too much time there.
• Trials may cause you to work hard and lose sleep.
• You’ll come across some of the strangest and most interesting fact situations (and
people) ever.
III. What’s the practice like?
A. Getting clients.
B. What to do with them from the first appointment to the time you close the file:
• retainers;
• initial interviews;
• police reports/investigation/discovery;
• need for experts or others;
• court calendaring and scheduling;
• appearances;
7-2

• plea negotiations, trial.
IV. Think you might be interested in it?
Here are some ways to get a peek into the world of a criminal defense attorney:
• OCDLA – the Oregon Criminal Defense Lawyer’s Association; 1,200 members
statewide; 8 to 10 seminars per year; scholarships available; go to one, or get tapes
from one, and learn an area of the law well.
• Trial watching – use your available time to find out who is trying a case and where,
and go sit in. During a recess, say hello to the defense attorney. Depending on
their level of preoccupation, s/he may be open to talking with you about the case
or bouncing ideas off of you as if you’re the 13 th juror. Take advantage of the
spare time you have.
• PLF resources and materials.
• OSB mentor programs.
V. Your first case – know the answers to these questions:
• What is the charge/the charges?
• What does the statute say?
• What does the jury instruction say?
• What pretrial motions can you file? Should you file?
– How did the police contact citizen to begin with?
– What searches were performed?
– What statements were made?
• What other aspects of the case (substantive or procedural) should be addressed by
motion?
• What are the potential defenses?
• What does the case law have to say on any of the above (hint: start a trial notebook
today).
VI. Things to remember:
• Pick your clients and your cases carefully. Develop a good compass.
7-3

• Be prepared. It is your advantage, take advantage of it.
• Be honest. Do what you say you’re going to do.
• Don’t promise too much to the new client. Promise them your best efforts.
• Charge what you’re worth, whether or not you’re going to get it. After awhile, you
will.
• Offer to help other lawyers and follow through on it.
• Let people know what kind of cases you handle and that you are interested in
referrals.
• Treat other lawyers, prosecutors, judges and clients the way you’d like to be
treated.
• Don’t be afraid to go to court.
I wish you all good luck in whatever field of law that you choose!
7-4

Chapter 7
Criminal Law
Additional Resources
What Defense Lawyers Need to Know About Immigration, In Brief, November 2010

THIS ISSUE
November 2010
Issue 108
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
What Defense Lawyers Need to Know
About Immigration
On March 31, 2010, the
U.S. Supreme Court issued
Padilla v. Kentucky, 130 S Ct 1473 (2010), holding
that the Sixth Amendment requires defense
counsel to advise a noncitizen criminal defendant
regarding the immigration consequences of a
guilty plea. Absent such advice, a noncitizen may
raise a claim of ineffective assistance of counsel.
An advisory opinion that explains Padilla in more
detail is available at www.ailaoregon.com.
The defendant in Padilla pled guilty to a drug
charge that made his deportation virtually mandatory
under the immigration laws. However, Padilla’s
defense counsel erroneously advised him that
he did not have to worry about his immigration
status since Padilla had been in the United States
for so long. The Court held that under the Constitution’s
right to competent counsel, counsel must
inform their client whether a plea carries a risk of
deportation.
The Oregon Constitution requires defense
counsel to advise clients who are not U.S. citizens
that a criminal conviction “may result” in deportation.
Gonzalez v. State of Oregon, 340 Or 452,
134 P3d 955 (2006) (citing Lyons v. Pearce, 298
Or 554, 694 P2d 969 (1985)); ORS 135.385(2)
(d). However, under Padilla, giving Oregon’s
general warning may not be sufficient to meet
the federal constitutional standard of “reasonable
professional assistance” of counsel. Counsel must
be “active, rather than passive, taking the initiative
to learn about the rules in this area rather than
waiting for questions from the defendant.”
Padilla also made it clear that prosecutors
should take immigration consequences into account
in plea bargaining, since “informed consideration
of possible deportation can only benefit
both the State and noncitizen defendants during
the plea-bargaining process. By bringing deporta-
tion consequences into this process, the defense
and prosecution may well be able to reach agreements
that better satisfy the interests of both parties.”
What are some of the immigration consequences
that noncitizen defendants may face from
a criminal disposition? Will they be deportable,
without any relief, as an “aggravated felon” (a
term that often includes no-jail misdemeanors)?
Will they become ineligible to get a green card
because the offense makes them inadmissible to
the country as a result of a crime involving moral
turpitude? If they are deportable or inadmissible,
do they have any chance of getting relief (forgiveness)
in immigration court? These are the types of
questions that defense counsel must consider.
Defense Counsel’s
Responsibilities
Defense counsel’s duty includes not only informing
a client of the immigration consequences
of a conviction, but also helping the client avoid
a potential disaster during the course of representation.
Defense counsel must ask the relevant
questions of a client and work to determine the
client’s immigration consequences before the client
goes to trial, enters a diversion or drug treatment
program, handles a charge of violating the
terms of probation or of a protection order, admits
addiction, or before a sentencing or delinquency
hearing. All of these events can have unintended
consequences that may affect the client’s immigration
status. In some cases, the immigration
consequences of a plea may be far more serious
than the criminal consequences.
Padilla does not require counsel to provide
a definitive answer in situations where the law
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

may be unclear as to the immigration consequences of a
conviction. However, in order for defense counsel to determine
whether a client’s potential immigration situation is
straightforward or unclear, defense counsel must work with
the client to obtain the necessary information, and the proper
research must be done.
In addition to the charges, counsel needs to know the defendant’s
prior criminal history and any mitigating and aggravating
factors, such as:
● Immigration Status: Is the defendant a long-time
green-card holder? Does the defendant have any documents?
A firearm conviction may trigger deportation for a lawful
permanent resident but not a defendant who entered the
United States unlawfully. Someone married to a U.S. citizen,
or whose parents are in the United States, may have options
in immigration court unavailable to others.
● Criminal History: The implications of a current charge
or conviction vary depending on whether the defendant has
a prior conviction. A defendant’s prior criminal history will
also determine whether he or she can get relief in immigration
court.
● What Deal Is on the Table: Many criminal statutes
are “divisible” – one set of elements will cause deportation
and the other may not. The immigration consequences may
depend on whether counsel can negotiate a plea to a portion
of the statute that avoids or minimizes immigration consequences.
This often requires careful crafting of the factual
basis for the plea contained in defendant’s plea statement.
Sample intake forms are available at www.
defendingimmigrants.org and www.lojjr.com. Simply consulting
a list of the grounds of removal cannot address these
issues. You must also understand your client’s goals – for
example, does the client want to avoid deportation at all
costs? Or does the client care more about his or her criminal
record?
Resources Available to Lawyers
Criminal defense counsel in Oregon currently have the
following resources to help them understand immigration
consequences:
● Education: Numerous resources are available for
learning directly how a criminal conviction may affect
a defendant’s immigration situation. See, for example,
www.defendingimmigrants.org. The defense bar may
wish to pursue other options to make this easier in the
future, such as the Washington Defender’s Immigration
Project in Washington state. See www.defensenet.org/
immigrationproject. Also see the box of additional re-
sources accompanying this article.
● Consultation with Immigration Counsel: You
may want to consider consulting immigration counsel,
even from the beginning of a case. Some immigration
practitioners in Oregon are well-versed in these issues
and can work with defense counsel in determining the
immigration consequences of the charges alleged and
in identifying alternatives that may avoid removal, or at
least give the defendant a possibility to seek relief from
removal in immigration court.
● Client Contact with Immigration Counsel: The
defendant or family members can contact an immigration
attorney directly. Whenever possible, defense counsel
should assist in locating an experienced immigration attorney
and should be sure to follow up with the family or
the attorney directly before any criminal proceeding with
potential immigration consequences.
Finally, post-conviction counsel should be aware that
there are arguments still to be made that the Padilla decision
should apply to final convictions and that the case
presents an exception to the two-year statute of limitations
(starting March 31, 2010).
Even though determining the immigration consequences
of a conviction may be a complex process, and
counsel may ultimately discover that the law is unclear,
there are resources and attorneys available to help educate
defense counsel so that they can provide the best assistance
possible to their clients.
Julie A. Krull
Attorney At lAw
Joseph Justin rollin
lAw offices of Joseph Justin rollin
November 2010 – Page 2
www.osbplf.org

Additional Immigration Resources
● Immigrant Defense Project (www.immigrantdefenseproject.org): Practice advisories regarding the latest
immigration issues, including the Padilla case; one-page checklist summarizing criminal offenses that might have
immigration consequences (“Resources” tab, “Criminal Justice System”).
● National Immigration Project (www.nationalimmigrationproject.org): Under the “What We Do” menu, select
“Criminal & Deportation Defense”; offers assistance to criminal defense attorneys anywhere in the United States,
including advice on a particular case; services are free.
● American Immigration Lawyers Association (www.ailaoregon.com): Oregon Chapter.
● Washington Defender Association (www.defensenet.org): Under “Immigration Project” tab; “Immigration
Resources” for Padilla practice advisory; client intake worksheet.
● Immigrant Legal Resource Center (www.ilrc.org): Training and help with immigration law.
November 2010 – Page 3
www.osbplf.org

TORT LITIGATION
Jane Paulson
Paulson Coletti Trial Attorneys PC
CHAPTER 8

C hapter 8
TORT LITIGATION
TABLE OF CONTENTS
Page #
Avoiding Legal Malpractice Tips and Traps for Lawyer .................................................. 8-1
PowerPoint Slides .......................................................................................................... 8-8
To view these chapter materials and the additional resources below, go to www.osbplf.org, find
the left side of the home page, find CLE, then click on programs on CD/DVD, find Learning The
Ropes, then click on download handout. Program handouts and additional handouts are
organized by chapter.
Additional Resources
Oregon Statutory Time Limitations Handbook Excerpts, 2010 Revision
Settlements Proceeds and Other Traps, In Brief (Revised October 2011)
PIP Basics, In Brief, (Updated October 2011)
P.I. Settlements and Welfare, In Brief, (June 2011)
Tips for Protecting Yourself from Malpractice Claims, In Brief, (Updated 2011)
Adjusted Tort Liability Limits Against Public Bodies Effective July 1, 2012, In Brief (July 2012)
Reporting Responsibilities Under Medicare, In Brief (March 2012)
Settlements for Minors – 2009 Legislative Changes, In Brief (November 2010)
What You Need to Know About PIP and UM/UIM Claims, In Brief (September 2011)
Duties of a Conservator (PLF Practice Aid)
Acknowledgment of Restriction of Assets
Multnomah County Supplementary Local Rules 9.055

AVOIDING LEGAL MALPRACTICE
TIPS AND TRAPS FOR LAWYERS
Jane Paulson
Paulson Coletti Trial Lawyers, P.C.
Legal malpractice happens. Here are some tips to help you avoid common
mistakes in tort cases. Malpractice occurs for many reasons other than failure to know
the law. Plaintiff lawyers are often solo practitioners or in small firms with fewer people
to bounce ideas off of. A plaintiff lawyer must not only know the law but also set up
office procedures to prevent malpractice. The materials deal mostly with plaintiff errors
because plaintiff attorneys, unfortunately, have most of the claims.
A simple way to minimize malpractice claims is keep your clients happy. A quick
way to a malpractice suit is to have an unhappy client and not try to repair it. Use
common sense. Keep your clients informed – send copies of pleadings, letters, answer
emails, etc. It keeps your client informed and reduces phone calls from clients.
Sometimes you are not going to recoup your costs or your time from your client --
remember a malpractice suit against you would be more costly and time consuming. If
you plan to fight fees or costs when you and your client have parted ways consider
calling the PLF first for advice.
Here are some additional tips for avoiding malpractice and keeping your clients
happy:
1. CHOOSING CASES CAREFULLY:
(See June 2006, In Brief, Revised October 2011, “Settlement Proceeds and Other
Traps” by Jane Paulson)
(a) Client Screening:
Careful client and case screening can reduce the threat of malpractice and
improve your days at work. Some cases shouldn’t be filed by you. Some cases
shouldn’t be filed at all. Trust your gut and learn to know which clients and cases
smell of trouble -- then do everything in your power to avoid them. Be leery of
the following potential clients or cases:
(1) Clients who are close to the statute of limitations. Carefully evaluate
these cases before you take them. Do you have the time to do the case
right now? Does the client have all the information needed to file suit?
How long will it take to get the necessary information? Is it worth it?
8-1

(2) Clients who are unhappy with their previous attorney(s). While the
client may have the right to be unhappy, the client may also have
unreasonable expectations. If the unhappiness is from the client’s
unreasonable expectations, you are simply setting yourself up for
failure – don’t;
(3) Clients who want more money than you think the case is worth. Again
a set up for failure and client unhappiness;
(4) Clients you don’t get along with. If you don’t like your client what
makes you think a jury will;
(5) Cases beyond your area of expertise;
(6) Clients that want to negotiate every part of your retainer agreement.
Sometimes these clients are simply savvy and good business people,
sometimes they are trouble; and
(7) The PLF strongly cautions against representing friends and family. You
are no longer an unbiased attorney and may not be able to see all sides
clearly. Send the case to another lawyer and ask for a referral fee.
(b) Use Proper Forms of Engagement & Non-Engagement Letters: Use the
PLF forms to sign up a client and set out the terms of engagement. If you do
not take the case, send a letter (like the PLF samples) stating exactly that –
remember to warn client that “time limitations apply…”
2. GET DETAILS RIGHT:
a) Advise Clients That Bills Have to Be Paid Back
b) Find Out The Following Information:
(1) If Health Insurance Exists
(2) What Other Insurance Exists
(3) Where Your Client Received Medical Treatment
(4) Ages:
(c) The time limit for a minor’s claim against a public body (Tri-Met, a
city, a school district, etc.) is short – it MUST be filed within twoyears.
ORS 30.275(8); Lawson v. Coos Co. Sch. Dist. No. 13, 94 Or
App 387, 765 P2d 829 (1988). Also, watch out for the minor’s medical
bills. Minority, incapacity or advance payment to a minor pursuant to
ORS 12.155(2) does NOT toll the statute. Id.
(c) A parent’s action to recover the medical expenses of a minor child is the
same as the minor’s but the parents must include a consent to add their
claim to the child’s case. ORS 12.160(5). Many argue the medical bills
of a child while the child is a minor are the claim of the parents – it is
safest to file a consent of the parents with the child’s claim. The
medical bills once the child reaches 18 are clearly the child’s.
(c) Although the case law and statute are not specific on the issue, a prudent
guardian ad litem will bring an action to recover the medical expenses
8-2

of the child within two years. See Palmore v. Kirkman Laboratories,
270 Or 294, 527 P2d 391 (1974).
(5) Names of All Defendants: Watch out for a tort-claim notice that needs to be
or needed to be sent. 180-day/1-year tort claim notice requirement (see
below). Also, dram shop cases (bars, etc. serving intoxicated patrons) have
short, 180-day time notice requirements!
(6) Location of Injury: Time limitations in other states may be applicable. The
2, 2, 3 rule for filing personal injury cases based on negligence is
California – 2 years, Oregon – 2 years, Washington – 3 years.
(7) Was Your Client Uninsured or Intoxicated? The 1999 legislature passed
HB 2417, which bars recovery of non-economic damages in a motor
vehicle suit if the plaintiff was uninsured or under the influence as defined
in ORS 806.010 and 813.010. The statute contains several exceptions,
including if your client was a passenger. Check the case law because a case
is currently on appeal on this issue.
(c) Obtain the Proper Name of All Parties: Don’t wait until the last minute. Naming
the wrong corporate defendant causes many malpractice claims. In many instances,
the lawyer was given a corporate name that was very close to the corporate name.
Call the corporation commission and ask for a “level 2” search of all companies. You
need to name the proper defendant and obtain the proper addresses for service.
1) Suing An Insurance Company: If you plan to file suit against an insurer, you
must check with the Department of Consumer and Business Services to verify
the correct legal name, status and registered agent of the insurer. If you go to
the Corporation Commissioner, you may end up with the name of an insurance
agent that can be fatal to your case. (See also February 2006, In Brief,
“Filing and Service Tips and Traps” by Beverly Michaelis and Sheila
Blackford).
2) Obtain the Proper Address of All Parties: Obvious, but a real problem when
the defendant has moved and the statute of limitations is approaching.
3) Send Tort Claim Notice if Required:
a. Notice: A plaintiff must give notice of the claim within 180 days of the
injury or 1 year in a wrongful death action. ORS 30.275(2). Minors,
incompetent persons or persons unable to give notice because of the
injury are allowed an extra 90 days (270 days total). Minors only get
270 days from discovery of the claim. Catt v. Dept of Human Services
(August 1, 2012) Or App Be careful – the notice period provided by
ORS 30.275 is not tolled pending the appointment of a guardian ad
litem for the minor. Perez v. Bay Area Hospital, 315 Or 474, 846 P2d
405 (1993). Obtain proper name and address for each entity that is to
receive a Tort Claim notice.
8-3

. Beware of Weekends & Holidays: The time period for giving the Tort
Claim notice is NOT EXTENDED by Saturdays, Sundays or legal
holidays. See Tyree v. Tyree, 116 Or App 317, 840 P2d 1378 (1992),
rev. denied, 315 Or 644, 849 P2d 524 (1993).
4) See if Your Client Has PIP Coverage: PIP applies to pedestrians, bicycle
riders, skate boarders and even in-line skaters involved in accidents involving
motor vehicles. All of the above are considered pedestrians and entitled to PIP
coverage under ORS 742.520(7). In order to avoid bar complaints or attorney
malpractice claims by a “prevailing party” (who may now have to pay the
losing party’s attorney fees) it is imperative that counsel fully disclose and
discuss with clients both the benefits and the risks associated with pursuing
contractual attorney fee claims. It is ultimately your client’s decision but make
sure you put the decision in writing.
5) Make Sure All Pleadings and Other Papers Are Filed With the Clerk of
the Court: ORCP 9E requires the original to be filed with the clerk of the
court. Stamp your originals “ORIGINAL” and your copies “COPY.” Delivery
of documents to the judge’s clerk, staff or even the judge is NOT filing per
ORCP 9E. See Averill v. Red Lion, 118 Or App 298, 846 P2d 1203 (1993).
6) Service: A common source of legal malpractice claims. Many of these claims
can be avoided with the help of an effective docket system and diligent follow
through. (See also February 2006, In Brief, “Filing and Service Tips and
Traps” by Beverly Michaelis and Sheila Blackford).
a. Serve Within 60 Days of Filing Date To Use Filing Date As
Commencement Date. ORS 12.020(2). If you are within the quickly
approaching statute of limitations but have not completed service
consider dismissing and re-filing to get a new 60 days.
b. Action is Not Deemed Commenced Until Complaint is Filed and
Summons is Served. ORS 12.020(1); ORCP 3.
c. Calendar Service Verification. Get your papers, information and
deadlines to the process servers and/or the sheriff as soon as possible.
Be careful, service is not complete until the follow-up mailing has been
accomplished. ORCP 7D.
d. Service By Mail. Follow the rules of ORCP 7D carefully!!
e. Never Grant Extensions Without Waiver of Service Challenge
f. Check PLF Forms: The PLF has a FREE litigation packet, which
contains 16 forms, including a Service of Process Checklist.
7) Send a Copy of the Complaint to Your Client’s Insurance Company: In
motor vehicle actions you must send a copy of the complaint by personal
8-4

service or registered or certified mail for notice regarding PIP reimbursement.
ORS 742.536(1). In addition, you need to file the proof of sending the notice
with the court. ORS 742.536(1). The insurer has 30 days from receiving the
notice to elect how it intends to recover its PIP. Don’t forget to send the
complaint and file the proof of notice because if done properly you may be
able to get attorney fees on the recovery of the PIP.
BEFORE SETTLING:
(See June 2006, In Brief, Revised October 2011, “Settlement Proceeds and Other
Traps” By Jane Paulson)
(a) Check With Any Potential UIM Carrier: If your client has a potential UIM
claim, you must obtain the insurance company’s written consent to the underlying
settlement before you settle the case. Failing to obtain written consent to the
settlement can defeat any potential claim.
(b) Check With PIP Carrier: Obtain updated lien in writing. Find out if you can
negotiate the lien. Make sure PIP carrier paid bills in full (not a reduced amount,
like an HMO, yet charged client or took credit for paying full bill). Also, figure
out how much of PIP, if any, you need to reimburse. Follow the formula to
determine the amount of PIP you must reimburse: total benefits received (liability
proceeds plus UIM benefits plus PIP) minus economic damages = $ available to
reimburse PIP).
(c) Invite Lien Holders to Settlement Conference
(d) Get Updated Liens In Writing
Medicare is very difficult to get a conditional lien out of and it can take months –
start early! You will also need a final Medicare lien from the Medicare office
once the case is over.
(e) Find Out if Settlement Could Affect Client’s Future Benefits: Some benefits
can be cut or limited due to a personal injury settlement. If your client is receiving
benefits the state will attach a lien to the settlement to the extent of all assistance
provided (cash and medical) since the date of injury. Check affect on public
assistance (including social security) and health insurance among others.
(f) Send Your Client a List of Bills
(g) Obtain Workers’ Compensation Carrier Approval: If there is a comp lien, the
carrier must approve of the settlement. ORS 656.593
(h) Put All Settlement Offers To Your Client in Writing And Consent to Settle
(Preferably In Writing): Protect yourself and put settlement discussions in
writing. Even if you discussed the offer on the phone, send your client a note
confirming the offer and discussion. It is especially important to put settlement
offers your client has rejected in writing to prevent any problems in the future.
(i) Advise Client If Any Portion of Settlement is Taxable: Since the Small
Business Job Protection Act of 1996 passed, most emotional distress and punitive
damage payments (also check if laws if client is receiving money from an
8-5

employment based claim) will be taxable if they are for damages not attributable
to physical injury or sickness or are paid as punitive damages.
(j) Assess Where Money Is Going if Minor Client (See August 2003, In Brief
“Protecting Minor’s Money” and November 2010, In Brief, “Settlements for
Minors – 2009 Legislative Changes” by Brooks F. Cooper).
ONCE A CASE SETTLES:
(See June 2006, In Brief, Revised October 2011, “Settlement Proceeds and Other
Traps” By Jane Paulson; Also See PLF Sample Settlement & Judgment Disbursal
Forms, Checklist for Commencing and Settling Personal Injury Cases)
(a) Report Case Settled to Court
(b) Prepare a Settlement Statement: Have your client sign-off on the statement
acknowledging the amounts paid and the amount your client will receive. List all
bills you are aware of that have to be reimbursed and give notice to your client that
s/he will have to pay any outstanding bills that come in.
(c) Pay PIP Lien
(d) Pay Workers’ Compensation Lien
(e) Pay Outstanding Bills or Liens
(f) Find Out if Medicare is Involved
(a) This topic is very complicated and you should consult an expert. It is
beyond the scope of these materials. In its simplest form you need to see if
there is a Medicare lien that has to be paid back and if there will be future
Medicare payments after the case is over which may require a future Medicare
set-aside.
(g) Be Careful Submitting Money Judgments: Make sure your judgment complies
with ORCP 70A. Judgments must include identification information for each
debtor, the names of others that are entitled to any portion of a judgment, addresses
of creditors and their attorneys, debtors and their attorneys. The judgment may be
rejected by the court and cost you a priority lien position if it doesn’t comply with
ORCP 70A.
3. KEEP YOUR CLIENTS HAPPY
(a) Do Everything to Make Sure Client is Happy: While it is not always possible, if
your client walks away happy your odds of future problems from the client are
decreased. If the settlement is not great for your client but your client should take
it, consider reducing your fee – especially if your client perceives you are trying to
talk her/him into it. Even a small fee reduction can improve your relationship with
your client or your client’s decision whether to accept an offer. Don’t forget --
happy clients also send you referrals and help keep your practice going!
4. ASK FOR HELP:
8-6

By simply asking someone for help many malpractice traps can be avoided. Don’t be
afraid of looking stupid or admitting you aren’t sure what to do – many lawyers like to
help other lawyers and it’s a whole lot easier than calling the PLF after the fact. Ask
more experienced lawyers for sample pleadings, motions, depositions or advice. It is a
simple, inexpensive way to cut down on malpractice.
“But, I don’t know any more experienced lawyers?” Join the Oregon Trial Lawyers
Association (civil plaintiff attorneys, www.oregontriallawyers.org, 503-223-5587),
Oregon Association of Defense Counsel (civil defense attorneys, www.oadc.com, 503-
253-0527) or Oregon Criminal Defense Lawyers Association (criminal defense attorneys,
www.ocdla.org, 541-686-8716). These groups have list serves to help learn issues and
ask questions and have continuing education and social gatherings to meet and interact
with other lawyers.
Another resource is the Professional Liability Fund (“PLF”). The PLF is there to help
us and is a great resource for answering questions before you commit malpractice.
Finally, if you feel a case is beyond your knowledge or ability, associate a more
experienced attorney – not only is it the ethical thing to do, it is the smart thing to do.
You do not have to commit malpractice (or an ethics violation) and you do not have to
give up the case. Better yet, you can learn how to do the case for the next time. If you do
not want to associate on the case, refer it to a more experienced lawyer and ask for a
referral fee. Many lawyers give referral fees (generally 10-25+%) to referring lawyers.
SUMMARY
1. Carefully Screen Clients And Cases Before Taking Them
2. Get The Details Right
3. Work Hard To Keep Your Clients Happy
4. Don’t Be Afraid To Ask For Help
8-7

TORT TIPS & TRAPS
JANE PAULSON
PAULSON COLETTI
TRIAL ATTORNEYS, P.C.
CHOOSING
CASES
CAREFULLY
OTHER PITFALLS
�� Defendant
��Out Out-of of-State State
��Out ��Out Out-of Out of of-Country of Country Country
��Not Not Sure of Name:
��Individual Individual or Corporate
8-8
OVERVIEW
��Choose Choose Cases Carefully
��Get Get Details Right g
��Keep Keep Client Happy
��Ask Ask For Help
CLIENTS TO AVOID
�� Close To Statute of Limitations
�� Unhappy With Previous Attorney
�� �� Want More More $ $ Than Than Case Case Is Is Worth
Worth
�� Hard to Get Along With
�� Want To Negotiate Everything
�� Family & Friends
Pitfalls (cont)
��Dead Dead Defendant
��Service ��Service Service on on Urn
Urn
��Not Not Sure of Address
��How How Are You Going to Get
Service??

GET
DETAILS
RIGHT
DEFENSE
�� Failing to Timely:
��Tender Tender to Insurance Carrier
��Raise Raise Affirmative Defenses
��File File First Appearance (Default)
��Name Name 3 rd Party Defendants
��Remove Remove to Federal Court
STATUTES TO WATCH
��ORDER ORDER FREE OREGON
STATUTORY TIME
LIMITATIONS MANUAL FROM
PLF (503 (503-639 639-6911) 6911)
��http://www.osbplf.org
http://www.osbplf.org
��FREE FREE – FREE -- FREE
8-9
IT’S THE SMALL STUFF
�� Failing to File in Time
��Statute Statute of Limitations
��Tort Tort Claim Notices
�� Failing to Name the Proper Defendant
PLAINTIFF & DEFENSE
�� Failing to Timely:
��Respond Respond to Discovery Requests
��Withdraw Withdraw from Representation
p
��File File Request for Trial De Novo After
Arbitration
��File File Notice of Appeal
�� Failing to Memorialize Settlement at
Mediation in Writing
STATUTES TO WATCH
�� Minors:
��Normally Normally 5 Years + 2 Years For
Discovery Or 1 Year Past 18 th Birthday
��Minor Minor’s i ’ s Claim li Against i Public bli Body d
�� 2 Years!!
��Minority, Minority, Incapacity Does Not Toll
��Parents Parents’ Claim To Recover Bills – same
as minor’s minor s (must file consent)

�� Client calls
��Run Run over by bus
��Leg ��Leg Leg amputated
amputated
Potential Case
�� What are my concerns?
Potential Case
��Uninsured/Underinsured Uninsured/Underinsured Driver
��How How long to file lawsuit?
��What What are my concerns?
STATUTES IN OTHER STATES
�� Watch Out For Accident In Another State
�� Remember 3, 2, 2
��Washington ��Washington Washington = 3
��Oregon Oregon = 2
��California California = 2 (generally)
8-10
NOTICE DEADLINES
�� 180 DAY NOTICES NOTICES:
�� Public Bodies – Tri-Met, Tri Met, City, OHSU…
�� Dram Shop (Over (Over-serving) serving) – Bars, Etc.
�� Ski Ski R Resorts – ORS 30 30.970 970 et al. l
�� MINORS: ADDITIONAL 90 DAYS
�� 180 + 90 = 270 Total Days
�� Not Extended By Weekends, Holidays or
Appointment Of Guardian
�� DEATH: 1 YEAR
Potential Case
�� Client calls
��Fell Fell on oil on floor
��In In casino
�� What are my concerns?
�� Begin Early
�� Corporate:
Obtain Proper Names
��On On-line line Search With Corporation
Commission
��http://www.filinginoregon.com/pages/searc
http://www.filinginoregon.com/pages/searc
h_main.html
�� Insurance Company:
��Must Must Check With Department of Consumer
& Business Services

BEWARE
�� Discuss – Potential Contract Claim
��Prevailing Prevailing Party Can Get Attorney Fees
SERVICE
�� Set Up A Good Docketing System
��Calendar Calendar & Watch Carefully!!
��PLF PLF Can Help (503 (503-639 639-6911) 6911)
�� Serve Within 60 Days of Filing
��To To Use Filing Date as Commencement
�� Not Deemed Commenced Until Complaint
Filed And Summons Served
�� Get Papers to Sheriff, Process Servers
ASAP
Saving (Your A..) Statute
�� ORS 12.220
��Can Can re-file re file complaint dismissed
i involuntarily l t il for f failure f il of f service i
��If If defendant had actual notice within 60
days after service
8-11
SERVICE
MORE SERVICE TIPS
START
START
EARLY!!!
�� Service By Mail
��Follow Follow ORCP 7D Carefully!!
�� Never Grant Extensions Without Waiver of
Service
In Trial
�� Revised Jury Instructions Overnight
��Who Who do I give them to?

��File File All Pleadings With Clerk
��ORCP ORCP 9E – Delivery To
Judge g Is Not Filing Filingg
��Stamp Stamp “Original Original” & “Copy Copy”
MORE BEFORE SETTLING
�� Find Out If $ Could Affect Client Client’s s Future
Benefits
�� �� Put All All Offers Offers To To Client Client In In Writing
Writing
�� Advise Client If Any Portion Taxable Or To
Consult Tax Advisor
�� Assess Where $ Going If Minor
THINGS TO DO AFTER CASE
SETTLES
�� Report Case Settled to Court
�� �� P Pay Li Liens – PIP PIP, C Comp, Medical M di l
�� Be Careful Submitting $ Judgments
8-12
BEFORE SETTLING
�� Get Your Client Client’s s Consent
�� Obtain Written Consent UIM Carrier
�� Obtain Consent Worker Worker’s s Comp Carrier
�� Figure Out All Liens
��PIP, PIP, Medical, MEDICARE
MEDICARE, , etc
��Invite Invite Key Lien Holders if Necessary
Protecting Minor’s Money
�� Conservatorship
�� Court Approval
�� �� Annuity
Annuity
�� Trust
�� Affect on Public Benefits??
You Don’t Have Control Over…

ASK FOR HELP
��Talk Talk to Other Lawyers
��Pleadings, Pleadings, Depositions, How To,
Etc.
��Use Use PLF as a Resource
��Associate Associate a More Experienced
Attorney
��Refer Refer Case & Ask for a Referral Fee
OVERVIEW
��Choose Choose Cases Carefully
��Get Get Details Right g
��Keep Keep Client Happy
��Ask Ask For Help
8-13
KEEP YOUR CLIENTS HAPPY
�� �� Keep Keep Clients Clients Informed
Informed
�� Be Available & Responsive
�� Think Twice Before Fighting Over
Fees & Costs
JOIN A PROFESSIONAL ORGANIZATION
�� Oregon Trial Lawyer Lawyer’s s Association
�� www.oregontriallawyers.org
�� Oregon Association Defense Counsel
�� www.oadc.com
�� Oregon Criminal Defense
�� www.ocdla.org

C hapter 8
TORT LITIGATION
RESOURCES
Oregon Statutory Time Limitations Handbook Excerpts, 2010 Revision
Settlements Proceeds and Other Traps, In Brief (Revised October 2011)
PIP Basics, In Brief, (Updated October 2011)
P.I. Settlements and Welfare, In Brief, (June 2011)
Tips for Protecting Yourself from Malpractice Claims, In Brief, (Updated 2011)
Adjusted Tort Liability Limits Against Public Bodies Effective July 1, 2012, In Brief (July 2012)
Reporting Responsibilities Under Medicare, In Brief (March 2012)
Settlements for Minors – 2009 Legislative Changes, In Brief (November 2010)
What You Need to Know About PIP and UM/UIM Claims, In Brief (September 2011)
Duties of a Conservator (PLF Practice Aid)
Acknowledgment of Restriction of Assets
Multnomah County Supplementary Local Rules 9.055

Note to § 73.1 D. of Oregon Statutory Time Limitations Handbook (as shown in the following
materials):
See Catt v. Department of Human Services, A146815 (Or. Ct. App. Aug. 1, 2012), available at
http://www.courts.oregon.gov/Publications/docs/A146815.pdf (holding that minors must give
tort claims notice within 270 days after discovery of the claim).

STATUTE OF LIMITATIONS – TOLLING
I. (§73.1) Personal Disabilities/Minors
July 2010
A. Generally. If a person entitled to bring an action that is subject to the
statutes of limitation under ORS 12.010 to 12.050, 12.070 to 12.250,
or 12.276 is (1) younger than 18 years old or (2) insane at the time a
cause of action accrues, the statute is suspended for the period of
minority or insanity, except that the time for bringing the action
cannot be extended more than 5 years by the disability or extended
more than 1 year after the disability ceases, whichever occurs first.
ORS 12.160.
� Using the disability to suspend the running of the statute requires
that the disability exist when the right of action accrues.
ORS 12.170.
� When two or more disabilities coexist at the time the right of
action accrues, the time limitation does not attach until all
disabilities are removed. ORS 12.180.
� ORS 12.160 applies only at the time the cause of action accrues
or comes into existence as an enforceable claim. If the cause of
action never accrues, the tolling provision cannot apply. Wright
v. State Farm Mut. Auto. Ins. Co., 223 Or App 357, 363, 196 P3d
1000 (2008) (holding ORS 12.160 did not apply to UIM claim
where none of the requisite events set forth in
B.
ORS 742.504(12)(a) occurred within 2 years of the accident).
An infant suffering a personal injury has 5 years (ORS 12.160) plus
the 2 years provided in ORS 12.110, or a total of 7 years, to
commence an action (Shaw v. Zabel, 267 Or 557, 559, 517 P2d 1187
(1974)), unless a shorter period of repose applies. See Christiansen
v. Providence Health Sys. of Oregon Corp., 344 Or 445, 452, 184
P3d 1121 (2008) (claim based on medical negligence must be
brought within 5 years from the date of treatment, omission, or
operation); ORS 12.110(4).
� A statute of ultimate repose may limit the time for tolling based
on minority or insanity to less than the period of minority without
violating the remedies clause, Article I, section 10, of the Oregon
Constitution. Christiansen v. Providence Health Sys. of Oregon
Corp, supra, 344 Or at 454 (court rejected remedies clause
challenge to statute of repose for medical malpractice claim on
behalf of a minor child); see also Fields v. Legacy Health Sys.,
413 F3d 943, 959 (9th Cir 2005) (repose period for wrongful
261

July 2010
262
death action in ORS 30.020(1) barred claim).
� See also ULTIMATE REPOSE §§84.2, 84.3.
C. The 5-year suspension for minors and insane persons is not lost by
the commencement and subsequent dismissal of a claim by a
conservator or by the appointment of a conservator. Luchini v.
Harsany, 98 Or App 217, 221, 223, 779 P2d 1053, rev den, 308 Or
608, 784 P2d 1101(1989).
� As long as the right to sue remains in the person (e.g., in personal
injury cases), the appointment of a conservator does not remove
the statutory extension of the statute of limitations for minors.
Luchini v. Harsany, supra, 98 Or App at 221.
D. Oregon Tort Claims Act. The 2-year statute of limitations found in
ORS 30.275(9) for commencing a cause of action under the Oregon
Tort Claims Act (OTCA) may not toll during the plaintiff’s minority
by ORS 12.160. Lawson v. Coos Co. Sch. Dist. #13, 94 Or App 387,
390-91, 765 P2d 829 (1988) (plaintiff’s status as a minor did not toll
the 2-year limit to commence an action under ORS 30.275); but see
Bradford v. Davis, 290 Or 855, 861, 626 P2d 1376 (1981) (tolling
statute for minors applies to Oregon Tort Claims Act, however,
Bradford was decided before the legislature enacted ORS 30.275(9)
[former ORS 30.275]); Baker v. City of Lakeside, 343 Or 70, 164
P3d 259 (2007) (“[n]othing in legislative history suggests * * * that
the legislature intended to deny children and persons with mental
disabilities bringing OTCA claims the advantage of a tolling
provision that is available to them in every other action.”).
EDITOR’S NOTE: There is a question whether the minority tolling
statute (ORS 12.160) tolls the 2-year limitation period when
commencing an action under the OTCA. Practitioners should
research this area of the law carefully before relying on this or any
tolling statute. See also Advance Payment to Minors §73.4 D below.
Notice: If a minor has a claim against a public body, the 270-day
notice period prescribed in ORS 30.275 is not tolled pending the
appointment of a guardian ad litem. Perez v. Bay Area Hosp., 315 Or
474, 482-83, 846 P2d 405 (1993). See, however,
ORS 30.275(8) if claim is against the Department of Human
Services or the Oregon Youth Authority.
� See also ACTIONS §2.1; GOVERNMENTAL AND PUBLIC BODIES
§42.10; PERSONAL INJURY §59.2; MEDICAL AND DENTAL
MALPRACTICE §55.1; WRONGFUL DEATH §89.1.

II. (§73.2) Death
July 2010
A. Death of Plaintiff. If a person who is entitled to bring an action dies
during the time allowed for bringing the action, an action may be
commenced by the personal representative after the statute of
limitations has run, as long as the action is commenced within 1 year
after the death. ORS 12.190(1).
� See GOVERNMENTAL AND PUBLIC BODIES; SURVIVAL OF
ACTIONS; ULTIMATE REPOSE; WRONGFUL DEATH.
B. Death of Defendant. If a person who would be a defendant in an
action dies before the statute of limitations has run, an action may be
commenced against the personal representative after the statute has
run, as long as the action is commenced within 1 year after the death.
ORS 12.190(2).
� See DECEDENTS’ ESTATES; SURVIVAL OF ACTIONS.
III. (§73.3) Absence of Defendant
A. If a cause of action accrues against a person when the person is out
of state and service cannot be made in Oregon, or if the person is
concealed in Oregon, the action can be commenced within the
applicable statute of limitations after the person returns to Oregon or
is no longer concealed. ORS 12.150.
B. If a person leaves Oregon or hides in Oregon after the cause of
action accrues, the statute of limitations is suspended during the time
the person is absent from Oregon or the time the person remains
concealed in Oregon. The time of concealment or absence will not
be counted as any part of the time within which the action must be
commenced. ORS 12.150.
C. NOTE: A question exists on whether a student in Oregon who
maintains a permanent residence outside the state and returns to his
or her home in another state during breaks and vacations is “absent
from Oregon” for those periods for purposes of tolling the statute of
limitations.
D. There is a question whether the statute of limitations is tolled in
motor vehicle cases against drivers who are absent from the state
after the cause of action accrues. A plaintiff’s alternative form of
service for actions against nonresident motorists, or against an
Oregon motorist who moves out of state, is service by mail in
compliance with ORCP 7 D(4)(a)(i) to the addresses specified in that
provision. Service in this manner is deemed complete on the latest
263

July 2010
264
date on which any of the required mailings is made. ORCP 7
D(4)(a)(i). The question is whether the statute of limitations would
be tolled on a claim against an absent motorist. Whittington v.
Davis, 221 Or 209, 212, 350 P2d 913 (1960); Wright v. Osborne,
151 Or App 466, 470, 949 P2d 321 (1997), rev den, 327 Or 448, 964
P2d 1030 (1998). In Herzberg v. Moseley Aviation, Inc., 156 Or
App 1, 6, 964 P2d 1137 (1998), rev den, 328 Or 275, 977 P2d 1173
(1999), the court held the 2-year statute of limitations on a product
liability claim was tolled when personal service could not be
effected in state and the defendant’s partnership ultimately was
served by mail to an address outside of Oregon.
E. When the maker of a promissory note defaults and moves out of
state after the claim has accrued, the statute of limitations is tolled
during the maker’s absence from Oregon. ORS 12.080(1), 12.150;
Gary M. Buford & Assoc., Inc. v. Guillory, 98 Or App 691, 694, 780
P2d 783, rev den, 308 Or 660, 784 P2d 1101 (1989).
IV. (§73.4) Advance Payments for Death, Injury, or Property
Damage
A. If, within 30 days of making the first advance payment as referred to
in ORS 31.560 or 31.565, the payor gives to each person entitled to
recover damages written notice of the date the limitations period
expires, then the making of any such advance payment does not
suspend the running of the limitations period. ORS 12.155(1).
B. If notice is not given within 30 days of the first advance payment,
the limitations period is suspended from the date of the first advance
payment until the date the payor gives the person entitled to recover
damages written notice of the expiration date of the limitations
period. ORS 12.155(2); Pipkin v. Zimmer, 113 Or App 737, 740-41,
833 P2d 1350 (1992), rev den, 314 Or 727, 843 P2d 454 (1992)
(when defendant’s insurance company paid for property damage to
plaintiff’s car but failed to give notice, statute of limitations was
tolled).
C. “Person” making an advance payment within the meaning of ORS
12.155 is not limited to insurers. An advance payment by any
person, as defined in ORS 174.100, made without providing written
notice of the statute of limitations as set forth in ORS 12.155(1) and
(2), will toll the limitations period. Hamilton v. Paynter, 342 Or 48,
58, 149 P3d 131 (2006).

D. Advance Payment to Minors. Advance payment to a minor does
not toll the 2-year statute of limitations provided for under the
OTCA (ORS 30.275(9)). Lawson v. Coos County Sch. Dist. No. 13,
94 Or App 387, 765 P2d 829 (1988), abrogated on other grounds by
Baker v. City of Lakeside, 343 Or 70, 164 P3d 259 (2007).
V. (§73.5) Court Actions
July 2010
A. Injunction or Statutory Prohibition. If the commencement of an
action is stayed by injunction or a statutory prohibition, the statute of
limitations does not run during the continuance of the injunction or
prohibition. ORS 12.210.
B. Bankruptcy/Debtor’s Action. 11 USC §108(a) and (b) permit the
trustee, stepping into the debtor’s shoes, an extension of time for
filing an action or doing some other act required to preserve the
debtor’s right.
� The statute of limitations or the time period fixed by a
nonbankruptcy order or agreement is extended for the
commencement or continuation of an action by the debtor
(trustee) for 2 years after the date of the order for relief, unless
the fixed period would expire after 2 years from the order of
relief. 11 USC § 108(a).
� 11 USC § 108(b) gives the trustee an extension of 60 days from
the date of the order for relief within which the trustee may file
any pleading, demand, notice, or proof of claim or loss; cure a
default; or perform any other similar act, such as filing an
insurance claim, or any action not covered by 11 USC § 108(a).
If the period for doing the act expires after 60 days from the date
of the order for relief, the date of expiration of the time otherwise
allowed for performing the action applies. 11 USC § 108(b).
C. Bankruptcy/Creditor’s Action. The statute of limitations for
creditors is extended by 11 USC § 108(c).
� The creditor is given an additional 30 days after notice of
termination or expiration of the automatic stay if the statute of
limitations runs while the stay is in effect. An event that could
result in the termination or expiration of the stay could include
relief from the automatic stay under 11 USC §§ 362, 922, 1201,
or 1301; dismissal of the petition; or the debt on which the
creditor bases its claim being excepted from discharge.
11 USC § 108(c).
� The creditor must bring its action against the debtor within the
later of the 30-day extension or expiration of the statute of
265

July 2010
266
limitations period on the creditor’s claim. 11 USC §108(c).
� 11 USC § 108(c) applies to Chapters 7, 11, 12, and 13
bankruptcies. 11 USC § 103(9).
� The period for giving notice of a claim for a statutory lien against
the debtor is not suspended or extended by the debtor’s filing of a
bankruptcy petition. 11 USC §546(b).
VI. (§73.6) References
See 2 TORTS ch 31 (Oregon CLE 2006).
I. (§74.1)
STATUTORY LIENS
Agricultural Lien
A. Generally. A lien attaches to all agricultural produce, inventory, and
proceeds thereof held by the purchaser on the date the agricultural
producer delivers or transfers physical possession of the produce to
the purchaser or the purchaser’s agent; if the agricultural produce
consists of meat animals, the lien also attaches to all accounts
receivable. ORS 87.705(1).
B. Duration of Lien. The lien continues for 45 days after final payment
is originally due (ORS 87.710(1)), and it is not necessary to file a
notice of that lien (ORS 87.705(2)). The lien can be extended to
225 days after payment is originally due if the producer files a notice
of lien with the Secretary of State before the 45-day period expires.
ORS 87.710(1), (2).
� Final payment: Final payment is due on the date specified for
payment in the contract between the purchaser and producer or, if
there is no contract or no date of payment is specified in the
contract, 2 business days after the purchaser takes delivery of the
produce. ORS 87.710(5).
� If the last day of the period for performing an act is a Saturday or
legal holiday (as specified in ORS 187.010 and 187.020), the
period runs until the end of the next day that is not a Saturday or
legal holiday. ORS 87.710(6).
C. Notice. Within 20 days after filing a notice of lien, the producer must
send the notice to all persons who have filed a financing statement
under ORS chapter 79 that perfects a security interest in the same
inventory, proceeds, or accounts receivable. If the producer does not
send notice within the required time, the lien becomes subordinate to
the perfected security interest. ORS 87.710(3), (4).

THIS ISSUE
Orignally published
June 2006
Revised
October 2010
Revised
October 2011
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
SETTLEMENT PROCEEDS AND
OTHER TRAPS
Here are a few simple, but critical, tips for
avoiding malpractice while handling and settling
personal injury claims.
CASE INFORMATION AND
CLIENT EXPECTATION
Resolving claims to everyone’s satisfaction
begins when clients first walk into your office.
You can prevent many problems by reviewing issues
with your clients at an early stage in your
representation.
Provide a Case Settlement/Cost Overview.
Many clients do not understand that settlement
money they have received for medical expenses
or lost wages must be paid to their medical providers
or insurance carriers of PIP (Personal Injury
Protection), health, disability, or workers’
compensation coverage. Informing the client
early helps everyone have the same expectations
going into a case.
There are three basic categories of claims for
reimbursement from personal injury settlement
proceeds: (1) Claims by the client’s insurer for
PIP payments made; (2) Claims by health plan
insurers for payments to the client’s medical providers;
(3) Claims by medical providers for unpaid
bills for services, including liens by hospitals
and physicians; and 4) claims made by Medicare
or state welfare agencies for payments made to
medical providers.
This article will refer to these categories of
potential claimants collectively as “insurers and
providers.”
Ask About Health Insurance. If you know
who the health insurance carrier is, call and find
out whether a right of subrogation exists under
the policy. Inquire about medical providers so
you can determine whether there are any bills
you were not aware of or whether a provider has
filed a lien.
Medicare and Medicaid. Medicare and
Medicaid liens are very tricky. Start early and
hire help if needed.
Department of Human Services (DHS) Welfare
Liens. Start early and hire help if needed.
Determine Whether Other Insurance Payments
Are Involved. The sooner you learn what
insurance exists, the sooner you can determine
what portion of the settlement proceeds would
be owed to the client’s insurers for benefits paid.
Examples are PIP, workers’ compensation, and
disability benefits.
Make Sure You Have All the Medical Bills.
The sooner you identify all of your client’s
providers, the sooner you can begin locating bills,
liens, and records. This is especially important for
the invoices that slip through the cracks because
they are billed separately (e.g., ambulance, radiology,
surgery, and anesthesiology). Quite often
these bills do not show up on a hospital summary
and can be missed. Also, these types of bills are
often sent to collection much sooner than others.
Determine Whether a Minor Is Involved.
The time limit for a minor’s claim against a
public body (e.g., Tri-Met, a city, a school district,
the police) is short – it must be filed within
two years. ORS 30.275(9). See Lawson v. Coos
Co. Sch. Dist. No. 13, 94 Or App 387, 765 P2d
829 (1988). Also, watch out for the minor’s medi-
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

cal bills. When a minor child is injured by a wrongdoer, a
parent may file an action against the wrongdoer to recover
the reasonable medical expenses paid to treat the child’s injuries.
See RESTATEMENT (SECOND) OF TORTS §703(e)
(1977). A parent’s action to recover the medical expenses of
the child is governed by a two-year statute of limitations set
forth in ORS 12.110(1). If a child’s guardian ad litem files an
action on behalf of the child against the wrongdoer, the parents
may file a consent along with the complaint to include
the claims for medical expenses in the guardian’s action. ORS
30.810(1). If the court allows that consent, the parents may
not thereafter maintain a separate action to recover the medical
expenses paid to treat the child’s injuries. ORS30.810(2).
Although the statute and case law are not specific on this
issue, when possible, a prudent guardian ad litem will bring
an action to recover the medical expenses of the child within
two years. See Palmore v. Kirkman Laboratories, 270 Or
294, 527 P2d 391 (1974).
For actions arising on or after January 1, 2008, if a child’s
cause of action is tolled by ORS 12.160(1), the cause of action
brought by the parent, guardian, or conservator of the
child is tolled for the same period of time as the child’s cause
of action if the medical expenses resulted from the same
wrongful conduct that is the basis of the child’s cause of action.
ORS 12.160(5). If, however, the action is one for medical,
surgical or dental negligence, the time to file pursuant to
ORS 12.160(1) may not exceed the 5-year statute of ultimate
repose found at ORS 12.110(4), absent fraud, deceit, or misleading
representation. ORS 12.110(4).
THINGS TO DO BEFORE SETTLING
Check with the UIM Insurer. Before you settle, evaluate
whether your client has an underinsured motorist (UIM)
claim or potential claim. If your client has a potential UIM
claim, you must obtain the UIM insurer’s written consent to
the underlying settlement before you settle the case. Failing
to obtain written consent to the settlement can defeat any potential
UIM claim.
Check with the PIP Insurer. Before a settlement conference:
(1) Write the PIP insurer and obtain an updated total
of PIP payments in writing. PIP totals can change, and you
cannot negotiate effectively if you do not have the correct
amount. If you obtain a current statement of PIP payments,
in writing, there can be no dispute later. (2) If the PIP insurer
has not authorized you to collect its PIP reimbursement,
clarify in writing to the insurer that you will take no
responsibility for collecting its PIP reimbursement from the
liability insurer. If the PIP insurer authorizes you to collect
its PIP reimbursement, clarify in writing your right to deduct
your contingent fee and pro rata costs from the amount col-
lected. However, be aware that you have a potential conflict
of interest if you deduct your contingent fee for collecting
reimbursement for the PIP carrier. (3) Confirm the total of the
bills that have been paid by the PIP insurer. Make sure that
the PIP insurer, if it paid a discounted amount, is not credited
for paying the full bill (thus reducing your client’s total limit
of PIP available).
Determine the extent of PIP reimbursement allowable
pursuant to ORS 742.544.
Invite Insurers and Providers to the Settlement Conference.
If significant PIP or medical bills are an issue, request
that the interested insurers or medical providers attend
the settlement conference or be available by phone. The
more significant the payments or bills, the more you need
the insurers’ or providers’ participation. Be aware that some
insurers are also claiming a lien for projected (future) medical
expenses. The insurers and providers are more likely to
reduce their reimbursement demands if the defense lawyers
explain the comparative fault facts or other reasons why your
client should lose. Calling the insurers or providers after the
case is settled is much less effective.
Get Updated Totals in Writing. Obtaining written confirmation
of insurance payments and medical bills before the
settlement helps prevent problems later. If a bill or adjusted
total comes in after the settlement, you have a written confirmation
of the totals provided by the insurers or providers.
This is much more effective than your telephone notes.
Send Your Client a List of Bills. Create a list of medical
providers and the amounts they tell you they are owed. Send
this list to your client and request confirmation that it is accurate
and complete. You may even want to have the client
sign off on the list. If you are missing a bill, your client may
spot it. If your client comes back to you later with a new bill,
you have written confirmation of the bills you were given.
Obtain Workers’ Compensation Carrier Approval. If
there is a workers’ compensation lien, the carrier must approve
of the settlement. ORS 656.593. Make sure you get
this approval in writing, including the amount of any future
disability, medical, or other payments estimated by the workers’
compensation carrier. For Medicare issues, it can take up
to 60 days to get a payoff figure.
– Page 2
THINGS TO DO ONCE THE CASE
SETTLES
Inform the Court That the Case Is Settled. Advising
the court when a case has settled helps keep the courthouse
staff happy.
Prepare a Settlement Summary. Prepare a settlement
www.osbplf.org

accounting for your client showing the breakdown of attorney
fees, costs, liens, PIP, and all outstanding bills you are aware
of that need to be paid. Include a statement that the client is
responsible for paying any additional bills. Have your client
sign the statement. This protects you in the event another bill
surfaces.
Pay the Workers’ Compensation Lien. Repayment of
a workers’ compensation lien is governed by statute (ORS
656.593), or as otherwise agreed to in writing. If there is a
future disability rating or if medical bills are outstanding,
consider (1) waiving future rights or payments so that the
case can be resolved; or (2) holding the portion of the workers’
compensation carrier in your trust account until there is
closure of the claim. The general distribution is as follows:
(1) attorney fees and costs; (2) one-third of the balance of the
recovery to the client; (3) the remainder of its total lien to the
workers’ compensation carrier; and (4) all remaining money
goes to the client. ORS 656.593. Always check the statute to
make sure your case falls within the general guidelines.
Pay Outstanding Bills or Liens. Verify whether any
providers will give an attorney fee discount on their bill, and
try to negotiate the extent any settlement affects your client’s
future medical coverage with a provider. If there is no future
medical coverage for this injury and the carrier is unwilling
to negotiate, be sure to list the exact amount of money going
to your client for future medical care and inform the provider.
Consider whether PIP should be collected and reimbursed.
When you pay outstanding bills, PIP, and/or other necessary
payments, include them in your settlement summary for the
client (see section above, Prepare a Settlement Summary).
Make Accurate Representations. In negotiating discounts
with insurers and providers, it is a crime to misrepresent
the amount of the settlement proceeds received by the
client. See State v. Pierce,153 Or App 569 (1998), rev. den.
372 Or 448 (1998).
By following all of these tips, you are protecting your clients
and yourself.
Jane Paulson
Paulson Coletti trial attorneys PC
Thanks to Janet M. Schroer, Hoffman Hart & Wagner LLP,
Robert K. Udziela, and Gregory K. Zeuthen for their assistance
with this article.
– Page 3
Continued on page 4
www.osbplf.org

IN BRIEF
Referred to in the June
2006 issue, page 2
Originally published
May 1998
Updated July 2007
Updated October 2009
Updated October 2010
Updated October 2011
Professional liability fund
www.osbplf.org
MalPractice Prevention education for oregon lawyers
PIP BASICS
Disputes about fault can eliminate
or delay payment of damages for injuries
resulting from automobile accidents.
Personal Injury Protection (PIP) benefits
provide for prompt payment regardless of
fault. See ORS 742.520. While the terms
and limits of PIP coverage vary from policy
to policy, ORS 742.520 through ORS
742.544 establish the minimum requirements.
ORS 742.532.
WHO IS COVERED
Every Oregon motor vehicle liability
policy must provide PIP coverage for the
insured, the insured person’s family members,
passengers, and pedestrians who
are struck by the insured vehicle. ORS
742.520(1). The benefits required vary
with the person’s status.
CIRCUMSTANCES UNDER WHICH
PIP COVERAGE APPLIES
PIP benefits for the insured person
or a family member residing in the same
household generally apply to injury or
death resulting from the “use, occupancy
or maintenance of any motor vehicle.”
Although there must be a causal link between
injury and “use, occupancy or
maintenance” of a vehicle, that issue has
been reexamined. See Carrigan v. State
Farm Mutual Auto. Ins. Co., 326 Or 97,
P2d (1997) (PIP does not exclude all injuries
inflicted by gunshot; allowing coverage
for driver shot during carjacking
while both insured and carjacker were
outside vehicle); Worldwide Underwriters
Ins. Co. v. Jackson, 121 Or App 292,
855 P2d 166, rev den 318 Or 26 (1993)
(injuries from drive-by shooting did not
arise out of “use”). PIP benefits do not
apply, however, with respect to uninsured
motor vehicles owned by the insured,
motorcycles or mopeds not owned
by the insured while being ridden by the
insured, and any other motor vehicle not
within the definition of “private passenger
motor vehicle.” ORS 742.520(2)(a).
A temporary substitute vehicle that does
not otherwise come within these exceptions
has PIP coverage under the driver’s
policy. Utah Home Fire Ins. Co. v. Colonial
Ins. Co., 300 Or 564, 712 P2d 1112
(1986).
For passengers other than the insured
or family members, PIP benefits apply
only to their “use, occupancy or maintenance”
of the insured vehicle. See State
Farm Ins. Co. v. Berg, 70 Or App 410,
689 P2d 959 (1984), rev den 298 Or 553
(1985) (discusses meaning of “occupying”);
Marcilionis v. Farmers Ins. Co.,
318 Or 640, 871 P2d 470 (1994) (same,
in context of uninsured motorist coverage).
This same condition applies to
pedestrians (other than the insured or
same-household family members) who
are covered only when they are struck by
the insured vehicle. ORS 742.520(2)(b).
“Pedestrian” now includes a person in a
wheelchair. ORS 742.518(6).
WHAT PIP COVERS
Because policies vary, it is essential
to check for benefit levels and conditions
more favorable than the minimum statutory
requirements. The minimum PIP
benefits include:
· Medical expenses that are “reasonable
and necessary” up to $15,000 “incurred
within one year” of the date of injury.
ORS 742.524(1)(a).
DISCLAIMER
IN BRIEF INCLUDES CLAIM PREVENTION INFORMATION THAT HELPS YOU TO MINIMIZE THE LIKELIHOOD OF BEING
SUED FOR LEGAL MALPRACTICE. THE MATERIAL PRESENTED DOES NOT ESTABLISH, REPORT, OR CREATE THE STAN-
DARD OF CARE FOR ATTORNEYS. THE ARTICLES DO NOT REPRESENT A COMPLETE ANALYSIS OF THE TOPICS PRESENT-
ED, AND READERS SHOULD CONDUCT THEIR OWN APPROPRIATE LEGAL RESEARCH.

· Loss of income, when disability continues for
at least 14 days, at 70 percent of the lost income level,
up to a maximum payment of $3,000 per month
and a maximum aggregate total of 52 weeks. ORS
742.524(1)(b).
· Essential services, when the injured person is
not usually employed, up to a maximum of $30 per
day for a total of 52 weeks. ORS 742.524(1)(c).
· Funeral expenses up to $5,000 “incurred within
one year” of the person’s injury. ORS 742.524(1)
(d).
· Child care at $25 per day if the injured person
is hospitalized for at least 24 hours, up to a maximum
of $750. ORS 742.524(1)(e).
Ordinarily, under the collateral source rule, employer-provided
benefits such as payment for sick
leave, holidays, and vacation do not act as setoffs
reducing PIP benefits. Dickson v. Hollinger, 262 Or
113, 496 P2d 912 (1972); but see ORS 742.526(1)(e)
(PIP benefits for pedestrians [other than the insured
and family members] are “excess over any other collateral
benefits”).
MEDICAL BILLS
Under 2003 legislation, medical bills to the PIP
insurers are fixed at the lesser of the amount that the
medical provider charges the general public or the
amount provided by the workers’ compensation fee
schedule. ORS 742.525; ORS 656.248. In effect, the
workers’ comp fee schedule determines what amount
is “reasonable.” Medical provider cannot “balance
bill” the patient for any additional sum. Id.
EXCLUSIONS
Insurers may exclude from coverage any otherwise-covered
individual who “intentionally causes
self-injury” or who participates in a “prearranged
or organized racing or speed contest.” Additionally,
loss of income and essential services benefits need
not be provided for injured pedestrians (other than
the insured or family member) who are injured in an
accident outside the state. ORS 742.530.
WHEN PIP BENEFITS MUST BE PAID
Insurers are required to pay PIP benefits promptly
after proof of loss has been submitted, regardless
of the existence of a potential tort action. ORS
742.520(4), (5). An insurer that denies payment of
PIP benefits must provide written notice of denial.
ORS 742.528. Medical expenses are presumed to be
reasonable and necessary unless the insurer gives
notice of denial within 60 days of notice of a bill.
ORS 742.524(1)(a).
DISPUTES
Disputes between the insurer and the beneficiary
about denial or the amount of benefits may be decided
by arbitration if both parties agree at the time
of the claim. ORS 742.520(6). Attorney fees are not
recoverable in arbitration.
The insurer’s consent to arbitrate and acceptance
of coverage will defeat the claimant’s right to
recover attorney fees in court, assuming that the insurer
consented within six months of the proof of
loss. ORS 742.061(2). It is not known whether the
insurer may initially refuse to arbitrate and belatedly
consent to arbitrate before the expiration of six
months; nor is it known whether the insured’s institution
of litigation after an initial refusal would
estop the insurer from consenting to arbitrate and
defeat fees.
In Grisby v. Progressive Preferred Ins. Co., 343
Or 394, 171 P3d 352 (2007), the insurer accepted
PIP coverage but disputed whether a particular chiropractic
bill was treatment for injury caused by
the accident. The court held that the dispute over
causation was not the same as a permissible dispute
over the “amount” due. In effect, the insurer had
inserted an added issue. The insurer drifted from
the fee statute’s “safe harbor.” The insurer owed
attorney fees.
STACKING OF PIP BENEFITS
ORS 742.526 specifies when PIP coverage is
primary and when it is excess. Those provisions appear
to allow “stacking” of PIP benefits when more
than one policy applies. See Porter v. Utah Home
Fire Ins. Co., 58 Or App 729, 650 P2d 130 (1982).
Some policies, however, may purport to limit total
PIP payments available under all policies to the
highest limit under any one policy. In Anderson
v. Farmers Ins. Co., 188 Or App 179, 71 P3d 144
(2002), the court held that when an insurer had issued
separate policies on an insured’s several cars,
the policy would stack, despite the policy language
to the contrary. The policies stacked to the full face
amount of each of three $25,000 policies. They did
not merely stack to the extent of the first $25,000
PAGE 2 www.osbplf.org

policy plus the statutory minimum coverage of
$10,000 for the latter two excess policies.
RELATIONSHIP WITH WORKERS’ COMP
BENEFITS
Insurers are also permitted to include policy
provisions that reduce or eliminate PIP benefits
when the injured person is entitled to receive workers’
compensation (or other similar benefits). ORS
742.526(2). However, when entitlement to workers’
compensation is in dispute, there remains some disagreement
about whether a PIP insurer that provides
benefits may seek to recover if workers’ compensation
benefits are eventually awarded. See 1 Insurance,
§ 19.60 (Oregon CLE 1996).
RELATIONSHIP WITH UM/UIM BENEFITS
The PIP benefits provided by a motor vehicle
insurance carrier to its own insured may reduce the
damages its insured can recover for the same accident
under uninsured motorist (UM) coverage. However,
the PIP benefits paid do not reduce the UM
policy limits. ORS 742.542. For example, if the UM
limit is $50,000 and the insured receives $10,000
in PIP, the insured would be entitled to the full UM
limit if his or her total damages were $60,000 or
more. The same provision also applies to underinsured
motorist coverage (UIM). ORS 742.542 (effectively
overruling Yokum v. Farmers Ins. Co., 117
Or App 546, 844 P2d 937 (1992), rev den 317 Or
272 (1993)).
This “make whole” formula of ORS 742.542
prevails over the “make half” formula of ORS
742.544 concerning PIP reimbursement. Claimants
will contend that the more favorable formula
of ORS 742.542 should prevail whenever an injured
person has received PIP benefits from their own
UM/UIM insurer. PIP insurers will tend to ignore
the promise of ORS 742.542 and demand ordinary
reimbursement under ORS 742.544 (discussed below).
In Farmers Ins. Co. v. Conner, 219 Or App
337, 182 P3d 878 (2008), the Court of Appeals
concluded, in effect, that the favorable formula of
ORS 742.542 prevails to permit that the claimant
may be made whole. See also Gaucin v. Farmers
Ins. Co., 209 Or App 99, 146 P3d 370 (2006), (Implicit
in the court’s footnotes was the understanding
that the “make whole” calculation of ORS 742.542
could not be defeated with a subsequent “step two”
application of the “make half” calculation of ORS
742.544).
RECOVERY OF PIP BENEFITS BY PIP CAR-
RIER
The PIP insurer is entitled to receive reimbursement
of those PIP benefits by one of three methods:
(1) requesting inter-insurer reimbursement,
ORS 742.534; (2) obtaining a lien, ORS 742.536;
or (3) exercising subrogation rights, ORS 742.538.
Inter-insurer reimbursement is handled through arbitration.
It permits the liability insurer to reduce
the allowable PIP reimbursement proportionately
based on relative fault. ORS 742.534(2). The lien
and subrogation methods entitle the PIP insurer to
the proceeds of the judgment against the tortfeasor
to the extent of the PIP benefits regardless of comparative
fault. However, under the lien and subrogation
methods, the insurer must pay its pro rata
share of the insured’s costs and attorney fees. ORS
742.536(3); ORS 742.538(4). The latter makes inter-insurer
arbitration the usual method of choice
for insurers. Although for a number of years the
method chosen could become critical in “policy limits”
cases, that is no longer an issue. Farmers Ins.
Co. v. American Fire & Casualty, 117 Or App 347,
844 P2d 235 (1992), rev den 315 Or 643 (1993).
If a PIP insurer complies with recovery statutes,
it is entitled to be reimbursed for PIP benefits paid
when the total of all benefits paid to the injured person
exceed his or her economic damages. See ORS
742.544. This rule replaces the rule announced in
Babb v. Mid-Century Ins., Co., 110 Or App 67, 821
P2d 424 (1991), rev den 313 Or 209 (1992). The
current rule provides for repayment of PIP benefits
only if the injured person’s economic damages
have been fully compensated. ORS 742.544. “Economic
damages” is defined by the statute to include,
among other things, medical expenses, loss of income,
future impairment of earning capacity, damage
to reputation that is economically verifiable, and
costs to repair or replace damaged property. ORS
18.560(2)(a).
For example, if the injured person recovered
$100,000 from the liability carrier of the tortfeasor,
received $25,000 in PIP benefits, and had $50,000 in
economic damages, the PIP carrier would be entitled
to reimbursement. The formula is as follows:
Total benefits received minus economic damage
= $ available for PIP reimbursement.
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In the example above, the formula is applied as
follows:
$125,000 minus $50,000 = $75,000. Total benefits
(Liability plus PIP benefits) minus economic
damages = $ available for PIP reimbursement.
In our example, the PIP carrier paid $25,000.
Therefore, the insured person would have to repay
the PIP carrier $25,000 out of the “money available
for PIP reimbursement.” This would leave the injured
person with $50,000 as payment for economic
damages and $50,000 for other damages.
Using a variation of the same example, if the
injured person recovered $100,000 in liability coverage,
received $25,000 in PIP benefits, and had
$115,000 in economic damages, the injured person
would have to partially repay PIP benefits. The PIP
carrier would receive $10,000.
$125,000 minus $115,000 = $10,000. Total benefits
(Liability plus PIP benefits) minus economic
damages = $ available for PIP reimbursement.
As demonstrated above, the injured party benefits
from maximizing proof of economic damages
(including lost income and impaired earning capacity)
to minimize the amount he or she must pay back
to the PIP carrier.
RESOURCES
Excellent discussions on these topics can be
found in Torts (OSB CLE 2006 Revision), Chapter
17, and 1 Insurance (OSB CLE 1996 Revision &
2003 Cum. Supp.), Chapter 19.
Joel DeVore
Luvaas Cobb, PC
Our thanks to Douglas M. Fellows, and to Richard
Wyman, PLF Claims Attorney, for their assistance with
this article.
PAGE 4 www.osbplf.org

THIS ISSUE
June 2011
Issue 110
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
P.I. Settlements and Welfare
Your client has been in a car accident, and you
are representing her on a personal injury claim.
If she is also receiving Temporary Assistance to
Needy Families (TANF) (formerly Aid to Families
with Dependent Children [ADC]) or medical
assistance (i.e., Medicaid or Oregon Health
Plan), you need to consider two important issues
before you enter into a settlement. First, the state
will attach a lien on the settlement to the extent of
all assistance (cash and medical) it has provided
since the date of the injury. Second, the client’s
net settlement may affect eligibility for TANF and
medical assistance.
State Lien on Settlement
ORS 416.540(1) provides: “[T]he Department
of Human Services and the Oregon Health
Authority shall have a lien upon the amount of
any judgment in favor of a recipient or amount
payable to the recipient under a settlement or
compromise for all assistance received by such
recipient from the date of the injury of the recipient
to the date of satisfaction of such judgment or
payment under such settlement or compromise.”
This provision grants the Department of
Human Services (DHS) and the Oregon Health
Authority (OHA) a lien against any judgment
on or settlement of a claim for damages for personal
injuries. ORS 416.510(5), 416.540(1). This
does not include SAIF (State Accident Insurance
Fund) or the Workers’ Compensation Board, but
it does include workers’ compensation claims
against other insurers. It also excludes claims that
are not for personal injuries, such as claims for
violations of the Fair Housing Act.
TANF and medical assistance applicants
and recipients are required to report to DHS, 1
the OHA, and their managed care organization
(MCO) that they have made a claim for damages
for personal injuries. They must do so within 10
days of initiating the claim. This notification must
include the names and addresses of all parties against
whom the action or claim is brought, a copy
of each claim or demand, and, if an action
has been brought, the case number and county
where the action is filed. ORS 416.530;
OAR 461-195-0310. If the TANF or medical
assistance recipient fails to report the
claim for personal injuries, and the claim is
settled before DHS, the OHA, or the MCO
has the opportunity to satisfy its lien,
the state will have a claim against
your client to the extent of the lien.
OAR 461-195-0310; ORS 416.610. 2
Although a lien could exceed the amount
of the personal injury claim, DHS rules permit
the recipient to keep enough of the net settlement
to pay for attorney fees, medical costs,
and other costs and expenses. OAR 461-195-
0305. A presumption exists that the proceeds
are for payment of medical expenses, unless
otherwise identified. OAR 461-195-0305.
A certain amount also may be set aside
for future medical expenses, especially
if the injured party is a minor.
ORS 416.590, 416.600; OAR 461-195-0320.
If a child in a TANF family is injured, the
state will assert a lien only to the extent of medical
assistance provided for that child. The state
will not assert a lien for the cash assistance received.
However, if an adult in the family is injured,
the state will attempt to attach a lien for
the amount of both cash and medical assistance
that can be attributed to the personal injury. For
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

medical assistance, it will be the amount paid for the injured
individual. For TANF, depending on the circumstances, it
may include assistance that has been provided to the entire
family. If the family has medical coverage through an MCO,
the OHA may assign its lien to the MCO for recovery. ORS
416.540(3); OAR 461-195-0321.
Effect of Settlement on
Eligibility for Assistance
Once the matter of the lien has been settled, it is essential
to consider the effect of the final settlement on your
client’s eligibility for public assistance programs.
When the family receives a personal injury settlement,
the net proceeds after payment of the lien, costs, attorney
fees, etc., will be compared with the TANF resource limit.
The family will be ineligible for TANF only for so long as
they retain proceeds in excess of that limit. Once the family
spends the money down to the resource limit, the family will
again be eligible for TANF benefits. If the client has other
resources, those resources, along with the personal injury
settlement proceeds, will count toward the resource limit for
all public assistance programs.
TANF families participating in Oregon’s Job Opportunities
and Basic Skills (JOBS) program have a resource limit
of $10,000. For all others, the resource limit is $2,500. 3
Thus, those families participating in the JOBS program can
receive net personal injury settlement proceeds of up to
$10,000 before it affects their TANF benefits. 4 OAR 461-
160-0015. As long as they receive TANF, they will continue
to qualify for medical assistance.
For Supplemental Nutrition Assistance Program
(SNAP) benefits (formerly food stamps), the personal injury
settlement proceeds are not counted at all if the family
is “categorically eligible.” A family is categorically eligible
if the family is also receiving TANF or Supplemental
Security Income (SSI), 5 has a household member working
under a JOBS Plus agreement, or has income less than
185 percent of the federal poverty level and has received
a pamphlet about Information and Referral Services.
OAR 461-135-0505.
For families who receive SNAP benefits but do not
fit into one of the categories listed above, the personal
injury settlement proceeds are considered a resource
and will be compared with the SNAP resource limits. 6
OAR 461-140-0120. If the proceeds exceed those limits,
the family will be ineligible until the proceeds are spent
to below the SNAP resource limit. Categorical eligibility
lasts only as long as the family is eligible for the other as-
sistance program that makes the family categorically eligible.
Alternatively, if the eligibility is based on income
less than 185 percent of the federal poverty level and receipt
of the Information and Referral Services pamphlet,
then categorical eligibility lasts only for the duration of
the SNAP certification period of one year. Once the client
is no longer categorically eligible, the client will have to
spend down to be below the SNAP resource limit before
reapplying for SNAP benefits.
For SSI, the personal injury settlement proceeds
are considered income in the month received and resources
in the following months. 20 CFR §§416.1121(f),
416.1207(d). The individual will be ineligible for SSI
in the month the settlement is received if it exceeds the
income limits. In the following months, the individual
will be ineligible so long as the remaining funds, along
with the individual’s other countable assets, exceed the
resource limit of $2,000 for an individual and $3,000 for a
couple. 20 CFR §416.1205. Once the money is spent down
to below the resource limits, the individual or couple will
re-qualify. There will likely be an overpayment for the
month in which the money was received, but that overpayment
should be waived as long as the client promptly
reports to the Social Security Administration (SSA) that
he or she received the settlement. As with TANF, as long
as the client receives SSI, the client will continue to qualify
for medical assistance (i.e., Medicaid).
Each of these programs (TANF, SNAP, and SSI) has
limits on the value of noncash resources that the individual
can retain. Therefore, the client should be cautious
about how money is spent to reduce it below the
resource limits. Some items, such as motor vehicles,
have separate value limits; and some or all of the equity
value may be excluded. The rules are different for
each program. Other resources are excluded regardless
of value, such as the client’s home, furniture, household
goods, and personal belongings. See OAR Chapter 461,
Division 145; 20 CFR §416.1216.
The client cannot give away the proceeds of the settlement
in most cases. The client must receive some value in
return. Most programs have a transfer-of-assets disqualification
period, which may be lengthy depending on the
benefit and the amount transferred.
There is no resource limit for Social Security Disability
Insurance (SSDI) benefits. Thus, a personal injury settlement
will not affect those benefits. However, some clients
may receive a combination of SSDI and SSI benefits. The
settlement could affect the SSI portion of the benefits.
Many people confuse SSDI and SSI benefits. A client may
June 2011 – Page 2
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know that he or she is on “disability” but may not know
which program is involved. Since the income and resource
rules are very different, it is important to verify whether the
client receives SSDI, SSI, or both. 7
If you are representing a client on a personal injury claim
who receives public assistance benefits, it is advisable to call
your local Legal Aid or Oregon Law Center office for advice
before finalizing the terms of the settlement.
Karen BerKowitz
oregon Law Center, inC.
Thanks to Lorey H. Freeman for her assistance with this
article.
1 They must report to the Personal Injury Liens Unit,
PO Box 14512, Salem, OR 97309, 503-378-4514, FAX:
503-378-2577. OAR 461-195-0310.
2 ORS 416.610 only gives the OHA, not DHS, the
right to file a claim against an individual who fails to
give notice and settles a claim before the OHA can satisfy
its lien for medical assistance. DHS, by rule, grants
itself this authority with respect to TANF benefits.
OAR 461-195-0310(6).
3 OAR 461-160-0015.
4 Includes receipt by the attorney representing the client,
so long as the attorney has settled all claims and can
disburse the money to the client.
5 Supplemental Security Income (SSI): a federally
funded disability program for low-income individuals who
do not qualify for Social Security Disability Insurance
(SSDI) or whose monthly SSDI benefit payment, and other
income, is $694 or less.
6 $3,000 for households with at least one member who
is age 60 or over; $10,000 for groups with one member
working under a JOBS Plus agreement; and $2,000 for all
other households. OAR 461-160-0015.
7 You can get this information directly from the
Social Security Administration (SSA) with a written
release, or you can call SSA’s toll-free number
(1-800-772-1213) with the client present. SSA will verify
the client’s identification and will give the client the
necessary information.
June 2011 – Page 3
www.osbplf.org

THIS ISSUE
August 2003
Updated October 2011
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Tips for Protecting Yourself From Malpractice Claims
Reduce your risk of a legal malpractice claim and protect the funds of the minor or incapacitated
person by doing the following:
1. UNDERSTAND WHOM YOU REPRESENT. When filing a conservatorship or a
guardian ad litem petition, you represent the fiduciary. You also may have responsibilities
to the protected person. See Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987). OSB Formal
Ethics Ops 1991-119, 1991-62.
2. EDUCATE THE FIDUCIARY. Unfortunately, the people most likely to take money belonging
to your client are the client’s own family members. In times of financial crisis, family
members may try to gain access to the injured family member’s funds. If you are bringing a
claim on behalf of a minor or other incapacitated person, you must educate the person acting
on his or her behalf. (This will be a guardian, guardian ad litem, or conservator.) At the beginning
of your representation, make sure that the fiduciary understands his or her fiduciary
responsibilities and that if he or she receives the incapacitated person’s money, you will
work with him or her to make special arrangements to protect it. Confirm your discussion in
writing early on. This is particularly important if there is a delay between the time you are
retained and when a fiduciary is appointed.
3. REFER THE CASE TO A CONSERVATORSHIPATTORNEY. Conservatorships require
frequent review of the assets and annual accountings. Generally lawyers who handle personal
injury cases are unfamiliar with the rules and procedures of conservatorship. If you
generally practice in the area of personal injury, you and your client may be best served by
referring the case to a separate attorney for the conservatorship.
4. BE SURE TO DOCUMENT YOUR EXPLANATION OF FIDUCIARY DUTY TO YOUR
CLIENT. If the conservator is successful in finding a way to run off with the conservatorship
funds, you may find yourself as a target defendant. Thorough file documentation of your
efforts to restrict the accounts, as well as documentation of your advice to the fiduciary on the
fiduciary responsibilities, are critical to a successful defense.
5. BOND THE FIDUCIARY WHENEVER POSSIBLE. See To Bond or Not to Bond on page
5 of this issue.
6. MAKE SURE THE RESTRICTED ACCOUNT IS RESTRICTED. If you want to restrict
access to the conservatorship assets, be sure that you make the special arrangements. This
means much more than sending the conservators to the bank and getting a bank teller to sign
and acknowledgment that the account is restricted. It means making special arrangements
with a person in a position of authority at the bank, depositing the money yourself, and making
sure that the bank acknowledges the order restricting conservatorship assets, and making
sure that the bank understands what it is supposed to do. Many of the larger banks are familiar
with this process. Be sure you are dealing with a bank official who has experience setting
up restricted accounts. This requires a lot of additional involvement by the attorney. It is the
only way to make sure that the conservatorship assets are restricted.
7. USE STRUCTURED SETTLEMENTS. Structured settlements are an excellent vehicle
when dealing with funds of a minor, and can be utilized in combination with other mechanisms
when dealing with an incapacitated person. See box on Structured Settlements on page
7 of this issue.
Thanks to Robert K. Udziela and Gregory K. Zeuthen for their assistance with this article.

THIS ISSUE
July 2012
Issue 113
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Adjusted Tort Liability Limits Against Public
Bodies Effective July 1, 2012
The Office of the State Court Administrator
(OSCA) has followed the required statutory
methodology identified in ORS 30.273(3) to calculate
the annual adjustment to the limitations
on liability of public bodies for property damage
or destruction. Based on these calculations,
the limitations are adjusted to $104,300 for any
single claimant and $521,400 for all claimants.
These new limitations became effective on July
1, 2012, and apply to all causes of action arising
on or after July 1, 2012, and before July 1, 2013.
OSCA opened a public comment period on the
adjustments from March 16, 2012, to 5:00 p.m. on
April 30, 2012, but received no public comment.
As a reminder, ORS 30.271 and 30.272
establish the annual adjustments to the limitations
on liability of public bodies for
personal injury and death. Pursuant to
ORS 30.271(2) and (3), the limitations applicable
to the state for personal injury and death will
be adjusted to $1,800,000 for any single claimant
and $3,600,000 for all claimants. Pursuant
to ORS 30.272(2) and (3), the limitations applicable
to local public bodies for personal injury
and death will be adjusted to $600,000 for any
single claimant and $1,200,000 for all claimants.
These new limitations became effective on July
1, 2012, and apply to all causes of action arising
on or after July 1, 2012, and before July 1, 2013.
A list of past and current limitations on
liability of public bodies can be found on
the Oregon Judicial Department Web site at
http://courts.oregon.gov/OJD/courts/circuit/tort_
claims_act.page? (http://tinyurl.com/tortlimits).
Please submit questions or comments to
Bruce C. Miller, Office of the State Court Administrator,
Supreme Court Building, 1163
State Street, Salem, Oregon 97301-2563 or
503.986.5500 or bruce.c.miller@state.or.us.
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

THIS ISSUE
March 2012
Issue 112
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Reporting Responsibilities Under Medicare
In the ever-changing field of enactment and
interpretation of Medicare statutes, the following
is a very brief synopsis of the responsibilities
tasked to attorneys and insurers by the
Medicare Secondary Payer Act (MSPA) and the
Medicare, Medicaid and SCHIP Extension Act
of 2007 (MMSEA). When dealing with a Medicare
beneficiary, you must, however, acquaint
yourself in depth as to your and your client’s
responsibilities by reviewing the statutes, regulations,
cases interpreting the statute, and the
relevant Medicare Web pages. 1
The enactment of MMSEA in 2007 caused
considerable consternation for those the Medicare
statutes term “primary payers” – entities (e.g., a
tortfeasor’s insurer) required to pay for medical
care or services provided to a Medicare beneficiary.
Under MMSEA, those entities are now
given the responsibility to report any settlement
or judgment in a case involving a Medicare beneficiary
or soon-to-be beneficiary and to ensure
the reimbursement of Medicare for monies it has
expended and, in some cases, may expend in the
future.
The MMSEA reporting requirements finally
became effective on January 1, 2012, for events
occurring on or after October 1, 2011. Penalties
for failure to comply with the reporting
requirements include fines of $1,000 per day,
per claim.
Although those entities now tasked with filing
formal reports with Medicare might disagree,
1 Attorneys should consider whether the judgment
or settlement addresses a need for ongoing
medical care. This issue is hotly debated and too
complex to address in this article.
the greater impact of the passage of MMSEA may
be the attention it has drawn to the statutory requirements
in place since the passage of MSPA in
1980 and its subsequent amendments. As the title
suggests, under MSPA, Medicare assumed the
role of secondary payer in claims for which other
entities were required (with or without admission
of liability) to pay for medical care or services
provided to a Medicare beneficiary. MSPA terms
payments made by Medicare as conditional. The
“primary payers” include group health insurers,
liability insurers, workers’ compensation carriers,
no-fault insurers, and self-insureds. Although it
is inaccurate to say “Medicare lien,” federal law
gives Medicare priority rights of recovery and
subrogation; primary payers are required to reimburse
Medicare for conditional payments Medicare
has made that are related to the personal
injury at issue.
Medicare, Medicaid, and SCHIP
Extension Act
Under MMSEA, a Responsible Reporting
Entity (RRE) must determine early whether
the claimant is Medicare-eligible. Therefore,
defense attorneys and/or insurers will request
a claimant’s Health Insurance Claim Number
(HICN) or the claimant’s full name, birthday,
and Social Security number. With the latter information,
the RRE can send a submission to the
Coordination of Benefits Contractor (COBC),
an entity retained by Centers for Medicare and
Medicaid Services (CMS). The COBC will, in
turn, notify the RRE whether the claimant is
Medicare-eligible. If the claimant is not Medicare-eligible
and settlement is not imminent,
the RRE is required to resubmit the information
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

periodically to ensure that the claimant does not become
Medicare-eligible during the pendency of the claim.
If a claimant is Medicare-eligible, the RRE must report
any settlement or judgment (termed Total Payment Obligation
to the Claimant [TPOC]) to the Medicare Secondary
Payer Recovery Contractor (MSPRC).
If a legal judgment allots damages between medical and
non-economic damages, CMS accepts the allotment. CMS,
however, will make its own determination about allotments
of monies when there is a non-specific judgment or a settlement.
In either of those scenarios, CMS (or one of its contractors)
will determine the payments Medicare made that
are the responsibility of a primary payer. Claimants and their
attorneys can seek a compromise or waiver of CMS’s determination.
Medicare Secondary Payer Act
As mentioned above, the obligations under MSPA are
not new – the requirement to reimburse Medicare, among
other statutory duties, has existed for many years. In light of
the recent implementation of MMSEA, however, it is worth
summarizing the basic framework and procedure of MSPA.
When an attorney determines that a client is Medicareeligible
and expects recovery from a third party, the attorney
must contact the COBC. The letter to the COBC should contain
the claimant’s full name, address, gender, and HICN as
well as the date of loss, name and address of the potential
third-party payer, and very specific description of injury. The
COBC may request additional information. When it feels it
has enough information, it will forward the data to MSPRC.
MSPRC will first issue a Rights and Responsibilities letter.
The attorney will receive a copy of this communication
and others from MSPRC if and only if the attorney has submitted
an executed Consent to Release form. With that form
on file, the attorney will be sent the Rights and Responsibilities
letter, Conditional Payment Letter (CPL), and Final Demand
Letter (FDL). If the claimant’s attorney wants to enter
into additional discussions with any of Medicare’s entities,
the claimant will need to execute a Proof of Representation
document. In some special circumstances, the potential thirdparty
payer can submit Proof of Representation giving the
third-party payer permission to enter into discussions with
Medicare’s entities. If potential third-party payers submit a
Consent to Release form, executed by the claimant, they, too,
will receive CPLs and the FDL. It is in the best interest of
both sides to have the most accurate information available
regarding the amount owed to MSPRC.
At least two months after sending the Rights and Responsibilities
letter, MSPRC will issue a CPL and conditional Pay-
ment Summary Form (PSF), which will contain MSPRC’s
best estimate, on the date the letter is written, of the amount
Medicare should be reimbursed. The CPL will not take into
account comparative fault or any liability issues and, in fact,
may include medical care unrelated to the personal injury at
issue in the claim. The attorney representing the claimant can
request additional information from MSPRC and can assist
the claimant in disputing that the charges listed in the CPL
and PSF are related to the injury at issue. MSPRC is backlogged
so, if you believe your Medicare client has a valid
claim against a tortfeasor for personal injury, do not postpone
requesting the CPL. In fact, if the legal claim process
extends over a significant amount of time, you should request
updated CPLs.
MSPRC must, again, be notified after judgment is obtained
or the case settles. Now that MMSEA is in effect, the
RRE must also submit a detailed report. In either case, the
claimant’s attorney must ensure MSPRC is notified. 2 After
notification is received, MSPRC will issue a Final Demand
Letter (FDL) or, if it has not previously issued a CPL, it will
issue a Conditional Payment Notice (CPN). As with CPLs, if
claimants disagree with a CPN, they can dispute it, but claimants
have only 30 days to respond to a CPN. After receipt of
the FDL, the claimant or representative can seek a compromise
or waiver of the demanded amount. If no compromise
or waiver is sought, the primary payer writes a check for that
amount to CMS and a check for the remainder of the settlement
to the claimant or claimant’s attorney.
If an FDL is not timely received because of the Medicare
backlog, the parties can agree to have two checks issued. One
check would designate CMS as payee and would reflect the
amount the parties believe will be due to CMS. The claimant
or claimant’s attorney will be the payee on another check.
The parties must agree funds from the second check will not
be disbursed until an FDL is received and CMS is paid in full.
Finally, if the parties cannot reach an agreement on the
amount to reimburse CMS, there may be no alternative but to
write one check for the full settlement amount, designating
both CMS and the claimant as payees. The claimant will be
required to endorse the check and forward it to CMS. CMS
will cash the check and send a new check to the claimant for
the amount CMS believes is in excess of the amount owed
CMS. This will likely result in additional delays in finalizing
and disbursing funds and can cause accrual of fines if the
claimant fails to forward the check. To avoid this situation,
the parties should begin negotiations on this issue early in
2 CMS also has a procedure for defendant to notify MSPRC
of settlement with an unrepresented party.
March 2012 – Page 2
www.osbplf.org

the process.
It is unclear whether reimbursement is due to CMS
60 days after settlement/judgment or 60 days after receipt of
the FDL. Penalties (double damages plus 11% interest) do
not accrue, however, until after failure to respond to the FDL.
Unlike penalties under MMSEA, MSPA penalties can be
assessed against the insurer, tortfeasor, claimant, or claimant’s
attorney.
MSPA also entitles MSPRC to recover money from
other benefit sources available to the claimant, including
Social Security, Railroad Retirement, and tax refunds. Adding
to the difficulty, as mentioned above, is the backlog at
MSPRC. Very recently, MSPRC has begun offering a few
options to streamline the process, which you can read about
on the MSPRC Web site. However, these options are new
and untested.
No settlement monies should be disbursed until the parties
agree on a plan to address Medicare reimbursement.
Therefore, attorneys for both plaintiffs and defendants need
to cooperate in addressing issues encountered in any claim
involving a Medicare claimant, and they need to begin this
cooperation early.
Patricia NatioN
PLF cLaims attorNey
The author would like to thank Kirstin L. Abel of Keating
Jones Hughes PC for her assistance with this article.
Medicare Acronyms and Resources
CMS Centers for Medicare and Medicaid
Services (www.cms.hhs.gov)
COBC Coordination of Benefits Contractor
CPL Conditional Payment Letter
CPN Conditional Payment Notice
FDL Final Demand Letter
HICN Health Insurance Claim Number (for
Medicare beneficiaries)
MMSEA Medicare, Medicaid and SCHIP Extension
Act (2007) (§ 111) 42 USC § 1395y(b)(8)
MSP Medicare Secondary Payer
MSPA Medicare Secondary Payer Act (1980)
42 USC § 1395y(b) (Regulations – 42 CFR
§ 411 et seq)
MSPRC Medicare Secondary Payer Recovery
Contractor (www.msprc.info)
NGHP Nongroup health plan (liability insurance
including self-insurance, no-fault
insurance, and workers’ compensation
laws and plans)
PSF Payment Summary Form
RRE Responsible Reporting Entity
SCHIP State Children’s Health Insurance Program
TPOC Total Payment Obligation to the Claimant
www.mymedicare.gov
March 2012 – Page 3
www.osbplf.org

THIS ISSUE
November 2010
Issue 108
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
The problem: A minor has a tort claim for
personal injuries. Luckily, the minor’s injuries
are not severe, so the claim’s value as determined
by a jury is probably modest. A settlement can be
reached with the defendant’s insurer. However,
minors are unable to contract.
Prior to the passage of ORS 126.725, the only
certain way for an insurer to guarantee that the
claim against its insured was discharged was the
appointment of a conservator and the court approval
of the settlement. This is time-consuming
(entailing yearly reports to the court until the minor
reaches majority) and expensive (including
costs such as filing fees and attorney fees). It is an
unpalatable solution when the minor’s net recovery
is only a few thousand dollars.
ORS 126.725 [passed in 2007 and amended
in 2009] now solves this problem when the minor’s
net recovery is $25,000 or less. This statute
allows the parties to enter into a settlement
agreement without court oversight and without
the establishment of a conservatorship if the following
conditions are met:
● There is not already a conservator for the
minor;
● The total amount to be received by the minor
(after payment of medical liens, attorney fees,
and the like) is $25,000 or less; and
● The person authorized by the statute to
sign a settlement agreement and extinguish the
minor’s claim is “a person having legal custody
of” the minor with the claim. The statute speaks
in the singular. From a plain reading, it appears
that when parents have joint legal custody but
only one has physical custody of the minor, either
parent can settle a claim of the minor under this
Settlements for Minors –
2009 Legislative Changes
statute. However, practitioners should note that if
the minor is in the physical custody of a relative
such as a grandparent due to an informal arrangement
with the parent or parents of the minor, mere
physical custody does not, pursuant to the statute,
confer the ability to settle a claim.
Practice Tip: When prosecuting a claim for a
minor’s injuries, determine the legal authority of
the person with custody of the minor as soon as
possible. It may be that one or both parents may
need to be located to finalize a settlement and
avoid the expense of a conservatorship proceeding.
Conversely, defense counsel should consider
demanding proof of legal custody as part of a
settlement to ensure that the release obtained for
the defendant is, in fact, binding on the minor and
the minor’s claim.
Once you are satisfied that the person seeking
to settle the minor’s claim has authority to do so
and that the settlement is reasonable, the following
steps are required to comply with the statute:
1. Affidavit of Custodian. First, the person
having legal custody of the minor must sign an
affidavit swearing:
● To the best of that person’s knowledge,
the minor will be fully compensated by the settlement;
or
● Though the minor will not be fully compensated,
there is no practical way to obtain more
from the party with whom the settlement is being
made.
The attorney for the minor’s legal custodian
must keep the affidavit for two years after the
minor reaches the age of 21. Caution: This represents
a departure from the usual practice of dis-
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

posing of closed files after 10 years. Attorneys settling claims
for minors pursuant to this statute may have to keep the original
affidavit signed by the person having legal custody for as
long as 23 years.
2. Receipt and Disbursal of Funds. The funds
(whether by check or by cash) must first be deposited into
the plaintiff’s attorney’s IOLTA account. After attorney fees,
costs, and medical liens are paid, the lawyer must deposit
the minor’s net recovery into “a federally insured savings
account that earns interest in the sole name of the minor.”
(Emphasis added.)
If defense counsel is dealing with a person having legal
custody of the minor who is also pro se, the statute indicates
that defense counsel must deposit the funds directly into a
“federally insured savings account that earns interest in the
sole name of the minor.” (Emphasis added.)
If the funds are to be used to purchase an annuity, they
must be paid directly to the annuity issuer, with the minor
designated as the sole beneficiary of the annuity.
Caution: Note that the statute requires the account to be
set up in the minor’s name only. The parent(s) may not also
be named on the account.
ORS 125.735, enacted in 2009, provides that minors may
contract with banks or other financial institutions to establish
a bank account, and that such contract is binding on the minor
and may not be voided or disaffirmed by the minor based
on the minor’s age or minority.
3. Notice. Counsel must then provide notice of the deposit
to the minor and the person who entered into the settlement
on the minor’s behalf, by personal service or first-class
mail.
4. Funds Remain Untouched. The funds cannot be
withdrawn or spent for any reason by any person, including
the minor, unless under court order, the minor attains majority,
or the minor dies.
The overriding theme is to avoid situations in which the
person having legal custody of the minor has an opportunity
to mis-deposit the funds, err in the creation of the account, or
take the funds from the minor’s account.
Practice Tip: Attorneys who represent the injured minor
and the person having legal custody should document
providing this important caution to the minor and the person
having legal custody. It is not hard to envision claims against
counsel and the person having legal custody if the minor’s
funds are misappropriated during the period of minority.
The statute also provides that the signature on a settlement
agreement of a person in compliance with this statute
is binding on the minor. Defendant’s attorney can assure the
client that the claim is fully and completely extinguished. A
person acting in good faith on behalf of the minor is not liable
to the minor for any claim arising out of the settlement.
All in all, ORS 126.725 should assist attorneys in settling
modest claims of minors without the expense and effort involved
in the establishment of conservatorships.
Brooks F. Cooper
Attorney At LAw
Thanks to Neil W. Jackson, Neil Jackson Attorney LLC,
for his assistance with this article.
November 2010 – Page 2
www.osbplf.org

THIS ISSUE
September 2011
Issue 110
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
What You Need to Know About
PIP and UM/UIM Claims
If you handle motor vehicle cases, you need
to be familiar with personal injury protection
(PIP) benefits and uninsured motorist (UM) and
underinsured motorist (UIM) coverage. This article
addresses these issues from both a plaintiff
and defense perspective and discusses minimum
coverage, time limitations, order of benefits, application
of coverage, and proof of loss.
Personal Injury Protection
(PIP) Benefits
PIP benefits are available for a person’s
injury or death resulting from the “use, occupancy
or maintenance of any motor vehicle.”
ORS 742.520(2)(a). PIP is a “no-fault” insurance,
so coverage is available even if the injury was
caused by the person seeking benefits.
PIP is required for every “motor vehicle liability
policy issued for delivery in this state that
covers any private passenger motor vehicle.”
Coverage is provided for the insured, members of
the insured’s family or children living in the same
household, passengers occupying the insured vehicle,
and pedestrians hit by the insured vehicle.
ORS 742.520(2)(b). However, not all vehicles are
included.
PIP Benefits Available
PIP must allow for “reasonable and necessary
expenses of medical, hospital, dental, surgical,
ambulance and prosthetic services incurred
within one year after the date of the person’s injury.”
ORS 754.524(1)(a). The minimum amount
of coverage in Oregon is $15,000 per person. Id.
Medical expenses are presumed reasonable and
necessary unless the medical provider is given a
denial within 60 days after the insurer receives
notice of a claim for services from the provider.
ORS 742.524(1)(a). The insurer is required to
conduct a reasonable investigation “based on all
available information” before denying a claim.
ORS 746.230(1)(d). See Ivanov v. Farmers Ins.
Co., 344 Or 421 (2008) (reversing grant of summary
judgment for Farmers on grounds that insurer
is required to establish that denials were
based on reasonable investigation).
The amount allowed for medical expenses
under Oregon PIP policies is the lesser of
the amount normally charged to members
of the public or the amount in the workers’
compensation fee schedule (available at
http://tinyurl.com/pipinfo). Hospital charges are
subject to adjusted cost-to-charge ratios specified
in a fee schedule published pursuant to ORS
656.248. Hospitals are permitted to charge (1) the
amount of the charges multiplied by the cost-tocharge
ratio, or (2) 90% of the charges, whichever
is greater. ORS 742.525(2).
In addition, PIP provides the following wageloss
benefits: “If the injured person is usually
engaged in a remunerative occupation and if disability
continues for at least 14 days,” the benefits
paid will be “70 percent of the loss of income
from work during the period of the injured person’s
disability until the date the person is able to
return to the person’s usual occupation. This benefit
is subject to a maximum payment of $3,000
per month and a maximum payment period in
the aggregate of 52 weeks.” ORS 742.524(b).
PIP also provides coverage for essential services,
funeral expenses, and child care if certain conditions
are met. See ORS 742.524(c)-(e).
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

Which PIP Policy Applies?
PIP is primary for anyone in the insured vehicle. If the
occupant of the vehicle has another motor vehicle policy, that
policy is secondary. If another family member in the same
household as the injured person has another motor vehicle
policy, that policy is the next to cover the injured person. If
the injured person has health insurance, it is available after
all PIP policies are exhausted.
For individuals who are struck by a vehicle as a pedestrian
or on a bicycle, the PIP medical benefits are available in
the following order:
● Individual’s motor vehicle policy;
● Motor vehicle policy of family members living in individual’s
household;
● Individual’s health insurance, other governmental
benefits, or gratuitous benefits;
● Motor vehicle policy of vehicle that struck individual.
Pedestrians (and bicyclists) are entitled to PIP
wage-loss benefits as well.
If the injured person is entitled to receive workers’ compensation
or other medical or disability benefits, PIP can be
eliminated by the policy. ORS 742.526(2). However, the insured
may be entitled to medical and wage benefits through a
PIP policy if not provided by workers’ compensation.
PIP Proof of Loss
A proof of loss is important because it starts the clock
ticking for attorney fees. In Scott v. State Farm Mutual Ins.
Co., 345 Or 146 (2008), the court reiterated that “[a]ny event
or submission that would permit an insurer to estimate its
obligations” is sufficient for proof of loss. Id. at 155. In Scott,
the court determined that a PIP application for benefits that
(1) provided information to enable the insurer to determine
whether the policyholder was entitled to benefits under the
insurance contract and (2) included an authorization to collect
health insurance information, was sufficient. Id. at 156.
In a more recent case involving homeowner’s insurance, a
phone call to the insurer’s agent concerning the damage was
sufficient. Parks v. Farmers Ins. Co., 347 Or 374 (2009).
Uninsured Motorist (UM)/
Underinsured Motorist (UIM) Insurance
Together, these two types of coverage permit an insured
to obtain all sums that he or she is “legally entitled to recover
as damages for bodily injury or death caused by accident
and arising out of the ownership, maintenance or use of an
uninsured motor vehicle.” ORS 742.500(1). UM coverage is
required for every policy in the state in amounts equal to the
amount of liability coverage, unless the insured elects a lesser
amount in writing. ORS 742.502(2)(a). UIM coverage is in an
amount equal to the UM coverage less the amount recovered
from other motor vehicle liability policies or other sources.
ORS 742.502(2)(a).
Each UM policy must provide coverage in the
amount of liability coverage, which requires a minimum
of $25,000 per person and $50,000 per accident.
ORS 742.502(2)(a). If the insured elects lower limits, a
statement to that effect must be signed within 60 days of
making the election. ORS 742.502(2)(b).
Several circumstances will be excluded from UIM or UM
motorist coverage. It is important to examine the policy to
determine the specifics. You must comply with the terms of
the policy to have coverage. ORS 742.504(8). In addition, if
the injured party fails to get written consent from the UIM
carrier before proceeding with settlement or prosecution to
judgment of an action against a party legally liable, the injured
party may be precluded from making a UIM claim. ORS
742.504(4)(a). However, this exclusion is considered a “condition
of forfeiture” and applies only if the insurer can show
it was prejudiced by the failure to obtain written consent and
that the failure to obtain written consent was unreasonable.
Federated Serv. Ins. Co. v. Granados, 133 Or App 5, rev den,
321 Or 512 (1995); Armintrout v. Transportation Ins. Co.,
137 Or App 86, rev den, 322 Or 361 (1995). Failure to exhaust
the available policy limits is prima facie evidence of prejudice.
All this can be avoided by obtaining written consent in advance.
UM and UIM protection also often excludes coverage for other
vehicles owned by the insured or furnished for the regular
use of the insured (or members of the insured’s household).
ORS 742.504(4)(b). You cannot extend your coverage to uninsured
vehicles if you have opted not to insure them.
Reduction by Amounts Received
from Other Sources
Amounts payable under UM or UIM coverage are
reduced by (1) sums paid on account of the bodily injury
by or on behalf of the owner or operator of the uninsured
vehicle or any other person jointly or severally liable, including
amounts paid under bodily injury liability coverage;
and (2) the amount paid and present value of all amounts
payable under any workers’ compensation law or disability
benefits law. ORS 742.504(7)(c). These offsets apply to the
insured’s damages, not to the policy limits. Bergmann v.
Hutton, 337 Or 596, 101 P3d 353 (2004) (offsetting damages
by workers’ compensation payments, but not reducing
policy limits of UIM); but see Vogelin v. American Family
Mut. Ins. Co., 346 Or 490, 213 P3d 1216 (2009) (holding that
ORS 742.504(7)(c)(A) requires payments made on behalf
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of a tortfeasor to be deducted from insured’s total damages,
but that ORS 742.502(2)(a) requires tortfeasor’s motor vehicle
liability payments to reduce UM/UIM policy limits). PIP
benefits paid to an insured are applied to reduce the amount
of damages, but cannot reduce the UM/UIM policy limits.
ORS 742.542.
In order to recover UIM benefits, you must comply with
ORS 742.504(4)(d). This requires that one of the following
occurs:
● The limits of liability have been exhausted by judgment
or settlements to the injured person or other persons;
● The limits have been offered in settlement, and the
insurer has refused consent and the insured protects the
insurer’s right of subrogation to the claim against the tortfeasor;
● The insured gives credit to the insurer for the unrealized
portion of the limits as if the full limits had been
received if less than the limits have been offered and the
insurer has consented; or
● The insured credits the insurer for the unrealized portion
of the liability limits as if the full limits had been offered in
settlement and the insurer has refused consent and the insured
agrees to protect the insurer’s right of subrogation to the claim
against the tortfeasor.
If none of these events occurs, a UIM claim does not yet
exist.
Time Limitation
There is a statutory limitation on UM and UIM
claims of two years from the date of the accident.
ORS 742.504(12)(a). The two-year period applies to minors
and there is no tolling of the two years. Wright v. State
Farm Mutual Auto. Ins. Co., 223 Or App 357 (2008) (holding
that the two-year period was not tolled by child’s minority).
Within two years of the date of the accident, the insured
must either settle the case, formally institute arbitration, or
file against the insurer. If the case is against the uninsured/
underinsured motorist, the insured must either file against the
insurer or formally institute arbitration within two years of
settlement or judgment of the underlying case. “Formally”
instituting arbitration requires that “an insured or an insurer
must expressly communicate to the other party that the initiating
party is beginning the process of arbitrating a dispute.”
Bonds v. Farmers Ins. Co., 349 Or 152, 154 (2010). A letter
from the insurer consenting to arbitration is no longer sufficient.
Id.
Reimbursement of PIP or Health
Insurance Payments
There are three methods for an insurance company to
recover PIP payments or health insurance payments made
on behalf of an injured person: (1) interinsurer arbitration
(ORS 742.534); (2) lien (ORS 742.536); or (3) subrogation
(ORS 742.538).
Interinsurer arbitration allows “every authorized motor
vehicle liability insurer whose insured is or would be held
legally liable for damages for injuries sustained in a motor
vehicle accident by a person for whom personal injury protection
benefits have been furnished by another such insurer,
or for whom benefits have been furnished by an authorized
health insurer,” to be reimbursed by the insurer of the atfault
party. ORS 742.534. This is what insurers usually elect
because the insurer does not have to pay attorney fees. Interinsurer
arbitration is only permitted if (1) the PIP insurer
is entitled to reimbursement by its policy; (2) the PIP insurer
has not elected recovery by lien under ORS 742.536;
and (3) the PIP insurer has requested reimbursement under
ORS 742.534. ORS 742.534. The statute also specifies that
the amount being paid back be reduced for any percentage
of fault of the insured. Disputes between insurers are sent to
arbitration.
An ORS 742.536 lien is available only when (1) the insurer
is entitled by the terms of its policy; (2) the insurer has
not elected to recover through interinsurer arbitration; and
(3) a lien is elected in writing within 30 days of the receipt
of notice or knowledge of the claim through personal service
or registered or certified mail. ORS 742.536. The lien
is against the cause of action up to the amount of the lien,
but is reduced for the proportion of expenses, costs, and attorney
fees incurred in connection with recovery of the lien.
ORS 742.536. If the insurance company fails to elect recovery
by lien within the 30-day timeline, it is not available.
Subrogation is available only when (1) the insurer is
entitled by the terms of its policy; (2) the insurer has not
elected to recover by lien; and (3) interinsurer reimbursement
is not available. ORS 742.538; see State Farm Mut.
Auto Ins. Co. v. Hale, 215 Or App 19 (2007) (discussing
requirements). Under subrogation, the insurer is entitled
to proceeds from a settlement or judgment from the person
legally responsible for the accident, but the proceeds are reduced
for the insurer’s share of expenses, costs, and attorney
fees. ORS 742.538(1).
Limitations of Reimbursement
ORS 742.544 limits reimbursement so that it is permitted
“only to the extent that the total amount of benefits paid
exceeds the economic damages as defined in ORS 31.710.”
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ORS 742.544. Total amount of benefits includes UIM benefits,
liability insurance, PIP payments, and any other payments
by or on behalf of the party whose fault caused the
damages. ORS 742.544(1).
ORS 742.542 specifies that any PIP benefits paid for its
own insured will reduce the amount of damages recoverable
through UIM or UM benefits, but that it cannot be applied
to reduce the policy limits. See Farmers Ins. Co. v. Connor,
219 Or App 337 (2008). In Connor, the total damages exceeded
the UIM and PIP benefits. Farmers sought reimbursement
of its PIP benefits based on the amount of economic
damages as determined by the trial court. Based on the legislative
history, the court determined that Farmers was not
permitted to recover its PIP benefits because it would serve
to reduce the policy limits.
Attorney Fees
ORS 742.061 allows a plaintiff to collect attorney fees in
a PIP or UM/UIM claim in specific circumstances. “If settlement
is not made within six months from the date proof of
loss is filed with an insurer and an action is brought in any
court of this state on any policy of insurance of any kind
or nature, and the plaintiff’s recovery exceeds the amount
of any tender,” the plaintiff is entitled to recover attorney
fees unless the insurer satisfies specific conditions within six
months of the date the proof of loss is filed with the insurer.
For PIP claims, the insurer must (1) accept coverage in
writing and state that the only issue is the amount of benefits
due the insured; and (2) consent to binding arbitration.
ORS 742.061(2).
For UM/UIM claims, the insurer must (1) accept coverage
in writing and state that the only issues are the liability
of the uninsured or underinsured motorist and the damages
due the insured; and (2) consent to binding arbitration.
ORS 742.061(3).
However, an insurer must be careful when denying specific
claims. In Grisby v. Progressive Preferred Ins. Co.,
343 Or 175, modified and adhered to on reconsideration,
343 Or 394 (2007), the PIP carrier denied payments for chiropractic
treatment, claiming it was not related to the collision.
This was interpreted as a dispute of coverage, not just
benefits, so the plaintiff was entitled to attorney fees. Once
a denial of benefits occurs, it is not necessary to wait the
six-month period from the proof of loss required pursuant to
ORS 742.061.
Thomas D’amore anD emily Terriquez
D’amore law Group
Thanks to John. R. Bachofner, Jordan Ramis PC, for
his assistance with this article.
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DUTIES OF A CONSERVATOR
The purpose of this handout is to summarize your duties as a conservator for a minor or
incapacitated person. If you have any questions about specific rights or duties involved in the
conservatorship, please ask an attorney.
You must exercise scrupulous good faith in the management of the protected person’s affairs.
Everything you do must be for the benefit of that protected person and to protect his or her
economic interests. The following list describes some of your important duties.
1. Take possession of all of the property of the protected person and the income
arising from that property.
2. If real property of the protected person is located in a county other than the county
of appointment, you must file a certified copy of the inventory or a real property
abstract in the county or counties where that real property is located.
3. Within 90 days of appointment, you must file with the court an inventory of all
property of the protected person. This must include all property of the protected
person that you know about or that is in your possession. Amend the inventory in
case of later-discovered property.
4. Pay the obligations of the protected person that are chargeable against the
conservatorship estate.
5. Make prudent investments with the conservatorship assets. In most cases, this will
require the advice of a professional.
6. When managing the conservatorship assets, take into consideration the estate
plan of the protected person, including review of any Will, trusts, or joint ownership
arrangements.
7. Evaluate the need to obtain insurance on conservatorship assets and obtain such
insurance if advisable.
8. Pay, contest, or settle claims submitted against the conservatorship estate.
9. Prepare and submit necessary tax returns.
10. Set up a separate conservatorship bank account. Depending on the county in
which the conservatorship is filed, you may be required to have the checks
returned to you by the bank and to submit those canceled checks to the court with
your periodic accountings.
11. Carefully account for all income and expenditures. Written statements of all
accounts and a final accounting upon termination of the conservatorship must be
prepared and filed with the court annually within 60 days after each anniversary of
your appointment, and within 60 days after the death of the protected person or a
minor becoming 18 years of age.
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12. Submit a list of disbursements, including check numbers, in chronological order
with each account filed with the court, as well as a statement from depositories
showing current balances. Some counties may require you to file the original
canceled checks.
13. Copies of the accountings, at a minimum, must be provided to the protected
person, the protected person’s spouse, parents of a minor under age 14, any
guardian appointed for the protected person or personal representative of the
estate, and other persons either requesting notice through the court or directed to
be notified by the court.
14. Court approval must be obtained before payment can be made to you as
conservator, or to an attorney who is the attorney for you as conservator.
15. When the court is satisfied that the protected person’s disability no longer exists,
you must pay all claims and expenses of administration, and you must file a final
accounting with the court. You must then distribute all funds and properties to the
former minor or protected person as soon as possible.
16. Upon the death of the protected person, you must deliver to the court any Will of
the deceased that has come into your possession, inform the personal
representative or a beneficiary named in the Will that you have done so, and
preserve the conservatorship estate for delivery to the personal representative of
the deceased protected person.
I have provided this list of duties to the conservator.
Attorney for Conservator Date
I have read these duties and understand that I must fulfill these duties as conservator.
Conservator Date
Page 2 [17May07 Rev 10/05] PROFESSIONAL LIABILITY FUND (CONSERVATORSHIP DUTIES.DOC)

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF [COUNTY]
In the Matter of the Conservatorship of ) Case No. [Case Number]
)
[Name of Protected Person], ) ACKNOWLEDGMENT OF
) RESTRICTION OF ASSETS
A Protected Person. )
We acknowledge receipt of a copy of the Court Order signed on [date of order] that restricts
access to the assets of the above conservatorship and the assets described below. We will not allow any
withdrawal of principal or income from these assets or use of the assets as security of any obligation
without specific, prior order of the Court.
The assets on deposit with our financial institution that are subject to the restrictions ordered by
the Court are:
Account Number Value of Account Assets Type of Account Maturity
The name of the holder of the account shown on our records is:
We understand that the conservator may do the following without court order:
(1) transfer restricted assets to other accounts with us that are subject to the restrictions stated
above; and
(2) change the investments of assets, as long as all assets remain in an account with us subject
to the restrictions stated above.
We agree to abide by the restrictions set out in the court order. We understand that if assets are
removed from a restricted account without prior court order, this financial institution [shall] [may]* be
required to pay the value of those assets to the conservatorship.
DATED:
Name and Title
Name of Financial Institution
Address and Telephone Number
Note: This document must be signed by an officer
or person authorized to bind the institution.
*Insert appropriate language based upon what is required in your jurisdiction.
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9.055 SETTLEMENT OF PERSONAL INJURY OR WRONGFUL DEATH CLAIMS: REQUIREMENTS WHEN
MINOR CHILD OR INCAPACITATED PERSON APPEARS BY GUARDIAN AD LITEM
(1) Except as permitted by ORS 126.725 for a minor child, a petition for approval of a settlement of a personal injury
or wrongful death claim on behalf of a minor child, incapacitated person or decedent shall be accompanied by an affidavit
which sets forth the following:
(a) A description of the incident causing the injury or death;
(b) A description of the injuries;
(c) The amount of the prayer and settlement. (If a structured settlement is requested, the present value of the
future payments should be indicated);
(d) The amount of the attorney fees and costs;
(e) The proposed disposition of the settlement proceeds;
(f) A concise statement explaining the reasons for the settlement and the efforts to maximize recovery;
(g) A statement explaining that the attorney has independently evaluated the interests of the injured party;
(h) A statement explaining that the attorney has examined every medical record; and
(i) A statement explaining why it is necessary and proper to settle the case at the present time.
(2) If a civil action has been filed in this circuit court on behalf of a minor child, incapacitated person or decedent for
the loss, injury or death which is the basis of the proposed settlement, the original petition and affidavit must be filed in
the civil action. A copy of the petition with a form of proposed order for approval of the settlement shall be delivered to
the Probate Section to be forwarded to the probate judge for action.
(3) A conservatorship on behalf of the minor child or incapacitated person generally will be required for any case
where personal injury or wrongful death settlement proceeds are at issue.
(a) Bond and standard annual accounting requirements may be waived if the funds are restricted until the
minor attains the age of majority. In lieu of such accountings the court will require copies of the first and last bank
statements for each standard accounting period to be filed with the court.
(b) Restricted accounts on behalf of a minor child or incapacitated person must be confirmed by a signed
acknowledgment from the bank or brokerage firm which discloses the account number, type and account balance
as required by UTCR 9.050 and 9.080. Exceptions for diminutive amounts may be requested.
(c) Approval of damage settlement amounts for the benefit of a minor child or incapacitated person appearing
by a guardian ad litem in a lawsuit, except those cases assigned for trial to a trial department, are a basic
responsibility of the Probate Court. The allocation of funds and the structuring of such funds is likewise the
Court’s responsibility. Minors and incapacitated persons should be provided with independent counsel for such
issues and most commonly when a minor’s funds are proposed to be withheld from them after age18.
(4) A fiduciary appointed by the Probate Court is required to comply with paragraph (1) of this rule and must file a
motion for an order approving a settlement of a personal injury or wrongful death claim on behalf of a protected person.
The motion must be supported by an affidavit setting out the required information.

ESTATE PLANNING AND
ADMINISTRATION;
GUARDIANSHIPS AND
CONSERVATORSHIPS
CHAPTER 9
Heather L. Guthrie
Dunn Carney Allen Higgins & Tongue LLP

Chapter 9
E S T A T E P L A N N I N G & A D M I N I S T R A T I O N
G U A R D I A N S H I P S & C O N S E R V A T O R S H I P S
T A B L E O F C ON T E N T S
INTRODUCTION ....................................................................................................................... 9-1
I. WHAT IS THE SUBSTANCE OF THIS PRACTICE AREA? ...................................... 9-1
A. Estate Planning..................................................................................................... 9-1
B. Administration. .................................................................................................... 9-4
C. Guardianships.and Conservatorships ................................................................... 9-6
D. Resources ............................................................................................................. 9-7
II. WHAT IS AN AVERAGE DAY LIKE IN THIS PRACTICE AREA?. ........................ 9-7
III. WHAT ARE THE PROS AND CONS OF THIS PRACTICE AREA?. ........................ 9-7
A. Pace of Practice . .................................................................................................. 9-7
B. Litigation. ............................................................................................................. 9-7
C. Profitabililty. ........................................................................................................ 9-8
D. Working Independently ....................................................................................... 9-8
E. Personality Characteristics. .................................................................................. 9-8
IV. CONCLUSION. ............................................................................................................... 9-8
V. POWERPOINT SLIDES. ................................................................................................ 9-9
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
Additional Resources
An Overview of Probate Administration by Judge Rita Batz Cobb
Capacity Issues in Representing Clients, Oregon Estate Planning and
Administration Section Newsletter, April 2010

Estate Planning and Administration; Guardianships and Conservatorships
DCAPDX_836836_v1
INTRODUCTION
The estate planning and administration area, including guardianships and
conservatorships, is an ideal choice for a practitioner who wants to be challenged
intellectually, have minimal contentious negotiations, and experience a sense of service to
and interpersonal connection with individuals and families.
I. WHAT IS THE SUBSTANCE OF THIS PRACTICE AREA?
This practice area includes establishing wills and trusts, powers of attorney and advance
health care directives for clients, as well as guardianships and conservatorships for
individuals who are unable to manage their health care, residential decisions and/or financial
matters due to incapacity. Some practitioners in this area also handle litigation matters and
negotiate prenuptial agreements; some even cross into pure domestic relations work,
handling divorces and custody disputes. Others, like me, blend a general business practice
with their estate planning practice, which works nicely when your firm clientele includes
many small business owners. Estate planning attorneys regularly become generalists, to some
extent, because our clients face so many issues – as employees, as business owners, as real
property owners, as landlords, as parents, and so on. If you want to practice in this area and
do not want to be a generalist, you will quickly learn that having a referral list for trusted
attorneys who provide services that are complementary to your own gives you a value-added
service you can provide to your clients.
A. Components of an estate planning practice. Estate planning is more of a
process than a product. Executing a will, for example, is just one piece of the
overall practice.
1. Developing a client base. This, of course, occurs over time. The practice
of law is truly a relationship-driven practice. As you develop relationships
in your community (with other lawyers in your firm and elsewhere, with
clients, with CPAs and financial planners, with brokers, fellow alumni,
and so forth) and those relationships are based on mutual respect, the work
will come through referrals. In this practice area, knowing your referral
sources and taking care of them is a very important key to success. It is
even more important to simply do good work: be responsive, respectful
and pragmatic in all of your dealings. The most valuable referrals you
receive will be those that begin with the following declaration: “I received
your name from my friend who worked with you on her estate planning.
She highly recommended you.”
2. Establishing the relationship.
a. Engagement letter.
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b. Joint representation memo.
c. First meeting(s). The most important thing to do in an initial
meeting with clients is to listen. Ask open-ended questions and
let the clients tell you their stories. By doing this, and listening
actively, you accomplish two things: first, you immediately
establish who the important people in the room are – this process
is all about the client. Second, you learn what is important to the
clients so that you can identify issues and build a plan that is the
right plan for them. Do not be surprised when even in multimillion
dollar estates the clients are more interested in talking
about their children’s special challenges with money – or other
issues – than about reducing their overall estate tax risk. Your
job is to deal with both of these issues, but pay attention to what
matters most to the client. By letting your client know that you
are listening to what they have to say and problem-solving
around their concerns, you establish credibility and trust. Often, I
have just one initial meeting with clients and in the next meeting
we sign documents, working through drafts by telephone and
email. However, some clients have such complicated plans that it
can take more than a year and many meetings before a plan is
finalized.
3. Evaluating challenges and strategies for the particular client. The
unique challenges of a client may be myriad. While listening to your
client’s story, you will need to identify issues which may include any or
many of the following:
a. Blended family issues. Second marriages and children from
previous marriages or relationships. Support obligations to
previous family.
b. Special needs of children or grandchildren.
c. Anticipated inheritances.
d. Non-traditional families. Unmarried and/or gay and lesbian
clients.
e. Taxable gift issues. Did the clients make a substantial gift
recently to help a child buy a first home? Did they give beyond
the gift tax exemption threshold?
f. Real estate in multiple states or out of the country.
g. Children in troubled marriages.
h. Charitable inclinations and goals.
i. Beloved pets. To whom should these pets go? Is a pet trust
wanted or warranted?
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j. Care of parents of the clients. Many children support their
parents in some way. How should that care continue after your
client dies if the parents survive?
k. Health issues of the client.
l. Rental property issues. If the clients own rental property, do they
own it outright or in an entity? Who manages the property? Do
they have adequate insurance? Is entity ownership advisable?
m. Death tax exposure at the state and/or federal level.
n. Selecting fiduciaries. Who will care for minor children? Who
will manage money for the beneficiaries? Who will make healthcare
decisions for the client in the event of incapacity?
o. Business ownership and transition planning.
4. Drafting documents. Every estate plan should consist of the following
documents at a minimum:
a. Will. This document establishes how property (that is owned by
the client in his/her own name and which will not pass by
beneficiary designation) will pass at the client’s death. The
document must be carefully drafted and properly executed. (two
witnesses)
b. Power of Attorney. Preparing for incapacity with a power of
attorney is a critical part of this process. If the client has a stroke,
for example, the Will does nothing – it speaks only at death –
and absent a power of attorney (or trust – see below), it may be
necessary to commence conservatorship proceedings to manage
assets.
c. Advance Directive. An important part of this process is to discuss
with your clients whether or not they would like to execute an
advance directive giving decision-making authority related to
end-of-life circumstances and giving advance direction about the
client’s wishes regarding tube feeding and life support.
Many estate plans will also include trusts of one sort or another, whether
revocable living trusts (as a privacy and probate-avoidance vehicle, and an
alternate mechanism for managing assets in the event of incapacity) or
irrevocable trusts as part of a death-tax minimization plan. (ILIT)
5. Executing documents and following-up on executing the plan.
a. Execution and Safe-keeping of Documents. Overseeing the
proper execution of and providing guidance about safe-keeping
of estate planning documents is also part of the process.
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b. Beneficiary designations. Providing the client with beneficiary
designations that are tailored to dovetail with the client’s plan
and advising the client about updating their beneficiary
designations is essential.
c. “Funding” a Trust. If the client has entered into a trust
agreement, transferring assets to the trust – so-called “funding”
of the trust – is essential. You should provide instructions to the
client that explain exactly what needs to be done: how should the
new accounts be titled? How can they change title to their cars?
What about time-share interests? Specific instructions for each
type of asset should be provided. Prepare deeds where
appropriate. Advise clients to obtain lender consents, where
applicable. Provide alternative recommendations for POD
designations. Explain.
6. Staying in touch with the client.
The key to staying in touch with clients is maintaining a good database of client
information that allows you to search for, for example, all clients with taxplanning
documents so that when a change in the tax laws occurs, you are able to
readily sort through your clients to determine who should receive a letter from
you regarding the change and any updates that the client should consider. Many
clients will execute their plan and you will not hear from them again for years.
Other clients have plans of such complexity that the process involves several
phases (establishing the basic plan; enhancing that plan with irrevocable trust(s)
and the like) and demands regular maintenance. Some clients will become friends
with whom you have regular contact.
B. Administration. Administering trusts and estates is all about putting the plan into
action after death.
1. Probating a Will. The process of probating a Will involves the following
basic steps:
a. Preparing a petition asking the court to admit the Will to probate
and appoint the person designated in that Will as personal
representative.
b. Sending notice of the probate to heirs and devisees.
c. Publishing notice of the probate and appointment to commence
the period during which creditors may bring claims against the
decedent’s estate. Giving 30-day bar letters to known creditors.
d. Preparing and filing an inventory of assets that are probate assets
(assets not passing by beneficiary designation or by
survivorship).
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e. Preparing and filing an affidavit of compliance with respect to
certain duties of the personal representative.
f. Reporting to the court all acts of the personal representative,
including accounting for all income and expenditures, and asking
the court to approve distribution of assets.
g. Confirming the filing of fiduciary income tax returns (with the
taxing authorities, not the court, but an important step
nevertheless).
h. Distributing assets in accordance with the Will, obtaining and
filing receipts for distributions, discharging the personal
representative and closing the estate.
If the decedent died without a Will, the same basic steps are followed
except that: (1) assets pass to the decedent’s heirs by the laws of
intestacy; (2) the statute establishes an order of preference for
individuals who may serve as personal representative; and (3) bonding
of the personal representative may be required. Probate can take
anywhere from 6 months to several years, depending on a myriad of
complicating factors. Every estate is different, and the foregoing is
intended as a general outline to give you a sense of the basics. Probate is
a cooperative process between attorney and client; paralegals can be
invaluable in this process to track deadlines, draft documents and
coordinate with the client while keeping fees as low as possible.
2. Administering a Trust. Trust administration includes many of the same
basic steps as probating a Will (e.g., determining who the beneficiaries
are, determining what the assets are and taking control of them, filing
necessary tax returns (income and estate), reporting to the beneficiaries,
and so forth), but without court oversight. Instead of working from the
Will and the statutes, trust administration is controlled by the terms of the
trust agreement itself; it is fundamentally a matter of contract. If a trust
agreement calls for outright distribution, trust administration can be quite
brief. If it calls for assets to continue in trust, it may continue for many
years. You should become familiar with the provisions of the Oregon
Uniform Trust Code in order to comply with reporting requirements that
are imposed by statute, some of which can be waived by the terms of the
trust agreement but some of which can not. See ORS Chapter 130.
3. Inheritance and Estate Tax Returns. These ‘death tax returns’ can be
required whether you are administering a probate or a trust. Whether they
are required depends on the fair market value of the decedent’s assets on
the date of death rather than on the estate planning vehicle used. Some
CPAs will prepare these returns; however, in most cases the attorney is
better positioned to prepare them because so much of how assets are
valued and reported for death tax purposes is driven by an estate plan
developed by the attorney.
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4. Administering Based on Estate Planning Documents Prepared by
Another Attorney. Keep in mind that not every administration will be an
administration of documents you prepared; quite often, you will never
have seen the documents before. Your job is to figure out what was
intended based on the words of the document. Keep this in mind when you
are drafting, too. Someone else may be administering your documents
twenty years from now, so draft clearly and carefully.
C. Guardianships and Conservatorships.
1. Guardianships. Establishing a guardianship is necessary when an
individual is unable to make health-care or residential decisions for
him/herself. Typically, the need arises when an elderly person with some
mental disability becomes combative and unwilling to go along with a
caregiver’s plan. Guardianships may also be necessary in the case of a
minor whose natural parent is deceased or otherwise unable to care for the
child. Note the following standard that must be met in order to establish a
guardianship: “A guardian may be appointed for an adult person only as is
necessary to promote and protect the well-being of the protected person. A
guardianship for an adult person must be designed to encourage the
development of maximum self-reliance and independence of the protected
person and may be ordered only to the extent necessitated by the person’s
actual mental and physical limitations.” ORS 125.300. See ORS 127.505-
660 regarding Advance Directives for health care. See ORS 127.700-737
regarding Declarations for Mental Health Treatment.
2. Conservatorships. Establishing a conservatorship is necessary when an
individual is unable to make financial decisions in his/her own best
interests. Typically, the need arises when an elderly person begins
mismanaging money or in the event of a stroke or similarly debilitating
condition that limits the person’s ability to handle his or her own financial
affairs. A conservatorship may also be necessary in the case of a minor
who is entitled to receive funds but as a matter of law is deemed to not
have capacity to manage those funds. Note the following standard that
must be met in order to establish a conservatorship: “Upon the filing of a
petition seeking the appointment of a conservator, the court may appoint a
conservator and make other appropriate protective orders if the court finds
by clear and convincing evidence that the respondent is a minor or
financially incapable, and that the respondent has money or property that
requires management or protection.” ORS 125.400.
3. Generally. The tests relating to and the process of establishing
guardianships and conservatorships are set forth in ORS Chapter 125.
Often, a debilitating condition makes it necessary to establish both a
guardianship and a conservatorship at the same time, though the need for a
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conservatorship can generally be avoided if the individual has an adequate
Power of Attorney in place. Guardianship and conservatorship practice is
generally a fairly small part of most estate planning and administration
practices because in many cases, if a plan is in place that includes
incapacity planning – as any such plan should – a guardianship or
conservatorship can often be avoided. With respect to conservatorships for
minors, there are mechanisms for avoiding a conservatorship altogether in
certain circumstances, such as where the dollar amount is relatively small
or where the conservatorship is thought to be needed solely to settle a
claim. See ORS 126.700 and ORS 126.725.
D. Resources. The following are some helpful resources for this practice area:
1. Administering Oregon Estates. Oregon Bar Association Continuing Legal
Education publication, updated periodically.
2. Administering Trusts in Oregon. Oregon Bar Association Continuing
Legal Education publication, updated periodically.
3. Elder Law. Oregon Bar Association Continuing Legal Education
publication, updated periodically.
4. Guardianships, Conservatorships and Transfers to Minors. Oregon Bar
Association Continuing Legal Education publication.
5. Oregon Revised Statutes chapters 111 through 130.
6. Will and Trust Forms, published by US Bank National Association.
7. The list-serve of the Estate Planning and Administration section of the
Oregon State Bar, as well as periodic publications by this group, which in
many cases are available on-line.
8. OSB site generally for form letters, conflicts waivers, etc.
II. AN AVERAGE DAY IN MY PRACTICE
III. PROS AND CONS OF THIS PRACTICE AREA
A. Pace of practice – the prospect of balance. One of the reasons I have chosen to
practice in this area is that for the most part I can control the pace. Whereas the
pace of many practice areas is purely client driven (such as in the business
transaction environment), the estate planning area is usually a fairly calm and
controlled process that allows me to maintain some balance between my personal
and professional life. Exceptions include client illness and client travel plans,
among other things. On the administration side of practice, there are statutory
deadlines that drive much of the practice.
B. Litigation – knowing your limits. Fortunately, I practice in a firm where I have
litigators who are available to handle contentious matters that are headed for
court. However, many estate planning and administration attorneys handle
litigation as part of their practice.
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C. Profitability – the small matter challenge. Keeping the estate planning and
administration balance in your practice is important because while the estate
planning side often consists of small matters that generate minimal fees relative to
the administrative tasks involved (opening the file, running conflicts, overseeing
or doing the work in a cost-effective fashion), the administration side generally
involves much more time and generates more significant fees. This is a business
reality that practitioners deal with in different ways, but doing both sides of the
practice – planning and administration – also makes you a better resource for your
clients and helps you develop a better skill set because you know how the plan
you drafted works out in practice.
D. Working independently. Many who practice in this area work very independently.
If you are conscientious and detail-oriented, this can be a plus – no one is looking
over your shoulder. On the other hand, not having a second set of eyes reviewing
your work and not having a second brain to help you think through difficult
concepts means you must be meticulous in your drafting and in your
communications with your client.
E. Personality characteristics of a good estate planning and administration
practitioner. The following is a list of personality characteristics that are
important to have in order to succeed and enjoy practicing in this area:
1. A good listener
2. Compassionate
3. Detail-oriented
4. Practical
5. Patient
6. Must enjoy working with elderly people
IV. CONCLUSION. Practicing in this area can be tremendously rewarding, both
personally and professionally, but it is not for everyone. If you crave the challenge of
the courtroom or if you thrive on the adrenaline of fast-paced transactional work,
working solely in this practice area is probably not for you. On the other hand, if you
are looking for a practice that offers a sense of service to individuals, a richness of
intellectual challenge, and a relatively controlled pace, you should consider pursuing
the estate planning and administration area.
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Estate Planning, Administration, Guardianships
and Conservatorships
Heather L. Guthrie
Dunn Carney Allen Higgins & Tongue LLP
November 2, 2011
Developing a book of business and
keeping clients (happy).
� Developing a client base: relationship, relationship,
relationship
� Establishing the client relationship: your first
meeting(s) g( )
� Evaluating challenges and strategies for the
particular client
Drafting Documents: The Essentials
� Will
� Power of attorney
� Advance directive for health care
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Overview
� Estate planning
� Probate and trust administration
� Guardianships and conservatorships
Evaluating challenges and strategies:
issue spotting
� Blended family issues.
� Special needs of children or grandchildren.
� Anticipated inheritances.
� Non-traditional families.
� Taxable gift issues.
� Real estate in multiple states or out of the country.
� Children in troubled marriages.
� Charitable inclinations and goals.
� Beloved pets.
� Care of parents of the clients.
� Health issues of the client.
� Rental property issues.
� Death tax exposure at the state and/or federal level.
� Selecting fiduciaries.
� Business ownership and transition planning.
Executing Documents and Follow-Up
� Execution ceremony and document safekeeping
� Beneficiary designations
� “Funding” trusts
� St Staying i i in ttouch h

Post Mortem Administration
� Wills – probate
� Trusts – post-mortem trust administration
� Inheritance/estate tax returns
� SSurvivorship i hi and d beneficiary b fi i designations d i ti
� Administering based on documents prepared by
other attorneys
The realities of Estate Planning
“In this world nothing can be said to be certain, except death and taxes.“
Benjamin Franklin 1789
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Guardianships and Conservatorships
� What they are
� How to avoid them
� Process and follow-up
The pros and cons of this practice area:
� Pace of practice and prospect of balance/control
� Litigation
� Profitability: the small matter challenge
� WWorking ki iindependently: d d tl details, d t il ddetails, t il ddetails t il
� Who is happy doing this kind of work?

CHAPTER 9
E S T A T E P L A N N I N G & A D M I N I S T R A T I O N
G U A R D I A N S H I P S & C O N S E R V A T O R S H I P S
Resources
An Overview of Probate Administration by Judge Rita Batz Cobb
Capacity Issues in Representing Clients, Oregon Estate Planning and
Administration Section Newsletter, April 2010

References in Judge Batz Cobb's materials to "affidavits" required in various
pleadings in the probate process should be updated to reflect that the previous
requirement that such pleadings be "verified" and presented in the form of an affidavit
- (i.e., notarized) - now must be presented as statements made under penalty of
perjury as specified by ORCP Rule 1E. See 2007 OR H 2362, enacted; ORS 111.205
(2008); and Oregon Uniform Trial Court Rule 2.120 (2008).

An Overview of Probate Administration
CHAPTER 9
Probate, Guardianships, and Conservatorships
TABLE OF CONTENTS
I. Introduction...................................................................................................................... 9-9
II. Estate Administration....................................................................................................... 9-9
A. Initiating an Estate ............................................................................................... 9-9
B. Bonding Requirements....................................................................................... 9-10
C. Information to Heirs and Devisees .................................................................... 9-11
D. Publication of Notice to Interested Persons....................................................... 9-11
E. Inventory............................................................................................................ 9-11
F. Affidavit of Compliance .................................................................................... 9-11
G. Annual Accountings and Final Accounting....................................................... 9-11
H. Affidavit of Attorney Fees................................................................................. 9-12
I. Order Approving Final Account and Decree of Final Distribution ................... 9-12
J. Receipts and Closing the Estate......................................................................... 9-13
III. Conservatorship ............................................................................................................. 9-13
A. Initial Considerations......................................................................................... 9-13
B. Petition for Appointment of Conservator .......................................................... 9-13
C. Bonding Requirements....................................................................................... 9-13
D. Inventory............................................................................................................ 9-14
E. Annual Accounting ............................................................................................ 9-14
F. Attorney Fees..................................................................................................... 9-15
IV. Guardianship.................................................................................................................. 9-15
A. Guardianship of Incapacitated Adults................................................................ 9-15
B. Temporary Fiduciary ......................................................................................... 9-16
Appendix:
Acknowledgment of Restriction of Assets ................................................................................ 9-17
Uniform Trial Court Rules Accounting Form (Appendix Page 26-30)..................................... 9-18
Duties of a Conservator, August 2003, In Brief ........................................................................ 9-26
Fiduciary Resources, August 2003, In Brief ............................................................................. 9-27
PLF Coverage, Bond Guarantees, and Joint Control Agreements, August 2003, In Brief....... 9-28
To Bond or Not to Bond, August 2003, In Brief ........................................................................ 9-29

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Capacity Issues in Representing Clients
By Mark M. Williams, Gaydos Churnside & Balthrop
Introduction
Pornography and legal capacity have two things in common: (1) they are difficult terms
to define, and (2) we tend to rely on the standard of “we know it when we see it” in
making case-by-case determinations, as Justice Potter Stewart famously framed the issue
of defining pornography in Jacobellis v. Ohio, 378 US 184, 197 (1964).
To establish an attorney-client relationship with an adult, a client’s legal competency to
make and articulate decisions is a threshold question. The attorney should understand the
standards for the capacity required to perform legal acts and what steps can be taken to
maximize a client’s decision-making ability. An understanding of the legal requirements
for capacity is crucial for an attorney to effectively represent clients who may have
diminished capacity. Finally, the ethical obligations of the attorney vary widely with the
ability of the client to evaluate the attorney’s advice and give the attorney direction.
Estate planning lawyers are routinely called upon to determine the capacity of clients.
Do they have the ability to articulate their wishes? Are they able to enter into a contract
of employment? Do they need a surrogate decision-maker? What fiduciary standard will
be applied in making decisions for the client? What standard applies to the particular
legal question at hand? How is legal capacity determined?
Few of us have formal training in capacity assessment, but we have some excellent
guides available to us. The Oregon State Bar has published The Ethical Oregon Lawyer
with an entire chapter (18) entitled “Representing Clients with Diminished Capacity and
Disability” by Michael Levelle. It provides a summary of a “sliding scale” of capacity
appropriate to different situations. The American Bar Association in conjunction with
the American Psychological Association (ABA/APA) has also published Assessment of
Older Adults with Diminished Capacity: A Handbook for Lawyers. Both of these
publications are available online at no charge to Oregon attorneys.
The ABA/APA publication includes a helpful chapter, “Capacity Worksheet for
Lawyers,” which includes observational signs from cognitive functioning (memory,
language, calculation skills, disorientation) and emotional functioning (distress, liability)
to behavioral functioning (delusions, hallucinations, hygiene). Then we are asked to
record mitigating factors and consider the varying standard of legal capacity. The form is
a useful tool in assisting a lawyer with marshalling the information that supports a
conclusion regarding capacity. It is not a mental status exam, which is the province of
highly trained professionals, and it is not a substitute for the diagnosis or opinion of
medical or psycho-social professionals.
Consider three different, but typical, scenarios from my practice: (1) estate planning for a
client with bickering devisees; (2) filing a guardianship/conservatorship petition against
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an alleged incapacitated person; and (3) filing a guardianship/conservatorship petition
against a client whose capacity has deteriorated since my initial representation and legal
services.
Estate Planning for a Client with Bickering Devisees
Early in my career I had a terminally ill woman referred to me for estate planning by her
son. It turned out that the son was alcoholic and dependent fiscally and psychologically
on his mother. It also turned out that he had a sister who was fiercely independent and
highly suspicious of anything her mother did to benefit her brother. Mother wanted me to
prepare a will for her. We established at the outset that mother was my only client, but
her son brought her to the initial appointment and it was apparent that her estate plan was
to be skewed to his substantial benefit. Mother’s terminal illness had her on hospice care,
and there were significant issues about her mental health. Did mother have the capacity to
enter into a retainer agreement with me? Was she being unduly influenced by her son to
articulate the choices she made in defining her estate plan? Did she have testamentary
capacity to sign the documents I prepared for her? All of these questions require answers.
After meeting with her, I felt confident that she had the capacity to engage me and direct
me, but what was that confidence based upon? I met with her several times, and she had a
lively personality, she was oriented to time and place, she understood the gravity of her
health conditions, she knew that her time on this Earth was limited, she was able to
articulate reasons for her decisions about who should be in charge of her affairs and how
her assets should be divided, and she was consistent in her analysis and determinations.
Over the course of the relationship I came to be acquainted with her personality and her
biases. I also got to meet both the son and the daughter and had various interactions with
them, which were consonant with her descriptions of them. She certainly knew the
natural objects of her bounty and was familiar with the nature and extent of her assets, so
I determined that I was willing to sign her will as a witness to her testamentary capacity.
But I am a lawyer, and I also had concerns about the impending will contest that seemed
likely to follow, so I wanted to have some back-up. I called in a gero-psychiatric
specialist to administer a formal mental status exam and had my client release those test
results to me for future use in defending her capacity. I also had the specialist sign as the
second witness to attest to her capacity. No will contest was ever filed.
Was this necessary, prudent, or even advisable under the circumstances? Soon after going
through this process, I heard noted will contest attorney Jim Cartwright speak at a CLE
program and ask the rhetorical question: If you sought a professional evaluation for this
client, but did not do it for every client, isn’t that evidence that you doubted your client’s
capacity? It was a statement that struck me dumb. Since most clients would not begin to
consider the added cost and inconvenience of a mental status test, requiring every client
to get one is infeasible. I have relied on my own determination of testamentary capacity
ever since, relying on my ever-increasing years of experience to buttress my ability to
make that determination. I consider a number of factors from my observation of the
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client’s cognitive, emotional, and behavioral functioning, but in the final analysis, it
comes back to the pornography standard: I know it when I see it.
Filing a Petition for Guardianship/Conservatorship Against an Incapacitated
Person
I think of guardianship and conservatorship as solutions to assist someone with medical
and financial decision-making. Of course, there are limits. ORS Chapter 125 provides
that the court may only impose this solution if is it the least restrictive alternative
available to accomplish the purpose of keeping a person or his or her money safe from his
or her own inability to make appropriate decisions. How do lawyers get sufficient
information to make this determination and get a court to sign a limited judgment
appointing another person to serve as a decision-maker?
Remember that reasonable investigation is required. When a client suggests a need for a
guardianship for another person, the attorney for the petitioner must establish that (1) the
need exists (and the court will likely recognize that need), and (2) the proposed guardian
is appropriate for the role. This is usually done based on information provided by the
petitioner and without contact with the proposed protected person. The attorney is
required to make a reasonable investigation before filing a petition and must believe the
petition is well founded in law and fact. ORCP 17; Whitaker v. Bank of Newport, 101 Or
App 327, 333, 795 P2d 1170 (1990), aff’d, 313 Or 450 (1992).
The need exists when the proposed protected person is “incapacitated,” that is, suffering
from an impairment that affects the person’s ability to receive and evaluate information
or to communicate decisions to such an extent that the person presently lacks the capacity
to meet the essential requirement for physical health or safety. “Meeting the essential
requirements for physical health or safety means those actions necessary to provide the
health care, food , shelter, clothing, personal hygiene and other care without which
serious physical injury or illness is likely to occur.” ORS 125.005(5).
ORS 125.400 provides that “upon the filing of a petition seeking the appointment of a
conservator, the court may appoint a conservator and make other appropriate protective
orders if the court finds by clear and convincing evidence that the respondent is a minor
or financially incapable, and that the respondent has money or property that requires
management or protection.” “Financially incapable” means a condition in which a person
is unable to manage his or her financial resources effectively for reasons including, but
not limited to, mental illness, mental deficiency, physical illness or disability, chronic use
of drugs or controlled substances, chronic intoxication, confinement, detention by a
foreign power, or disappearance. ORS 125.005(3). These requirements bootstrap from
one to the other to the logical and legal conclusion of the need for appointment of a
conservator.
To get an order from the court, it is simplest if medical evidence is offered. A letter from
the treating or primary care physician of the proposed protected person stating that there
is a medical condition warranting the imposition of the guardianship or conservatorship
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may be obtained under some circumstances but not in others. A particular diagnosis, for
example, that the person has Alzheimer’s disease, is not sufficient. See Shaefer v.
Schaefer, 183 Or App 513 (2002). The impairment must be shown. See In the Matter of
Baxter, 128 Or App 91 (1994) (holding that double amputee status did not equal financial
incapacity). Important information may be provided by social workers, caregivers, and
other persons with the ability to observe the functioning of the proposed protected person.
Depending on the credentials of these individuals (RN, LCSW, MSW, PhD), their
evidence may be sufficient to support a petition. Sometimes the lawyer may need to rely
solely on the observations of friends and neighbors. In such a case, an opportunity to
observe and the length and nature of the relationship are important factors to describe in
the petition.
The lawyer must always consider lesser measures than a full-blown
guardianship/conservatorship to achieve the purpose of protection. See ORS
125.150(7)(c). Intervention and support from a local area agency on aging may be
adequate to meet the needs of the proposed protected person. A power of attorney, an
advance directive for health care, and a living trust may exist or be creatable. The lawyer
should make certain these avenues have been explored. If they have, they may provide
additional evidence to support the petition.
Filing a Petition for Guardianship/Conservatorship Against an Incapacitated Client
What happens when a person who apparently needs a guardian or conservator is your
own client whose capacity has deteriorated over time since your last contact? Oregon
Rule of Professional Conduct 1.14 provides some guidance, exhorting the maintenance of
a “normal client-lawyer relationship” “as far as reasonably possible” when the client is
incapacitated and the taking of reasonable action to protect the client as deemed
necessary by the attorney.
There is no Oregon case law interpreting the current ethical rule. The Oregon State Bar
has given us Formal Ethics Opinion 2005-41, which does little more than recite the above
rule when asked what duties a lawyer has when a current/former client begins to
demonstrate a lack of capacity that is damaging. The American Bar Association has given
us ABA Formal Ethics Opinion 96-404. The ABA analysis is this: Attorneys should not
bring an action against a client to seek the initial appointment of a fiduciary in a
protective proceeding, but may do so if the determination that it is necessary and
reasonable has been made by the attorney. And once a court has made a determination
that the client is incapacitated, the lawyer may represent the fiduciary appointed by the
court to protect the client.
A lawyer may refer the matter to another appropriate party and continue to represent the
client in the ensuing protective proceeding. The altruistic view of this posture is that it
allows the attorney to ensure that the proceeding is fair and the client has every
opportunity to avoid the imposition of authority against him or her, but it allows the
attorney with a long-term relationship with the client to remain in the role of advisor and
protector of the client, while advocating for the long-time judgments of the client.
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Continuing to represent a client deemed by the attorney to be incapacitated raises its own
issues. How does the attorney take direction from the incapacitated client? What position
does the attorney take if the client changes long-held views regarding estate disposition,
fiduciary preferences, or other matters expressed when the client’s capacity was not in
question?
Conclusion
Incapacity can be devastating to a client. Recognizing incapacity may be as simple as
knowing it when you see it, but making the appropriate determination of how to proceed
as an attorney once the incapacity is recognized requires a sophisticated analysis of the
psycho-social, legal, and ethical components of appropriate representation of a client.
This article was originally published in the Oregon Estate Planning and Administration
Section Newsletter, Vol. 27, No. 2, April 2010. This article is posted with permission.
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CIVIL MOTION PRACTICE
Lindsey H. Hughes
Keating Jones Hughes PC
CHAPTER 10

Chapter 10
CIVIL MOTION PRACTICE
TABLE OF CONTENTS
Page #
I. INTRODUCTION TO CIVIL MOTIONS
A. Filing the Motion ......................................................................... 10-1
B. Filing Fees ................................................................................... 10-2
C. Multnomah County Civil Motion Panel Statement or Consensus .. 10-2
D. Obtain an Order ........................................................................... 10-2
II. CHANGE OF VENUE
A. Motions Based on Improper Venue ............................................... 10-3
B. Motions based on Inconvenience of Prejudice ............................... 10-3
III. MOTIONS FOR DEFAULT .................................................................. 10-4
IV. MOTIONS ON THE PLEADING – ORCP 21
A. Motions to dismiss – ORCP 21 A ................................................. 10-4
B. Pleading Motions ......................................................................... 10-6
C. Motion for Judgment on the Pleadings .......................................... 10-6
D. Considerations for Filing Rule 21 Motions .................................... 10-6
E. Practice Tips for ORCP 21 Motions .............................................. 10-7
V. MOTIONS TO AMEND AND RELATION BACK UNDER ORCP 23 C
A. Court Has Discretion to Allow Amendment, ORCP 23 A ............. 10-8
B. Relation Back Under ORCP 23 C ................................................. 10-8
C. Amendments to Conform to the Evidence .................................. 10-10
VI. POTENTIAL FOR REFILING UNDER ORS 12.220 WHEN DISMISSAL
IS BASED ON PROCEDURAL DEFECTS ......................................... 10-10
VII. DISCOVERY MOTIONS
A. Motions to Compel – ORCP 46 .................................................. 10-11
B. Parties are Required to Confer .................................................... 10-11
C. Motions for Protective Orders – ORCP 36 C ............................... 10-11
D. eDiscovery: The Rules Have Expanded ...................................... 10-11
1. Oregon ESI Rules (Effective January 1, 2012) .................. 10-11
2. eDiscovery: Applying the Rules ....................................... 10-11
3. eDiscovery: Following the Rules ...................................... 10-12
4. eDiscovery: Sanctions for Spoilation ................................ 10-13
5. eDiscovery: Metadata, ..................................................... 10-13
6. Metadata and eDiscovery ................................................ 10-13

E. Motions for Discovery Sanctions – ORCP 46 B ........................... 10-14
VIII. SUMMARY JUDGMENT MOTIONS
A. ORCP 47 ................................................................................... 10-14
B. Summary Judgment Motions to Resolve All or Portions of a Case10-14
C. Considerations for Moving for Summary Judgment .................... 10-15
D. Responses to Summary Judgment Motions ................................. 10-15
E. Affidavits and Declarations ........................................................ 10-16
1. Supporting Affidavits or Declarations .............................. 10-16
2. Striking Inadmissible Information and Statements ............ 10-17
F. Expert Affidavits ........................................................................ 10-18
IX. MOTIONS TO DISMISS PURSUANT TO ORCP 54
A. Voluntary Dismissal ................................................................... 10-18
B. Dismissal by Court Order ........................................................... 10-19
X. PRETRIAL MOTIONS
A. Motions in Limine ..................................................................... 10-19
B. OEC 104 Hearings ..................................................................... 10-19
XI. TRIAL MOTIONS
A. Evidentiary Rulings .................................................................... 10-20
B. Motions Based on Misconduct .................................................... 10-20
C. Motions Challenging Sufficiency of the Evidence – Motions to
Dismiss and for Directed Verdict – ORCP 54 and 60 ................... 10-21
XII. POST TRIAL MOTIONS
A. Motions for Judgment N.O.V. – ORCP 63 .................................. 10-21
1. Prerequisite to judgment n.o.v., ORCP 63 A .................... 10-22
2. The “any evidence” standard ........................................... 10-22
3. Alternative motion for new trial, ORCP 63 C ................... 10-22
4. Procedure, ORCP 63 D ................................................... 10-23
5. Possibility of new trial if judgment n.o.v. motion is granted,
ORCP 63 F ..................................................................... 10-23
B. Motions for New Trial – ORCP 64 ............................................. 10-23
1. Grounds for New Trial ORCP 64 .................................... 10-23
2. Procedure, ORCP 64 D and F .......................................... 10-24
C. Enforceability of Judgment Pending Determination Post Trial
Motions:…….. ........................................................................... 10-25
XIII. POWERPOINT SLIDES ...................................................................... 10-26

I. Introduction to Civil Motions
A. Filing the Motion
LEARNING THE ROPES
— CIVIL MOTION PRACTICE —
Wednesday, October 31, 2012
Lindsey H. Hughes
Keating Jones Hughes, P.C.
One Southwest Columbia, Suite 800
Portland, Oregon 97258
� Know the applicable rules and time computations. Oregon Rules of Civil
Procedure (ORCP), Uniform Trial Court Rules (UTCR) and Supplemental
Local Rules (SLR) for the county of filing. For timing, see ORCP 10 and
UTCR 1.130.
� The rules of statutory construction apply. See PGE v. Bureau of Labor and
Industries, 317 Or 606, 610, 859 P2d 1143 (1993) and its spawn, e.g.,
Pendergrass v. Fagen, 218 Or App 533, 537, 180 P3d 110 (2008)
(construing RTLA, court stated: “In brief, we attempt to ascertain, if
possible, the meaning of the statutes that the legislature most likely
intended, based on an examination of the text in context and, if
necessary, legislative history and other aids to construction.”); see also
State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (court will no
longer require an ambiguity as a necessary predicate to consideration of
legislative history; the parties are free to proffer it, and the court will give
it the weight it deems appropriate).
� Conferral is REQUIRED for motions under ORCP 21, 23, and 36-46.
UTCR 5.010. See Anderson v. State Farm Mutual Auto Ins. Co., 217 Or
App 592, 595-596, 177 P3d 31 (2008) (court held defendant’s violation of
conferral request in UTCR 5.010 compelled denial of its motion to dismiss;
futility in conferral was no excuse). Certificate must state the parties
conferred or contain facts showing good cause for not conferring.
Exception: ORCP 21 Motions to dismiss for failure to state a claim or for
lack of jurisdiction.
� The requirements for filing will vary from place to place. Check SLR’s for
the county of filing.
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� FILING means delivery to the clerk for filing; delivery to a judge or the
judge’s assistant is not considered “filing.” Averill v. Red Lion, 118 Or App
298, 846 P2d 1203, modified 120 Or App 232, rev den 317 Or 271 (1993).
Provide bench copies for judges, including pro tem judges.
� ORCP 10 and UTCR 1.130. The court need not consider untimely
arguments or responses. See Bailey v. State of Oregon, 219 Or App 286,
292-294, 182 P3d 318 (2008) (untimely response to motion to dismiss is
insufficient to preserve issues for appeal).
B. Filing Fees
Certain motions and responses require a filing fee. These include motions filed
pursuant to ORCP 21 to dismiss, make more definite and certain, strike and/or
quash; ORCP 46 motions to compel discovery; ORCP 47 motions for summary
judgment; ORCP 63 motions for JNOV or reconsideration; ORCP 64 motions for
new trial or reconsideration; and motions to reconsider rulings on these motions.
On October 1, 2011, new filing fees became effective. You must determine and
submit the correct fee amount or risk the document being rejected and returned.
The Oregon Judicial Department Website has information on fees, links to court’s
websites, and to access tables for calculating fees in multi-party cases.
http://courts.oregon.gov/OJD/docs/courts/circuit/Fee_Schedule_Public.pdf.
C. Multnomah County Civil Motion Panel Statement of Consensus
Multnomah County judges have compiled an explanation of rulings on a variety
of issues that arise in the civil cases that come before them. The Civil Motion
Panel Statement of Consensus is a good reference point for motions and
responses under consideration.
http://courts.oregon.gov/Multnomah/docs/CivilCourt/CivilMotionPanel_CivilMotion
PanelStatementOfConsensus.pdf
D. Obtain an Order
Unless signed in open court, an order is not considered effective until it is
entered. See Strawn v. Farmers Ins. Co., 350 Or 336, 367, 258 P3d 1199
(2011). Make sure to follow up with an order that preserves the ruling. When
appropriate, follow a dispositive order with a judgment or limited judgment: an
order remains subject to reconsideration and amendment until a judgment is
entered.
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II. Change of Venue
A. Motions Based on Improper Venue
Determine whether venue is proper. Challenges to proper venue must be filed
before filing a responsive pleading, or the venue is waived. ORS 14.110(1)(a).
Motions based on convenience may be filed at any time before trial.
In a wrongful death action based on negligence, the proper county for venue is
where the wrongful act or acts occurred, not where the decedent died. Howell v.
Willamette Urology, P.C., 344 Or 124, 178 P3d 220 (2008).
B. Motions Based on Inconvenience or Prejudice
ORS 14.110 provides:
“(1) The court or judge thereof may change the place of trial, on
the motion of either party to an action or suit, when it appears
from the affidavit of such party that the motion is not made for the
purpose of delay and:
“(a) That the action or suit has not been commenced in the
proper county;
“(b) That the judge is a party to, or directly interested in
the event of the action or suit, or connected by
consanguinity or affinity within the third degree, with the
adverse party or those for whom the adverse party
prosecutes or defends;
“(c) That the convenience of witnesses and the parties
would be promoted by such change; or
“(d) In an action, that the judge or the inhabitants of the
county are so prejudiced against the party making the
motion that the party cannot expect an impartial trial before
said judge or in the county, as the case may be.
“(2) When the moving party in an action is a nonresident of the
county, the above required under this section may be made by
anyone on behalf of the moving party.
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ORS 14.120 limits each party to one change of the place of trial, “except for
causes not in existence when the first change was allowed.”
Caution re preserving venue arguments for appeal: The Court of Appeals
has held: “ ‘the only way to challenge an allegedly erroneous non-discretionary
venue decision is by mandamus.’ ” Miller v. Pacific Trawlers, Inc., 204 Or App
585, 591-92, 131 P3d 821 (2006) (Court refused to consider arguments on direct
appeal regarding trial court’s refusal to change venue; held proper remedy was
to pursue a writ of mandamus from the Supreme Court, which had been denied).
III. Motions for Default
ORCP 69 sets forth the requirements for a motion for default for a defendant’s
non-appearance following service of summons and complaint.
The court may set aside an order of default for “good cause shown” upon motion
of the defaulted party. ORCP 69 C.
A party seeking to set aside a default judgment must bring a motion under
ORCP 71. A trial court’s decision under ORCP 71B to set aside an earlier
judgment is reviewed for abuse of discretion. See Johnson, P.C. v. Elmore, 221
Or App 166, 189 P3d 35 (2008).
IV. Motions on the Pleadings – ORCP 21
A. Motions to Dismiss – ORCP 21 A
Motions to dismiss are used to eliminate claims for relief or an entire action, or,
in response to a defendant’s answer, to eliminate affirmative defenses. ORCP 21
A specifies the grounds for dismissal:
� Lack of jurisdiction over the subject matter;
� Lack of jurisdiction over the person;
� There is another action pending between the same parties for the same
cause;
� Plaintiff does not have legal capacity to sue;
� Insufficiency of summons or process, or insufficiency of service;
� The party asserting the claim is not the real party in interest;
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� Failure to join a party under ORCP 29;
� Failure to state ultimate facts sufficient to constitute a claim; and
� The pleading shows that the action has not been commenced within the
time limited by statute.
Raise them or waive them
Certain defenses are waived if not raised by motion before pleading, or in a first
responsive pleading. See Horton v. Western Protector Ins. Co., 217 Or App 443,
449, 176 P3d 419 (2008) (SLAAP motion to strike must be made before
responsive pleading is filed).
� ORCP 21 G(1) – Lack of jurisdiction over the person, insufficiency of
summons or process; insufficiency of service, another action pending
between the same parties on the same cause. See Castro v. Ogburn, 140
Or App 122, 914 P2d 1 (1996). A defendant who properly raises
insufficiency of service as an affirmative defense does not waive later right
to seek dismissal on this basis.
� ORCP 21 G(2) – Plaintiff lacks capacity to sue, claimant is not real party in
interest, statute of limitations. See, e.g., Mountain Woodworkers, Inc. v.
Voss, 218 Or App 707, 717, 180 P3d 735 (2008).
Failure to state a claim – ORCP 21 A(8)
A motion to dismiss for failure to state a claim tests the legal sufficiency of the
allegations; all well-pleaded facts are assumed to be true and the court draws all
reasonable inferences in the non-moving party’s favor. Stewart v. Kids
Incorporated of Dallas, Or., 245 Or App 267, 269, ___ P3d ___ (2011); Bailey v.
Lewis Farm, Inc., 343 Or 276, 278, 171 P3d 336 (2007).
This motion may be raised at any time in the trial court, although motions to
dismiss are less favored at and after trial. See Korgan v. Walsleben, 127 Or App
625, 874 P2d 1334, modified on recons, 128 Or App 454 (1994) (noting that
when defense of failure to state a claim is raised for first time on appeal, court is
reluctant to base a decision on insufficiency of the pleadings when the defect
could have been cured by an amendment if raised in trial court).
An untimely response to a motion to dismiss has been held insufficient to
preserve for appeal the issues raised in the response. Bailey v. State of Oregon,
219 Or App 286, 292-294, 182 P3d 318 (2008).
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B. Pleading Motions
� More definite and certain: Use ORCP 21 D to “require the pleading to
be made definite and certain by amendment when the allegations of a
pleading are so indefinite or uncertain that the precise nature of the
charge, defense, or reply is not apparent.” Stewart v. Kids Incorporated
of Dallas, Or., 245 Or App 267, 272, 286, 261 P3d 1272 (2011) (affirmed
dismissal where complaint failed to allege facts to show why defendants
were on reasonable notice of unreasonable risk of harm).
� Striking sham, frivolous or irrelevant allegations: Use ORCP 21
E(1) to strike any sham, frivolous, or irrelevant pleading or defense or any
pleading containing more than one claim or defense not separately stated.
If the allegation appears false on the face of the pleading, it may be
stricken. Kashmir Corp. v. Nelson, 37 Or App 887, 891, 588 P2d 133
(1978); Warm Springs Forest Products Ind. v. EBI Co., 300 Or 617, 619
n1, 716 P2d 740 (1986) (“Good in form but false in fact;* * * a pretense
because it is not pleaded in good faith.”).
� Striking redundant allegations or claims/defenses: Use ORCP 21
E(2) to strike redundant matter from the complaint. See also ORCP 18 A,
regarding unnecessary repetition in a pleading.
C. Motion for Judgment on the Pleadings
ORCP 21 B provides for a motion for judgment on the pleadings after the
pleadings are closed and in advance of trial. See Simpkins v. Connor, 210 Or
App 224, 150 P3d 417 (2006).
The court may enter judgment on the pleadings if the allegations show the
moving party cannot prevail as a matter of law. ORCP 21 B. Pendergrass v.
Fagen, 218 Or App 533, 537, 180 P3d 110 (2008) (court did not err in granting
plaintiff’s motion for judgment on the pleadings in FED action).
D. Considerations for Filing Rule 21 Motions
� Will the motion completely dismiss a specific claim for relief or the entire
case?
� Can the moving party truly understand the nature of the claim or defense
pled?
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� Does the pleading contain prejudicial or extraneous allegations?
� ORCP 12 provides for liberal construction and that courts shall “disregard
any error or defect in the pleadings or proceedings which does not affect
the substantial rights of the adverse party.”
� Whether further pleading is required to aid in discovery or in anticipation
of additional motions?
E. Practice Tips for ORCP 21 Motions:
� Certificate of conferral required: The UTCR 5.010(1) certificate
should specify and detail the effort to confer as well as the discussion.
Anderson v. State Farm Mutual Auto Ins. Co., 217 Or App 592, 595-596,
177 P3d 31 (2008) (court affirmed trial court’s denial of motion to dismiss
for failure to confer, despite purported futility of conferral).
� UTCR requirements for format and appended copy of subject
pleading: UTCR 5.020(2) requires moving parties to attach to the
motion a copy of the pages of the pleadings moved against, showing the
parts of the pleading to be stricken or made more definite and certain.
Failure to do so will result in denial of the motion.
� Only certain motions permit consideration of matters extraneous
to the pleading: If a motion to dismiss is based on defenses in ORCP 21
A(1) - (7), a party may submit affidavits or other evidence in support.
These motions are:
Lack of subject matter jurisdiction
Lack of personal jurisdiction
Another action pending
Plaintiff lacks legal capacity
Insufficiency of summons or service
Plaintiff is not real party in interest
Failure to join a party under Rule 29 (joinder of persons needed for just
adjudication)
Black v. Arizala, 337 Or 250, 95 P3d 1109 (2004) (affirming that use of
evidence and facts outside the scope of the complaint does not transform
a motion to dismiss under ORCP 21 A(1) through (7) to a motion for
summary judgment). But see, Macland v. Allen Family Trust, 207 Or App
420, 426, 142 P3d 87 (2006) (rulings under ORCP 21 A(8) and A(9) must
confine themselves to the facts alleged).
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When neither party objects, a court may treat a motion to dismiss filed
with affidavits and other supporting exhibits as a motion for summary
judgment. See L. H. Morris Electric v. Hyundai Semiconductor, 203 Or
App 54, 61-63, 125 P3d 1 (2005), rev den, 341 Or 140 (2006) (treating
motion to dismiss under ORCP 21 B as motion for summary judgment
where both parties submitted evidence outside the pleadings without
objection); Kelly v. Olinger Travel Homes, Inc., 200 Or App 635, 641, 117
P3d 282 (2005) (same).
V. Motions to Amend and Relation Back Under ORCP 23 C
A. Court Has Discretion to Allow Pleading Amendment, ORCP 23 A
Parties may seek to amend pleadings pursuant to ORCP 23. The trial court has
reasonable latitude in construing pleadings.
ORCP 23 A states:
“Amendments. A pleading may be amended by a party once as a
matter of course at any time before a responsive pleading is served or, if
the pleading is one to which no responsive pleading is permitted, the
party may so amend it at any time within 20 days after it is served.
Otherwise a party may amend the pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely given when
justice so requires. Whenever an amended pleading is filed, it shall be
served upon all parties who are not in default * * * or against whom a
default previously has been entered, judgment may be rendered in
accordance with the prayer of the original pleading served upon them;
and neither the amended pleading nor the process thereon need be
served upon such parties in default unless the amended pleading asks for
additional relief against the parties in default.”
The court may in its discretion, deny a motion to amend to add new claims
because it is not timely filed, because the proposed amendment lacks colorable
merit, or because the amendment would prejudice the opposing party. O’Hara v.
David Blain Construction, Inc., 216 Or App 384, 388, 173 P3d 1257 (2007); Boise
Cascade Corp v. Board of Forestry, 216 Or App 338, 336-37, 174 P3d 587
(2007).
B. Relation Back Under ORCP 23 C
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When the need for amendment becomes apparent after the statute of limitations
has run, consider the application of ORCP 23 C.
ORCP 23 C provides:
“Relation back of amendments. Whenever the claim or defense asserted in
the amended pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading, the amendment
relates back to the date of the original pleading. An amendment changing the
party against whom a claim is asserted relates back if the foregoing provision is
satisfied and, within the period provided by law for commencing the action
against the party to be brought in by amendment, such party (1) has received
such notice of the institution of the action that the party will not be prejudiced in
maintaining any defense on the merits, and (2) knew or should have known that,
but for a mistake concerning the identity of the proper party, the action would
have been brought against the party brought in by amendment.”
� New allegations or claims: An amendment adding a new claim or
defense against the same party or parties will relate back to the date of
original filing when it arises out of the same conduct, transaction or
occurrence set forth in the original pleading. ORCP 23 C. The courts
often construe ORCP 23 C liberally. But see, Hendgen v. Forest Grove,
109 Or App 177, 179, 818 P2d 966 (1991).
� New parties: An amendment adding or substituting a party will be
allowed to relate back to the date of original filing when the party to be
added received actual notice of the action within the statute of limitations.
McLain v Maletis Beverage, 200 Or App 374, 115 P3d 938 (2005); see also
Smith v. American Legion Post 83, 188 Or App 139, 71 P3d 136, rev den,
336 Or 60 (2003). This means actual notice within the statutory period,
not including any extension for service under ORS 12.020. Richlick v.
Relco Equipment, Inc., 120 Or App 81, 852 P2d 240, rev den, 317 Or 605
(1993) (court held the amendment did not relate back when party had no
notice of the action within the period of limitations).
The rationale for allowing a post-limitation amendment adding a new party to
relate back is that a party who is notified of litigation through the original
complaint, and is aware that she would have been named but for a mistake in
the identity of the proper defendant, has been given the notice that the statute
of limitations was intended to insure. Welch v. Bancorp Management Services,
296 Or 208, 221, 675 P2d 172 (1983); Mitchell v. The Timbers, 163 Or App 312,
315, 987 P2d 1236 (1999) (court held ORCP 23 C may be used to substitute one
defendant for another or to correct the name of a defendant who was named
10-9

incorrectly in the original complaint). Parker v. May, 70 Or App 715, 720, 690
P2d 1125 (1984), rev den, 299 Or 31 (1985) (holding trial court had discretion
under ORCP 23 A to allow an amendment with respect to the party plaintiff after
the statute of limitations had expired, and the amendment related back to the
original pleadings).
C. Amendments to Conform to the Evidence
When issues not raised by the pleadings are nonetheless tried with the express
or implied consent of the parties, the pleadings may be amended to conform to
the proof. See Fraker v. Benton County Sheriff’s Office, 214 Or App 473, 166
P3d 1137 (2007).
VI. Potential for Refiling under ORS 12.220 When Dismissal Is Based on
Procedural Defects
Dismissal based on a procedural ground is not always fatal. When dismissal is
on procedural grounds such as ineffective service or lack of jurisdiction, a
plaintiff may re-file within 180 days of dismissal without being barred by the
statute of limitations. The conditions to re-filing are:
� the case was not decided on the merits but was dismissed on procedural
grounds;
� the defendant had actual notice of the action within sixty days of the
original filing;
� a new action may be commenced only once for the same claim(s);
� all defenses that would have been available in the original action shall be
available in the new action; and
� the original action was timely filed.
See Ram Technical Services, Inc. v. Koresko, 346 Or 215, 208 P3d 1950 (2009).
VII. Discovery Motions
In civil actions, a party may obtain discovery of non-privileged information that is
relevant or calculated to lead to the discovery of admissible evidence, including
the identity and location of persons having knowledge of any discoverable
matter. ORCP 36 B. Persons who are directly and personally familiar with the
events at issue may be deposed about their knowledge of those events, even if
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the opposing party has identified that person as someone who will testify as an
expert at trial. Gwin v. Lynn, 344 Or 65, 67, 176 P3d 1249 (2008).
A. Motions to Compel – ORCP 46
Any party may move for an order compelling discovery in accordance with his or
her discovery request.
B. Parties are Required to Confer
Parties are required to confer in an effort to work out their discovery differences
before filing any motion to compel under ORCP 36-46. UTCR 5.010(2).
C. Motions for Protective Orders – ORCP 36 C
A court may make any order upon motion by a party from whom discovery is
sought and for good cause shown, where justice requires protection of a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense.
If discovery should be limited or information should be protected, as with trade
secrets or confidential research and development, the party may apply for a
protective order.
D. eDiscovery: The Rules Have Expanded
1. Oregon ESI Rules (Effective January 1, 2012)
ORCP 43 E – Electronically stored information. A request for
electronically stored information may specify the form in which the
information is to be produced by the responding party but, if no such
specification is made, the responding party must produce the information
in either the form in which it is ordinarily maintained or in a reasonably
useful form.
2. eDiscovery: Applying the Rules
� Zubulake v. UBS Warburg – Judge Scheindlin, SDNY
� FACTS:
� Claims of gender discrimination, failure to promote,
and retaliation for filing an EEOC complaint.
� Series of five decisions re: eDiscovery disputes.
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� Zubulake I & III
� ISSUE: To what extent is inaccessible ESI discoverable and
who should pay for its production?
� HOLDING:
� Accessible = stored in a “reasonably useful format.”
� Inaccessible = apply 7-factor proportionality test to
balance the broad scope of discovery (FRCP 26(b))
with the cost-consciousness of FRCP 26(b)(2)(C).
� NOTE: very fact intensive
� Zubulake IV
� ISSUE: What is a party’s duty to preserve and when is it
triggered?
� HOLDING:
� Trigger: “Once a party reasonably anticipates
litigation, it must suspend its routine document
retention / destruction policy and put in place a
‘litigation hold’ to ensure the preservation of relevant
documents.”
� Scope: Unique, relevant evidence that might be useful
to an adversary
� Zubulake V
� ISSUE: What are the attorney obligations, and what are the
penalties for failure to comply with the rules?
� HOLDING:
� Duty to Monitor: “A party’s discovery obligation does
not end with the implementation of a ‘litigation hold’ –
to the contrary, that’s only the beginning. Counsel
must oversee compliance with the litigation hold,
monitoring the party’s efforts to retain and produce
the relevant documents.”
� Sanctions: Failure to preserve relevant ESI
constitutes willful spoliation, and the lost information
is deemed relevant.
3. eDiscovery: Following the Rules
“It all starts with data management and retention. That’s where an
organization needs to begin. Once you get a discovery request in
litigation, you’re at the mercy of what systems were in place. At that
point, it’s too late to make changes.” - Jonathan Sablone, Nixon
Peabody, LLP
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4. eDiscovery: Sanctions for Spoliation
� Pension Committee v. Banc of America Securities:
Zubulake Revisited
“This is a case where plaintiffs failed to timely institute written
litigation holds and engaged in careless and indifferent collection
efforts after the duty to preserve arose. As a result, there can be
little doubt that some documents were destroyed.” Judge
Scheindlin
� Spoliation Defined: The intentional destruction,
alteration, or concealment of evidence.
� When relevant ESI is not produced, the courts have
been granted wide discretion to determine whether
the non-production was justified. FRCP 37(a)(3)(A)
� Possible Sanctions Include:
� Spoliation and/or adverse inference instructions
� Personal fines against executives
� The preclusion of evidence
� Default judgment
� Awarding of cost / attorney fees / sanctions
5. eDiscovery: Metadata
� Metadata: Information about a particular data set or
document that describes how, when, and by whom it was
collected, created, accessed, and modified, and how it is
formatted.
� Native Format: Electronic documents have an associated
file structure defined by the original creating application.
This file structure is the document’s native format. Sedona
Conference Glossary (2005)
6. Metadata and eDiscovery:
� Not required to produce unless the discovery request
specifically asks for metadata.
� Metadata may become the standard for authentication
where there is a dispute over the integrity of the EMR.
� Metadata may also be used to challenge the veracity of
entries into the EMR by healthcare providers.
� Systemically entered metadata may be treated by some
courts as non-hearsay evidence and, therefore, admissible.
Sedona Conference Commentary on ESI Evidence &
Admissibility (2008)
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E. Motions for Discovery Sanctions – ORCP 46 B
The trial court may impose a variety of sanctions for a party’s failure to obey an
order to permit or provide discovery. Sanctions for the failure must be just, but
may include striking pleadings, limiting proof at trial, and dismissal.
ORCP 46 B(2), 46 D. See Burdette v. Miller, 243 Or App 423, 431-32, 259 P3d
976 (2011) (Court of Appeals held no abuse of discretion in striking defenses of
defendant who failed repeatedly to appear for deposition or for sanction
hearing).
VIII. Summary Judgment Motions
A. ORCP 47
Testing for genuine issues of fact on all elements of claim or defense
A summary judgment motion is a dispositive motion designed to eliminate the
opponent’s case or portions of the case.
A court ruling “on a motion for summary judgment does not find facts but
determines only whether there is a genuine issue of material fact that requires a
trial.” ORCP 47 C; Bonnett v. Division of State Lands, 151 Or App 143, 145-46,
n 1, 949 P2d 735 (1997).
Summary judgment motions test for “triable issues,” or sufficient evidence to
entitle a party to a jury determination. Jones v. General Motors Corp., 325 Or
404, 413, 939 P2d 608 (1997). “The whole scheme of summary judgment is
designed to cut off litigation at an early stage, without subjecting the parties to
months or years of extensive and expensive litigation * * * .” Tiedemann v.
Radiation Therapy Consultants, 299 Or 238, 246, 701 P2d 440 (1985).
The court reviews the facts and draws all reasonable inferences in favor of the
non-moving party. Perman v. C.H. Murphy/Clark-Ullman, Inc., 220 Or App 132,
138, 185 P3d 519 (2008); West v. Allied Signal, Inc., 200 Or App 182, 113 P3d
983 (2005). “Summary judgment is proper if the ‘pleadings, depositions,
affidavits, declarations and admissions on file show that there is not genuine
issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law.’ ORCP 47 C.” Nixon v. Cascade Health Services, Inc., 205
Or App 232, 234, 134 P3d 1027 (2006); Holloway v. Republic Indem. Co. of
Am., 341 Or 642, 147 P3d 329 (2006).
B. Summary Judgment Motions to Resolve All or Portions of a Case
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If the moving party can demonstrate there is no issue of material fact on one or
more elements of a claim or defense, the moving party is entitled to summary
judgment, or partial summary judgment, on all or a portion of the opponent’s
case. ORCP 47 C. Perman v. C.H. Murphy/Clark-Ullman, Inc., 220 Or App 132,
138, 185 P3d 519 (2008). An absence of evidence showing a genuine issue of
fact on causation in a claim for negligence, for example, would in itself support a
summary judgment in favor of a moving defendant. See, e.g., Gullett v. Fred
Meyer, Inc., 150 Or App 262, 266, 946 P2d 311 (1997).
By further example, partial summary judgment may be entered “on the issue of
liability alone although there is a genuine issue as to the amount of damages,”
ORCP 47 C, or parties may successfully eliminate one or more claims from the
case without resolving the entire case. See, e.g., Hendgen v. Forest Grove
Community Hospital, 98 Or App 675, 780 P2d 779 (1989) (court upheld summary
judgment on medical negligence claim where plaintiff failed to counter
defendant’s standard of care affidavit with opposing evidence, but reversed
summary judgment on claim for emotional distress, which defendant had not
moved against).
C. Considerations for Moving for Summary Judgment
• Discovery
• Factual records
• Strength of legal position
• Likelihood of success
• Educating opponent
• Targeting all or part of the case
• Impact on balance of case
• Timing
• Expense
Under the current version of ORCP 67 B, a limited judgment need not contain a
finding that “there is no just reason for delay” to be valid and appealable.
Interstate Roofing, Inc. v. Springville Corp., 217 Or App 412, 416-17, 177 P3d 1
(2008).
D. Responses to Summary Judgment Motions
After the moving party has pointed out the lack of any genuine issue of material
fact and that it is entitled to judgment as a matter of law, to avoid summary
judgment the non-moving party must produce evidence sufficient to meet a
burden of production on any issue on which they would bear the ultimate burden
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of persuasion at trial. Ivanov v. Farmers Ins. Co., 344 Or 421, 428, 185 P3d 417
(2008); Abell v. Shelton, 224 Or App 259, 263, 197 P3d 579 (2008); Weihl v.
Asbestos Corporation, 204 Or App 255, 265, 129 P3d 748 (2006) (applying
burden-shifting rule); Lewis v. Carson Oil Company, 204 Or App 99, 101, 127
P3d 1207 (2006) (same); see also Celotex Corp. v. Catrett, 477 US 317, 322-26,
106 S Ct 2548, 91 L Ed 2d 265 (1986) (setting out federal summary judgment
framework). Thus, the burden shifts to the nonmoving party to come forward
with evidence demonstrating the existence of a material fact for trial.
A party opposing summary judgment cannot rely on the allegations and denials
in his or her pleadings to establish a question of fact. Tiedmann, 299 Or at 238.
Uncontroverted testimony on summary judgment cannot be controverted simply
by asserting that it should not be believed. Blandino v. Fischel, 179 Or App 185,
39 P3d 258 (2002); ORCP 47 D. In Love v. Polk County Fire Dist., 209 Or App
474, 149 P3d 199 (2006), the court affirmed the trial court’s judgment in favor of
the employer where the employee failed to adduce any evidence showing her
complaints were objectively reasonable.
ORCP 47 requires affidavits or declarations based on personal knowledge and
admissible evidence.
The party opposing summary judgment may be able to defeat it if he can show
some specific fact that directly places an affiant’s credibility in doubt. See
Barnett v. Redmond Sch. Dist. 2J, 209 Or App 724, 149 P3d 250 (2006). In
Magnuson v. Toth Corp., 221 Or App 262, 190 P3d 423 (2008), the court
reversed a summary judgment in favor of defendant where plaintiff lacked direct
evidence but, according to the court, circumstantial evidence and common sense
created sufficient inference to establish causation.
Also, the trial court has discretion to refuse the motion for summary judgment or
to order a continuance to permit discovery and the opportunity to obtain
affidavits or declarations. ORCP 47 F.
E. Affidavits and Declarations
1. Supporting Affidavit or Declarations. The affidavit or
declaration must be based on personal knowledge and must “set forth
such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
therein.” ORCP 47 D; Spectra Novae, Ltd. v. Waker Associates, Inc., 140
Or App 54, 58, 914 P2d 693 (1996) (quoting ORCP 47 D).
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The affiant satisfies the requirement for personal knowledge when the
affidavit is read as a whole, and an objectively reasonable person would
understand that the statements are made from the affiant’s personal
knowledge and with competence. West v. Allied Signal, Inc., 200 Or App
182, 113 P3d 983 (2005).
Because personal knowledge and admissibility are key, the rules of
evidence come into play. The court will assess the admissibility of the
evidence when challenges are made. See Perman v. C.H. Murphy/Clark-
Ullman, Inc., 220 Or App 132, 138, 185 P3d 519 (2008) (analyzing
admissibility of lay opinion under OEC 701).
Affidavits or declarations must be presented in good faith. If not, a court
may order the offending party to pay the amount of reasonable expenses
that the offending affidavit caused the other party to incur, and/or
sanctions for contempt. ORCP 47 G.
A declaration may be used in lieu of an affidavit, eliminating the need for
a notarized signature, but specific language is required. See ORCP 1 E.
2. Striking Inadmissible Information and Statements. The
opposing party may move to strike the entire affidavit or the offending
portions. Objections might include arguments that the affidavits are
based on:
� Hearsay – Hearsay statements not falling within any exception to
the hearsay rule are inadmissible and should not be considered.
� Opinions – “Opinions as to liability are legal conclusions and are not
the proper subject of a witness’s testimony.” Olson v. Coats, 78 Or
App 368, 717 P2d 176 (1986).
� Legal conclusions – An affidavit that merely states legal conclusions
is not sufficient to create a question of fact. Spectra Novae Ltd.,
140 Or App at 54.
� Irrelevant averments – Affidavit statements that are irrelevant
should play no part in the court’s consideration.
A party must make evidentiary objections to a motion for summary
judgment before the motion is decided. Otherwise, the evidence may be
considered. Aylett v. Universal Frozen Foods Co., 124 Or App 146, 154,
861 P2d 375 (1993). Examples of challenges to supporting materials
10-17

include competency and hearsay arguments, and that the affidavits are
based on legal conclusions. In Perman v. C.H Murphy/Clark-Ullman, 220
Or App 132, 138, 185 P3d 519 (2008), the court held that although the
affidavits of plaintiff’s coworker contained hearsay reference, they were
susceptible to the inference that the coworker’s knowledge was provided
by an agent of defendant, and would fall within the hearsay exception
provided by OEC 801(4)(b)(D). Further, husband’s lay opinion that the
gloves he used contained asbestos was admissible under OEC 701.
F. Expert Affidavits.
Expert testimony may be required on specific claims, such as claims for medical
or other professional negligence. See Getchell v. Mansfield, 260 Or 174, 179,
489 P2d 953 (1971) (expert testimony required to establish the standard of care
in the community). See also Docken v. Ciba-Geigy, 101 Or App 252, 256, 790
P2d 45, rev den, 310 Or 195 (1990) (same).
When a party opposing summary judgment is required to provide the opinion of
an expert to establish a genuine issue of material fact, ORCP 47 E permits the
party’s attorney to submit an affidavit “stating that an unnamed qualified expert
has been retained who is available and willing to testify to admissible facts or
opinions creating a question of fact * * * .” . ORCP 47 E is designed to protect
the expert’s identity and opinions from disclosure before trial. Stotler v. MTD
Products, Inc., 149 Or App 405, 408, 943 P2d 220 (1997).
A Rule 47 E affidavit or declaration must be made in good faith and be based on
admissible facts or opinions of a qualified expert. An attorney’s affidavit in
compliance with ORCP 47 E will be deemed sufficient to controvert the
allegations of the moving party and an adequate basis for denying summary
judgment.
The affidavit need not specify the issues on which the expert will testify. If it
does not, the trial court must presume that the expert would testify on every
issue on which summary judgment is sought. Id. at 409. But see Piskorski v.
Ron Tonkin Toyota, Inc., 179 Or App 713, 41 P3d 1088 (2002), which provides a
good example of utilizing an attorney affidavit that says too much, with the
impact of limiting permissible considerations in response to summary judgment.
IX. Motions to Dismiss Pursuant to ORCP 54
A. Voluntary Dismissal
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A plaintiff may dismiss a case voluntarily by filing a notice of dismissal and
serving it on defendant not less than five days before trial. A pending
counterclaim will prevent voluntary dismissal. ORCP 54 A. Alternatively, the
parties may stipulate to dismissal.
B. Dismissal by Court Order
A court may order dismissal upon motion by a party for failure to comply with
the rules of civil procedure or any order of court. ORCP 54 B(1). Dismissal may
also be entered based on insufficiency of evidence in an action tried to the court,
ORCP 54 B(2), or for failure to prosecute. ORCP 54 B(3); Venture Properties,
Inc. v. Parker, 223 Or App 321, 336-37, 195 P3d 470 (2008)
X. Pretrial Motions
A. Motions in Limine
Challenges to the admissibility of evidence that you know your opponent will try
to introduce may be heard in a motion in limine filed before the commencement
of trial. See, e.g., Sanderson v. Mark, 155 Or App 166, 176, 962 P2d 786 (1998)
(disqualification of witness).
A motion in limine “provides a legal procedure to flush out problems to be
encountered during the trial, before a jury is contaminated with the evidence.
The Oregon Supreme Court explains that an objection to evidence, with a motion
to tell the jury to disregard it, is a poor alternative. The old cliche, ‘you can’t
unring a bell,’ still applies.” State v. Foster, 296 Or 174, 182, 674 P2d 587
(1983).
Some examples of subjects for motions in limine include:
� Insurance
� Workers compensation
� Remarriage
� Other bad acts
� Prejudicial or inflammatory evidence
� Residence of party and/or lawyers
� Alienage
� Prior legal actions.
B. OEC 104 Hearings
10-19

A party may request a rule 104 hearing to obtain pre-trial rulings on competency
or on admissibility of evidence that has questionable relevancy or is prejudicial.
In State v. O’Key, 321 Or 285, 307 n 29, 899 P2d 663 (1995), the court stated
that the validity of scientific evidence “should be addressed by the court in a
separate OEC 104(1) hearing.”
See Kennedy v. Eden Advanced Pest Technologies, 222 Or App 431, 193 P3d
1030 (2008) (Court of Appeals reversed trial court ruling following OEC 104
hearing that excluded testimony of plaintiff’s expert on grounds that expert’s
diagnosis and reasoning were not supported by valid science; court held
testimony was admissible). For other cases on the admissibility of scientific
evidence, see Hall v. Baxter Healthcare, Corp., 947 F Supp 1387 (1996); Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 US 579, 113 S Ct 2786, 125 L Ed 2d
469 (1993); Kumho Tire Co. v. Carmichael, 526 US 137, 119 S Ct 1167, 143 L Ed
2d 238 (1999).
If a party seeks a ruling on the admissibility before trial, but fails to make an
offer of proof, or the court reserves its ruling without making one, nothing has
been preserved for appeal. To preserve the issue for later review, the offering
party should make an offer of proof and obtain a court ruling. See State v.
Foster, 296 Or 174, 674 P2d 587 (1983).
XI. Trial Motions
A. Evidentiary Rulings
At trial, parties must promptly move to strike any inadmissible testimony.
OEC 103(1)(a).
When evidence is excluded, the party offering it must state the reason(s) the
evidence is admissible and make an offer of proof. Otherwise, unless the
substance of the evidence was made known to the court or is apparent from the
context within which questions were asked, the error is not preserved.
B. Motions Based on Misconduct
When an attorney perceives alleged misconduct or impropriety by a party,
counsel, the court or a juror that may form the basis for mistrial, he or she must
decide whether to move for mistrial and, if so, must bring the matter to the
court’s attention immediately. Grounds for mistrial are waived unless the
aggrieved party makes a prompt motion at the time the objectionable event
occurs.
10-20

C. Motions Challenging Sufficiency of the Evidence – Motions to
Dismiss and for Directed Verdict – ORCP 54 and 60
A directed verdict based on insufficiency of the evidence is appropriate when
there is a complete absence of proof of an essential issue or if there is no conflict
in the evidence and it is susceptible of only one construction. Boynton-Burns v.
University of Oregon, 197 Or App 373, 379, 105 P3d 893 (2005); Day v. City of
Canby, 143 Or App 341, 345, 922 P2d 1269 (1996), rev den 320 Or 654 (1997).
The “any evidence” standard applies to motions for a directed verdict with
respect to punitive damages, even though the underlying claim requires a clear
and convincing evidentiary standard. Hamlin v. Hampton Lumber Mills, Inc., 222
Or App 230, 237, 193 P3d 46 (2008). Appellate courts review the denial of a
motion for directed verdict for any evidence to support the verdict in plaintiff’s
favor, construing all reasonable inferences from the evidence in favor of
plaintiffs. American Fed. Teachers v. Oregon Taxpayers United, 345 Or 1, 189
P3d 9 (2008).
When trial is to the court, a party must move for dismissal based on the
insufficiency of the evidence before the court’s decision if she wants to raise the
sufficiency of the evidence on appeal. ORCP 54 B(2); Edward D. Jones & Co. v.
Mishler, 161 Or App 544, 564, 983 P2d 1086 (1999).
A timely motion for a directed verdict is a “necessary predicate” to a subsequent
motion testing the sufficiency of the evidence. Arena v. Gingrich, 305 Or 1, 8,
748 P2d 547 (1988). A party cannot challenge the sufficiency of the evidence
post trial in a motion for j.n.o.v., or an appeal, unless the party has first moved
for directed verdict before the jury is instructed. See ORCP 60; Edward D. Jones,
161 Or App at 544.
Distinguish a motion to strike testimony of an expert based on legal insufficiency,
which should be made contemporaneously with the offending testimony rather
than at the end of the case-in-chief. See generally, Miller v. Pacific Trawlers,
Inc., 204 Or App 585, 595, 131 P3d 821 (2006) (Court held motion to strike at
end of case was not timely and, therefore, assignment of error on appeal would
not be considered); Banaitis v. Mitsubishi Bank., Ltd., 129 Or app 371, 390, 879
P2d 1288 (1994), rev dismissed, 321 Or 511 (1995) (“A motion to strike is
untimely, unless it is made as soon as the ground for the motion [is] disclosed.”).
XII. Post-Trial Motions
A. Motions for Judgment Notwithstanding the Verdict – ORCP 63
10-21

A party must have preserved the right to challenge the sufficiency of the
evidence in a post-trial motion for judgment notwithstanding the verdict. by
moving for a directed verdict during trial.
1. Prerequisite to Judgment Notwithstanding the Verdict
ORCP 63 A.
The moving party must move for a directed verdict “or its equivalent” at
the close of all the evidence before that party may move post-trial for
judgment n.o.v. Building Structures, Inc. v. Young, 328 Or 100, 111, 968
P2d 1287 (1998); Hamilton v. Lane County, 204 Or App 147, 152, 129
P3d 235 (2006); Bednarz v. Bay Area Motors, Inc., 95 Or App 159, 163,
768 P2d 422 (1989). An equivalent motion may include a motion to strike
or a motion to withdraw an issue from the jury’s consideration. A
defendant that moves for a directed verdict after the plaintiff’s case must
renew it at the close of all the evidence in order to preserve its challenge.
Iron Horse Eng’g Co. v. Northwest Rubber Extruders, Inc., 193 Or App
402, 89 P3d 1249, rev den 337 Or 657 (2004).
2. The “Any Evidence” Standard.
A motion for judgment notwithstanding the verdict will be granted only if
the nonmoving party has presented no evidence to support the verdict.
In other words, if there is any evidence to support each element of the
claim, a motion for judgment notwithstanding the verdict will be denied.
3. Alternative Motion for New Trial, ORCP 63 C.
If a party moves for judgment notwithstanding the verdict and fails to join
an alternative motion for a new trial, any new trial motion shall be
deemed waived. This waiver applies to any right to a new trial, either on
the court’s own motion or on appeal, for any issue addressed in the
motion for judgment n.o.v. Goodyear Tire & Rubber Co. v. Tualatin Tire &
Auto, 322 Or 406, 908 P2d 300 (1995); see Hamilton v. Lane County, 204
Or App 147, 153, 129 P3d 235 (2006) (Court held defendant waived a
new trial remedy when it failed to move for new trial in the alternative to
its motion for judgment notwithstanding the verdict).
If, on the other hand, the moving party joins an alternative motion for a
new trial with the motion for judgment notwithstanding the verdict, the
motion for judgment notwithstanding the verdict will take precedence.
The trial court will rule on the motion for new trial even if it grants the
motion for judgment notwithstanding the verdict. ORCP 63 C.
10-22

4. Procedure, ORCP 63 D.
A motion for judgment notwithstanding the verdict must be filed not later
than 10 days after entry of the judgment, unless the trial court allows an
extension. And, beware, the motion must be “determined” within 55 days
after entry of the judgment to be set aside or it “shall conclusively be
deemed denied.” This requires that the order must be entered in the
docket before the expiration of the 55 days. See McCollum v. K-Mart
Corp., 214 Or App 367, 370-371, 165 P3d 372 (2007) (new trial motion).
ORCP 63 D(2) provides that a timely post-trial judgment notwithstanding
the verdict motion may be filed even after a notice of appeal by another
party, but within the 10-day period allowed by ORCP 63 D(1). If the
motion is filed after a notice of appeal, the Court of Appeals must be
served with the motion and notified of the trial court’s order within seven
days.
a. Possibility of New Trial If Judgment Notwithstanding the
Verdict Motion is Granted, ORCP 63 F.
Any party whose judgment is set aside may move for a new trial not later
than ten days after filing of the judgment notwithstanding the verdict.
B. Motions for New Trial - ORCP 64
1. Grounds for New Trial
A judgment may be set aside and a new trial granted following a jury trial
on the motion under ORCP 64 of any party “aggrieved for any of the
following causes materially affecting the substantial rights of such party”:
“B(1) Irregularity in the proceedings of the court, jury or
adverse party, or any order of the court, or abuse of
discretion, by which such party was prevented from having
fair trial.
“B(2) Misconduct of the jury or prevailing party.
“B(3) Accident or surprise which ordinary prudence could
not have guarded against.
10-23

“B(4) Newly discovered evidence, material for the party
making the application, which such party could not with
reasonable diligence have discovered and produced at the
trial.
“B(5) Insufficiency of the evidence to justify the verdict or
other decision, or that it is against law.
“B(6) Error in law occurring at the trial and objected to or
excepted to by the party making the application.”
ORCP 64 B(1)-(6).
See, e.g., Gragg v. Hutchinson, 217 Or App 342, 176 P3d 407 (2007)
(reviewing arguments that trial court erred in granting new trial for legal
error under ORCP 64 B(6)).
The moving party must specify the grounds for new trial plainly. The
court will not consider any ground not so stated. Some grounds for new
trial require support by affidavit, setting forth the facts upon which the
motion is based. If the ground is “newly discovered evidence, the
affidavits or declarations of any witnesses, showing what their testimony
will be, shall be produced, or good reasons shown for nonproduction.”
ORCP 64 D.
The grounds for new trial following a trial to the court mirror those
supporting a new trial after a jury verdict. ORCP 64 C. The court is
permitted to reopen the record on sufficient showing, to take additional
testimony, amend findings of fact and conclusions of law or make new
findings and conclusions, and direct the entry of a new judgment
2. Procedure, ORCP 64 D and F
Like a motion for judgment notwithstanding the verdict, a motion for new
trial must be filed not later than 10 days after entry of the judgment,
unless the trial court allows an extension. And, beware, the motion must
be “determined” within 55 days after entry of the judgment to be set
aside or it “shall conclusively be deemed denied.” The order must be
signed and entered in the court register to be “determined” under this
rule. See McCollum v. K-Mart Corp., 214 Or App 367, 370-71, 165 P3d
372 (2007) (letter opinion held to constitute order, entry of which was
sufficient to determine motion for new trial).
10-24

ORCP 64 F(2), permits a motion for new trial even after a notice of appeal
has been filed.
C. Enforceability of Judgment Pending Determination of Post-Trial
Motions
A motion to stay enforcement of a judgment may be required pending resolution
of post-trial motions. “[T]he filing of motions for a new trial and for judgment
notwithstanding the verdict have no effect on the enforceability of a judgment.”
Thompson v. Tlat, Inc., 205 Or App 518, 522, 134 P3d 1099 (2006) (footnote
omitted; applying rules of statutory construction, court distinguished between
appealability and enforceability of final judgment based pending determination of
motions for new trial and judgment notwithstanding the verdict).
10-25

KJH
The Road to Trial
Conferral !
Pleading motions, amendments, discovery
Local rules
May have specific requirements
Delivery to the Clerk
Time lines matter
ORCP 69
Available for defendant’s failure to appear
� 10 days notice of intent to take default required
to be filed and served by plaintiff who has
received written notice of representation and
intent to appear by counsel for defendant
� Order for default requires affidavit showing facts
of service and non‐appearance
� Clerk or court may allow order
KJH
10-26
The rules provide the map
� ORCP
�� UTCR
� SLR, Counties
� FRCP
� LR
KJH
Is Venue Proper?
ORS Chapter 14
� Where cause of action arises or property is located
� Where a defendant resides or conducts business
KJH
KJH
Motion based on improper venue must be the
first appearance, but other motions to change
venue may be filed any time before trial.
Motor vehicle cases have
additional requirements
ORCP69 A(2)
� Insurer notified 30 days before applying, if know
or could learn of insurer

KJH
KJH
By court or clerk, in some instances,
ORCP 69B(1), or
By B application li ti to t the th court, t with ith declaration d l ti
showing defaulted party is not minor or
incapacitated, and declaration defaulted
party not in military service, ORCP 69B(2)
KJH
Raise or waive the following grounds:
Lack of jurisdiction
Insufficiency of service
Another action pending
Plaintiff lacks capacity
Plaintiff not real party in interest
Statute of limitations
ORCP 21 G(1) & (2)
� Make more definite and certain, ORCP 21 D
� Striking sham, frivolous or irrelevant
allegations, ll ORCP 21 E
� Striking redundant allegations or
claims/defenses, ORCP 21 E(2)
10-27
KJH
KJH
KJH
Effect a dismissal?
Educate?
Eliminate prejudicial or or extraneous allegations?
Re-pleading available/helpful?
Limited to face of the pleading?
Conferral required for most Rule 21 motions.
UTCR 5.010(1)
ORCP 21A(8)
Motion to dismiss for failure to state ultimate
facts sufficient to constitute a claim
Tests the sufficiency of the allegations
Court assumes truth of all well‐pleaded
allegations and draws inferences
in favor or non‐moving party
ORCP 23 A
� A party is allowed one amendment before
a responsive pleading l d is fl filed d
� Then, amendment allowed only by
stipulation or permission of court ‐
discretionary

KJH
KJH
KJH
ORCP 23 C
Claim arises out of same conduct,
transaction or occurrence
Additional requirements for changing or
adding party: new party had notice and
was aware he or she would have been
named but for mistake
ORCP 47
Dispositive motions
Test for genuine issues of fact
All or part of any claim or defense
Entire claim or defense
Single element
Damages and items of damage
Non‐moving party cannot rely on allegations
and denials in pleadings
Non‐moving party must produce d evidence d
sufficient to meet burden of production on
any issue on which they bear burden at trial
Response based on admissible evidence
10-28
KJH
KJH
Motions to Compel, ORCP 46
Motions for Protective Orders, ORCP 36 C
Motions to Quash
Motions for Sanctions, ORCP 46 B
� Timing
� Discovery
� Strength of legal position
� Expense
� Impact on balance of case
� Educating opponent
ORCP 47 D
Requirements
� Personal knowledge
� Set forth facts admissible in evidence
� Show competence to testify
� Good faith
KJH
Opponent may challenge admissibility in
motion to strike

KJH
KJH
ORCP 47 E provides for attorney declarations or
affidavits when expert testimony is required
“An unnamed qualified f expert has been
retained and is available and willing to testify
to admissible facts or opinions creating a
question of fact * * *.”
Motions to bifurcate
Motions to exclude witnesses
Motions in limine
Challenges hll to admissibility d bl of f evidence d or
anticipated arguments
OEC 104 Hearings
Tests competency or admissibility, for
relevance or prejudice
10-29
KJH
KJH
ORCP 54A
Voluntary dismissal
ORCP 54B
Dismissal by court order
� On motion, for failure to comply
� Insufficient evidence at trial
� Failure to prosecute
Evidentiary rulings and motions to strike
Motions raising misconduct issues
Motions for mistrial
Motions re sufficiency of evidence
Preservation!

BANKRUPTCY
Johnston Mitchell
Coers Mitchell Law LLC
CHAPTER 11

Chapter 1 1
BANKRUPTCY
TABLE OF CONTENTS
Page #
CONSUMER BANKRUPTCY ATTORNEY ........................................................................... 11-1
COMMERCIAL BANKRUPTCY ATTORNEY ...................................................................... 11-3
CREDITOR BANKRUPTCY ATTORNEY ............................................................................. 11-3
CHAPTER 11 DEBTOR’S ATTORNEY ................................................................................. 11-5
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
Additional Resources
Resources for Lawyers New to Bankruptcy Practice, OSB Debtor/Creditor
Winter 2010 newsletter

A DAY IN THE LIFE OF A BANKRUPTCY PRACTITIONER
Johnston Mitchell and Christine Coers-Mitchell
COERS MITCHELL LAW LLC 1
Bankruptcy court provides a forum for deciding a broad spectrum of legal disputes.
Bankruptcy practitioners face a wide range of issues − from technical issues under the
Bankruptcy Code to general principles under state law. Bankruptcy practitioners handle multimillion
dollar cases and disputes over a few hundred dollars. As a result, the day-to-day practice
of bankruptcy practitioners varies based on the type of practice of an attorney. So, for example,
the day-to-day practice of an attorney who represents consumers differs from the day-to-day
practice of an attorney who represents large businesses. Likewise, the workday of an attorney
who represents a chapter 11 debtor differs from the workday of an attorney who represents a
secured creditor in a chapter 11 bankruptcy. Rather than generalize about being a bankruptcy
attorney, this chapter summarizes four bankruptcy practice areas and describes the work life of
the practitioners in those areas.
Consumer Bankruptcy Attorney
1. What it takes to practice:
Like many consumer law practices, a consumer bankruptcy practice will have a high
volume of small cases. As a result, a consumer bankruptcy attorney will need to spot
legal issues, develop a strategies or approaches to address the legal issues and implement
the strategies or approaches. Often, the key is to represent a client efficiently and obtain
a good result without incurring large expenses.
2. A day in the life:
A busy consumer bankruptcy attorney handles several matters each day. Newer attorneys
often obtain their clients through advertising, while established attorneys may get many
of their clients from attorney and client referrals. Clients following up on advertising
may be shopping and contacting multiple attorneys. Price may be a big consideration. A
prospective client may want a free consultation. Clients who come in on referral are
more sold on the attorney before they walk in the door. They are less likely to
comparison shop.
Yellow Pages and classified advertising used to be the main means of advertising and
getting clients. Now, online advertising seems to dominate. Attorneys building their
practices on advertising solicitations should be prepared to spend time dealing with price
shoppers or “brain pickers” (folks with questions and tight budgets). High-volume
practitioners must also be prepared to multi-task and to work hard and fast with
1 This chapter is substantially based on last year's chapter by Joseph A. Field of Field Jerger
LLP. The chapter follows the idea and structure and uses much of the substance. Any errors or
mistakes are the authors.
11-1

interruptions for appointments, phone calls, emails, court appearances and emergencies.
You can build a high volume consumer practice through advertising. It is challenging to
build a profitable consumer practice, though. Getting leads may be easier than getting
clients who can pay.
A consumer bankruptcy lawyer will have an action-packed day − meeting with clients,
answering phone calls from clients, opposing counsel and trustees and responding to
emails and other messages. The consumer bankruptcy attorney will often have court
hearings and “creditors meetings” (11 USC § 341(a) meetings). Finding time to study
documents, analyze issues and research will be challenging, but it is necessary for
achieving good results.
An important reward for a bankruptcy attorney who represents debtors is helping people
solve their financial problems. Some people may come into your office burdened with
debt and often distraught. After a successful bankruptcy, these people receive a
discharge and get a fresh start. The reward for an attorney who represents a creditor is
recovering money that is owed, often for a long time.
3. Caveats:
A few attorneys hold themselves out as bankruptcy attorneys who represent debtors in
“no issue cases.” There is no such thing as a “no issue case.” All cases need careful
review and attention to detail, and require advocacy. Bankruptcy is a complex practice
area. It is more than filling out forms. You need to know what to ask and how to advise
a client about virtually every aspect of a client's finances. You need to know to what to
disclose and how to disclose information in bankruptcy schedules and statement of
financial affairs. When completing bankruptcy schedules, you need to pay attention to
every entry, remembering that you are an advocate. Try to find a mentor or supervising
attorney. You may want to start with a lower volume of cases so that you have more time
work through each case.
To provide advice about chapter 7 (liquidation) bankruptcy, you will also need to learn
the basics of a chapter 13 bankruptcy (individual reorganization). Although a chapter 13
practice is more complex than a chapter 7 practice, it would be difficult to provide advice
about chapter 7 bankruptcy without being able to advise a client about the pros and cons
of chapter 13 – even if you must refer the client to another attorney for chapter 13
representation.
Don’t let your legal research stop with the Bankruptcy Code. On every issue, you should
also review case law to get an explanation of how a court applies the Bankruptcy Code or
state law applies to an issue. You also need to be familiar with the Federal Rules of
Bankruptcy Procedure, Local Bankruptcy Court Rules, and Local Bankruptcy Court
forms. Procedure can decide substantive issues in a bankruptcy case.
11-2

Commercial Bankruptcy Attorney
1. What it takes to practice:
A commercial bankruptcy attorney will handle fewer cases, but there will be more dollars
at stake. As result, the commercial bankruptcy attorney should expect to delve into the
facts and law of a case. The attorney will need to study documents, understanding and
breaking down complex financial transactions. The attorney may have to research issues
from what seems like every angle. Often, the key is to balance the need of advising a
client about its rights and obligations arising from complex transactions against the
reality of a shrinking economic pie.
2. A day in the life:
Commercial bankruptcy practice is a varied practice area. It is a multidisciplinary
practice. Commercial bankruptcy practitioners must be well versed in bankruptcy law
and prepared to provide their clients with bankruptcy representation on issues involving
the Uniform Commercial Code, real estate, business entities, debtor-creditor, tax,
litigation, insurance, business torts, intellectual property, etc. A commercial bankruptcy
attorney needs to have the knowledge base and resourcefulness to collaborate and
efficiently resolve issues when there is little money available.
Commercial bankruptcy attorneys engage other professionals including forensic
accountants and other attorneys with specialized practice areas. To succeed at
commercial bankruptcy, the practitioner will effectively have a generalized commercial
law knowledge base and a specialized bankruptcy court practice.
3. Caveats:
Professional development is important. A commercial bankruptcy attorney needs to
understand accounting, tax and other commercial principles to identify issues and advise
a client. You can take advantage of continuing legal education seminars to further
develop or hone this background. A mentor or supervisor can help develop such
expertise. Of course, you learn through experience.
Creditor Bankruptcy Attorney:
1. What it takes to practice:
Prior to a bankruptcy filing, an attorney who represents a creditor is typically racing to
the courthouse to get a judgment and payment. After a bankruptcy filing, the race
typically slows, or halts. To be effective, an attorney representing a creditor needs to
have a solid understanding of creditor rights under the Bankruptcy Code and the unique
procedures under the Bankruptcy Rules. The attorney must have a practical
understanding of how a bankruptcy case will likely progress. The attorney needs to know
what kind of relief to pursue, and when to pursue the relief. In addition, a creditor's
attorney will need to have a good understanding of debtor-creditor transactions, including
the documentation and finances involved.
11-3

2. A day in the life
Creditor representation varies. It often depends on the size of a creditor’s claim and the
complexity of issues surrounding the claim, including a debtor’s solvency and competing
interests. Notwithstanding the uniqueness of every claim, creditor representation comes
in three general categories. Attorneys represent: (i) secured creditors, (ii) unsecured
creditors and (iii) committees (generally unsecured creditor committees).
A secured creditor usually has more to protect. A secured creditor has an interest in the
debtor's property (e.g., real property, equipment, car, accounts receivable, intangible
property, etc.). The Bankruptcy Code often treats a secured creditor (with a perfected
security interest) differently than unsecured creditor. If the debtor cannot pay the
creditor, the creditor can look to its collateral to get paid. That may mean that an attorney
will file a motion for relief from stay so that the secured creditor can foreclose on
collateral. An attorney representing a secured creditor in a chapter 11 bankruptcy may
have an active role. The attorney may play an important role in negotiating the terms of a
proposed plan that pertain to the creditor and litigating the priority, extent or value of the
creditor's interest. A secured creditor’s counsel works closely with appraisers,
auctioneers, realtors and resellers. A secured creditor generally prefers to collect what is
owed, if possible, rather than litigate to repossess, foreclose and resell. A secured
creditor’s counsel must have keen analytic skills, negotiation skills and the ability to
efficiently litigate significant issues.
An attorney who represents unsecured creditors often represents banks, other lenders or
landlords. The attorney may represent anyone who has a claim against the debtor. An
overwhelming majority of bankruptcy estates are insolvent, so unsecured claims usually
get paid at the end of a bankruptcy case, without interest and at some percentage closer to
0% than 100%. An unsecured creditor does not have collateral to pursue for payment.
Accordingly, an unsecured creditor’s counsel must be able to monitor cases efficiently.
Typical issues include filing and litigating a proof of claim, defending a preference claim,
monitoring a bankruptcy and advising clients on how to optimize the client's return.
Committee counsel typically work for an official committee of unsecured creditors in
chapter 11 bankruptcy cases. The United States Trustee’s Office (part of the U.S.
Department of Justice) oversees the chapter 11 process and attempts to appoint members
of a committee at the outset of chapter 11 cases. Because an unsecured creditor do not
have recourse against any collateral, the bankruptcy system allows unsecured creditors to
join together to form a committee of representatives which may hire professionals who
are paid, subject to Bankruptcy Court approval, out of the bankruptcy estate. Many
chapter 11 bankruptcy cases fail and become “administratively insolvent,” in which cases
professionals employed by the estate may get only partially paid or not paid at all.
Committee representation puts committee counsel near the center of chapter 11 cases.
Chapter 11 committee counsel spends time performing due diligence in the bankruptcy
case through analysis, attending court hearings, reading court submissions and speaking
to other major players in the case. The counsel for the committee monitors the debtor’s
progress and advises the committee members about the bankruptcy case. The committee
11-4

counsel often litigates issues while trying to build consensus to help the debtor reorganize
with as large a dividend as possible for general unsecured creditors.
3. Caveats
Representing committees can be time consuming and can turn into “involuntary pro
bono” work. If the debtor fails, committee counsel may not get paid. Try to get a “carve
out” for a retainer at the outset of the case. A debtor and secured creditors seeking
cooperation from committees may be amenable.
A chapter 11 debtor with no trustee is known as “debtor in possession” and is effectively
its own trustee. This creates an inherent conflict where the debtor is charged with putting
creditors’ and other equity participants’ interests ahead of its interest. Such self-interests
may include preserving a high income for officers, escaping from personally guaranteed
debts and preserving control over an enterprise for other forms of personal gain.
Committee counsel should closely analyze and monitor the debtor’s performance and
should communicate closely with the other major players in the case, including the Unites
States Trustee’s office.
Chapter 11 Debtor’s Attorney
1. What it takes to practice:
Typically, a chapter 11 bankruptcy attorney restructures and liquidates businesses and
individuals’ with debts too large to qualify for a chapter 13. Chapter 11 bankruptcy
representation arguably demands the most from a bankruptcy attorney. To represent a
chapter 11 debtor, you need to understand the nuances of the debtor's business and the
details of a debtor's finances to guide a debtor through the complexities of confirming
and implementing a chapter 11 plan.
2. A day in the life:
A chapter 11 bankruptcy is complex. So, it is difficult to offer generalities. Still, there
are some. A chapter 11 case requires a lot of work. One case can take most of your time,
especially at the start of a bankruptcy. A chapter 11 filing affects and likely disrupts
critical aspects of a business. A successful reorganization may depend on decisions made
and actions done at the start of a bankruptcy filing. Ever hear of “first day motions”? A
chapter 11 bankruptcy attorney often files a series of first day motions with a petition, or
soon after filing a petition. Some first day motions seek emergency relief to minimize the
disruption of a bankruptcy filing and allow your client to continue to operate. Other first
day motions address administrative issues and establish procedures for the bankruptcy.
Still, other first day motions affect substantive rights and effectively establish the course
of the chapter 11 bankruptcy. The motions filed and relief requested depends on the size,
nature and particular circumstances of each bankruptcy case.
Throughout a chapter 11 bankruptcy, an attorney is a business consultant. In addition to
playing the role of legal counsel, the attorney advises a client about restructuring
financial affairs, typically through a combination of litigation, negotiation, financing and
liquidation. Likewise, a chapter 11 attorney will advise a client about which other
11-5

professionals to hire. A debtor may hire accountants, real estate agents, attorneys to
represent a debtor with regard to discrete issues, and even restructuring professionals.
A chapter 11 bankruptcy attorney needs to be a good negotiator, but be prepared to
litigate. The chapter 11 attorney negotiates the terms of a chapter 11 with creditors and
other parties with competing interests. If the attorney cannot negotiate a consensual plan,
the attorney may have to litigate, or have trial, about the terms of a plan. In any case, the
attorney must write a chapter 11 plan and then get it confirmed. The court must approve,
or confirm, a chapter 11 plan.
A chapter 11 bankruptcy attorney is a transactional attorney, too. The attorney will write
a disclosure statement and plan. The disclosure statement is a document that summarizes
financial affairs of a debtor to allow a creditor to make an informed judgment about the
debtor’s plan of reorganization. A disclosure statement may:
• Describe a debtor's business, including the history, principals, market, clients,
assets, liabilities, etc.
• State the reason for a debtor's financial troubles.
• Describe post-bankruptcy events.
• Summarize the terms of the chapter 11 plan.
• Provide financial projections of the business.
• Explain the means of implementing plan, including the dollar amounts to be paid
creditors.
The disclosure statement typically includes more than this list. The attorney also writes
the plan, which is like a consent decree or contract among the debtor, creditors and
interested parties.
A chapter 11 bankruptcy attorney is a litigator. A chapter 11 bankruptcy can be
contentious, involving sophisticated creditors with a lot at stake. As a result, you may
have to litigate your client’s rights and interests with a number of creditors or parties.
You may initiate an adversary proceeding, a lawsuit in bankruptcy case, to resolve
disputes. You may object to claims to litigate the validity, extent and classification of a
claim.
3. Caveats:
Before agreeing to represent a client in a chapter 11 bankruptcy, you should evaluate
whether you have the ability to handle the demands of a chapter 11 bankruptcy given the
immediate and continuing demands. In addition, you should determine whether you will
get paid. Before you agree to represent a client in a chapter 11 bankruptcy, you may
want require a significant retainer. Once you file a chapter 11 bankruptcy, you will not
likely be able to withdraw as counsel. As a result, you may be taking on a lot of work
without a reasonable prospect of getting paid. In the end, you may be owed a lot of
money.
+ + +
11-6

Chapter 1 1
BANKRUPTCY
Additional Resources
Resources for Lawyers New to Bankruptcy Practice, OSB Debtor/Creditor
Winter 2010 newsletter

Resources for Lawyers New to Bankruptcy Practice
By Laura Donaldson, Kuni Donaldson, LLP
Our economy has created a recent increase in the number of bankruptcy filings. As a
result, there are many faces new to the practice of bankruptcy law. Lawyers new to the
practice need resources – ways to find answers to their questions or concerns, and/or to
learn quickly how to handle a situation never faced before. Will the Trustee take this
asset? Is this asset exempt? How do I serve this party? Where do I find bankruptcy
forms? Who can I call when I have a question? You have the Oregon State Bar
Bankruptcy Law book in your library arsenal, but it isn’t giving you the answers you
need.
At last year’s Saturday Session, we recognized the need for such resources and formed a
committee to address that need. The committee focused on what tools could be provided
to members of the bar to provide quick answers and reduce the potential for malpractice
claims. We then created a resource list of mentors and individuals willing to take a fiveminute
phone call or answer questions by email. The list includes attorneys from the
Portland, Eugene, and Bend areas. The list of names and email addresses is available on
the Debtor/Creditor website. If you would like it in advance, please email me at
laura@kunidonaldson.com. In addition, Tips and Tricks for new practitioners from the
bankruptcy court (ecf tips and tricks), Chapter 13 Trustee’s office, and Chapter 7
Trustees themselves, as well as relevant articles from the Professional Liability Fund, will
be gathered all in one place.
Here are other valuable links for information. Charlene Hiss and Mike Blaskowsky of the
Portland bankruptcy court have developed a link on the bankruptcy court website
(www.orb.uscourts.gov) titled “Useful Contact Information” under “Information for
Attorneys.” This link provides contact information for the Court, Chapter 13 Trustees and
US Trustees in the State of Oregon. The Debtor-Creditor website at www.osb-dc.org
contains the contact information for each Chapter 7 Trustee and important document
production requirements in Chapter 7 cases. Click on “Trustees” to find a list of Trustees
and their contact information. The website of Chapter 13 Trustee Fred Long is
www.13network.com/trustees/eug/eughome.asp and the site of Chapter 13 Trustee Brian
Lynch is www.portland13.com . Each site contains resources and contact numbers for
questions you or your clients may have about Chapter 13 issues.
Not sure how to handle a service issue on a Friday afternoon at 4:00 pm? Post the
question to the Debtor-Creditor listserve – debcred-discuss@lists.osbar.org – and you’ll
get the help you need. Members of the list include judges, debtor and creditor lawyers,
state agency members, and others throughout the State of Oregon. Attorneys discuss an
array of issues, including exemptions, stay violations, recent case law, service issues,
procedural questions, foreclosure issues and more. It is a great resource for obtaining the
opinions of members who have practiced in this area for years, as well as those up and
comers who have a new outlook on our sometimes confusing Bankruptcy Code.
Participation is open to all Debtor-Creditor Section members whose email addresses are

egistered with the bar. Members are automatically signed up on the list serve; however,
your participation is not mandatory.
ORCBA is a listserve for debtor’s attorneys only. Discussions focus on representing
clients in bankruptcy from the debtor’s perspective. Attorneys must ask to be added to the
listserve. The request is posted and current members vote on whether to allow the
addition of a new member. This procedure is intended to ensure that lawyers who
represent creditors or trustees are not privy to the discussion. It is similar to the NACBA
(National Association of Consumer Bankruptcy Attorneys) listserve but on a local level.
If you are interested, contact Bret Knutson at bknewtson@yahoo.com or 503-846-1160 to
join.
Email is great, but networking is important too. Consider joining a local bar committee.
You don’t have to do much but attend and take in the fun and informative discussion. The
Consumer Section (aka “The Circle of Love”) meets every other month to discuss
practical bankruptcy issues. Judges, lawyers (creditor and debtor), trustees (7 and 13), US
Trustee attorneys, representatives of the IRS and Oregon Department of Revenue, and
others address recent events in bankruptcy law, changes in procedure, new case law and
comments. Recent speakers have included Tim Zimmerman of Vial Fotheringham and
Stuart Cohen of Landye Bennett, who discussed ongoing HOA dues in bankruptcy and
PLF issues relating to the same. Practitioners rotate bringing eats for all to munch on
while the discussion takes place. Participation by telephone is available for those who
cannot attend in person. Eugene has a similar committee. For information about the
Portland committee, contact Laura Donaldson at laura@kunidonaldson.com ; for the
Eugene committee contact Natalie Scott at nscott@mb-lawoffice.com.
The New Lawyers Group is another resource for lawyers new to debtor-creditor practice.
It used to be called the “Young Lawyers Group” but a number of individuals new to
bankruptcy law didn’t meet the criteria (including me – I exceeded the age requirement),
so the name was changed. Three times a year the group holds panel discussions with
Chapter 7 Trustees, Chapter 13 Trustees, the Professional Liability Fund, and the IRS,
among others. The group also holds a social at the end of each year. This group is a great
way to network with other attorneys. If you are interested, contact Christopher Coyle at
chris@vbcattorneys.com or 503- 241-4869 to see when the next meeting will be held.
The WOMBATS group was developed specifically for women in bankruptcy practice.
The group meetings provide an opportunity for informal networking and exchange of
information. This is a diverse group, with creditor attorneys, debtor attorneys, judges,
members of the US Trustee’s office and the like. Interested? Call Laura Walker at 503-
224-3092 or email lwalker@cablehuston.com.
Finally, the Oregon State Bar Debtor-Creditor website at www.osb-dc.org should be a
link on the desktop of every lawyer who practices bankruptcy law. It contains valuable
information for the bankruptcy bar. Thomas Renn, Chapter 7 Trustee and past Chair of
the Executive Committee has done a great job keeping the website up to date with
relevant information and contacts. One of its features is a calendar of events including

meetings of all the committees described above. The site also lists committee chairs and
contact information.
This article was originally published in the OSB Debtor/Creditor Winter 2010 newsletter.
This article is posted with permission.
Ninth Circuit Case Notes

CHAPTER 12
THE ETHICS OF PRACTICE
MANAGEMENT
Dee Crocker
Beverly Michaelis
Sheila M. Blackford
Professional Liability Fund
Practice Management Advisors

Chapter 12
THE ETHICS OF PRACTICE
MANAGEMENT
TABLE OF CONTENTS
Page #
PowerPoint Slides .............................................................................................. 12-1
Trust Accounting Resources ............................................................................ 12-11
Conflicts of Interest Resources ........................................................................ 12-12
Duties to Prospective, Current, and Former Clients ........................................ 12-13
Confidentiality Resources ....................................................... ……………….12-14
OSB Bulletin Articles ...................................................................................... 12-15

The Ethics of
Practice P ti Management
M t
Dee Crocker � Beverly Michaelis � Sheila Blackford
Concept #1
Unearned Money Belongs in Trust
1. Retainers
2. Settlement Proceeds
3. Overpayments
Concept #3
Don’t Spend What You Don’t Have
1. Funds Must Clear
2. Follow the 3-5-10 3 5 10 Rule
3. Be Wary of Scams
12-1
7 Key Concepts of
Trust Accounting
Concept #2
Deposit Funds Promptly
� Deposit Daily
� Protect After Hours
� Issue Receipts for Cash
Concept #4
Account to the Client

Concept #5
Beware of Nonrefundable Fees
� Put it in Writing
� “Earned Upon p Receipt” p
� Refund if Work not Done
� Dishonest?
Concept #7
Protect Client Money
1. Endorse and Lockup
2. Protect Credit Card Numbers
3. Supervise Staff
4. Learn More
Trust Accounting
for Solos
12-2
Concept #6
Strict Liability Applies
Every lawyer shall certify annually
that the lawyer is in compliance with
Rule 1.15-1.
Resources
Oregon State Bar
www.osbar.org
ORPC 1.15-2(m)
Professional Liability Fund
www.osbplf.org
Dee Crocker – Beverly Michaelis – Sheila Blackford
Oregon Law Institute
http://bit.ly/cWEmzS
Oregon Rules of Professional Conduct Annotated
Managing Conflicts is the Key
� Avoid malpractice claims
� Avoid ethics complaints
� Enjoy j y your y law practice p

What are the keys
to managing conflicts?
You May Already Have
A Program to Use
• Microsoft Outlook
• Data base program
• Address book w/searchable note feature
Case Management Software
PLF Learning the Ropes 2009
12-3
Key: You must have a reliable conflict
checking system
Programs To Use For Conflict Searches
• PC - based :
– Amicus Attorney
– PracticeMaster
– ProLaw, READY
– TimeMatters10.
• Mac – based:
– Daylite
– LAWSTREAM
– Legal Suite – Case
Management Software
• Web– based:
– Clio
– Rocket MATTER
• Stand-alone Stand alone conflict
search:
– RTG Conflicts
– Legal Software
Systems (LSS)
Key: Who Should I Track?
• Clients and Adverse Parties
• Any Related Parties
• Declined Clients
• Prospects
• Pro Bono Clients
• Members of Your Firm

How Do We Track Conflicts?
• How do we document conflict checks?
• How do we screen incoming lawyers?
• How do we prepare outgoing lawyers?
• How do we screen for names that may not be
in the system?
Don’t Forget!
• Elizabeth may be “Betsy” or “Betty”
• William may be “Bill” or “Willy”
• Closing —recheck file
Key: Document Your Check
12-4
Key: When Should I Run a
Conflict Check?
1. At first contact
22. When the file is opened
3. Whenever a new party enters the
case
Quick Tips
• SSN or TIN
• DOB
• 123 ABC Street
• FKA
Practice Tips
� Document your file
� Always specify relationships
� Review new matter lists weekly

Business Deals With Clients Disclosure and Consent
In Summary
• Use a reliable conflict system
• Enter all related information
• Run a conflict check
• Document your file
Avoid Malpractice and
Ethics Complaints
What Can Be Seen
• Keep your desk area clean
• Put files away
• Block view of computer screen
• Copy and fax machines
• Confidential documents
12-5
• Multiple Clients
• Former Clients
• Other Instances
CONFIDENTIALITY MATTERS
• What Can Be Seen
• What Can Be Heard
• What Can Be Said
What Can Be Heard
• Inside the Office
– Reception area
– Hallways and common areas
• Outside the Office
– Restrooms
– Elevators and common areas
• Cell phone

What Can Be Said
• Telephone conversations
• Remember who your client is
• Disclosure of information
Metadata
1. Word Processing Documents
2. Spreadsheets
3. Database Files
4. Images
5. Videos
6. EVERY Electronic File
Examples of Metadata
� Inserted Text
� Document Versions
� Comments
� Headers and Footers
12-6
Other Concerns
• Destruction of Information
– Paper
– Electronic
• Metadata
• Office Sharing Situations
Examples of Metadata
o Path and File Name
o Author
o Date and Time Stamp
o Company or Firm Name
Examples of Metadata
o Tracked Changes
o Template Information
o Undo and Redo History Histor
o Network or Server Name
http://bit.ly/voJOnR
http://bit.ly/uxhJgW

Ethical Obligations
• Act Competently
• Use Reasonable Care
– Prevent inadvertent disclosure
– Li Limit i nature of f metadata d
– Limit scope of metadata
Choose PDF Printer
Create PDF
PRINT TO PDF
General Practice Tips
12-7
Best Practice
Always Send Documents as PDFs
Don’t Forget
• Staff
• Outside Services
• Out of Office
It’s All in the Introduction.
• Learn how to meet
and greet people

Fees
Thoroughly
di discuss ffees
with the client.
A little thing can make a big difference.
Thank your
clients
The Phone Dilemma
Should you
give g yyour
home or cell
phone
number to
clients?
12-8
Don’t wait until
the last minute
Think Strategically
Don’t wait until
the next to the
last minute
Everything is
cheaper the
earlier you do it
Directions Are Essential.
Don't turn off
clients before
they h ever reach h
your office!
www.mapquest.com
www.randmcnally.com
Call to make sure!
It never
hurts to
double
check those
figures

Create a
"Thank Thank You You"
file.
Thank You
The Unwanted File
What do you
ddo with ihthat h
file from hell?
Your
receptionist
can make the
difference!
The Receptionist
12-9
See it clearly.
Increase the
font size
Ten, Nine, Eight…..
Manage your
ti time – d don’t ’t
let it manage
you
Time Management
The sooner you START
Th The sooner you FINISH

A Training Lunch
THANK YOU!
As the immortal
Yogi Berra said,
“You You got to be
careful if you
don't know where
you're going,
because you
might not get
there.”
12-10
Patches and Updates
Free at www.updates.com or
http://updates.zdnet.com
Check three or four
times a year y for
patches, plugs,
service packs or
updates

TRUST ACCOUNTING RESOURCES
Resources Available on the
Professional Liability Fund Website, www.osbplf.org
Books, Articles, Practice Aids, and Forms PLF Web Site Link
25 Ways to Protect Your Firm from Embezzlement Practice Aids and Forms, then Trust Accounting
Accepting Credit Cards Practice Aids and Forms, then Trust Accounting
A Guide to Setting Up and Using Your Lawyer Trust Account Books from the PLF (Updated in 2009)
Check Scams Become Even More Sophisticated and
Generally Have No PLF Coverage
In Brief, then March 2012 Issue
Client Ledger Card and Trust Journal Practice Aids and Forms, then Trust Accounting
Easy to Use or Easy to Lose? How to Protect Mobile Devices In Brief, then August 2008 Issue
Frequently Asked Trust Account Questions Practice Aids and Forms, then Trust Accounting
Identity Theft Protection Resources In Brief, then August 2008 Issue
IOLTA Accounts Practice Aids and Forms, then Trust Accounting
Notice of Enrollment to OLF re IOLTA Account Practice Aids and Forms, then Trust Accounting
Notice to Clients re Theft Practice Aids and Forms, then Client Relations
Protect Client Information from Identity Theft In Brief, then August 2008 Issue
Rules for Washington Practitioners Practice Aids and Forms, then Trust Accounting
Trust Account Reconciliation Practice Aids and Forms, then Trust Accounting
Trust Accounting Practice Aids and Forms, then Trust Accounting
Resources Available on the
Oregon State Bar Website, www.osbar.org
Ethics Opinions, Articles, Rules OSB Web Site Link
Ethics Opinion 2005-48 Unclaimed Funds http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-145 Trust Account Cushions http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-149 Fee Disputes http://www.osbar.org/ethics/toc.html
Ethics Opinion 2011-151 Fixed Fees http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-172 Credit Cards http://www.osbar.org/ethics/toc.html
Lawyers Beware: Avoiding the Scams https://www.osbar.org/publications/bulletin/08nov/tips.html
Oregon Rules of Professional Conduct http://www.osbar.org/_docs/rulesregs/orpc.pdf
SO YOU THINK… Your IOLTA Account is Safe from
Identity Theft, right?
http://www.osbar.org/publications/bulletin/05dec/barcounsel.html
Trust Accounts and the FDIC http://www.osbar.org/publications/bulletin/08oct/barcounsel.html
Trust Account Lessons: Cautionary Notes http://www.osbar.org/publications/bulletin/08oct/barcounsel.html
Waiting for Go Dough http://www.osbar.org/publications/bulletin/06jun/barcounsel.html
12-11

CONFLICTS OF INTEREST RESOURCES
PLF Resources: Professional Liability Fund Website, www.osbplf.org
Book:
A Guide to Setting Up and Running Your Law Office: Conflict of Interest Systems
www.osbplf.org Practice Aids and Forms, then Books from the PLF
Practice Aids and Forms: (www.osbplf.org Practice Aids and Forms, then Conflicts of Interest)
• Conflict Audit
• Conflict Disclosure and Consent Checklists
• Conflict Disclosure and Consent Letters
• Conflict of Interest Systems--Procedures
• Declined Prospect Information Sheet
• Disclosure Form ORPC 1 Lawyer-Client Business Transaction
• Ethics Opinion 2005-50 Conflicts of Interest Office Sharers
OSB Resources: Oregon State Bar Website, www.osbar.org
Ethics – Oregon State Bar Formal Ethics Opinions:
OSB Formal Ethics Opinion Library Table of Contents
http://www.osbar.org/ethics/toc.html
Ethics – Counsel Articles
http://www.osbar.org/ethics/bulletinbarcounsel.html
ABA Resources: ABA Website, www.americanbar.org
Center for Professional Responsibility
http://www.americanbar.org/groups/professional_responsibility.html
ABA Model Rules of Professional Conduct with Comments
http://www.americanbar.org/groups/professional_responsibility.html
ETHICSearch
http://www.americanbar.org/groups/professional_responsibility/services/ethicsearch.html
An Invitation to Malpractice: Ignoring conflict-of-interest rules can open Pandora’s box, by
Harry H. Schneider, Jr., Professional Liability Matters, ABA Standing Committee on Lawyers’
Professional Liability http://www.abanet.org/legalservices/lpl/downloads/invitation1.pdf
An Invitation to Malpractice Part II: Once a conflict of interest is spotted, take action
promptly, by Harry H. Schneider, Jr., Professional Liability Matters, ABA Standing Committee
on Lawyers’ Professional Liability
http://www.abanet.org/legalservices/lpl/downloads/invitation2.pdf
12-12

DUTIES TO PROSPECTIVE, CURRENT, AND FORMER CLIENTS
Duties to Prospective Client
Oregon Rules of Professional Conduct
Rule 1.18 Duties to Prospective Client - http://www.osbar.org/_docs/rulesregs/orpc.pdf
ABA Model Rules of Professional Conduct
Rule 1.18 Duties to Prospective Clients -
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_1_18_duties_of_prospective_client.html
ABA Commentary to Rule 1.18 -
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_1_18_duties_of_prospective_client/comment_on_rule_1_18_duties_of_prospective_client.ht
ml
Conflict of Interest: Current Clients
Oregon Rules of Professional Conduct
Rule 1.7 Conflict of Interest: Current Clients - http://www.osbar.org/_docs/rulesregs/orpc.pdf
ABA Model Rules of Professional Conduct
Rule 1.7 Conflict Of Interest: Current Clients -
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_1_7_conflict_of_interest_current_clients.html
ABA Commentary to Rule 1.7 -
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_1_7_conflict_of_interest_current_clients/comment_on_rule_1_7.html
Duties to Former Clients
Oregon Rules of Professional Conduct
Rule 1.9 Duties to Former Clients - http://www.osbar.org/_docs/rulesregs/orpc.pdf
ABA Model Rules of Professional Conduct
Rule 1.9 Duties to Former Clients -
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_1_18_duties_of_prospective_client/comment_on_rule_1_18_duties_of_prospective_client.ht
ml
ABA Commentary to Rule 1.9 -
http://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_
conduct/rule_1_9_duties_of_former_clients/comment_on_rule_1_9.html
12-13

CONFIDENTIALITY RESOURCES
Confidentiality – A Responsibility of Legal Staff – www.osbplf.org, Select Practice Aids and Forms,
then Staff
Confidentiality Pledge – www.osbplf.org, Select Practice Aids and Forms, then Staff (attached to
Confidentiality – A Responsibility of Legal Staff)
Confidentiality Agreement - – www.osbplf.org, Select Practice Aids and Forms, then Staff (attached to
Confidentiality – A Responsibility of Legal Staff)
12-14

OSB BULLETIN ARTICLES –
CONFLICTS, METADATA, OFFICE SHARING, CONFIDENTIALITY
Former Client Conflicts: Differences without (much) distinction, by Helen Hierschbiel, OSB Bulletin,
October 2006 http://www.osbar.org/publications/bulletin/06oct/barcounsel.html
The Invisible Door – Confidentiality meets wireless technology, by George A. Riemer, OSB Bulletin,
July 2004 http://www.osbar.org/publications/bulletin/04jul/barcounsel.html
Metadata: Danger or Delight, by Sheila Blackford, OSB Bulletin, May 2006
http://www.osbar.org/publications/bulletin/06may/practice.html
Meet the Client: Considering the duties owed to prospective clients, by Chris Mullmann, OSB
Bulletin, June 2005http://www.osbar.org/publications/bulletin/05jun/barcounsel.html
New Ethics Guidance: A Roundup of Recent Ethics Opinions from the OSB, the ABA, and more --
OSB Formal Ethics Op. 2007-177: Issue Conflicts, by Sylvia Stevens, OSB Bulletin, December 2007
http://www.osbar.org/publications/bulletin/07dec/barcounsel.html
Officemates or Partners? Sharing space also can mean sharing risk -
http://www.osbar.org/publications/bulletin/05jan/practice.html
Organization as Client: New Rule 1.13 of the Approved Oregon Rules of Professional Conduct, by
Chris Mullmann, OSB Bulletin, December 2004
http://www.osbar.org/publications/bulletin/04dec/barcounsel.html
The Secrets We Keep – A review of the duty of confidentiality, by Sylvia E. Stevens, OSB Bulletin,
February/March 2004 http://www.osbar.org/publications/bulletin/04febmar/barcounsel.html
Top 10 Myths: The Duty of Confidentiality, by Helen Hierschbiel, OSB Bulletin, June 2009
http://www.osbar.org/publications/bulletin/09jun/barcounsel.html
Why Conflicts Matter: Conflicts are no longer the sole province of bar discipline, by Mark J. Fucile,
OSB Bulletin, June 2005 http://www.osbar.org/publications/bulletin/05jun/practice.html
12-15

CREATING A FIRM
CHAPTER 13
SETTING UP AND RUNNING A
LAW PRACTICE
Beverly Michaelis
Professional Liability Fund
Practice Management Advisor

Chapter 1 3
SETTING UP AND RUNNING A
LAW PRACTICE
TABLE OF CONTENTS
Page #
POWERPOINT SLIDES ........................................................................................................... 13-1
RESOURCES ............................................................................................................................ 13-8

Setting Up and Running
a Law Practice
Beverly Michaelis, J.D.
Practice Management Advisor
Professional Liability Fund
Trust Account Violations
Lead to Bar Complaints
� Failure to Protect Client Funds
� Inadequate q Accountingg
� Unexplained Overdrafts
Learn How to Manage
� Files
�� Deadlines
� Your Trust Account
� Your Business
13-1
40% of Claims Involve an
Administrative Error
� Missed deadlines
�� Inaccurate documents
� Deleted e-mail
Sound Office Systems Help
Control Risks
Manage Files

Organize Electronic Records
and Color Code
7 Key Steps to Closing a File
1. Closing letter sent
2. Client originals returned
3. File intact
4. Electronic documents captured
13-2
Organize Paper
Witnesses
Police Report
Client’s Diary
Medical Bills
Lost Wages
and Color Code
Give Clients Their Own File
5. Destruction date assigned
6. Final bill or refund issued
7. And …

Manage Deadlines Enter Dates Immediately
and Automatically
Allow
Lead Time
13-3
Use Follow-Up Dates

Sync Daily Avoid e-Court Pitfalls
Tickle Files
Set it Up Right
1. Oregon Law Foundation TIN
2. Properly identify
3. Bank service charges
4. FDIC Insurance
13-4
� Filing the correct document?
� Creating rules to forward e-notices?
� Training staff?
� White-listing court domains?
Manage Your
Trust Account
What’s in a Name?
� [Name] Lawyer Trust Account
� [Name PC] Lawyer Trust Account
� [Name LLC] Lawyer Trust Account
www.oregonlawfoundation.org

Notify the OLF in
writing within 30 days
Reconcile!
� Each month – without fail
� Supervise staff
� Do a “three way”
Avoid Temptation
1. No cash draws
2. Don’t pay rent from trust
33. UUse caution ti with ith ttransfers f
13-5
Keep a Record
• Each client is separate
• Track all deposits and withdrawals
Bank → Register → Ledger
Bank Balance $1000
Register Balance $1000
Client Ledgers $1000
Client A $ 200
Client B $ 300
Client C $ 500
$1000
Use Credit Cards Wisely

Keep Records For Five Years Manage Your Business
What Can You Do Now?
1. Get a buddy
2. Sign an agreement
3. Protect your trust account
4. Inform your family
5. Use the Law Office List of Contacts
13-6
Protect Yourself
Protect Your Clients
Where Can You Go For Help?
Planning Ahead:
A Guide to Protecting Your Clients’ Interests
in the Event of Your Disability or Death
Summary
� Manage Files
�� Manage Deadlines
� Manage Your Trust Account
� Manage Your Business

Beverly Michaelis - Practice Management Advisor
beverlym@osbplf.org
503-639-6911 or 800-452-1639
http://oregonlawpracticemanagement.com/
http://www.linkedin.com/in/beverlymichaelis
http://twitter.com/OreLawPracMgmt
13-7

RESOURCE WEB LINK
AMERICAN BAR ASSOCIATION
Law Practice Management Section http://www.abanet.org/lpm/home.shtml
Legal Technology Resource Center http://www.abanet.org/tech/ltrc/
Periodicals, Web sites, Blogs, RSS Feeds, E-mail
Discussion Groups, Researching Technology, etc.
http://www.abanet.org/tech/ltrc/fyidocs/technologyresearchfyi.html
Suddenly Solo ( Law Practice Today, July 2009) http://www.abanet.org/lpm/lpt/home.shtml
Technology FYIs http://www.abanet.org/tech/ltrc/fyidocs/
ASSOCIATES
CALENDARING AND TICKLING
See Partnership/Of Counsel
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Beware of these Traps in E-Filing and E-Notices www.osbplf.org, then In Brief, then August 2009 issue
Calendaring and File Tickling Systems www.osblf.org, then Practice Aids and Forms, then Docketing & Calendaring
Diary/Tickler Systems www.osblf.org, then Practice Aids and Forms, then Docketing & Calendaring
Docket Control Checklist www.osblf.org, then Practice Aids and Forms, then Docketing & Calendaring
Docket Sheet www.osblf.org, then Practice Aids and Forms, then Docketing & Calendaring
Follow-Up www.osblf.org, then Practice Aids and Forms, then Docketing & Calendaring
Mail Handling – Paper and Paperless Filing Systems www.osblf.org, then Practice Aids and Forms, then Mail Handling
Supplementary Local Rules www.osblf.org, then Practice Aids and Forms, then Docketing & Calendaring
CLIENT AND CASE SCREENING
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
How to Handle Phone Inquiries from Potential Clients www.osbplf.org, then Practice Aids and Forms, then Client Relations
Make the Right Match: What If You Only Represented
Clients You Like
CLIENT COMMUNICATIONS
https://www.osbar.org/publications/bulletin/08jul/practice.html
Administrative Info Brochure www.osbplf.org, then Practice Aids and Forms, then Client Relations
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Billing Info Brochure www.osbplf.org, then Practice Aids and Forms, then Client Relations
Client Relations Checklist www.osbplf.org, then Practice Aids and Forms, then Client Relations
Client Service Questionnaire www.osbplf.org, then Practice Aids and Forms, then Client Relations
Disclaimers for E-Mail, Web sites, etc. www.osbplf.org, then Practice Aids and Forms, then Technology
E-Writing: tips 4 btr comm https://www.osbar.org/publications/bulletin/08may/legalwriter.html
How You Can Eliminate Constant Telephone
Interruptions
www.osbplf.org, then Practice Aids and Forms, then Client Relations
Marketing with Firm Brochures www.osbplf.org, then Practice Aids and Forms, then Client Relations
Notice to Client re Theft of Computer Equipment www.osbplf.org, then Practice Aids and Forms, then Client Relations
Receipt (delivery from client) www.osbplf.org, then Practice Aids and Forms, then Client Communication
The E-Mail Blizzard http://www.osbar.org/publications/bulletin/09apr/practice.html
Transmittal www.osbplf.org, then Practice Aids and Forms, then Client Communication
Using E-Mail in the Office www.osbplf.org, then Practice Aids and Forms, then Client Communication
Using Voicemail in the Office www.osbplf.org, then Practice Aids and Forms, then Client Communication
13-8

RESOURCE WEB LINK
CLOSING YOUR LAW OFFICE
Checklists www.osbplf.org, then Practice Aids and Forms, then Closing Your Law Office
Law Office List of Contacts www.osbplf.org, then Practice Aids and Forms, then Closing Your Law Office
Plan Ahead: Are You Prepared for the Unthinkable? http://www.osbar.org/publications/bulletin/05jul/practice.html
Planning Ahead: A Guide to Protecting Your Clients’
Interests in the Event of Your Disability or Death
www.osbplf.org, then Books from the PLF (Updated in 2009)
Sample Letters to Clients www.osbplf.org, then Practice Aids and Forms, then Closing Your Law Office
CONFLICT OF INTEREST SYSTEMS
Also see: Selling a Law Practice and Retiring from a Law Practice
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Conflict Audit www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
Conflict Avoidance – What you need to know about
conflict of interest systems
https://www.osbar.org/publications/bulletin/01july/myp.htm
Conflict Disclosure and Consent Checklists www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
Conflict Disclosure and Consent Letters www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
Conflict of Interest Systems-Procedures www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
Declined Prospect Information Sheet www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
Disclosure Form ORPC 1 – Lawyer in Business w/ Client www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
Ethics Opinion No. 2005-50 Conflicts – Office Sharers www.osbplf.org, then Practice Aids and Forms, then Conflicts of Interest
DEPARTING A FIRM
Checklists, sample client letters, ethics opinions, etc. www.osbplf.org, then Practice Aids and Forms, then Departing a Firm
DISASTER RECOVERY
DISENGAGEMENT
Also see: Staff
See File Management, Backing Up and Protecting Data
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Disengagement letters www.osbplf.org, then Practice Aids and Forms, then Disengagement Letters
Leave a Paper Trail of Good Client Communications www.osbplf.org, then In Brief, then August 2009 issue.
How to Fire a Client: Do’s and Don’ts When Ending
Representation
ENGAGEMENT
https://www.osbar.org/publications/bulletin/07jul/practice.html
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Also see: File Management, Client Intake
Leave a Paper Trail of Good Client Communications www.osbplf.org, then In Brief, then August 2009 issue.
ETHICS – GENERAL INFORMATION
Bar Counsel Article Archive https://www.osbar.org/ethics/bulletinbarcounsel.html
Ethical Oregon Lawyer http://www.osbar.org/store/pub/pubcat.asp?action=view&cat=Ethics
Ethics Opinions https://www.osbar.org/ethics/toc.html
Ethics Questions https://www.osbar.org/ethics
Oregon Rules of Professional Conduct https://www.osbar.org/_docs/rulesregs/orpc.pdf
Oregon Rules, Policies, and Regulations https://www.osbar.org/rulesregs/toc.html
13-9

RESOURCE WEB LINK
FEES
2008 Hourly Rates Survey https://www.osbar.org/surveys_research/08hourlyratesurvey
2007 Economic Survey https://www.osbar.org/_docs/resources/07EconSurvey.pdf
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
FILE MANAGEMENT
General Information
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Color Code Your Electronic Folders http://bit.ly/90NjDi
Backing Up and Protecting Data
After Disaster Strikes: A Checklist www.osbplf.org, then Practice Aids and Forms, then Disaster Recovery
Application Service Providers www.osbplf.org, then Practice Aids and Forms, then Technology
Do-It-Yourself Security: Help Keeping Your Data Safe https://www.osbar.org/publications/bulletin/09febmar/legalonline.html
Easy to Use or Easy to Lose? www.osbplf.org, then In Brief, then August 2008 issue
How to Backup Your Computer www.osbplf.org, then Practice Aids and Forms, then Technology
Identity Theft Protection Resources www.osbplf.org, then In Brief, then August 2008 issue
Managing Practice Interruptions www.osbplf.org, then Practice Aids and Forms, then Disaster Recovery
Protect Client Information from Identity Theft www.osbplf.org, then In Brief, then August 2008 issue
Protecting Your Firm www.osbplf.org, then Practice Aids and Forms, then Disaster Recovery
Client Intake
Engagement Letters and Fee Agreements www.osbplf.org, then Practice Aids and Forms, then Engagement Letters
Fee Agreement Compendium
http://www.osbar.org/store/pub/pubcat.asp?action=view&cat=Law+Practice+Management
New Client Information Sheet www.osbplf.org, then Practice Aids and Forms, then File Management
New Client Information Sheet with Disclaimer www.osbplf.org, then Practice Aids and Forms, then File Management
How to Handle Phone Inquiries from Potential Clients www.osbplf.org, then Practice Aids and Forms, then Client Relations
How You Can Eliminate Constant Telephone
Interruptions
Declined Clients
www.osbplf.org, then Practice Aids and Forms, then Client Relations
Declined Client Prospect Information Sheet www.osbplf.org, then Practice Aids and Forms, then File Management
Leave a Paper Trail of Good Client Communications www.osbplf.org, then In Brief, then August 2009 issue.
Nonengagement Letters www.osbplf.org, then Practice Aids and Forms, then Nonengagement Letters
File Closing and Retention
Client Files Revisited www.osbplf.org, then Practice Aids and Forms, then File Management
Disengagement Letters www.osbplf.org, then Practice Aids and Forms, then Disengagement Letters
Document Destruction www.osbplf.org, then In Brief, then June 2005 issue
File Closing Checklist www.osbplf.org, then Practice Aids and Forms, then File Management
File Retention www.osbplf.org, then Practice Aids and Forms, then File Management
File Documentation
Memo of Conversation www.osbplf.org, then Practice Aids and Forms, then File Management
Memo of Conversation (I Said/They Said) www.osbplf.org, then Practice Aids and Forms, then File Management
13-10

RESOURCE WEB LINK
Organization of Electronic Files
Beware of these Traps in E-Filing and E-Notices www.osbplf.org, then In Brief, then August 2009 issue
Checklist for Imaging Client Files/Disposition of Originals www.osbplf.org, then Practice Aids and Forms, then Technology
Color Code Your Electronic Folders http://bit.ly/90NjDi
Digital Signatures www.osbplf.org, then Practice Aids and Forms, then Technology
Is It Time To Go Paper-Less? www.osbplf.org, then In Brief, then February 2009 issue
Going Paperless? Ethical Considerations http://www.osbar.org/publications/bulletin/09apr/barcounsel.html
Mail Handling – Paperless Filing System www.osbplf.org, then Practice Aids and Forms, then Mail Handling
Managing Client E-mail www.osbplf.org, then Practice Aids and Forms, then Technology
Our Paperless World www.osbplf.org, then Practice Aids and Forms, then Technology
Retention of Electronic Records www.osbplf.org, then Practice Aids and Forms, then Technology
Technology Tips - Using Acrobat 9 in the Law Office www.osbplf.org, then In Brief, then August 2008 issue
Organization of Paper Files
Mail Handling – Paper Filing System www.osbplf.org, then Practice Aids and Forms, then Mail Handling
Setting Up an Effective Filing System www.osbplf.org, then Practice Aids and Forms, then File Management
Providing Files to Clients
Client Files Revisited www.osbplf.org, then Practice Aids and Forms, then File Management
Going Paperless? Ethical Considerations http://www.osbar.org/publications/bulletin/09apr/barcounsel.html
OSB Formal Ethics Opinion 2005-125 www.osbplf.org, then Practice Aids and Forms, then File Management
FINANCIAL MANAGEMENT
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Billing and Time Slips www.osbplf.org, then Practice Aids and Forms, then Financial Management
Budgets (Start-Up and Monthly) www.osbplf.org, then Practice Aids and Forms, then Financial Management
Cash Flow Worksheet (6 Month and 12 Month) www.osbplf.org, then Practice Aids and Forms, then Financial Management
Daily Time Sheets www.osbplf.org, then Practice Aids and Forms, then Financial Management
General Ledger www.osbplf.org, then Practice Aids and Forms, then Financial Management
Portland Multnomah Business Tax www.osbplf.org, then Practice Aids and Forms, then Financial Management
LAW LIBRARY/LEGAL RESEARCH
Books and Legal Research Tools
BarBooks Online (OSB CLE Publications) http://www.osbar.org/legalpubs/BarBooksTeaser.html (FREE IN 2011)
Fastcase www.osbar.org
In Brief (PLF Newsletter) www.osbplf.org, then In Brief
Online Resources for Oregon Lawyers (main portal) https://www.osbar.org/resources/eresources.html
Oregon Statutory Time Limitations Handbook www.osbplf.org, then Books from the PLF
State of Oregon Law Library http://www.oregon.gov/SOLL/
Willamette Law Online http://www.willamette.edu/wucl/journals/wlo/
13-11

RESOURCE WEB LINK
Courts (Oregon)
Appellate Decisions http://www.publications.ojd.state.or.us/
Circuit Court Websites & Calendars http://www.ojd.state.or.us/courts/circuit/index.htm
Court Forms http://www.ojd.state.or.us/forms/index.htm
Court Programs http://www.ojd.state.or.us/programs/index.htm
Forms
BarBooks Online (OSB CLE Publications) http://www.osbar.org/legalpubs/BarBooksTeaser.html (FREE IN 2011)
PLF Forms www.osbplf.org, then Practice Aids and Forms
Law Library Values
Law Library Values http://www.osbar.org/_docs/resources/libraryvalues09.pdf
Rules
Oregon Administrative Rules
Oregon Rules of Appellate Procedure
Oregon Rules of Civil Procedure
Supplementary Local Rules
Tax Court Rules
Uniform Trial Court Rules
Statutes
http://www.ojd.state.or.us/Web/OJDPublications.nsf/OAR?OpenView&count=1000
http://www.ojd.state.or.us/Web/OJDPublications.nsf/ORAP?OpenView&count=1000
http://www.ojd.state.or.us/Web/OJDPublications.nsf/ORCP?OpenView&count=1000
Practice Aids and Forms, then Docketing & Calendaring
http://www.ojd.state.or.us/Web/OJDPublications.nsf/TaxR?OpenView&count=1000
http://www.ojd.state.or.us/programs/utcr/
Legislative History http://arcweb.sos.state.or.us/banners/legis.htm
Oregon Statutes http://www.leg.state.or.us/ors/
Statutes – Miscellaneous links http://www.osbar.org/resources/eresources.html
MOVING A LAW OFFICE
Moving a Law Office Checklist www.osbplf.org, then Practice Aids and Forms, then Moving a Law Office
NONENGAGEMENT
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Leave a Paper Trail of Good Client Communications www.osbplf.org, then In Brief, then August 2009 issue.
Sample nonengagement letters www.osbplf.org, then Practice Aids and Forms, then Nonengagement Letters
OFFICE MANUALS
Also see: File Management, Declined Clients
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Office Manual Index and Policy Manual Index www.osbplf.org, then Practice Aids and Forms, then Office Manuals
Procedure Manual www.osbplf.org, then Practice Aids and Forms, then Office Manuals
Using Form Books www.osbplf.org, then Practice Aids and Forms, then Office Manuals
OFFICE SHARING
Checklist for Creating a Work-For-Rent Agreement www.osbplf.org, then Practice Aids and Forms, then Office Sharing
Office Sharing Ethics Opinions www.osbplf.org, then Practice Aids and Forms, then Office Sharing
Office Sharing Guidelines www.osbplf.org, then Practice Aids and Forms, then Office Sharing
13-12

RESOURCE WEB LINK
OFFICE SYSTEMS AUDIT
Office System Audit www.osbplf.org, then Practice Aids and Forms, then Office System Audit
OPENING A LAW OFFICE
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Checklist for Opening a Law Office www.osbplf.org, then Practice Aids and Forms, then Opening a Law Office
Choice of Entity www.osbplf.org, then Practice Aids and Forms, then Entity Formation
Ethics Opinion 2005-49 – Disclosure of Entity Status www.osbplf.org, then Practice Aids and Forms, then Entity Formation
Law Office Start-Up: Law Office on a Shoestring https://www.osbar.org/publications/bulletin/08oct/practice.html
Lawyers as PCs, LLCs, and LLPs www.osbplf.org, then Practice Aids and Forms, then Entity Formation
Opening an Office (article) www.osbplf.org, then Practice Aids and Forms, then Opening a Law Office
Virtual Law Office www.osbplf.org, then Practice Aids and Forms, then Opening a Law Office
OSB SECTIONS
Also see: Office Sharing and Partnership/Of Counsel
Law Practice Management http://osblpms.homestead.com/
Solo and Small Firm Practitioners http://www.osbar.org/sections/ssfp.html
Sections (General) http://www.osbar.org/sections
PARTNERSHIP/OF COUNSEL
Associate Agreement Checklist www.osbplf.org, then Practice Aids and Forms, then Partnership/Of Counsel
Ethics Opinions www.osbplf.org, then Practice Aids and Forms, then Partnership/Of Counsel
Of Counsel Relationships www.osbplf.org, then Practice Aids and Forms, then Partnership/Of Counsel
Partnership Agreement Checklist www.osbplf.org, then Practice Aids and Forms, then Partnership/Of Counsel
PLF BOOKS
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
A Guide to Setting Up and Using Your Lawyer Trust
Account
Planning Ahead: A Guide to Protecting Your Clients’
Interests in the Event of Your Disability or Death
PLF COVERAGE
www.osbplf.org, then Books from the PLF (Updated in 2009)
www.osbplf.org, then Books from the PLF (Updated in 2009)
Billing and Exemption Guide www.osbplf.org, then Billing and Exemption Guide (under Primary Coverage)
Disclosure of Potential Malpractice www.osbplf.org, then Practice Aids and Forms, then Disclosure of Potential
Malpractice
Excess Coverage www.osbplf.org, then Excess Coverage
Primary Coverage www.osbplf.org. See Billing and Exemption Guide, Coverage Plan, Policies
and Guidelines, and Request an Exemption under Primary Coverage
heading
13-13

RESOURCE WEB LINK
PRACTICE-SPECIFIC MATERIALS
BarBooks Online (OSB CLE Publications) http://www.osbar.org/legalpubs/BarBooksTeaser.html
CLEs – Multnomah Bar Association https://www.mbabar.org/programlist.php
CLEs – Oregon State Bar http://www.osbarcle.org/
CLEs – Oregon Law Institute http://www.lclark.edu/
CLEs – Professional Liability Fund*
*There are many CLE providers. These are just a few.
PLF Practice Aids and Forms
Adoption
Bankruptcy
Business
Conservatorships
Construction Liens
Contract Lawyering
Criminal
Domestic Relations
Guardianships
Immigration
Litigation
Probate and Estate Planning
Real Property
Workers Compensation
PRODUCTS & SERVICES
www.osbplf.org, then –CLE
Online, Programs on Audio, Programs on Video, or Upcoming Seminars
www.osbplf.org, then Practice Aids and Forms
Also see: Law Library/Legal Research
ABA Web Store Discount www.osbplf.org, then ABA Products
Discount on WordPerfect Office X4 www.osbplf.org, then News
2009 Oregon State Bar Products & Services https://www.osbar.org/adirectory/directoc.html
PROTECTING YOUR CLIENTS
Law Office List of Contacts www.osbplf.org, then Practice Aids and Forms, then Closing Your Law Office
Sample letters, agreements, and checklists www.osbplf.org, then Practice Aids and Forms, then Closing Your Law Office
Plan Ahead: Are You Prepared for the Unthinkable? http://www.osbar.org/publications/bulletin/05jul/practice.html
Planning Ahead: A Guide to Protecting Your Clients’
Interests in the Event of Your Disability or Death
RETIRING FROM LAW PRACTICE
www.osbplf.org, then Books from the PLF (Updated in 2009)
Checklist www.osbplf.org, then Practice Aids and Forms, then Retiring from Law Practice
Resources www.osbplf.org, then Practice Aids and Forms, then Retiring from Law Practice
SELLING A LAW PRACTICE
Checklist www.osbplf.org, then Practice Aids and Forms, then Selling A Law Practice
Resources www.osbplf.org, then Practice Aids and Forms, then Selling A Law Practice
13-14

RESOURCE WEB LINK
STAFF
ABA Model Guidelines for Utilization of Paralegals www.osbplf.org, then Practice Aids and Forms, then Staff
Appointments www.osbplf.org, then Practice Aids and Forms, then Staff
Chart of Professional Organizations for Staff www.osbplf.org, then Practice Aids and Forms, then Staff
Checklist for Departing Staff www.osbplf.org, then Practice Aids and Forms, then Staff
Confidentiality in the Law Office (w/ sample agreements) www.osbplf.org, then Practice Aids and Forms, then Staff
Delegation Memo www.osbplf.org, then Practice Aids and Forms, then Staff
Ethics for Legal Staff www.osbplf.org, then Practice Aids and Forms, then Staff
Finding Della www.osbplf.org, then Practice Aids and Forms, then Staff
New Secretary Checklist www.osbplf.org, then Practice Aids and Forms, then Staff
Reception Article and Reception Duties www.osbplf.org, then Practice Aids and Forms, then Staff
TECHNOLOGY
An Accelerating Trend: Case Law Just Wants to be Free https://www.osbar.org/publications/bulletin/08may/legalonline.html
A Very Good Price: 10 Places to Get Free Cases https://www.osbar.org/publications/bulletin/09jul/legalonline.html
Beware of these Traps in E-Filing and E-Notices www.osbplf.org, then In Brief, then August 2009 issue
Choices: Law Firm Billing and Accounting Software https://www.osbar.org/publications/bulletin/08dec/practice.html
Common Mistakes Lawyers Make with Technology www.osbplf.org, then In Brief, then June 2011 issue
Cyber Solutions – Practice management tips for busy
lawyers
https://www.osbar.org/publications/bulletin/02augsep/managing.html
Debuts of Note: A roundup of new legal sites https://www.osbar.org/publications/bulletin/08dec/legalonline.html
Fingerprints and Clusters: New Legal Search Tool Has
Broad Potential
https://www.osbar.org/publications/bulletin/08apr/legalonline.html
First Look: Martindale-Hubbell Connected https://www.osbar.org/publications/bulletin/08oct/legalonline.html
In Search of Symbiosis: Networking for Lawyers,
Part II
https://www.osbar.org/publications/bulletin/08augsep/legalonline.html
Listen Up: 10 Essential Podcasts for Lawyers https://www.osbar.org/publications/bulletin/08nov/legalonline.html
Metadata – Danger or delight https://www.osbar.org/publications/bulletin/06may/practice.html
Metadata: Guarding Against the Disclosure of Embedded
Information
http://www.osbar.org/publications/bulletin/07apr/barcounsel.html
Resources for Mac Lawyers www.osbplf.org, then Practice Aids and Forms, then Technology
Social Networking Sites for Lawyers: Part I https://www.osbar.org/publications/bulletin/08jul/legalonline.html
Super-Powered Websites
Three New Sites Worth Perusing
The Right Tools – Good software choices can lead to
smoother operation
https://www.osbar.org/publications/bulletin/08jun/legalonline.html
https://www.osbar.org/publications/bulletin/05may/practice.html
Tips from the ABA TECHSHOW www.osbplf.org, then In Brief, then August 2009 issue.
Tips, Tools and Traps– Better productivity through
technology
https://www.osbar.org/publications/bulletin/06apr/practice.html
Tips, Traps, and Resources www.osbplf.org, then In Brief (a recurring column which often contains
technology tips)
Tweet 16: 16 ways lawyers can use Twitter https://www.osbar.org/publications/bulletin/09jan/legalonline.html
Top 10 Top 60: The Most Notable Legal Sites of 2007 https://www.osbar.org/publications/bulletin/08febmar/legalonline.html
Twenty Tools to Make Twitter Sing https://www.osbar.org/publications/bulletin/09may/legalonline.html
13-15

RESOURCE WEB LINK
TECHNOLOGY
Also see: File Management, Organization of Electronic Files and File
Management, Backing Up and Protecting Data
Web Sites from the ABA TECHSHOW www.osbplf.org, then In Brief, then August 2009 issue.
What’s New on the Web?: A Roundup https://www.osbar.org/publications/bulletin/08jan/legalonline.html
TIME MANAGEMENT
A Guide to Setting Up and Running Your Law Office www.osbplf.org, then Books from the PLF (Updated in 2009)
Reducing the Pressure, PLF CLE www.osbplf.org, then Programs on Audio or Programs on Video
TRUST ACCOUNTING
25 Ways to Protect Your Firm From Embezzlement www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
A Guide to Setting Up and Using Your Lawyer Trust
Account
www.osbplf.org, then Books from the PLF (Updated in 2009)
Check Scams Target Lawyers www.osbplf.org, then In Brief, then November 2008 Issue
Client Ledger Card and Trust Journal www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
Ethics Opinion 2005-48 Unclaimed Funds http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-145 Trust Account Cushions http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-149 Fee Disputes http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-151 Fixed Fees http://www.osbar.org/ethics/toc.html
Ethics Opinion 2005-172 Credit Cards http://www.osbar.org/ethics/toc.html
FAQ About Credit Cards http://bit.ly/5RfJuz
Frequently Asked Trust Account Questions www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
Identity Theft Protection Resources www.osbplf.org, then In Brief, then August 2008 Issue
IOLTA Accounts www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
Lawyers Beware: Avoiding the Scams https://www.osbar.org/publications/bulletin/08nov/tips.html
Notice of Enrollment to OLF re IOLTA Account www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
Notice to Clients re Theft www.osbplf.org, then Practice Aids and Forms, then Client Relations
Oregon Rules of Professional Conduct http://www.osbar.org/_docs/rulesregs/orpc.pdf
Protect Client Information from Identity Theft www.osbplf.org, then In Brief, then August 2008 Issue
Rules for Washington Practitioners www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
SO YOU THINK… Your IOLTA Account is Safe from
Identity Theft, right?
Two Minute Tips: How to Reconcile Your Trust Account
http://www.osbar.org/publications/bulletin/05dec/barcounsel.html
http://bit.ly/btVjzs
Trust Accounting www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
Trust Account Reconciliation www.osbplf.org, then Practice Aids and Forms, then Trust Accounting
Trust Account Lessons: Cautionary Notes http://www.osbar.org/publications/bulletin/08oct/barcounsel.html
Trust Accounts and the FDIC http://www.osbar.org/publications/bulletin/08oct/barcounsel.html
Waiting for Go Dough http://www.osbar.org/publications/bulletin/06jun/barcounsel.html
13-16
Compiled by Beverly Michaelis
PLF Practice Management Advisor
Follow me on
http://twitter.com/OreLawPracMgmt
Read my blog
http://oregonlawpracticemanagement.com/

CREATING A FIRM
CHAPTER 14
“IF I ONLY KNEW”
PRACTICE TIPS AND ADVICE
FROM SOLE PRACTITIONERS
Amy J. Cross
Sole Practitioner – family law, trusts and estates
Marc A. Johnston
Sole Practitioner – tort litigation
Ian G. Shearer
Sole Practitioner – bankruptcy
Barbara Fishleder (moderator)
Professional Liability Fund Director of Personal and
Practice Management Assistance/Oregon Attorney
Assistance Program Executive Director

Chapter 1 4
“ IF I ONLY KNEW”
TABLE OF CONTENTS
Page #
I. DEMYSTIFYING SOLE PRACTICE .......................................................................... 14-1
A. Unlocking the Puzzle of Where to Begin .......................................................... 14-1
B. Is Sole Practice Right for You? ......................................................................... 14-1
II. CREATING THE COMPONENTS OF YOUR VISION ............................................. 14-2
A. Selecting an Area of Practice/Specialization ..................................................... 14-2
B. Financial Considerations .................................................................................... 14-2
C. Practice Location ............................................................................................... 14-3
D. Practice Arrangement......................................................................................... 14-3
E. Communication and Phone Issues ..................................................................... 14-6
F. Mentoring and Peer Networking ........................................................................ 14-6
G. Marketing and Developing a Client Base .......................................................... 14-6
III. BALANCING PERSONAL AND PROFESSIONAL LIFE – STAYING
CONNECTED BUT NOT TOO CONNECTED ........................................................... 14-8
A. The Cell Phone/Blackberry Factor..................................................................... 14-8
B. Establish an Assisting Attorney/Buddy ............................................................. 14-8
C. How to Take a Vacation .................................................................................... 14-8
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
How to Take a Vacation, In Sight, June 2001
The Of Counsel Relationship, In Brief, November 2011
Office Sharing Guidelines
Contract Lawyers: Independent Contractors or Employees?, In Brief, July 2012
Distribution of Oregon’s General and Lawyer Populations

I. DEMYSTIFYING SOLE PRACTICE
A. UNLOCKING THE PUZZLE OF WHERE TO BEGIN – Questions to Consider
• Where do you want to be professionally and financially in five years?
• What kinds of clients do you want to serve?
• What part of the state do you want to live in?
• Within that geographic area, what part of the city, town, or county do you
want to locate in?
• What area of practice would you like to develop?
• Which aspects of running a business play to your strengths?
• Which aspects of running a business will you need help with?
• How much cash flow do you currently have?
• How much cash flow from the business will you need?
B. IS SOLE PRACTICE RIGHT FOR YOU? – Pros and cons of sole practice as seen
through the experiences of the panelists
• Independence. You have complete independence as to case choice and
income; you also have complete responsibility for it. Compare this to an
associate at a large firm, who has no independence but has minimal
responsibility and a steady paycheck. Small firms tend to be in the middle:
some responsibility and some independence.
• Flexibility. Sole practice requires a lot of time and work, but you don’t have
anyone looking over your shoulder. You can work when it is convenient for
you. You make all decisions as to how, where, and when to practice law and
manage your cases.
• Finances and resources. Take a look at your own situation. What resources are
available to you? What financial demands and commitments do you have (i.e.
loans, alternative source of income, or sole income for yourself or family)?
• Personality. Are you personally suited for sole practice?
1. Sole = responsibility, freedom, and uncertainty.
2. Sole = being self directed and self regulating. Can you get the
work out without someone supervising?
3. Sole = a juggling act. Can you practice law, run a business, and
keep it all in balance with your personal life?
4. Sole = networking and marketing. Can you create your own
networking opportunities and business contacts?
5. Sole = variety. Do you need routine?
6. Sole = taking care of yourself – including avoiding isolation.
7. Sole = creativity and knowledge – finding solutions to real
people’s problems in the real world.
8. Sole = pride in ownership.
14-1

II. CREATING THE COMPONENTS OF YOUR VISION
A. SELECTING AN AREA OF PRACTICE/SPECIALIZATION
• If you are unsure about what area to practice in, talk with people who practice
in the areas that you might be interested in. Take them out to lunch or to
coffee and conduct an “informational interview.”
• Once you figure out what area you do want to practice in, try to develop your
marketing niche. This may be the practice area itself, or it may be a twist that
differentiates you from someone else in your geographical area. Figure out
your difference, and make sure that people know what it is. (Consultants are
available to help you figure this out.)
• Business and Financial Considerations:
1. In what businesses do you have knowledge and expertise?
2. Do you have special contacts in a particular field?
3. Can you identify a specific market for your legal services?
4. What is the competition like? Are there enough clients to warrant
another practitioner in the geographic area? Can you provide better,
less expensive, or more convenient service?
5. What are your cash flow considerations?
• Personal Considerations:
1. What area of law do you like?
2. What kind of clients do you want to represent?
o Businesses
o Individuals
o High income - estate planning, business, real estate
o Low income - poverty law, domestic relations, consumer
law
3. What challenges you?
4. What gives you great satisfaction?
• Other Considerations:
1. Civil vs. criminal
2. Court appointment lists
3. Specialization vs. generalization
4. Litigation vs. transactional
5. Practicing is a process, and changes are inevitable — what you choose
may be a stepping stone to something else.
B. FINANCIAL CONSIDERATIONS
• Creating a Practice Plan and Business Plan
1. Purpose of the plan
2. Marketing
3. Financial Management
4. Operations
5. Fluff
• Deciding what to spend
14-2

• Deciding what to charge
• Using fee agreements
• Staffing considerations and alternatives
• Fee collection/credit cards
• Evaluate, revise, and troubleshoot annually
C. PRACTICE LOCATION
• What can you afford?
• Pick a place that fits well with your marketing plan
1. Do you need foot traffic?
2. Do you need to be close to the courthouse?
3. Where are your clients located? Would you rather be in a
neighborhood or do you want to be downtown?
4. What kind of impression would you like to give clients?
5. Do you plan to work from home?
• What do you expect to happen in five years?
• Can you pay for a space that will be big enough for you in five years?
• What kind of city or town do you want to work/live in?
1. Commuting time
2. Level of community involvement you want
D. PRACTICE ARRANGEMENT
• Working out of your home. This option has a number of pros and cons.
1. Benefits:
o no parking problems
o low overhead
o easy to get to work - no commuting
o tax benefits
o flexible hours and conditions
2. Drawbacks:
o you have to clean your house/clean up yard every time a
client comes to visit
o clients must be chosen carefully to avoid danger to yourself
or your family
o you may feel that you are at work 24 hours a day, or you
may have difficulty getting yourself to “work”
o you may need to create an option for meeting clients.
(Arrangements for meeting clients include renting space
from another firm, using library annex conference rooms,
or renting conference space from a commercial “mail box”
business.
o access to research material is generally limited or
inconvenient (absent use of computer technology)
o requires self discipline
o requires the ability to set boundaries
14-3

o CCRs or zoning may be a problem if clients will be
frequently coming to your office
o isolation (no shared office suite, etc.)
o Others’ perception of you may be an issue
• Work for rent. You and your office share mates will have to decide how
many hours of your time will be used to pay for the rent. Decide what hourly
rate you will use for this purpose. For example, $85.00 per hour for 10 hours
a month will be $850.00 in “rent.”
• Office Sharing. Requires careful selection of office share mate. Check the
people/firm out. Call the OSB Disciplinary counsel office; ask for references
from former office sharers. Formalize the arrangement. You should have a
written agreement with your office share mates that includes details about
how things will be shared, including:
1. What happens with jointly acquired property?
2. How will you handle calls that come in or people who walk in without
knowing the name of the attorney they wish to see?
3. How will expenses be shared?
4. What is term of the office share?
Make sure you and your office mates give the appearance of separateness so as to
avoid any vicarious liability for each other’s mistakes. (See attached Office
Sharing posted at www.osbplf.org.)
There are varied types of sharing arrangements, including sharing space with a
firm that has extra space or sharing with other sole practitioners or small firm
members. These situations can have many benefits, including:
1. overflow work to you
2. cost savings options such as sharing copiers or receptionists
3. a relatively low-risk way of exploring whether you would like to go
into a partnership with another lawyer
4. providing an opportunity for you to brainstorm case strategies with
another lawyer and a way to diffuse some of the isolation of being a
sole practitioner
• Leasing space
1. Leasing executive suites
o Requires carefully choosing with whom to share space
o Requires maintaining your own separate appearance so as
to avoid vicarious liability issues (see article)
o Requires an understanding of the issues of confidentiality
and potential conflict
2. General things to look out for in leasing
o Act like a lawyer or hire one - read the lease. What is the
length of lease? Does it have an escalator clause? Are
there hidden expenses?
14-4

o Ask the potential landlord questions:
a) Is there weekend access?
b) Is there heat/air conditioning?
c) Is the building handicapped accessible?
d) What is security like? (What kinds of clients do
you have coming in?)
e) What else do you pay for besides the square
footage rate? (Common area costs? Utilities?
Janitorial services?)
f) Does remodeling come with the lease?
g) Consider using a leasing agent (paid for by
landlord) to help find space.
• Purchasing a building
• Contract lawyering
1. Pros:
o good way to meet lawyers, perhaps check out practice areas
or types of practices
o flexibility
o can lead to a permanent job
2. Cons:
o may be difficult to find work unless you already have some
experience in a particular area
o many who call on contract lawyers are desperate and
operating under a time deadline, so you may be asked to
turn work around very quickly
o perception that you’re not a “real” lawyer
3. Tips for contract lawyering:
o Don’t be afraid to talk about money up front. How much
do you charge (hourly rate, flat fee, etc.)? Will you
consider a contingent fee case? How often do you bill
(monthly, at the conclusion of the work) and how do you
expect to be paid (promptly!)?
o Make sure that you and your “client” have the same
expectations. How long will this project take? What,
exactly, are you expected to do? What form will the
finished product take (memo, final copy of brief)? Who
will be responsible for typing, for filing court papers, and
for statutes of limitations?
o Give good service. Return phone calls. Don’t miss
deadlines. If you don’t believe that you’ll meet a deadline,
inform the other attorney as soon as possible and talk
about it.
o Keep in mind why lawyers hire contract lawyers. Usually
it is a case they have trouble with or don’t want to work on
themselves. Do a lot of follow-up. It probably will result
14-5

in more work and will be a big relief for the attorney who is
contracting with you.
o Present yourself with pride. Don’t say “I just do contract
work,” or “I’m only doing contract work until I find a real
job.” Comments like these sabotage your efforts and those
of others to create credibility.
o Join Oregon Women Lawyers Contract Lawyer Referral
Service.
E. COMMUNICATION AND PHONE ISSUES
• The phone is often the first “contact” your potential clients have with “you.”
Decide whether you will have someone personally answer the phone. If not,
how you will communicate to your clients that you care about their call and
that you will be in contact with them soon?
• If you are choosing a phone number, try to get one that is easy to remember.
• If you start out sharing space, each person should have his or her own phone
number. Depending on where you move, you may be able to take the phone
number with you. If not, you can arrange to have a message giving the
forwarding phone number.
F. MENTORING AND PEER NETWORKING
• OSB Lawyer to Lawyer Service
• Multnomah Bar Association – Young Lawyer Division
• OSB New Lawyer Division
• Meet lawyers who are accessible to you: join OSB sections in areas that you
practice in; join your local bar association; get to know the lawyers who work
in your building or near you; talk to lawyers at CLE seminars.
• Call experienced lawyers. Most experienced lawyers are happy to help new
lawyers. Take them to lunch or coffee – but don’t take undue advantage of
their generosity. If you have more than a few quick questions, pay them for
their time or, if the case warrants it, associate them as co-counsel. Discuss
these options with them up front and ask them how they would like to handle
the situation.
• Professional Organizations - OTLA, OCDLA, Oregon Bar Association
sections and committees, Oregon Women Lawyers, and any other professional
organizations that interest you. You will make invaluable contacts, both
through referrals and for people to help you out with technical questions.
G. MARKETING AND DEVELOPING A CLIENT BASE
• Choose Your Style - Lawyers have differing personalities and approaches.
Referrals from other lawyers can be an excellent source of business —
whether you get referrals will depend on how you conduct yourself - and the
type of job you do.
• Advertising – Where and How:
1. Yellow pages (display ads/specialty listing)
2. Newspapers
14-6

o general newspapers
o business newspapers
o ads
o display ads
o columns
o feature articles
3. Nickel Ads/neighborhood newspapers
4. TV/Radio
5. Direct Mail/Networking
6. Bar and other law-related publications – put notices in bar publications
such as the Oregon State Bar Bulletin, and local county bar association
newsletters.
7. Internet/Web Site
• Oregon State Bar Lawyer Referral Service. This service at the bar is available
to any OSB member of good standing, with payment of a minimal registration
fee per year. You can choose to be listed in up to four panels (areas of law)
and then pay an extra fee for extra panels. When a person calls the Oregon
State Bar for a lawyer’s name, the bar takes a name from the list (rotating
through the list) by geographic location. When your name comes up, the
caller gets your name and telephone number, and then your name goes to the
bottom of the list. (If the caller never contacts you, you go back to your place
at the top of the list.) Keeping a log of these referrals and the result helps you
assess the referral service’s value to you.
• Community and Social Service Organizations. Participate in community and
civic organizations, but only if you are truly interested in the organization and
willing to fully participate. Joining just to get clients won’t work because you
will not fit in, and you will not enjoy it. Once you’re in, participate on
committees, functions, etc.
• Professional Referrals. Contact people who work with people who need
lawyers. For example, if you want to handle divorces, contact and get to
know the counselors in your area. If you want to represent small business, get
to know some CPAs.
• Speaking engagements; Social activities; “entertaining clients.” Speaking
well at an engagement will place you in the minds of the listeners for future
needs. Always carry your business cards wherever you go; you may meet
someone at a cocktail party who may need a lawyer.
• Marketing Materials:
1. Announcements, firm resume, brochures. These can make a valuable
statement about your practice. Do your research first to make sure that
the material you’re going to get is worth the cost and your time,
printing, and postage, etc.
2. Client memos and newsletters. Prepare summaries of recent
developments in the law that may be of interest to your clients.
Highlight legislative changes or significant areas that may affect them.
14-7

3. Monthly billing statements — ones that are specific and let your
clients know what is going on. Happy and informed clients are your
best marketing tool.
• Court Appointments – these include criminal, juvenile, civil commitment,
appeals, federal. Some contracts are available on an annual basis, which help
greatly with cash flow despite the relatively low hourly rate.
• REFERRALS FROM YOUR CLIENTS !!!!!!!! Doing a good job for your
existing clients will bring you a lot more business. Referrals account for 80%
of most people’s business. Happy clients are your most important source of
business, so return calls promptly; send clients copies of all work you do for
them and all things that come into the office on their case; do good work in a
timely and cost-effective way; treat them as you would want to be treated.
Think about client questionnaires so that you can find out whether you are
making your clients happy and what you can do to improve.
• Monitoring Your Marketing.
1. Determine how much money you spend on marketing. Consider the
time you invest in marketing as money. Determine whether you are
getting a return on the value of your time. Consider the lag time
between the time you advertise and the time you get a response from
the advertising.
2. Beware of marketing scams.
III. BALANCING PERSONAL AND PROFESSIONAL LIFE – STAYING
CONNECTED BUT NOT TOO CONNECTED
A. THE CELL PHONE/BLACKBERRY FACTOR
B. ESTABLISH AN “ASSISTING ATTORNEY/BUDDY” WHO CAN COVER
YOUR CASES WHILE YOU ARE ON VACATION OR IF SOMETHING HAPPENS
TO YOU. (See PLF handbook Planning Ahead: A Guide to Protecting Your Clients’
Interests in the Event of Your Disability or Death. This is available to download from
our Web site at www.osbplf.org.)
C. HOW TO TAKE A VACATION (See article “How to Take A Vacation” by Phil
Shuey, available to download and view on our Web site.
Special thanks to all of the people who have contributed to this outline, including: John Barlow,
Diana Craine, Russell Garrett, Helen Hempel, Philip Henderson, Philip Hornik, Lisa Horowitz,
John Mayfield, Michael McCord, David Miller, Martin Reeves, Sarah Rosenberg, Diane Rulien,
Cynthia Rutzick, John Smallmon, Ashlee Munson, Phil Hingson, Cynthia Mohiuddin,
Christopher T. Hill, and Bonnie Cafferky Carter.
14-8

Chapter 1 4
“ IF I ONLY KNEW”
Additional Resources
How to Take a Vacation, In Sight, June 2001
The Of Counsel Relationship, In Brief, November 2011
Office Sharing Guidelines
Contract Lawyers: Independent Contractors or Employees?, In Brief, July 2012,
Distribution of Oregon’s General and Lawyer Populations

OregOn AttOrney AssistAnce PrOgrAm
Helping you improve the quality of your personal & professional life.
Issue No. 42 JUNE 2001
• Identify the kind of vacation that is needed or
desired. The kind of vacation should be determined
by the need that the lawyer is trying to
address: personal time for reflection, quality
time with the family, intellectual stimulation,
or just rest and relaxation.
• Schedule the time as if it were a trial. Vacations
cannot wait for an ease in work pressures.
That time will never come. A vacation
must be scheduled just as a trial date would
be set. It should be scheduled far enough in
advance to assure that client needs can be met
well in advance and that unexpected demands
are unlikely to derail the vacation plans.
• Budget before you go. Solos and small firms
should expect that cash flow will be affected
during the vacation period – no billable hours,
no cash. Proper budgeting in the month(s) before
the vacation will give the office a cash
reserve.
• Anticipate the needs of current clients by
How to take a Vacation
careful review of their files and by personal
contact several weeks before the vacation. Determine
which tasks can be reasonably accomplished
before the vacation and which should
be scheduled for post-vacation. Little benefit
is gained when the first few days of a vacation
are devoted to regaining physical or mental
health. Effectively the vacation period will be
reduced by that number of days, and the lawyer
risks an illness that could jeopardize the
entire vacation.
• Avoid overload immediately after the vacation.
Restrain the temptation to “catch up” with all
postponed matters during the first week back
to the office. Schedule as few appointments as
possible during that return week – in fact, underschedule
actual appointments to allow time
to work on required tasks and handle unanticipated
issues. Delegate tasks to others in the office
whenever possible.
Phil J.Shuey

THIS ISSUE
September 2011
Issue 110
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
The Of Counsel Relationship
Lawyers have been using the “of counsel”
designation in a variety of ways for many years.
Originally, the term was used to identify firm
partners or judges transitioning from full-time
legal practice into retirement. The definition
has broadened over time to cover other relationships
between lawyer and law firm, from testing
out a lateral hire before extending a partnership
offer to an attorney with special expertise joining
the firm as a resource. Because of the variety
of arrangements and inherent potential for
ambiguity, attorneys and law firms should keep
in mind a few considerations as they enter into
of counsel relationships.
The Oregon State Bar addresses the particularities
of the conflict-of-interest issues created
by of counsel relationships in Oregon Formal
Ethics Opinion 2005-155. The opinion proposes
the following scenario:
Lawyer A operates Law Firm 1 as a sole
practitioner. Lawyer A is also of counsel to Law
Firm 2 and is listed as such on Law Firm 2’s
letterhead. Lawyer B is a sole practitioner who
wishes to be of counsel to Law Firm 1.
What conflict-of-interest issues are implicated
by the proposed arrangement?
In the relationships depicted
Conflicts of Interest
above, Lawyer A is considered a member
of his or her own solo practice,
Oregon Rule of Professional Conduct Law Firm 1. Lawyer A is also considered a
(ORPC) 7.5(b) states that “[a] lawyer may be member of Law Firm 2 because of Lawyer A’s of
designated ‘Of Counsel’ on a letterhead if the counsel relationship. Similarly, Lawyer B would
lawyer has a continuing professional relation- be a member of both Lawyer B’s solo practice
ship with a lawyer or law firm, other than as and Law Firm 1. Though more attenuated, Law
a partner or associate.” ORPC 1.0(d) provides Firm 2 would also be considered a member of
that a firm “denotes a lawyer or lawyers, includ- Lawyer B’s solo practice. The clients of Law
ing ‘Of Counsel’ lawyers, in a law partnership, Firm 1 are deemed to be clients of Law Firm
professional corporation, sole proprietorship or 2, just as the clients of Lawyer B’s solo prac-
other association authorized to practice law….” tice are deemed clients of both Law Firm 1 and
Together, these two rules inform us that an of Law Firm 2. Put simply, Lawyer A/Law Firm
counsel attorney is considered a part of a law 1, Lawyer B, and Law Firm 2 will be treated as
firm for conflict purposes.
a single unit for conflict-of-interest purposes.
This brief example makes it very
Lawyer A
Of Counsel
Law Firm 2
clear that of counsel relationships can
create a tangled web of conflict-ofinterest
concerns very quickly. Before
Law Firm 1 Lawyer B
Of Counsel
Lawyer
B’s Solo
Practice
entering into an of counsel agreement,
be sure to closely examine each person
or entity you will be joining. Does
the law firm have more than one of
counsel attorney? How many lawyers
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

and law firms will be entering into your conflict-of-interest
evaluation? Questions like these are important to keep in
mind as you contemplate an of counsel arrangement. For
advice on the ethics rules applicable to of counsel relationships,
call OSB General Counsel Helen Hierschbiel at
503-620-0222.
Liability for Lawyer and Law Firm
Liability is another concern for lawyers and law
firms in of counsel relationships. Though the law on
liability for of counsel attorneys is still developing, a
few hallmark legal principles apply. Liability in contract
will depend on the contractual agreement. In tort, the
law firm will probably be responsible for the conduct of
the of counsel attorney based on theories of respondeat
superior or negligence (either negligent supervision or
negligent selection). Though the law firm may seek to
lessen its liability exposure for of counsel attorneys by
using an independent contractor designation, the firm
could still be held vicariously liable if actual or apparent
authority existed. An Ohio appellate court found liability
for an of counsel attorney based on an agency by
estoppel theory. 1
Law firms should also be aware that of counsel attorneys
are often considered part of a single practice unit
along with the law firm on malpractice insurance plans
and policies in excess of the $300,000 mandatory PLF
Plan. (The PLF Primary Plan differs because it provides
coverage on an individual attorney basis, although multiple
attorneys named on the same claim – including of
counsel – could still share indemnity and expense limits.)
For example, the PLF’s Excess Program considers
of counsel attorneys to be part of the firm unit due to
potential vicarious liability risk and requires them to
be included on the firm’s application. Further, the Excess
Program coverage assessment is charged on a per
attorney basis – including of counsel members of the
firm. Just as the ethics example pointed out, in terms of
liability and cost, an of counsel attorney may well be
considered a part of the firm.
Clarity in the Nature of the Relationship
Another consideration for law firms and attorneys is
whether the use of the “of counsel” designation is false
or misleading. Specifically, does its use accurately capture
the relationship between the law firm and the of counsel
attorney? ORPC 7.5(c)(1) states that a lawyer in private
1 Trimble-Weber v. Weber, 119 Ohio App 3d 402, 695 NE 2d
344, 347 (11th Dist 1997).
practice “shall not practice under a name that is misleading
as to the identity of the lawyer or lawyers practicing under
such name or under a name that contains names other than
those of the lawyers in the firm.” Oregon Formal Ethics
Opinion No. 2005-12 addresses this issue in the following
scenario. “Lawyers A, B, and C share office space. Beyond
this, however, A, B, and C all maintain separate practices.”
The question is whether A, B, and C may “hold themselves
out, whether through the use of a common letterhead or otherwise,”
as associates or of counsel with each other. The
answer is no. To use an “of counsel” designation where
none exists would be false or misleading and in violation of
ORPC 7.5. In that situation, avoid representing the group as
having an ongoing relationship if none exists. Instead, refer
and associate on a case-by-case basis. The best practice
would be to disclose any relationships you have with other
attorneys and law firms.
What do the above considerations mean for Oregon lawyers
and law firms? First, consider whether the of counsel relationship
is the best option for your situation. If it is, choose
carefully those lawyers and law firms with whom you associate
in an of counsel relationship. Before entering into the
relationship, consider the general history and reputation of the
attorney or law firm, as well as any claims history and outside
business relationships.
Second, identify whether the lawyer or law firm has any
additional of counsel relationships. This is an extremely important
step that will help you discover any conflict-of-interest
issues early.
Finally, consider the professional liability implications of
the of counsel relationship. This is particularly important for
relationships with lawyers or law firms outside of Oregon.
Your PLF coverage will not protect you from vicarious liability
for your of counsel relationship with out-of-state lawyers
or law firms.
Balance the purposes and benefits of the particular of
counsel relationship you contemplate forming against the additional
ethical and liability risks that you and your firm may
assume.
EmilEE S. PrEblE
PlF StaFF attornEy/ExcESS Program coordinator
Thanks to Jeff Crawford, PLF Director of Administration
and Excess Program, and Helen M. Hierschbiel, OSB
General Counsel, for their assistance with this article.
September 2011 – Page 2
www.osbplf.org

OFFICE SHARING GUIDELINES
If you want to share space with another lawyer, but do not want to be considered a de facto law
firm for conflict or vicarious liability purposes, follow these guidelines:
1. Use a written office-sharing agreement. Include the names of the parties, effective date
of the agreement, and term of the agreement. Specify each party’s contribution toward
rent, common office expenses, and secretarial or other staffing costs. Address
ownership of furnishings, equipment, research, and educational materials (joint and
individual). Require office-share mates to adhere to these guidelines, and provide for
the timing and manner of termination of the agreement. (You may wish to include
specific provisions covering death, incapacity, or automatic termination of a party who is
suspended from or loses the privilege to practice law.)
Other optional clauses include:
• Designation of an “office manager” to maintain an office account, collect and
disburse funds, purchase common supplies, prepare an annual budget, and
generally manage the affairs of the office.
• Adoption of policies and procedures to ensure the respective lawyers abide by the
Oregon Legal Ethics Opinions and Oregon Rules of Professional Conduct.
• Standards for office décor and appearance.
• Conditions under which other lawyers may be added to the office-sharing
arrangement.
• Resolution of disputes or disagreements.
2. Make sure your business cards, yellow page advertising, letterhead, and pleading paper
are separate from your office-share mate’s. List only your name or your own firm’s
name. The name of your office-share mate should not be on your business card,
letterhead, pleading paper, or yellow page ad.
3. Make sure that all signs (such as those posted on the office door, building directory, and
building exterior) present the relationship between you and the other lawyers clearly.
For example, if you are a solo practitioner sharing space with a law firm, list your name
separately. You can signify this separation by placing a line between the firm’s name
and yours. Include the phrase “sole practitioner” after your name, if possible.
4. Respect the confidentiality of information relating to the representation of your respective
clients and direct your employees to do so as well.
5. Keep your respective client files separate. If they must be kept in the same file room,
keep the files physically separated and ensure that appropriate limitations on access to
files are made clear to and observed by all lawyers and their employees.
6. If there is a common telephone system, ensure that telephone messages, which contain
confidential information or information relating to the representation of a client, are not
given to or transmitted by shared employees. Ideally, each attorney should have his or
her own telephone line and number.
7. Mail must not be opened by shared employees.
[23-May-07 Rev 5/07] PROFESSIONAL LIABILITY FUND (OFFICE SHARING GUIDELINES.DOC)

8. Faxes must not be read by shared employees. Fax cover sheets should be used for
outgoing faxes and requested whenever possible from parties that are going to fax
confidential information to the shared office fax.
9. Have the receptionist answer the phone in a manner that conveys separation from the
other law firm. For example, answering the phone “Law Offices of John Doe” is an
effective way of reminding the clients that you are separate from “Smith and Jones,” the
firm with whom you share space. Using separate phone numbers makes this easy to do
and is less confusing than having one phone number that is answered, “Law Offices.”
10. If you are going to have your office-share mate help you on a case, get your client’s
written consent first, just as you would if you were to associate an attorney who did not
work at the end of the hallway. If you are going to split fees, follow Rule 1.5(d) of the
Oregon Rules of Professional Conduct.
11. Maintain your own conflict-of-interest system. This preserves all of your clients’
confidences and secrets and helps establish that you are a separate entity.
12. Maintain your own general and trust accounts.
13. If you share a secretary or other employee who is in possession of the confidences and
secrets of both your clients and the clients of the other lawyers in the office share, then
the simultaneous representation of adverse parties would be prohibited. To avoid this
problem, exchange client names with other lawyers in the office share. Advise your
client that because of the nature of your office share, there is a need to provide the
client’s name to the other lawyers so that a proper conflict of interest check can be
performed. Your client must give informed consent, which should be confirmed in
writing, before you disclose your client’s name to other lawyers.
14. If you become “of counsel” to your office-share mate or your office-share mate becomes
“of counsel” to you, you will be treated as a single firm for conflict-of-interest purposes.
See OSB Formal Ethics Opinion No. 2005-155. Lawyers or firms in “of counsel”
relationships may also have vicarious liability for one another’s negligent or intentional
acts under the general rules of agency and partnership.
[23-May-07 Rev 5/07] PROFESSIONAL LIABILITY FUND (OFFICE SHARING GUIDELINES.DOC)

THIS ISSUE
July 2012
Issue 113
PROFESSIONAL LIABILITY FUND
www.osbplf.org
Malpractice Prevention Education for Oregon Lawyers
Contract Lawyers: Independent
Contractors or Employees?
Law firms working with contract lawyers
should be aware that law firms, just like any other
businesses, may be audited by federal and state
agencies to ensure they are correctly classifying
their contract lawyers as either employees or independent
contractors. A firm may assume a contract
lawyer is an independent contractor without carefully
analyzing the factors distinguishing independent
contractors from employees.
So, why does it matter whether you correctly
classify contract lawyers as independent contractors?
If the contract lawyer is really an employee
and not an independent contractor, the law firm
could be exposed to significant damages, including
responsibility for federal and state income and
employment taxes; pension, health, Medicare, and
other benefits; unpaid retirement and disability
coverage; workers’ compensation benefits; and unemployment
insurance benefit payments. Liability
could arise from failure to provide protected leave,
violation of discrimination or wage and hour laws,
failure to comply with I-9 requirements, and a host
of other employment-related claims.
In the case of Donald G. Cave a Professional
Law Corp. v. Commissioner, T.C.M. 2011-48, the
U.S. Tax Court ruled that the law firm incorrectly
classified its attorneys as independent contractors
when they were actually employees. The Tax Court
awarded the Commissioner damages of $150,000
for unpaid employment taxes and a $10,000 penalty
against the law firm. The Fifth Circuit Court
of Appeals affirmed the Tax Court’s decision, finding
that the law firm failed to meet its burden of
proving that the lawyers were true independent
contractors.
Administrative Agency Review
Several state and federal agencies review
whether a worker is correctly classified as an independent
contractor or an employee. In Oregon,
the state agencies that evaluate whether a worker
is correctly classified as an independent contractor
include the Department of Revenue, the
Employment Department, the Bureau of Labor
Wage and Hour Division, and the Workers’ Compensation
Division. At the federal level, the IRS
and the Department of Labor both independently
audit employers to ensure that the workers are
correctly classified as independent contractors.
The various state and federal agencies that
audit these relationships apply different tests. For
example, the IRS has a 20-factor test; the Department
of Labor and the Bureau of Labor Wage and
Hour Division apply an “economic reality” test;
the Oregon Department of Revenue applies the
factors listed in ORS 670.600; the Oregon Civil
Rights Division and the Workers’ Compensation
Division apply the “right-to-control” test.
The Contract
One way a law firm can protect itself from
potential liability is to have a written agreement
in place clarifying that the parties understand and
agree that this is an independent contractor relationship
and not an employer-employee relationship.
The parties should consider including in the
contract the following provisions:
● The contract lawyer is responsible for his or
her own income tax withholding and Social
Security self-employment taxes, professional
liability insurance, and excess coverage.
DISCLAIMER
IN BRIEF includes claim prevention information that helps you to minimize the likelihood of being sued
for legal malpractice. The material presented does not establish, report, or create the standard of care for
attorneys. The articles do not represent a complete analysis of the topics presented, and readers should
conduct their own appropriate research.

● The firm will issue a Form 1099 for the services performed
by the contract lawyer.
● An acknowledgement that this is not a joint venture and
the parties do not have any shared business interests.
● The contract lawyer is currently licensed and in good
standing with the Oregon State Bar, has current professional
liability coverage, and has no pending malpractice
claims or ethics complaints.
● The contract lawyer does not have a conflict with any of
the parties involved in the assigned project.
● The contract lawyer agrees to at all times fulfill his or her
professional duties to protect the client’s privileged and
confidential information.
● The contract lawyer will at all times comply with his or
her ethical and legal responsibilities as a lawyer licensed
to practice law in the state of Oregon.
● The contract lawyer will return all client documents, including
all copies of the documents, when the project is
complete.
● The contract lawyer will not receive any employee benefits
or workers’ compensation coverage.
The Working Relationship
From a practical standpoint, to be an independent contractor,
a contract lawyer should have his or her own office,
business cards, e-mail account (separate from the firm’s
e-mail system), online research tools, computer and copying
capability, and tax ID number. The contract lawyer should not
be integrated into the law firm or expected to regularly work
at the firm or attend firm meetings. An independent contract
lawyer should determine how much he or she will be paid for
a specific project and invoice the firm for the work performed.
The firm should allow the contract lawyer to set his or her own
work hours. The firm should avoid excessively monitoring the
work of the independent contractor or exercising control over
how the work is performed. The independent contractor and
the firm must agree on the specifics of the assigned project
and the due date for that project, but the firm should not ask
for regular status reports.
The parties should clarify that the independent contractor
works for various law firms and business entities and is not
economically dependent on any one firm as a source of business.
While the independent contractor may work regularly
with one firm, he or she must also work with other firms; the
working relationship can be frequent but not constant, allowing
some intervals when the contract lawyer is not doing work
for the firm. The firm’s financial success should not be dependent
on the work of the independent contractor; for example,
lawyers working in a firm cannot all be independent contractors.
The contract lawyer cannot be “fired at will.” Instead, the
contract lawyer must satisfactorily complete the work he or
she contracted to perform according to the contract specifications
or be subject to the terms of the contract relating to
breach of contract.
Law Firm Internal Controls
Independent contract lawyers should not be former
employees who are performing the same job they had as
associates in the firm, nor should they be performing the
same job as other employees of the firm. If a problem arises
with the contract lawyer, the problem should not be resolved
as an employee issue through the human resources
department, but by enforcing or modifying the terms of the
contract. Contract lawyers should not typically be invited
to employee functions or instructed on firm policies and
procedures. They should not be asked to read or sign the
employee handbook. The contract and any other information
relating to the independent contractor should be maintained
with the firm’s vendor files, not with other employee
files. The firm must bill for the work of the contractor as a
vendor, not as an employee. Moreover, the contract cannot
include a non-compete agreement.
Summary
A law firm wanting to use an independent contractor
should consider taking the following steps to establish and
maintain the independent contractor relationship:
● Right to Control – The firm should provide information
necessary for the contract lawyer to perform the
work assignment, including the date when the work needs
to be completed, but should not micromanage the “means
and manner of providing the services.”
● Scheduling – The contract lawyer should be allowed
to set his or her own work hours.
● Location – To the extent possible, the contract lawyer
should work outside the firm.
● Compensation – Payment should be made on a
project basis; the contract lawyer should invoice the firm
for the work performed.
● No Employee-Type Benefits – The firm should not
pay for or provide benefits such as insurance for the contract
lawyer.
● 1099 Tax Form – The firm must issue a Form 1099
at the end of the year and should never use a Form W-2.
For the contract lawyer, the overall goal is to maintain
an “independently established business,” which is the
test codified in ORS 670.600 and utilized by the Oregon
Department of Revenue. While no single factor is conclusive,
contract lawyers should consider the following steps
July 2012 – Page 2
www.osbplf.org

to maintain their independent contractor status:
● Independent Office – Use his or her own home or
business office.
● Assignments – Perform work on a project or assignment
basis and invoice firms for the work performed.
● Diversify – Work for more than one firm, seeking
work through appropriate legal and business publications,
speaking engagements, and professional networking opportunities.
● Business Expenses – Pay for office expenses, staffing
and copying assistance, online research tools, business
cards, stationery, and other office supplies.
● Bar and Licensing Requirements – Pay for bar
memberships and fees, CLE requirements, and business
licenses.
● Insurance – Maintain legal malpractice insurance as
required by the PLF.
● Taxes – Pay for income tax withholding and Social
Security self-employment taxes and agree that a Form 1099
will be issued by the firm for work performed.
While there is not a bright-line test for determining
whether a lawyer is an independent contractor or an employee,
carefully defining the terms of the relationship
between the firm and the contract lawyer will be helpful
in avoiding an obvious misclassification and limiting the
potential risks associated with this type of business relationship.
Although this article describes the basic issues to
consider, you should consult qualified employment counsel
with respect to specific situations.
Lisa C. Brown Jim w. VogeLe
BuLLard Law attorney at Law
Continued on page 4
July 2012 – Page 3
www.osbplf.org

County Population Lawyers Ratio L:P
Baker 16,134 19 1:849
Crook 20,978 24 1:874
Deschutes 157,773 392 1:402
Gilliam 1,871 2 1:935
Grant 7,445 7 1:1060
Harney 7,422 7 1:1060
Hood River 22,346 55 1:406
efferson 21,720 17 1:1277
Region 1 Lake 7,805 10 1:789
Malheur 31,313 46 1:681
Morrow 11,173 3 1:3724
Sherman 1,765 2 1:882
Umatilla 75,889 100 1:759
Union 25,748 33 1:780
Wallowa 7,008 11 1:637
Wasco 25,713 38 1:677
Wheeler 1,441 1 1:1441
Region 2 Lane x51,715 930 1:37s
Region 3
Region 4
Coos 63,043 87 1:725
Curry 22,364 30 1:745
Douglas 107,667 112 1:961
ackson 203,206 321 1:633
osephine 82,713 82 1:1009
Klamath 66,380 81 1:820
Clatsop 37,039 64 1:579
Columbia 49,351 51 1;968
Lincoln 46,034 101 1:456
illamook 25,250 37 1:682
Washington 529,710 1,183 1:447
a mhil I 99,193 138 1:718
Rcgi011 S Multnomah 735,334 5,612 1:131
Region 6
Benton 85,579 121 1:707
Linn 116,672 101 1:1155
Marion 315,335 1,218 1:259
Palk 75,403 84 1:898
REglOt17 Clackamas 375,992 952 1:395
TOtd~S 3,831,524 12,072 1:317
Distribution of
Oregon's
General and
Lawyer
Populations
(General population figures are
from 2010 census; lawyer figures
are as of April 2012)

CHAPTER 15
TIPS FOR LAWYERS JOINING
FIRMS
Dee Crocker
Professional Liability Fund
Practice Management Advisor
Shari Gregory, LCSW, JD
Oregon Attorney Assistance Program
Assistant Director
Attorney Counselor
Amber Hollister
Oregon State Bar
Deputy General Counsel

C hapter 1 5
PRACTICE MANAGEMENT TIPS FOR
LAWYERS JOINING FIRMS
TABLE OF CONTENTS
Page #
PLF PRACTICE AID - PROJECT ASSIGNMENT .................................................... 15-1
PLF PRACTICE AID – DELEGATION MEMO .............................................................. 15-2
PRACTICE MANAGEMENT ITEMS TO CONSIDER .................................................... 15-3
FINDING YOUR PRACTICE NICHE ....................................................................... 15-4
MANAGING LIFE AND WORK ............................................................................... 15-6
OREGON STATE BAR BULLETIN ARTICLE
“Seeking New Horizons: Ethical Duties When Changing law Firms” ............................ 15-8
To view these chapter materials and the additional resources below, go to www.osbplf.org, find
the left side of the home page, find CLE, then click on programs on CD/DVD, find Learning The
Ropes, then click on download handout. Program handouts and additional handouts are
organized by chapter.
Additional Resources
The Art of Delegating, by Kathleen Brady, ABA Law Practice Today, October 2006
http://apps.americanbar.org/lpm/lpt/articles/mgt10064.shtml
American Bar Association New Lawyer Roadmap
Also available on the PLF Web site, www.osblf.org
NEWS - Latest information for practice management
LOSS PREVENTION - Practice Aids and Forms - downloadable forms and checklists
LOSS PREVENTION - In Brief - current and archived issues

Case Name:
Facts:
Issues to be Researched:
PROJECT ASSIGNMENT
Type of Work Product (Informal, Formal, Pleading, etc.):
Amount of Time to be Spent on Project:
DUE DATE:
Date of Assignment:____________________
15-1
Assigning Lawyer:____________________

Date Assigned:
Delegation Memo
Return this to Assigning Lawyer When Completed
Deadline for Completion: Urgent? __ Yes __ No
Assigning Lawyer:
Delegated to:
Client Name:
Matter Name and/or Number:
Billing Information/Reference:
Assignment:
Resources or Persons Needed to Complete Project:
Copies to Other Persons Working on Client Matter:
DEADLINE FOR COMPLETION:
DATE COMPLETED: BY:
15-2

Practice Management Items to Consider:
1. Keep your own calendar
-write down your own entries; don’t just copy
-compare it to the firm’s calendar
2. Keep your own conflict list
- list clients and all related parties
3. Keep a to-do or task list and update it daily
4. Get Oriented – Learn about the firm operations, policies and procedures
Know the ground rules:
-find out how to run a conflict check, bring in a new client or new matter, properly use the
firm stationery and email, get reimbursed for expenses, and get computer training
-use good judgment and common sense – if you think anyone in the firm might have an
objection to anything you are doing, professionally or personally, check it out with
someone in the firm. Examples: written article / personal dispute
5. Treat the staff well – they can make or break you
-make friends with the most experienced and knowledgeable staff – they can be a great
help
6. Ask for feedback when you complete an assignment
7. Think like an owner – help the firm's bottom line
8. Keep accurate time records on a daily basis – do not make adjustments
9. Be flexible and work with a smile (no one likes a complainer)
10. Produce a superior work product
11. Assume activities will take more time than you think when organizing your schedule
12. Remember to Use Teamwork
-any assignment can be made easier with a smile, a positive attitude and a can-do
approach
-say please and thank you
-do not lose your temper (do not curse or use vulgar expressions)
-volunteer and be willing to step in cheerfully to help someone get the job done
-do not ask someone else to do a job you are not willing to do yourself
-learn how to use the office equipment and technology
15-3

Finding Your Practice Niche
The Developmental Stages of a Legal Career
• Orientation (0-2 years)
• Challenge (2-6 years)
• Establishment (7-20 years)
• Sustaining Your Practice (20-40 years)
• Disengagement (30-40+ years)
OAAP Attorney Counselors assist many lawyers and law students with
job and career issues each year
In a typical year, one-third of the lawyers requesting assistance from the OAAP do so for
job and career issues. These lawyers represent a broad spectrum of the legal profession:
• New admittees, uncertain where they fit in the profession, searching for their first
law job;
• Experienced lawyers evaluating whether to switch practice areas, firms, or
transition out of private practice;
• Lawyers who want to balance their work, family and personal life more
effectively;
• Lawyers who have recently been terminated;
• Lawyers transitioning back to legal practice after working in other fields or after
taking a leave from practice to focus on health issues or their families;
• Lawyers who are looking for work which is more suited to their skills, interests,
values and personal preferences; and
• Lawyers starting to consider retirement.
How can the OAAP help you find your practice niche
The OAAP has several resources to offer lawyers wrestling with job and career issues.
• OAAP Attorney Counselors are available to meet individually with lawyers to
discuss their circumstances, brainstorm alternatives and strategies, and refer to
private career resources when appropriate.
• We offer a Career Satisfaction Workshop several times each year in Portland and
annually in Salem and Eugene. The workshop meets one evening per week for
six consecutive weeks. This workshop is designed to help lawyers begin or
continue a self-assessment process to identify their work-related preferences,
preferred skills, interests and values. The workshop also addresses job search
skills and strategies.
15-4

• We have a weekly Lawyer In Transition support group that meets at our offices in
downtown Portland.
• We sponsor career related seminars each year that are available on CD, video and
DVD.
If you are interested in accessing one of the job / career related resources at the OAAP,
please contact the OAAP at 503-226-1057, 1-800-321-6227 or via our website at
www.oaap.org.
15-5

Managing Life and Work
By Shari R. Gregory, LCSW, JD
Assistant Director/Attorney Counselor
Oregon Attorney Assistance Program
November 1, 2012
I. Points to remember
A. You can never be totally balanced all the time
B. You must look at the whole being
C. You must look at how you deal with the stressors of each day
D. How you balance our lives in a bigger picture, in larger
increments such as years and months.
II. Balance is a line you dance around- need to strive for it but must
know that you cannot feel completely balanced all the time.
III. People are multidimensional and complex and need a full life with
meaningful work.
A. Students come into law school as a whole person and leave
parts of ourselves behind.
B. Life becomes single focused, lopsided/
C. Upon graduation new lawyers often become very focused on
job search and then work and feel they do not have time for the
other parts of their lives.
D. New lawyers should analyze potential jobs in terms of what
skills they can learn, what they can accomplish, what
environment will help them thrive.
E. In a good fit job you will thrive, in a job that does not allow you
to play to your strengths you might burning out quickly.
IV. Every day you must take time outs for ourselves- work outs, alone
time, walks, meditation, time to talk with someone close to us.
A. Even if you don’t have a whole hour you can do 20-minute
workouts, 2- minute time outs, 10 minute walks, and even 5-
minute breaks will help
15-6

V. Looking at our life and its balance requires us to look at how you map
out each week and month.
VI. Tips
A. Think about all the roles that you play-wife, friend, mother,
volunteer, athlete, artist, singer, musician, etc
B. How can you make time for each of these roles each week or
for some roles each month, because maybe you cannot get to
everything and everyone every week.
C. If you come off of a very jam-packed stressful period- can you
find ways to recharge, vacation, hooky day, weekend away,
weekend at home that is unscheduled.
A. Calendar time for your friends, family and hobbies, free time
B. Calendar time for consultation with co-workers, partners,
mentors, networking.
C. Make sure you get time to exercise and debrief stressful
situations by talking to someone.
D. If you have a short attention span, put your most difficult or
time pressed assignments on your desk and work on them in 20-
30 minute intervals with a few minute breaks in between.
E. Keep longer term projects or things you are not currently
working on off your desk, or put away so you don’t feel
overwhelmed by the picture. Sometimes the big picture is too
big.
F. Have fun!
15-7

Welcome to the Oregon State Bar Online
Oregon State Bar Bulletin — AUGUST 2012
Bar Counsel
Seeking New Horizons:
Ethical Duties When Changing Law Firms
By Amber Hollister
Once upon a time, it was common for a lawyer to begin practice,
be promoted to partner and retire at the same firm. Today, such
a career trajectory is becoming exceedingly rare. Instead,
lawyers are constantly seeking new horizons.
High lawyer mobility is a reality of modern legal practice. 1 In
2000, the American Bar Foundation began following a nationally
representative cohort of newly-admitted lawyers. The resulting
study, titled “After the JD,” found that within three years of
starting practice, more than one-third of the cohort had changed
jobs at least once (not counting judicial clerkships), and 18
percent had moved twice. 2 Between the cohort’s third and
seventh years of practice, well over half of the lawyers changed
jobs at least once again. 3
So, you might ask, what does any of this have to do with lawyer
ethics? The answer is simple: every time a lawyer leaves a firm
or employer, that move triggers numerous ethical duties.
Complying with those obligations in the midst of transition can be
a challenge for the unwary. The best approach is for lawyers to
educate themselves at the outset to avoid common traps and
mistakes.
August/September Issue
How Should You Break the News?
Congratulations. You have a job offer from a new firm. In the
initial throws of elation, you want to share the good news with your current clients, and ask them to take their work to
your new firm. Can you do so?
Beware. Depending on the nature and status of the lawyer’s work, the lawyer’s fiduciary duty to a client may require the
lawyer to provide advance notification of a job change, so that the client can decide whether to stay with the prior firm,
move with the lawyer or explore other alternatives. See OSB Formal Ethics Op No 2005-26 (discussing a lawyer’s
fiduciary duty generally).
Even so, lawyers often owe duties to their current firm, which may arise out of the contractual, fiduciary or agency
relationships between the lawyer and the current firm. Violating these duties can spell trouble. When a lawyer attempts
to take clients away from the lawyer’s current firm while still being compensated by that firm, he or she may violate
duties owed to the current firm. OSB Formal Op No 2005-70; see also ABA Formal Ethics Op No 99-414 (1999).
Violation of those duties may result in the departing lawyer being subject not only to financial liability to the former firm,
but also discipline. OSB Formal Op No 2005-70.
It is also important to be honest with colleagues during the transition. Departing lawyers might be tempted to deny
rumors of a pending move. Exercise restraint. Even though it might spur an awkward conversation, lawyers cannot lie to
others at their firm about their employment status or intentions. RPC 8.4(a)(3); see In re Smith, 315 Or 260, 264 (1992)
and In re Murdock, 328 Or 18, 25 (1998).
Once a lawyer has informed his or her current firm of the move, both the lawyer and the current firm have a duty to
inform the lawyer’s current clients of the anticipated departure. The fact that a lawyer who is performing significant work
for a client is about to leave is information that must be shared to “keep a client reasonably informed about the status of
a matter” and “permit the client to make informed decisions regarding the representation.” RPC 1.4.
Who Gets the Client File?
You have been managing several cases at your law firm. Now that you have plans to leave to go to a new firm, you feel
15-8
http://www.osbar.org/publications/bulletin/12augsep/barcounsel.html
Page 1 of 3
9/11/2012

Welcome to the Oregon State Bar Online
certain you are the only lawyer who can represent the client going forward. Can you take those files with you to your new
firm?
Before a departing lawyer packs up any boxes, or downloads client files to an external hard drive, the lawyer should
seek direction from the client. As explained in OSB Formal Op No 2005-70, only the client can decide which lawyer or
firm will continue representing the client.
Often the smoothest approach to determine who will continue the representation is for a departing lawyer and the former
firm to send a joint letter to departing lawyer’s current clients outlining the anticipated move, and asking the client for
direction. See ABA Formal Ethics Op No 99-141 (1999). Until the client makes a choice, the former firm has a duty to
preserve client files and other client property. RPC 1.15-1(a) and (d). Both the former firm and the departing lawyer
share a fiduciary duty to the client. See ABA Formal Ethics Op No 99-141 (1999).
If the client elects to transition to the new firm, subject to any valid lien rights it may have, the former firm must promptly
send all client files and property to the new firm. RPC 1.16(d); OSB Formal Op No 2005-60; see also OSB Formal Op
No 2005-90 (addressing attorney fee liens); and 2005-125 (discussing who pays photocopy expenses). Although the
former firm may request written authorization from a client before sending out client materials to the new firm, it cannot
require the client to physically come to the former firm’s office to retrieve the materials if the client directs that materials
be sent elsewhere. OSB Formal Op No 2005-60.
If a client elects either to remain with the former firm or to hire a completely new lawyer, the departing lawyer must
comply with RPC 1.16 by giving the client advance notice that he or she will be ceasing the representation, moving the
court to withdraw from the representation if required by RPC 1.16(c), and taking reasonable steps to protect the client’s
interests as required by RPC 1.16(d). For a departing lawyer, reasonable steps to protect the client’s interests may
include informing the client or new lawyer of the status of the case and any pending issues or deadlines.
If neither the departing lawyer nor the former firm wants to continue representation of the client, both must consider
whether withdrawal is allowed under RPC 1.16.
Can You Solicit Work From Your Former Clients?
Now that you are no longer at your prior firm, you want to make a few calls to your contacts, to let them know about your
new practice, and to offer your assistance with legal matters. Whom can you call?
RPC 7.3(a) allows lawyers to make live or in-person contact to solicit work from anyone with whom they have a family,
close personal or prior professional relationship, as well as any other lawyer. See OSB Formal Ethics Op No 2005-70.
Accordingly, calling or having an in-person conversation with former clients, in-house counsel, other lawyers, social
friends and family about a new practice is permitted. In addition, RPC 7.3(b) allows lawyers to solicit any person in
writing, including former firm clients with whom the departing lawyer did not have a professional relationship.
Of course, lawyers may not solicit work from prospective clients the rules define as especially vulnerable or prospective
clients who have asked not to be solicited. RPC 7.3(b)(1)-(2). Nor may any solicitations involve coercion, duress or
harassment. RPC 7.3(b)(3).
To comply with the rules, lawyers should ensure that all written solicitations, including emails, are properly marked as
advertisements, and include the lawyer’s name and firm address. RPC 7.3(c); RPC 7.1(b)-(c).
When Do Conflicts Stick With You?
You are excited about taking on a new case at your new firm, when you recognize the name of a party. The party was a
client at your former firm. Do you have a conflict?
Maybe. A lawyer has a conflict of interest if the prospective client’s interests are materially adverse to those of the
lawyer’s former firm’s client, the new case is the same or substantially related matter as the matter handled by the
former firm, and the newly associated lawyer has confidential information about the former firm’s client or case. See
OSB Formal Op No 2005-128.
Specifically, RPC 1.9(b) provides:
A lawyer shall not knowingly represent a person in the same or substantially related matter, in which the firm with
which the lawyer formally was associated had previously represented a client:
(1) whose interests are materially adverse to that person; and
(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the
matter, unless each affected client gives informed consent, confirmed in writing.
If there is no adversity, the matters are not the same or substantially related, or the lawyer has no confidential
information about the former firm’s client, RPC 1.9(b) will not prevent the new representation. OSB Formal Op No 2005-
120. It is important to note, however, that lawyers transitioning from private practice to work as a government employee
or public official, or vice versa, are bound by a different set of conflict rules. RPC 1.11; OSB Formal Op No 2005-120.
Often lawyers transitioning from a larger firm have absolutely no recollection of or knowledge about certain former firm
clients. Even so, it is best to do some due diligence before proceeding. For instance, the lawyer may want to double
15-9
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Page 2 of 3
9/11/2012

Welcome to the Oregon State Bar Online
Phone:
(503) 620-0222
Toll-free in Oregon (800) 452-8260
Facsimile:
(503) 684-1366
check old billing records to make sure the lawyer did not work on a small piece of the matter, or perhaps check with an
old colleague to confirm the lawyer did not gain information about the prior case (without revealing the potential new
representation). When it comes to determining the existence of a conflict, all facts that a lawyer knows or “by the
exercise of reasonable care should have known will be attributed to the lawyer.” RPC 1.0(h).
Even if a lawyer has a conflict under RPC 1.9(b), it can often be resolved by obtaining the informed consent, confirmed
in writing, of all affected prospective clients and former clients. RPC 1.9(b)(2); see also RPC 1.0(g) (defining informed
consent). If the conflict cannot be resolved through informed consent, the new firm may be able to accept the
representation if the new lawyer is properly screened pursuant to RPC 1.10(c). See OSB Formal Op No 2005-120.
Other Resources for Lawyers in Transition
If you are considering changing jobs, or are in the process of doing so, you likely have many concerns in addition to
complying with the Rules of Professional Conduct.
The Professional Liability Fund, at (800) 452-1639, can advise lawyers regarding insurance coverage issues, and its
practice management advisers have a plethora of useful checklists and handouts that can help lawyers navigate the
practical aspects of a transition. In addition, the Oregon Attorney Assistance Program, at (800) 321-OAAP, provides free
and confidential assistance to lawyers dealing with the challenges and stress of transition.
Endnote
1. See John P. Heinz et al.,Urban Lawyers: The New Social Structure of the Bar, 141-47 (2005).
2. Robert L. Nelson et al., “Observations from the After the Bar Survey of the Bar Class of 2000,” 24 QLR 541
(2005-2006) at 544.
3. Ronit Dinovitzer et al.,After the JD II: Second Results from a National Study of Legal Careers, The American
Bar Foundation and The NALP Foundation for Law Career Research and Education (2009) at 53-57.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free
in Oregon at (800) 452-8260, ext. 312, or by email at ahollister@osbar.org.
Ethics opinions are published and updated on the bar’s website here.
An archive of Bar Counsel articles is available here.
© 2012 Amber Hollister
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Building Location:
16037 SW Upper Boones Ferry Road
Tigard, OR 97224
Mailing Address:
PO Box 231935
Tigard, OR 97281
Copyright © 1997-2011 Oregon State Bar ® All rights reserved.
15-10
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Page 3 of 3
9/11/2012

C hapter 1 5
PRACTICE MANAGEMENT TIPS FOR
LAWYERS JOINING FIRMS
ADDITIONAL RESOURCES
The Art of Delegating, by Kathleen Brady, ABA Law Practice Today, October 2006
http://apps.americanbar.org/lpm/lpt/articles/mgt10064.shtml
American Bar Association New Lawyer Roadmap
Also available on the PLF Web site, www.osblf.org
NEWS - Latest information for practice management
LOSS PREVENTION - Practice Aids and Forms - downloadable forms and checklists
LOSS PREVENTION - In Brief - current and archived issues

JOINING A FIRM
SUCCESS TIPS
FROM ASSOCIATES AND
PARTNERS
Ben Eder
Thuemmel, Uhle & Eder
Grace Y. Lee
Stahancyk Kent & Hook PC
Megan I. Livermore
Gaydos, Churnside & Balthrop
CHAPTER 16

Chapter 1 6
SUCCESS TIPS FROM
ASSOCIATES AND PARTNERS
TABLE OF CONTENTS
Law Firm Success Tips from Associates and Partners
Page #
I. LAW FIRM CULTURE ........................................................................ 16-1
A. Assessing the Culture ....................................................................... 16-1
B. Finding a Mentor .............................................................................. 16-1
C. Fitting In .......................................................................................... 16-1
D. The Electronic Age .......................................................................... 16-1
II. LAW FIRM RELATIONSHIPS – INSIDE AND
OUTSIDE THE FIRM ........................................................................... 16-2
A. Staff .................................................................................................. 16-2
B. Partner/Associate Relations.............................................................. 16-2
III. LAW FIRM MONEY MATTERS ........................................................ 16-3
A. Billable Hours .................................................................................. 16-3
B. Marketing and Client Development .................................................. 16-4
C. Pro Bono, Community Service, and Professional Activities ........... 16-4
IV. LAW FIRM CAREERS ......................................................................... 16-5
A. The Partnership Track – What Does It Mean to Be a Partner? ........ 16-5
B. Alternative Career Options.............................................................. 16-5
C. Maintain Balance and Perspective ................................................... 16-5

To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on Download Handout. Program
handouts and additional handouts are organized by chapter.
Title Link
The Fiduciary
Perspective for
New Partners
It’s Your Job to
Manage Your
Career
Step-by Step
Guide to
Building
Effective
Mentoring
Relationships
Resume
Mistakes That
Can Cost You an
Interview
Associate
Marketing
Checklist
In Order to
Make It Rain,
You Have to
Know How to
Gather the
Clouds: Tips for
Young Lawyers
on Client
Development
Effective
Communication
Tips for Young
Lawyers
One Friend Too
Many: Facebook
and Your
Practice
A Young
Lawyer’s
Financial
Survival Guide
http://www.americanbar.org/content/dam/aba/publications/young_lawyer
/mar11issue.authcheckdam.pdf
http://www.americanbar.org/content/dam/aba/publications/young_lawyer
/mar11issue.authcheckdam.pdf
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_oct10_mentor.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_june10_resume.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_febmar10_associate.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_febmar10_home.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_oct09_home.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_sept09_home.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_may09_may09.html

Dealing With
Nerves
Straight Talk
From Partners
to Young
Lawyers
Developing Your
Practice
Regain Control
from Your
Blackberry
Can You Just
Give Me a
Better Draft?”
Edit Your Own
Work in 5 Steps
Stand Out by
Getting
Published
From My
Mentor to You
Missing the
Mark on Client
Needs
Gone But Not
Forgotten:
Leaving Your
Job, Not Your
Professional
Relationship
Things Judges
Like to See From
Young
Attorneys
Got an Itch to
Create a Niche?
Is Your Career
On Track?
Reflections of a
New Litigator;
Ten Lessons
from My First
Year
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_april09_apr09.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_jan09_partners.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_dec08_hanks.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_dec08_karp.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_nov08_guberman.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_nov08_default.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_nov08_kaplan.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_sept08_sept08.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_june08_haslkelchner.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_dec07_abrams.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_may07_hill.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_may07_rotenstreich.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_feb07_ellison.html
http://www.americanbar.org/publications/young_lawyer_home/young_law
yer_archive/yld_tyl_jan07_buck.html

Learning the Ropes 2012
Success Tips from Associates and Partners
I. LAW FIRM CULTURE
A. Assessing the Culture
1. Research as much of the firm’s culture as you can BEFORE you join
● Start with the firm’s Web site and its NALP form
● Perception from the outside—how is the firm viewed by other firms and
attorneys?
● Client base—who are the firm’s clients and how do they see the firm?
● Alumni networks—know anyone who clerked or works there?
● Career counselors and faculty often have insights they are willing to share
● Ask colleagues in other firms about the firm’s reputation in the community
2. Once you’re hired, how do you find out more about the firm culture?
● Support staff can be an honest (but accurate?) source of information
● Feel free to ask partners about their vision/strategic plan
● Associates in the firm/your practice group
B. Finding a Mentor
● OSB mandatory mentoring program
● By assignment or request
● Develop relationships informally through intra-office networking
● Get involved in firm activities—both work-related and social
● Solicit work from someone who practices in an area in which you want to work
● The first several years of practice are a “legal residency”—keep an open mind and
learn from your peers and supervising attorneys
C. Fitting In
● Watch your fellow associates
● Be yourself
● Act like a professional
● Avoid gossip
● Don’t forget to ask yourself what YOU want—think about your long-term goals
D. The Electronic Age
● Google yourself and look at what shows up in the results
● Be aware that clients, partners, and associates can and will google you and try to
connect with you online
● Find out whether the firm has any policies regarding use of Facebook, LinkedIn,
Myspace, Avvo, Twitter, and other Web sites
● Remember that voicemail, e-mail, and “anonymous” postings on Web sites like
Above the Law and Vault are nearly impossible to delete, can be saved
indefinitely, and are easily forwarded to anyone and everyone
● On email—be careful of “autofill” and “reply to all” functions
16-1

II. LAW FIRM RELATIONSHIPS – INSIDE AND OUTSIDE THE FIRM
A. Staff
● They can be your best friends or your worst enemies—you decide
● Always show RESPECT
● Discuss any problems directly with the person concerned
● Remember that the ultimate responsibility for the work is still yours
● Introduce yourself
● Be patient but persistent, and if it’s really important, make the call yourself
● Thank them for their help when they go out of their way for you
B. Partner/Associate Relations
1. Learning what the partners expect from you
● Dealing with partner idiosyncrasies and different styles
● Ask the partner directly, especially the hard questions: deadline; cc/bcc protocol;
filing system; drafting narratives → impacts the feedback you’ll get later
● Look at partners’ previous work product for guidance on their styles
● Ask associates and other partners
● Treat the partners as you would your clients, because at least for the first few
years, they are
● Ask for feedback!
2. Qualities partners look for in junior associates
● Work ethic—be available and work hard
● Be a quick learner─dedication to continuous self-improvement
● Excellent work product
○ Avoid all simple errors (typos, etc.)
○ You are as good as your worst project
● Superior service—treat the partner like a client
○ Turn in work before deadlines
○ Project confidence
○ Ask for feedback and use it constructively
○ Accept responsibility
○ Take ownership of the work product
○ Interact well with others (staff, other lawyers, clients, etc.)
○ Deliver work product in the form the partner wants (not always a law
school memo)
● Demonstrate initiative and independent thought and judgment
3. Delivering an acceptable work product
● Be sure you understand the assignment—ask for clarification before starting the
project
● Communicate with partners about expectations before you start the work
● Communicate with partners during the assignment—give status reports
● Communicate with partners after the assignment—ask for feedback
● Take ownership of the assignment—pretend the client is yours
● If you can’t meet a deadline, talk to the partner ASAP—do NOT wait until the
deadline has passed (this is a sure way to end your career early)
16-2

● “Draft” usually means final, polished work, i.e., something the partner can show
to the client—unless it’s an 11 th -hour rush job
● First impressions are important and attorneys have very long memories; this is
particularly true with proofreading, grammar, and writing skills
● Prepare every assignment as if the partner will simply sign it and put it in the mail
without reading or revising it
4. Managing your workload
● Work flow often varies for junior associates
● Dealing with too much work
○ Never make an assumption on a deadline; always ask
○ Budget time to do work (schedule like any other appointment)
○ Everything will take longer than you expect; budget extra time
○ Learn how to say “no”
● Memorize this phrase: “I can take your project as long as you don’t
need it before . . . .”
● Memorize this phrase: “I’m happy to help, but here are my current
commitments . . . .”
● Don’t ask what the project is before saying whether you can take it
○ Ask for help before you get overwhelmed
● Dealing with too little work
○ Make the rounds before you are out of work
○ Arrive early and stay late—be available
○ Seek nonbillable projects
○ Be prepared to work extra during busy periods to make up for slow
periods
5. What to do when problems arise
● Build up your goodwill before mistakes happen - it’s your currency
● Let a tense situation cool down before addressing it; but if something really bad
happens, tell someone immediately
● Accept responsibility and be professional
○ You will make mistakes: discuss them promptly and in person with your
supervising attorney and have the confidence not to let it impact your
overall work
● Criticism can be subtle - learn how to perceive, accept and deal with it
● When to talk to your mentor or practice group leader
● Remember: mistakes are an opportunity to show how you deal with challenges
III. LAW FIRM MONEY MATTERS
A. Billable Hours
1. Learning and meeting the expected billing requirements of the firm
● What is the “official” billable hour goal or requirement?
● Know if there is a difference between the billable hour goal versus the collectible
hour goal
16-3

● What is the unofficial goal/requirement? Does it include pro bono work or time
spent on firm administrative matters?
● Plan for vacations and holidays
● If necessary, find a few extra hours during the week
● Expect hours to be cut in the early stages of your training and try to plan
accordingly
2. Keeping track of your time
● Always write down your time (no self-editing)
● Fill out time sheets as you go through the day—much easier than reconstructing
● Learn the firm’s billing system and policies (and the court’s, if applicable)
● Understand that bills are a form of communication to clients - write down clear
and concise descriptions of what you are doing
● Write down what you are doing, not how you are doing it
○ Do: Analyze contract to determine whether client has claim for
indemnification
○ Don’t: Interoffice conference with [attorney]
B. Marketing and Client Development
1. Marketing within the firm
● In larger firms, your “clients” are the partners, at least for the first few years
● Go get work that you’re interested in—be proactive—offer to help (even with
non-billable tasks)
● Come in early and stay late. Do not leave until the last shareholder/partner has
left.
● Even in smaller firms with established client relationships, you may still be
expected to step in and maintain the relationship right from the start
● Existing clients are one of the best sources of future business, either from repeat
business or from referrals - tell them the biggest compliment they could pay you
is to send you more clients. Make them part of your team.
2. Marketing outside the firm
● Best source of new work is existing clients
● Network—find organizations that you truly enjoy and get involved
● Marketing is about relationships
● Rainmaking takes time and sustained effort
● Always be professional
● Always remember to be discreet
● Notes to opposing counsel/co-counsel
● Learn how to market all of the services your firm offers, not just the services you
offer
C. Pro Bono, Community Service, and Professional Activities
● Is there a written or understood policy?
● Are pro bono and community service hours in addition to or part of the billable hours
requirement?
● Pro bono work might provide more in-depth experience in certain areas than you
would normally get in your firm
16-4

IV. LAW FIRM CAREERS
A. The Partnership Track – What does it mean to be a partner?
● Partnership is not a destination
● More compensation, but also much more responsibility and higher expectations
● Can mean more money, but compensation is much more merit-based today
● Two common types of partner: equity and nonequity
○ Equity partner—owner of the law firm; compensation is based in large part on
the firm’s overall profit (or loss)
● Sustainable book of business
● Rainmaker─can generate business
● First-chair skills
● Can delegate and manage complex legal assignments
○ Nonequity partner—no ownership or vote in firm matters; compensation may
be partially based on firm’s overall profit (or loss)
● First-chair skills
● Can delegate and manage complex legal assignments
● Proven business development skills
● Some book of business
B. Alternative Career Options
● Part-time options
○ Law firms are service providers, so flexibility is always required
○ Feasibility varies by practice area, firm size, your level of experience
● Of counsel arrangements; “permanent associate” arrangements
● You will maximize your options by becoming an asset to your firm
○ Do great work so the firm is motivated to accommodate your needs
● You never know where your path may lead
C. Maintain Balance and Perspective
1. Get some perspective
● Realize that no firm, job, or career is perfect
● Stress can alter your perception—learn to manage it at the start of your career
● Communication is critical—isolation is fertile breeding ground for paranoia
● Learning curve is steep the first few years, so give yourself a break
● Take the long view—what will still be important to you in 10, 20, 30 years?
● Keep (or develop) a sense of humor—lawyers as a group are far too humorless
● Take your work seriously, but not yourself
2. Get a life
● Work at becoming an interesting, well-rounded person
● Work hard, but play hard
● Plan days off or vacations in advance, and guard them jealously
● Carve out personal and family time
16-5

Chapter 1 6
SUCCESS TIPS FROM
ASSOCIATES AND PARTNERS
Title Link
The Fiduciary
Perspective for
New Partners
It’s Your Job to
Manage your
Career
Step-by Step
Guide to Building
Effective
Mentoring
Relationships
Resume Mistakes
That Can Cost You
an Interview
Associate
Marketing
Checklist
In Order to Make
it Rain, You Have
to Know How to
Gather the Clouds:
Tips for Young
Lawyers on Client
Development
Effective
Communication
Tips for Young
Lawyers
One Friend Too
Many: Facebook
and Your Practice
A Young Lawyer’s
Financial Survival
Guide
Dealing With
Nerves
Additional Resources
http://www.americanbar.org/content/dam/aba/publications/young_lawyer/mar11issu
e.authcheckdam.pdf
http://www.americanbar.org/content/dam/aba/publications/young_lawyer/mar11issu
e.authcheckdam.pdf
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_oct10_mentor.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_june10_resume.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_febmar10_associate.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_febmar10_home.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_oct09_home.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_sept09_home.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_may09_may09.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_april09_apr09.html

Straight Talk From
Partners to Young
Lawyers
Developing Your
Practice
Regain Control
from Your
Blackberry
Can you Just Give
Me a Better
Draft?”
Edit Your Own
Work in 5 Steps
Stand Out by
Getting Published
From My Mentor
to You
Missing the Mark
on Client Needs
Gone But Not
Forgotten: Leaving
Your Job, Not Your
Professional
Relationship
Things Judges Like
to See From Young
Attorneys
Got an Itch to
Create a Niche?
Is Your Career On
Track?
Reflections of a
New Litigator; Ten
Lessons from My
First Year
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_jan09_partners.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_dec08_hanks.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_dec08_karp.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_nov08_guberman.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_nov08_default.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_nov08_kaplan.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_sept08_sept08.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_june08_haslkelchner.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_dec07_abrams.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_may07_hill.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_may07_rotenstreich.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_feb07_ellison.html
http://www.americanbar.org/publications/young_lawyer_home/young_lawyer_archive
/yld_tyl_jan07_buck.html

EMPLOYMENT LAW AND
CONSCIENTIOUS
COMMUNICATION
Clarence M. Belnavis
Fisher & Phillips, LLP
CHAPTER 17

EMPLOYMENT LAW AND
CONSCIENTIOUS COMMUNICATION
PLF – LEARNING THE ROPES
NOVEMBER 1, 2012
Presented By:
Clarence M. Belnavis
Fisher & Phillips LLP
Thanksgiving Dinner
111 SW Fifth Avenue, Suite 1250
Portland, OR 97204
(503) 205-8045 205 8045
� Who gets to sit at the big (adult) table?
� Who is expected to cook?
� Who decides what shows to watch?
� Wh Who sets t th the menu? ?
� What are the unwritten / unsaid family dynamics
going on?
You’re in Charge . . . .
� Partner announces that he needs someone with more
grey hair on the case to assist him
� Client indicates to a female associate that she would
like a different more aggressive attorney
� Hi Hispanic i client li t wants t a di diverse attorney tt t to work k on hi his
files
� Why were these
individuals
requested?
17-1
Thanksgiving Dinner
� What comes to mind –
� Grandpa / Grandma
� Mom / Dad
� Crazy C y U Uncle Ed /
Aunt Edna
� Sister / Brother
� Cousin
� In Laws
Do You Have Any Inherent Biases
� Describe my background
� Education
� Family background
� National origin
�� MMarital it l status t t
� Legal experience
� Disabilities if any
� Sexual orientation
� Religion
� Why did you reach your conclusions?
Lost In Translation
� What are the different ways people use to
communicate?
� What are the methods used today to communicate?
�� How does social media and testing impact what we
say and how we say it?

How To Address Your Biases
� How could a bias impact
someone’s access to legal
representation or treatment in
the judicial process?
� What steps should you take to
make sure that a personal bias
does not impact your
interaction with a client or
other legal professional?
So You Want To Be An Employment
Lawyer
Demeanor Necessary to Practice
Employment Law
PATIENCE!
Clients call you
when they are in
crisis situations
Most disputes in the
workplace result
from poor
communication.
How things are
said really matter.
17-2
How To Address Your Biases
� Recognize that we have biases that result from our
backgrounds and personal experiences
� Try to understand or appreciate the cultural
differences that may exist between you and others
� Appreciate that they same set of facts can be
interpreted in different ways
� Be clear in your communications
� Make decisions based on the facts as you
understand them
Let’s See What You Know
� What is . . .
� FLSA
� OWPBA
� OFLA O
� ADA
� NLRB
Not Overly Sensitive
Because Of . . .
Discrimination
Harassment
Theft
Deceit
Injured Workers
Medical Leave

What is Labor & Employment Law?
All issues related to
the employeremployee
relationship l ti hi – hi hiring i
through firing.
Employment Litigation
Agency /
� Oregon Bureau of
Labor and Industries
(BOLI)
� Equal Employment
Opportunity Commission
(EEOC)
Civil Action
� County Circuit Courts
� U.S. District Court for the
District of Oregon
(USDC)
Most administrative matters go through BOLI.
The preferences for most defense counsel are for civil matters
to go through the USDC.
Non-Union Environment
� General Rule is that employment is “At-Will”
� You are free to fire the employee at any time, for
any reason
� The employee is free to quit, at any time for any
reason
� But exceptions to the “At-Will” rule have emerged
� Through legislative action
� Through court decisions
� Key is to avoid an “implied” contract. Make no
promises about longevity and job security.
17-3
2010 EEOC CHARGES
99,922 CHARGES FILED
EPA
1%
Disability
15%
Race
24%
Age
16%
Religion
2%
Sex
20%
NNat'l t'l
Origin
8%
Retaliation
14%
Two Basic Types of Work Places:
Unionized &
Non-unionized
The Employment Relationship
� Race/Color
� Age
� Religion
It is illegal to fire someone because of a
protected status such as:
�� Sex (including pregnancy)
�� Disability
�� National Origin
�� Military Service
� Sexual Orientation and Marital
Status

The Employment Relationship
It is illegal to fire someone due to:
� Employee’s union activity or sympathy
� Employee has filed a worker’s comp claim
� Employee’s FMLA/OFLA Leave
� A reason that violates public policy
� Obeying a subpoena
� Testifying truthfully
Wage Payment Upon Termination
� Involuntary Termination - Next
Business Day
� 48 Hours’ Notice - Upon
Termination
� Involuntary Termination - Within
Five Business Days
Medical Leave
� FMLA
� Protected leaves
� Birth, adoption, or placement of a child
� Care of a spouse, child, or parent with a
serious i hhealth l h condition di i
� Employee’s own serious health condition
� OFLA
� Protected leaves
� Similar but also care of a parent-in-law
and same sex domestic partner
17-4
Wage and Hour Issues
Hot Issues
� Employees must get time off for meals (at
least 30 minutes) under state law
� Employees must get a rest period of of at least
10 minutes for every 4 hours (or major part
thereof) worked
� Generally no deductions from wages
(cannot deduct for spoilage, cash shortages
or losses)
Medical Leave
� Family and Medical Leave Act (FMLA)
� Coverage
� Employers with 50 or more employees within 75
mile radius
� 12 weeks of unpaid leave per year
� Oregon Family Medical Leave Act (OFLA)
� Coverage
� Employers with 25 or more employees
� Generally 12 weeks of unpaid leave (up to 36 weeks –
pregnancy-related, disability, and/or sick child leave)
What Is Illegal Discrimination?
Treating an
employee l diff differently tl
because of a
protected category

SEXUAL HARASSMENT
�� Where offensive,
unwelcome unwelcome, , severe, or
pervasive conduct creates intolerable
working conditions
Define Harassment
� Unwelcome sexual advances, requests for sexual
favors, or conduct of a sexual nature (verbal,
physical, or visual), that is directed toward an
individual because of gender.
� I It can also l iinclude l d conduct d that h i is not sexual l i in
nature but is gender-related. Sexual harassment
includes the harassment of the same or of the
opposite sex.
Hostile Working Environment Hostile Working Environment
Hostile Working
Environment
��Is Is it sexual harassment to
ask an employee out on a
date?
17-5
�� Is complimenting someone on their
appearance sexual harassment?
Unions
Key Statutory
Provision:
The National Labor
Relations Act
(“NLRA”)
The Application of the NLRA is
Overseen by the National Labor
Relations Board:
�� Five Board Members
�� Power to Adjudicate Disputes
�� General Counsel
�� Investigates
�� Prosecutes Violations

Unions
� The NLRA only applies to “employees” and
not managers, supervisors, independent
contractors, etc.
NOTE: Who is and who is not an “employee” is an
evolving issue.
Unions
Some Types of Activities:
� OOrganizing i i
� Contract Negotiation
� Strikes
Presented By:
Clarence M. Belnavis
Fisher & Phillips LLP
111 SW Fifth Avenue, Suite 1250
Portland, OR 97204
Direct: (503) 205-8045
Fax: (503) 242-4263
cbelnavis@laborlawyers.com
www.laborlawyers.com
17-6
Unions
� Employees have the right to self-organize, form,
join or assist labor unions and the right to engage
in concerted activity for “mutual aid or
protection.” protection.
� Applies to union or non-unionized workplaces
Questions?

CHAPTER 18
RECOGNIZING CHILD ABUSE
AND FULFILLING YOUR DUTY
TO REPORT
Amber Hollister
Oregon State Bar Deputy General Counsel
Charlene Sabin, MD
Behavioral Pediatrician, Portland

Chapter 18
RECOGNIZING CHILD ABUSE AND
FULFILLING YOUR
DUTY TO REPORT
TABLE OF CONTENTS
Page #
POWERPOINT PRESENTATION ............................................................................. 18-1
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
2010 Child Welfare Data Book - Oregon Department of Human Services
http://www.oregon.gov/DHS/abuse/publications/children/2010-cw-data-book.pdf?ga=t
What You Can Do About Child Abuse – Oregon Department of Human Services
https://apps.state.or.us/Forms/Served/de9061.pdf
The additional resource listed below is available on the PLF Web site, www.osbplf.org.
Questions and (Some) Answers About Mandatory Child Abuse Reporting
www.osbplf.org, Select Practice Aids and Forms, then Child Abuse Reporting

Charlene Sabin MD Amber A. Hollister JD
Behavioral Pediatrics OSB Deputy General Counsel
� Economic reasons
� Early reporting and treatment may prevent later
placements in foster care, residential treatment,
juvenile and adult incarceration
� Societal health reasons
� Abusive situations or high risk situations can be
treated, secondary prevention can happen
� It may be in your client’s interests
18-1
Victims of Abuse
10716
10421
11188
11090
2007 2008 2009 2010
� Goal of reporting is
to identify at risk
situations
�� 11,188 victims in
2010
� 22 children died
� 48.3% of victims
were under 6 years
old
� ORS 419B.010 provides if you have
◦ Reasonable Cause to Believe
◦ Abuse Has Occurred and
◦ CContact t t with ith Child or Ab Abuser
� Then You Must Report
UNLESS an Exception Applies
19 1.9
31.4
8.7
8.4
49.6
Threatened Harm
Physical Abuse
Sexual Abuse
Mental Injury
Neglect

� Threat of harm, the largest single category
Unsafe situation, guns, drugs
Extremely unsanitary situation
Domestic violence
KKnown sex offender ff d in i the h home h
Parents unable to provide basic needs
� Exposure to domestic violence may be
considered emotional abuse due to living in a
threatening environment
� Children can get hurt physically during
instances instances of domestic violence
� Exposure to domestic violence may be
considered a criminal offense of both
parents, grounds for removal of the child,
failure to protect.
� Children don’t want to
leave school
� Constantly tired
� Seem to need affection,
attention attention, reassurance
even from those they
don’t know
� Child not growing or
developing normally
18-2
� Threat of harm due to domestic violence
� Defined as a pattern of assaultive and/or
coercive behaviors including physical, sexual
and emotional abuses.
� DHS guide:
http://egove.oregon.gov/DHS/children/abus
e/cps/dom_violence.shtml
� Not providing physical, medical needs
� Not providing emotional needs
� Being left unsupervised
� Young children supervising
younger children hild
� Treating children as small adults
� An injury that doesn’t fit the explanation
given
� A non accidental injury
� Evidence of injury, ranging
from bruising to death death
� “Reasonable discipline”
is not abuse unless it
causes injury

� Bruises, welts, burns, cuts
� Injuries in various stages of
healing
� Injury may have a particular
shape, known as a pattern
injury, of the article used,
such as an electric cord or
belt buckle.
� Shaking a child up to the age of 3 or even
older can cause death or long term
neurologic damage (acceleration forces).
� There are specific medical findings in shaken
child syndrome, syndrome now known as Abusive Head
Trauma, AHT.
� About 30% of these cases are misdiagnosed
by ER staff.
� Any sexual contact in which a child is used
for the sexual gratification another person
� Range of possible activities from rape to
fondling to child pornography
�� Often no symptoms, symptoms children have difficulty
reporting
18-3
� Prevention of abusive head trauma
� Education about the normalcy of
crying.
� How many hours a day is normal
for a 4 week old baby to cry?
� Education about the normal course
of crying
� When does it become less
common?
� Parental history of sexual abuse, either parent
� Step parent in the family
� Non offending parent is not at home as much
� Poor emotional, physical and communication
bboundaries d i

� The history of sexual abuse allegations has
historically gone through many phases
� Medical evaluation of sexual abuse has
pitfalls and limitations
�� Interviewing about sexual abuse is a very
technical area
� Very difficult to detect or prove
� Co-exists with neglect, physical abuse,
sexual abuse, domestic violence, threat of
harm
�� Symptoms are subtle subtle, with depression
depression,
anxiety symptoms in children
� Stress, including legal difficulties
� Financial stress
� Drug and alcohol abuse, largest single family
problem reported
� Unemployment
U p y
� Housing problems
� Parental history of abuse
� Developmental needs of the child
18-4
� Young children
� Custody and parenting time disputes
� Never married parents
� Difficult technical area, never suggest your
client li t iinterview t i th the child hild
� Your client may not want to report
� Also known as Munchausen’s Syndrome by
Proxy
� Difficult to diagnose, relies primarily on
physician suspicion
�� Complex mental health issues in parent lead
to parent creating factitious symptoms in
child
� Across all types of reported child abuse, 44%
of families have issues with drug and alcohol
abuse. ( in 2005 it was 47%)
� Our approach to addiction as a society swings
between treatment and punishment punishment. The
treatment resources are inadequate.
� Substance abuse biologically may be related
to poor attachment development.

� DHS advice is to report any “reasonable
suspicion of abuse.”
� Court may look to “whether the evidence
creates a reasonable suspicion of child abuse,
not whether abuse in fact occurred or even
probably occurred.” Berger v. SOSCF, 195 Or
App 587 (2004) (interpreting analogous
provision)
� No statutory definition or case law
interpreting “reasonable cause”
� More than mere suspicion.
� Contact need not be to be linked to abuse
� Can have contact before or after learning of
abuse
� Direct vs. Indirect Contact?
◦ Oregon Attorney General interpreted “contact” to
require equ e more o e tthan a boa board d members’ e be s receipt ece pt oof
information about abuse through board because
acquisition of information was too indirect.
AG Op. No. 5543
◦ Email or phone?
� No statutory definition
or case law interpreting
� Attorney-Client Privileged under ORS 40.225
(OEC 503)
AND/OR
� Information communicated during
representation that is detrimental to client if
disclosed (reconciles RPC 1.6 duty)
18-5
� No. It is appropriate to comment
on injuries or situations and
listen carefully to the child’s
response and observe.
e.g. routinely comment on an injury
and express sympathy
� Non-leading, non-threatening
questions may be appropriate,
depending on the circumstances.
� DHS advises if the
child’s explanation does
not fit the injury, make a
report.
� Information learned from official report
◦ A report already made OR a proceeding
arising out of a report made
AND
◦ You reasonably believe the information
already known by DHS and/or law
enforcement
RPC 1.6(A) REQUIRES LAWYERS TO
PRESERVE CONFIDENCES
� Attorney-client privileged
information AND
� Other information gained
during course of representation
IF
� Client requests to keep
secret;
� Embarrassing if
disclosed; or
� Likely detrimental to
client if disclosed.
RPC 1.6(B) ALLOWS LAWYERS TO
REVEAL CONFIDENCES IF
� Client consents;
� Required by law (including
ORS 419B.010 et seq.);
� Client intends to commit
future crime; or
� Necessary to prevent
reasonably certain death or
substantial body harm.

MUST NOT
REPORT
if confidential
and
detrimental to
client if
disclosed
� Immediately – 911?
� Orally by phone or
“otherwise” to DHS
designee or law
enforcement
�� Give as much as
information as
possible
◦ Names, ages, location,
description of abuse
◦ But be careful of RPC
1.6
� Civil and criminal
immunity if
◦ Report made in good
faith and and
◦ Reasonable grounds
for report
� Anonymity of
Reporter
MUST NOT
REPORT
if A/C
Privileged
ORS 40.225
RPC 1.6
Ethical duty to keep information
relating to representation
confidential, including information
that is (1) a/c privileged,
(2)secret, (3) embarrassing, or
(4) likely detrimental to client if
disclosed
Phone Numbers
Multnomah County: 503 731 3100
Clackamas County: 503 657 2112
Washington County: 503 681 6917
Statewide: 800 854 3508 x 2402
DHS Reporting Website
www.oregon.gov/DHS/children/a
buse/cps/cw_branches.shtml
18-6
MUST REPORT MUST NOT REPORT MAY REPORT
If you have reasonable
cause to believe that
child abuse has
occurred and you have
had contact with child
or abuser (ORS
419B 419B.010) 010)
AND the information
on which you would
base your report is (1)
not attorney-client
privileged or (2) if
confidential under RPC
1.6, would not be
detrimental to client if
disclosed.
� DHS Child
Protective Services
◦ Screening
◦ Assessment
(Founded (Founded,
Unfounded, or
Unable to Determine)
� Possible Law
Enforcement
Involvement
� Class A violation
punishable by fine
� Failure to perform
duties of office
�� Tort liability
◦ Failure to protect
from foreseeable
harm?
◦ Negligence per se?
� Ethics violation –
not in most cases
If you have reasonable
cause to believe that
child abuse has
occurred and you have
had contact with child
or abuser
BUT the information
on which you would
base your report is
either (1) attorneyclient
privileged (ORS
40.225), or (2) is
confidential and would
be detrimental to your
client if disclosed.
If you have reasonable
grounds to believe
that child abuse has
occurred, you report in
good faith,
AND the information is
confidential under RPC
1.6
BUT your client
consents, or reporting
is necessary to prevent
reasonably certain
death or substantial
bodily harm or future
crime.

� Medical Dictionary
� Pub Med research online
� http://www.ncbi.nlm.nih.gov/entrez/query.fcgi
� Oregon Interviewing Guidelines
�� Diagnostic and Statistical Manual, DSM
18-7
Amber Hollister
Oregon State Bar
503.431.6312
1.800.8260 x 312
ahollister@osbar.org
@ g

Chapter 18
RECOGNIZING CHILD ABUSE AND
FULFILLING YOUR
DUTY TO REPORT
Additional Resources
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
2010 Child Welfare Data Book - Oregon Department of Human Services
http://www.oregon.gov/DHS/abuse/publications/children/2010-cw-data-book.pdf?ga=t
What You Can Do About Child Abuse – Oregon Department of Human Services
https://apps.state.or.us/Forms/Served/de9061.pdf
The additional resource listed below is available on the PLF Web site, www.osbplf.org.
Questions and (Some) Answers About Mandatory Child Abuse Reporting
www.osbplf.org, Select Practice Aids and Forms, then Child Abuse Reporting

CHAPTER 19
COURTROOM DO’S AND DON’TS
The Honorable Edward J. Jones
Multnomah County Circuit Court
The Honorable Jean Kerr Maurer
Multnomah County Circuit Court

Chapter 19
COURTROOM DO’ S AND DON’ TS
TABLE OF CONTENTS
Page #
PRESENTATION OUTLINE ..................................................................................... 19-1
JUDGE MAURER’S DO’S AND DON’TS ................................................................. 19-2
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
Additional Resources
Civil Discovery: Working Backwards to Get Ahead by Michael H. Simon
The following resources can be found at www.osbplf.org, select Practice Aids and Forms,
then Litigation.
Tips from the Bench by Judge R.P. Jones
Pretrial Planning
The Trial Notebook
The Trial Memorandum
Opening Statement
Objections
Use of Depositions at Trial
Closing Argument
Jury Instructions
Final Procedures

TOPIC OUTLINE FOR JUDGE JONES/JUDGE MAURER
PRESENTATION ON
COURTROOM DO’S AND DON’TS
1. Avoid a trial if at all possible
2. Good facts beat good lawyers
3. Start early, work backwards; think about the verdict and jury instructions first
4. Get all the documents; knowing their contents is critical to winning the case
5. Organize the presentation of your evidence to match the jury instructions
6. Be mindful of the first impressions you and your client will make
7. Present your case in voir dire, opening is too late
8. Help the jurors who can’t hear what you have to say take themselves off the case.
9. Don’t talk about the burden of proof, talk about proving your case
10.. Make the “bad facts” into “good facts”
11. Speak in positive rather than negative terms
12. Don’t be afraid to commit to the facts you need to have to win
13. Avoid legal terms and complex language
14. Introduce a witness with useful background facts
15. Make sure your witnesses review and understand the documents
16. Use “looping” to exploit good testimony
17. Don’t argue with witnesses, argue to the jury
18. Some facts are more revealing than others
19. Limit objections to critical situations
20. Take notes: 1) testimony 2)promises made and received, 3) closing arguments
21. Use your closing to prepare “your” jurors for the jury room debates
22. A compelling narrative needs both facts and emotional content
23. Make sure the jury knows what you want from them.
19-1

JUDGE MAURER’S DO’S AND DON’TS
I. PROFESSIONALISM
* Be courteous.
* Be brief.
* Be timely.
* Confer and follow through on your commitments.
* Empathize with the position of opposing counsel, the court and other players in system.
* Introduce yourself to the court staff and treat them with the utmost respect.
Courtroom clerk
Judicial Assistant
(These folks are like members of our family.)
Corrections deputies
* Advise court if you have resolved your case and will not need the hearing.
* Strike from your written and oral arguments all disparaging remarks.
* Never interrupt. Stand up instead. Make your arguments to the judge, never to
opposing counsel. Make all of your arguments before the judge rules, not
afterward. (Do not make comments “for the record” after the judge rules.
* Be aware that the microphones feed into the judge’s chambers.
II. PREPAREDNESS
* Serve your opponent and the judge with copies of all court documents.
* Have a notebook or something else that will keep you organized.
* Bring your calendar with you to court.
* Cite to best case, no string cites. Use Oregon cases if possible.
* Have your witnesses ready to go. Go over their testimony beforehand.
* Have a notebook with your exhibits marked and ready to go and give a copy to the
judge. Confer with opposing counsel and stipulate to as many exhibits as possible.
* Work Backward: Pull out the jury verdict and jury instructions early in case. Fit your
evidence and arguments into the verdict and instructions.
III. PRESENTATION
* Speak slowly, loudly, clearly. Courtrooms have terrible accoustics.
* Stand up, sit up. Be mindful of your facial expressions.
* State your name for the record every time.
* Tell the judge what you want before you give background of your case.
* Learn the stages of a trial:
Jury selection. Do not use it to condition the jury. Know what jurors you want.
Opening Statement: Roadmap, not argument.
Witness presentation: Get to the point. Do not interrupt your witness.
Use cross sparingly unless you are very skilled. No “why” questions.
(DV case: you are defending and want to establish that the witness is
exaggerating injury. No “well, if injuries so bad, why didn’t call police?”
Closing Argument: Succinct, using jury instructions and verdict form.
* State “objection” and cite the ground on which you rely. NO speaking objections. Use
infrequently.
* No expression of your personal opinion.
* Use exhibits effectively, but do not show them to jury before they have been received.
* Do not use a trial technique just because someone else has. Watch good lawyers.
* Watch the jurors! They are permitted to ask questions now.
19-2

Chapter 19
COURTROOM DO’ S AND DON’ TS
RESOURCES
Civil Discovery: Working Backwards to Get Ahead by Michael H. Simon
The following resources can be found at www.osbplf.org, select Practice
Aids and Forms, then Litigation.
Tips from the Bench by Judge R.P. Jones
Pretrial Planning
The Trial Notebook
The Trial Memorandum
Opening Statement
Objections
Use of Depositions at Trial
Closing Argument
Jury Instructions
Final Procedures

CHAPTER 20
NEGOTIATION TIPS, TRICKS,
TRAPS, AND TOOLS
Christopher J. Drotzmann
Davis Rothwell Earle & Xochihua PC
Xin Xu
Law Office of Xin Xu

Chapter 20
NEGOTIATION TIPS, TRICKS,
TRAPS, AND TOOLS
TABLE OF CONTENTS
Page #
Settlement Negotiation Evaluation .................................................................... 20-1
Timing of Negotiations ...................................................................................... 20-3
Types of Negotiations ........................................................................................ 20-4
Negotiation Traps............................................................................................... 20-8
OSB Bulletin Article “Ethical Negotiations – An Oxymoron?” ....................... 20-9

A. Settlement Negotiation Evaluation
NEGOTIATION STRATEGIES
By Xin Xu and Christopher Drotzmann
To have a successful settlement, it is important to have a realistic evaluation of the
case. These are questions to consider early to determine the settlement value of your
client’s case:
1. Does my client have realistic expectations and is s/he open to settling the
case?
a. Avoid a potential client who has unrealistic expectations (particularly
important for a plaintiff’s lawyer working on a contingency fee case).
These are hard to please clients who will be difficult to settle a case:
i. Client expecting $1 million for a simple whiplash because of a
news story;
ii. Client who is adamant about having his day in court;
iii. Client who only wants you to tell him what he wants to hear;
and
iv. Client with a personal grudge.
b. Limit your potential client’s expectations rather than inflate them.
i. Be objective in your analysis of the case.
ii. Inform your potential client the likely cost of litigation.
a. Even in a contingency case, make sure potential client
understands he is still responsible for costs, e.g., filing
fees, hearing fees, discovery, expert costs, etc, which
can add up quickly.
iii. If the client does not hire you because he doesn’t like your
objective analysis of the case, it’s probably for the best.
2. How much is this type of case typically worth?
a. Lawyers need to objectively analyze the case in order to best serve the
client’s interest.
b. Make sure your analysis of the case is not anchored by some atypical
results that made the news.
20-1

c. Research by looking at historical data such as jury verdicts in your
jurisdiction for your particular type of case and by talking to other
attorneys.
d. Plaintiff’s verifiable economic damages are a good starting point for
evaluating the value of the case. For example, if plaintiff only
incurred $5,000 in medical bills and damage to vehicle in an auto case,
it would be unreasonable to expect to recover six figures at trial.
3. How likely am I to prevail at trial?
a. Studies show that people are overly confident in their prediction of
future events, so it is important to evaluate early before your natural
biases set in.
b. Attorneys have a tendency of overestimating their chances of
prevailing at trial.
i. Have not heard the story from the other side.
ii. Adopt the client’s view by putting more weight on facts
supporting the client’s case and minimizing bad facts.
iii. Overly confident in their ability to influence the outcome.
c. Avoid bias by:
i. Research jury verdicts in your jurisdiction for your type of case
to see how often the jury finds in favor of the plaintiff vs. the
defendant.
ii. Pretend you are representing the other side and outline your
opening statement.
iii. Talk to a disinterested party.
iv. Consider early mediation and have the mediator tell you and
your client the strength/weakness of the case.
4. What is the cost of litigation?
a. How much information do I need to gather? e.g., talking to witnesses,
depositions, consulting with experts; And how much is the information
going to cost my client?
i. Note the answer to this question is not always dependent on the
value of the case. Some of the low value cases are very
expensive to litigate due to complicated/conflicting facts,
necessary depositions, and requisite expert testimony. These
types of cases often make sense to settle early on.
20-2

. What are the fees and costs at each stage of litigation? Separate out the
fees and costs the client will likely have to expend for each stage of
litigation. For example:
i. Preliminary evaluation
ii. Discovery
iii. Motions
iv. Pretrial preparation
v. Trial
5. What is a reasonable settlement for my client? Analyzing a case for value,
chance of success at trial (or damage and liability exposures for defense), and
costs of litigation provides you with a reasonable settlement range. For
example, a reasonable settlement range for a case valued at $50,000 with 50%
chance of prevailing at trial might be $20-25,000 depending on other factors
such as fees expended and additional cost of litigation.
B. Timing of Negotiations
There is not the “right” time to negotiate settlement. You should be prepared and
consider settlement negotiations during any stage of a case. There are special
considerations for each stage.
6. Pre-litigation
a. There are many reasons to consider early settlement negotiations -
Saves litigation costs (including attorney fees, court costs, expenses,
and expert fees) and time for both sides.
b. Settlements are most likely to occur prior to filing a lawsuit when
liability and damages are easy to prove, and there is no right to
attorney fees.
c. However, early settlement could be difficult if the parties do not have
all necessary information to fully evaluate a case, e.g., need to depose
key witnesses, plaintiff has not finished treating.
d. Early settlements could also be difficult because the parties do not
fully appreciate the weaknesses in their case pre-litigation due to lack
of available information and have unrealistic expectations preventing
settlement.
7. Settlement during litigation
a. Oftentimes, settlements occur during litigation when the parties have
done the necessary discovery and feel comfortable settling a case.
20-3

C. Types of Negotiation
b. It is not uncommon for cases to settle right before or during trial
because one or both parties want to avoid the risk of the unknown.
Sometimes the cases settle during trial because:
i. The attorney did not provide the settlement evaluation sooner;
ii. The client did not appreciate the risks until s/he sat through the
trial;
iii. Missed opportunities to settle the case earlier.
c. The best times to attempt settlement are when you are in a good
position. Do not miss those opportunities:
8. Direct negotiation
i. If you have filed a good dispositive motion.
ii. After the deposition of a key witness whose testimony is
adverse to the other side.
a. Cheaper, which is an important consideration in a small case.
b. Should I make the first offer? If so, what should be my initial offer?
i. Attorneys are often hesitant to make the initial offer because
they are afraid of showing their hand, offending the other side
with an unreasonable offer, or undervalue the case by starting
with a reasonable initial offer. In actuality, the response is
usually more telling than the initial offer.
ii. Negotiated settlements typically fall halfway between the
initial offer and initial response. Therefore, the response to an
initial offer is often an indication what the responding party
believes to be the settlement value of the case.
iii. Determine ahead of time with your client your final settlement
number.
iv. If you have never dealt with opposing counsel or insurance
company before, ask around about their reputation for
reasonableness, credibility, and settlement style.
v. It is important to have credibility if you want to settle a case.
a. Increase your credibility by backing up your initial
settlement offer with as much supporting facts and
documents as possible.
20-4

vi. Although you might not want to start the initial offer with the
final settlement number, be reasonable with your initial offer.
a. If you are unreasonable, you lose credibility and trust.
b. If you are unreasonable, the other side will likely
respond with an unreasonable counter and the parties
will appear to be too far apart.
vii. Although you want to be reasonable with your initial offer,
make sure to leave room for concession.
a. Like any type of negotiations, the other party needs to
feel they got a “good deal” by talking you up/down
from your initial offer.
c. How should I respond to the other side’s offer?
9. Mandated Mediation
i. If the other side’s offer is reasonable, then the answer is fairly
easy and the parties will likely be able to settle the case.
ii. If the other side’s offer is extremely unreasonable and
unsupported by any facts, avoid the urge to reciprocate with
similar conduct because you will lose credibility and destroy
the possibility of settlement.
iii. Increase your credibility by responding with facts/documents
supporting your client’s position and/or asking opposing party
for documents supporting their numbers.
iv. You do not have to respond with a counter offer. Sometimes
silence speaks louder than words.
v. If opposing counsel presents you with an offer but you are not
prepared to respond due to lack of information, use the
opportunity to obtain information.
a. Some mediations are mandatory pursuant to the parties’ contract or
court rules. Because these mediations are not voluntary, they might
take place when the parties are not prepared or motivated to settle.
Nevertheless, these mediations are valuable:
i. often lead to settlement
ii. good starting point for settlement negotiations
iii. good opportunity to obtain information
20-5

. To get the most out of these mediations, apply the pointers related to
voluntary mediation and direct negotiations.
10. Voluntary Mediation – Have a high success rate because both sides are open
to settlement. Follow the mediation/settlement tips below to increase your
chances of success.
a. Be prepared – Because most cases are settled rather than tried, it is
essential that you come to the table prepared.
i. Have a good command of the facts and law;
ii. Prepare a persuasive and concise mediation memo;
iii. Provide mediator with all necessary arsenal to settle the case. If
you have important favorable facts, make sure the mediator is
aware of those facts even if you are not prepared to share them
with the other side;
iv. Discuss with mediator any barrier to settling the case;
v. Be familiar with the particular format the mediator uses;
a. Pre-mediation meetings
b. Required attendees
c. Whether the mediator will meet with the parties
together or separately.
vi. Come to the mediation with your laptop and a draft settlement
agreement so the parties can finalize the written settlement
agreement during the mediation and with the aid of the
mediator.
a. It is helpful to draft the settlement agreement before the
mediation so you can go over any settlement terms that
are important to your client, e.g. form of payment,
confidentiality clause, etc.
b. Parties sometimes experience “buyer’s remorse” after
the settlement and refuse to sign the settlement
agreement or insist on additional terms not discussed
during the mediation.
b. Prepare your client – Because your client is the ultimate decision
maker, it is very difficult to have a successful settlement unless your
client has all the information necessary to settle:
i. Explain the mediation process and purpose to the client;
20-6

ii. Discuss settlement authority prior to mediation;
a. If you represent an insurer, make sure you obtain the
necessary authority and make sure the amount is high
enough to have a meaningful mediation;
b. Avoid setting a hard and fast “bottom line” possible.
iii. Agree on the mediation strategy and goal ahead of time;
iv. Provide a realistic case assessment for your client;
v. Make sure the client is presentable. Present the client to the
mediator as if the mediator is the jury. If the mediator likes
your client, s/he is more likely to see your case in a more
favorable light and put more pressure on the other side.
c. Choosing the right mediator
i. Decide the purpose of the mediation.
a. Some mediators are better at getting the case settled
(and who has a stronger case is not as important) while
other mediators are better at providing insight as to how
a judge or jury will view each side’s case.
b. If you are more interested in having someone
convincing the parties to settle, the former is a better
choice.
c. If the parties are more interested in getting an unbiased
evaluation of the case, pick the latter and make sure
s/he is aware of the purpose of the mediation.
ii. Ask around for a mediator’s reputation, style, and
temperament.
a. Although most professional mediators do not have
particular biases towards plaintiff or defense, many
mediators are more suited for certain types of cases.
b. Keep in mind your client’s personality when selecting a
mediator, e.g., does your client do better with someone
who listens or does he need an authoritative type of
mediator?
iii. Consider using a mediator suggested by opposing side.
a. Keep an open mind of any mediator suggested by
opposing side so long as the mediator is reputable.
20-7

D. Negotiation Traps
b. The goal of mediation is to find common ground.
Agreeing to a mediator suggested by the other side is a
good step towards that goal and creating trust.
c. Shows the other side your confidence in your client’s
case.
d. Share information – Settlement usually occurs when both sides feel
they know the good and the bad. Successful settlements are rare when
one or both sides feel left in the dark about the other side’s strengths
and weakness. Be prepared to share information.
e. Listen – You hope to leave the mediation with at least additional
information about your opponent’s case, spend more time listening.
f. Be credible – Credibility is key to a successful negotiation (and for
future negotiations with opposing counsel). Avoid losing credibility
by bluffing or giving a false “bottom line” or “authority” number.
(You might also be violating Rules of Professional Conduct 4.1(a)).
g. Be likeable – Lawyers prefer negotiating with lawyers they like,
which is more likely to lead to a successful settlement.
1. Ethics – see attached article by Helen Hierschbiel on ethical
negotiations.
2. Lien issues – make sure you are aware of all liens affecting the
plaintiff’s case, including any medicare lien, attorney liens.
20-8

Oregon State Bar Bulletin ó APRIL 2008
Bar Counsel
Ethical Negotiations
An Oxymoron?
By Helen Hierschbiel
Bulletin Columns
You are representing plaintiff in settlement negotiations on a personal injury
lawsuit. The mediator asks what your settlement authority is. How do you
answer? Can you answer?
The parties ultimately reach an agreement and place a settlement on the
record. You and the opposing lawyer are still working out the details of a
stipulated judgment for submission to the court when you receive news that
your client has died. What do you do? Do you tell the opposing party?
These scenarios present the all too common dilemma for lawyers involved in
settlement negotiations: sometimes the lawyerís duties to pursue client
objectives and protect client confidentiality seem to conflict with the lawyerís
duty of candor to the court and to others. In an effort to address this
dilemma, competing schools of thought have developed about whether some
level of dishonesty should be tolerated in negotiations. The Standing
Committee on Ethics and Professional Responsibility of the ABA
summarized these theories as follows:
It has been suggested by some commentators that lawyers must act
honestly and in good faith and should not accept results that are
unconscionably unfair, even when they would be to the advantage of the lawyerís own client. Others have
embraced the position that deception is inherent in the negotiation process and that a zealous advocate should
take advantage of every opportunity to advance the cause of the client through such tactics within the bounds of
the law. Still others have suggested that lawyers should strive to balance the apparent need to be less than
wholly forthcoming in negotiation against the desirability of adhering to personal ethical and moral standards.
ABA Formal Op No 06-439, pp 3-4 (citations omitted). 1 Where does Oregon stand on this issue? Our rules provide a
pathway to the answer.
Misstatements
Oregon RPC 1.2(a) requires lawyers to abide by the clientís decisions concerning the objectives of representation and
consult with the client regarding the means used to pursue those objectives. This directive is limited, however, by
subparagraph (c), which prohibits a lawyer from counseling or assisting a client to engage in illegal or fraudulent
conduct. Lawyersí responsibilities to advance their clientsí objectives are further constrained by their duties of candor.
For example, RPC 4.1(a) provides that, when representing a client, a lawyer shall not knowingly make a false statement
of material fact or law to a third person. Further, RPC 8.4(a)(3) prohibits lawyers from otherwise engaging in conduct
involving dishonesty, fraud, deceit or misrepresentation.
Notably, RPC 4.1(a) prohibits only material misstatements. Similarly, a misrepresentation under RPC 8.4(a)(3) must be
"knowing, false and material in the sense that the misrepresentations would or could significantly influence the hearerís
decision-making process." In re Summer, 338 Or 29, 38(2005)(citing In re Eadie, 333 Or 42, 53 (2001)). In Summer, the
accused lawyer represented a client who was involved in two accidents, but was only injured in the first accident. The
lawyer settled the claim for the first accident, and then attempted to recover from the tortfeasor in the second accident by
providing medical records for the injuries sustained in the first accident. In finding violations of former DR 1-102(a)(3)
and 7-102(a)(5) (precursors to RPC 8.4(a)(3) and 4.1), the court determined that statements lawyer made to the second
tortfeasor about his clientís injuries were material, regardless of the fact that the tortfeasor ultimately discovered the
inaccuracy of the information and denied the claim. "[M]ateriality is not limited to circumstances in which a
misrepresentation successfully misleads." 338 Or at 38.
20-9

Determining what constitutes a material misstatement is not always easy. ABA Formal Op No 06-439 identifies two
categories of statements that are not false statements of material fact or law: understating the willingness to
compromise; and posturing or puffing by, say, exaggerating the strengths of a case and minimizing weaknesses. Saying
"my client has a great case" is clearly posturing. By contrast, claiming that documentary evidence will be submitted at
trial when no such evidence exists would be an affirmative misrepresentation of fact. As to the first category, care must
be taken in exactly how a clientís position is conveyed:
For example, even though a clientís board of directors has authorized a higher settlement figure, a lawyer may
state in a negotiation that the client does not wish to settle for more than $50. However, it would not be
permissible for the lawyer to state that the Board of Directors had formally disapproved any settlement in excess
of $50, when authority had in fact been granted to settle for a higher sum.
ABA Formal Op. No. 06-439 at 8.
So, what do you say to the mediator in our first scenario? A knowing misstatement of a clientís settlement authority
would likely be a misrepresentation of a material fact in violation of RPC 4.1. See, e.g., ABA Formal Op No 93-370
(reaching that conclusion). However, RPC 1.6 prohibits a lawyer from disclosing the limits of settlement authority without
the clientís consent. Getting client consent may not be possible or strategically wise. One recommendation would be that
the lawyer decline to answer, rather than provide an untruthful answer. See id. Others have suggested asking the client
for a settlement range rather than a bottom line, or simply no specific settlement authority whatsoever. 2 In any event,
you must be cautious in exactly how you convey your clientís position.
Nondisclosure
Nondisclosure of a material fact can also be considered a misrepresentation under RPC 8.4(a)(3). In addition, RPC
4.1(b) prohibits a lawyer from failing to disclose a material fact when disclosure is necessary to avoid assisting the client
with an illegal or fraudulent act. Neither rule requires disclosure when doing so would conflict with lawyerís duties to
maintain client confidences under RPC 1.6. RPC 1.6(b) allows (i.e. does not prohibit, but does not require) a lawyer to
disclose a clientís intent to commit a crime and the information necessary to prevent a crime. In Eadie, supra, the court
found that the lawyer had intentionally failed to disclose material information ó that is, his intent to seek costs ó in order
to obtain an agreement from the opposing party to settle with his client. 333 Or at 54.
Lawyers in other jurisdictions have been disciplined for failing to disclose that their clients died. See Kentucky Bar Assín
v. Geisler, 938 SW2d 578 (Ky 1997); In re Warner, 851 So2d 1029 (La 2003); Toledo Bar Assín v. Fell, 364 NE2d 872
(Ohio 1977). ABA Formal Op No 95-397 also concludes that a lawyer representing a plaintiff in a case has a duty to
inform both the court and the opposing counsel that the client has died. In each of these cases, however, the client died
prior to settlement being reached. In our second scenario, a settlement was reached and placed on the record, but the
stipulated judgment had yet to be finalized or submitted to the court for signature. Arguably, the clientís death should no
longer be material since an agreement has already been placed on the record. The stipulated judgment does not need
to be signed by the parties and the details are just pro forma, right? Why complicate matters with the inconvenience of
your clientís death?
The reason is that without a principal, the lawyer no longer has authority to act as an agent. To the extent that the lawyer
may be required to take some additional action, the lawyer cannot do so without a client. Thus, not having a principal
would clearly be a material fact that should be disclosed to the opposing counsel and the court.
Our second scenario also highlights the need for lawyers to consider whether nondisclosure of information will truly
advance the clientís objectives under the circumstances. A clientís goals are not met by negotiating a settlement that
may subsequently be set aside because the lawyer did not have authority to act or because material facts were not
disclosed. Failure to disclose a material fact has been the basis for throwing out settlements in several jurisdictions,
including Oregon. See Jeska v. Mulhall, 71 Or App 819 (1985)(claim for fraud upheld against sellerís lawyer who told
buyers "it was a lot of property for the money," implying his client had the power to transfer real property when lawyer
knew his client did not). See also Spaulding v. Zimmerman, 116 NW2d 704 (Minn 1962)(court threw out settlement
because defense counsel failed to disclose that its expert had discovered plaintiff had suffered an aortic aneurysm from
the accident, which was unknown to the plaintiff).
Conclusion
Put simply, lawyers may only use lawful means to accomplish their clientsí objectives. Material misrepresentations, fraud
and nondisclosure of material information are not lawful means to achieve clientsí goals. Disclosure is not required when
the information is protected under RPC 1.6, but withdrawal may be if the client refuses to give consent. Negotiating
ethically without giving away the clientís "bottom line" is certainly possible, but requires care in choosing oneís words
and avoiding deceit or dishonesty. If those limits are observed, clever and creative puffing and posturing are perfectly
okay.
Endnotes:
1. The ABA formal opinions are not binding authority in Oregon. However, because the Oregon Rules of
20-10

Phone:
(503) 620-0222
Toll-free in Oregon (800) 452-8260
Facsimile:
(503) 684-1366
Professional Conduct mirror many of the ABA Model Rules, the ABA formal opinions provide some guidance in
interpretation of Oregonís rules where no Oregon authority exists.
2. Some court-annexed settlements may require that the lawyer have settlement authority or be accompanied by
a client or client representative with such authority. Even then, a legitimate answer to "What is your clientís
settlement position?" might be "My client would prefer not to pay more than $50" even though the client has
indicated it will go higher if necessary. At some point, however, court-annexed mediations might require
disclosure of the clientís "bottom line."
ABOUT THE AUTHOR
Helen Hierschbiel is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or tollfree
in Oregon at (800) 452-8260, ext. 361, or by e-mail at hhierschbiel@osbar.org.
© 2008 Helen Hierschbiel
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ó return to Table of Contents
Building Location:
16037 SW Upper Boones Ferry Road
Tigard, OR 97224
Mailing Address:
PO Box 231935
Tigard, OR 97281
Copyright © 1997-2011 Oregon State Bar ® All rights reserved.
20-11

CHAPTER 21
BRIDGING THE CULTURAL GAP
Lee Po Cha
Immigrant and Refugee Community Organization
Djimet Dogo
Immigrant and Refugee Community Organization
Victoria Libov
Immigrant and Refugee Community Organization
Ruben Medina, Jr.
Law Office of Ruben Medina PC
Chanpone P. Sinlapasai (moderator)
Marandas & McClellan LLC

Chapter 21
BRIDGING THE CULTURAL GAP
TABLE OF CONTENTS
Page #
POWERPOINT SLIDES ............................................................................................. 21-1
To view these chapter materials and the additional resources below, go to
www.osbplf.org, find the left side of the home page, find CLE, then click on programs
on CD/DVD, find Learning The Ropes, then click on download handout. Program
handouts and additional handouts are organized by chapter.
Additional Resources.
The reports below are published by Coalition of Communities of Color and are
available through the link below.
The Asian and Pacific Islander Community in Multnomah County
The Latino Community in Multnomah County:
The Native American Community in Multnomah County:
http://coalitioncommunitiescolor.org/research/research.html
The reports below are published by the U.S. Department of Health and Human
Services Office of Refugee Resettlement and are available through the links below.
Refugee Arrivals
http://www.acf.hhs.gov/programs/orr/data/fy2011RA.htm
State of Oregon Office Of Refugee Resettlement Funded Programs
http://www.acf.hhs.gov/programs/orr/data/state_or_ffy11.htm

Bridging the Cultural Gap
Cultural Competence
�� A set of of congruent behaviors, attitudes, and policies that come
together in a system, agency, agency, or profession profession and enable that that system,
agency, or profession to work effectively in cross cross-cultural cultural situation.
The goal is to build skills and cultures that support the ability to
interact effectively across identities.
�� The word culture is used because it implies the integrated pattern of
human behavior behavior that includes thoughts thoughts, communication communication, actions actions,
customs, beliefs, values, and instaurations of a racial, ethnic,
religious or social group.
�� The word competence is used because it implies having the capacity
to function effective. Five essential elements contribute to a system,
institution or agency’s ability to become more culturally competent:
– valuing diversity;
– having the capacity for cultural self self-assessment;
assessment;
– being conscious of the dynamic inherent when cultures interact;
– having institutionalized understanding of cultural diversity
(Cross, Bazron, Dennis & Isaac, 1989)
CLASSIFICATION and
DEMOGRAPHICS
21-1
Presentation Overview…
�� Demographics:
– Classification of Individuals inside the U.S.
– Who are they? Where do they live?
– Why is this important?
�� Coalition of Communities of Color Report
�� Different Cultural Perspectives:
– Belief systems
– Traditional healings
– Mental health issues
�� �� “Rule Rule of Law” Law – What does that mean?
– Perception of Law Enforcement Agencies (LEA)
– Perception of Attorneys
– What rights?
�� Language and the use of Interpreters
– Stereotyping and Universal terms like “All…”
– “Asian” – Yes
�� How to run a successful law practice with a diverse group of clients
– Managing clients expectation
– Culturally sensitive office procedures
U.S. Citizen
• Birth Right
• Naturalized
Important Classification of
Individuals:
Immigrant
• Entered here here through:
through:
• Family base
• Employment base
• Self petitions
Non Immigrant
• Tourist
• Student Visa
Refugees & Asylees
• Refugee
• Asylee
Undocumented
• Entered without inspection
(EWI)
Other:
• Deferred Status
• Reserved for usually victims
of crime or other humanitarian
options
Nonimmigrant Admissions (I (I-94 94 only) by Category of Admission:
Fiscal Years 2007 to 2009
2009 2008 2007
Number Percent
Number Percent Number Percent
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,231,554 6,231,554 100.0 37,149,651 100.0
39,381,928 100.0
Non Non-residents residents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32,544, 32,544,098 098 89.8 33,301,754 89.6
35,434,175 90.0
Temporary visitors for pleasure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,800,027
27,486,177 74.0
76.7 29,442,168 74.8
Temporary visitors for business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,390,888
5,418,884 14.6
12.1 5,603,668 14.2
Transit aliens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346,695 1.0 396,383 1.1
387,237 1.0
Commuter students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,488
-- 310 –
1,102 –
Short-term Short term residents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,438,27 3,438,276 6 9.5 3,566,367 9.6
3,688,167 9.4
Temporary workers and families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,703,697 1,932,075 1 11,932,075 932 075 52
5.2
4.7 1,949,695 5.0
Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 951,964 2.6 841,673 2.3
917,373 2.3
Exchange visitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4459,
59,408 408 1.3 489,286 1.3
506,138 1.3
Diplomats and other representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323,183
303,290 0.8
0.9 314,920 0.8
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
–
24 -- 41 – 43
Expected long long-term term residents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53,019 76,158 0.2
0.1 59,097 0.2
Alien fiancé(e)s of U.S. citizens and children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32,009
38,507 0.1
0.1 34,863 0.1
Alien spouses of U.S. citizens and children, immigrant visa pending . . . . . . . . . . . . . . 15,515 -- 15,69 15,694 4
–
– 18,495
Alien spouses of U.S. permanent residents and children, immigrant visa pending . . . . 5,445 -- 0.1
8,478 – 19,099
Other . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
57 –
50 -- 62 –
Unknown . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
205,372 0.6
196,161 0.5 200,489 0.5
– Represents zero or rounds to 0.0.
Note: Excludes the majority of short-term short term admissions from Canada and Mexico. See Appendix A for classes included in each categor category. y.
Source: U.S. Department of Homeland Security, Customs and Border Protection (CBP), TECS, Arrival File, Fiscal Years 2007 to 2009 2009.
.

A Brief Look at Oregon’s
Refugee and Immigrant
Population
The Latino Community In
Multnomah County
Latinos living in Multnomah County: 91,272
�� 11.7 % of the County’s population
�� �� Mexican: 73% of the Latino Community
– 60% of Latinos in Multnomah County were born in the
USA
�� 11% are naturalized citizens
�� 72% speak Spanish
�� 37% of Latinos are under the age of 18
�� 70.6% Latinos are under the age of 65
* Source: Coalition of Communities of Color: “The Latino Community in Multnomah County: As
Unsettling Profile” 2011.
Different Cultural Perspectives
�� Collective Orientation
�� Gender Roles
�� Respect
– age, authority, status
�� �� Present Present-Time Present Time oriented
– Indefinite sense of time
– Spontaneous
�� Concept of Education & Work
– Education is a luxury
– Different for girls and boys
21-2
Who is coming here?
(Refugee arrivals in Oregon)
ETHNICITY TOTAL % OF
ARRIVALS
(1975 (1975-
2009)
TOTAL
SE Asians 26,219 45.81%
Other Asians 515 0.9%
Eastern European 3,941 6.88%
Former Soviet Union 19,003 33.21%
African 2,502 4.38%
Middle East 1,485 2.6%
Cuban 2,378 4.16%
Haitian 182 0.32%
Other 1,004 1.75%
Total 57,229 100%
Source: US Department of State
2011 Ranking Language
Language-Based Based Community
Mean Score for Reading
& Math
1 Karen 5%
2 Pohnpeian (Micronesia) 17%
3 Nepali 25%
4 Chuukese (Micronesia) 28%
5 Rohingya (Burma) 29%
6 Burmese 31%
7 Yapese (Micronesia) 31%
8 Samoan 32%
Arabic (Egypt, Iraq, Jordan, Iraq, Morocco, Algeria, Sudan,
9
Syria, Libya...) 46%
10 Hindi (India) 53%
11 Urdu (India & Pakistan) 53%
12 Tonga 54%
13 Thai 54%
14 Tagalog g g ( (Philippines) pp )
56%
15 Palauan (Palau & Guam) 57%
16 Cambodian 57%
17 Lao 60%
18 Mien (China, Vietnam, Laos, Thailand) 65%
19 Indonesian 67%
20 Chinese, Hakka 67%
21 Farsi (Iran, Afghanistan) 70%
22 Persian (Iran, Afghanistan) 70%
23 Tibetan 74%
24 Vietnamese 75%
25 Japanese 81%
26 Cantonese 82%
27 Gujarati (India, Pakistan, Africa) 82%
28 Mandarin 83%
29 Korean 89%
30 Khmer (Cambodia) 90%
Culture
�� The family is the system of support
and preferred intervention.
�� “Saving face”
�� C Community it intervention
i t ti
– Community leaders in decision-making
decision making
�� Respect the unique, culturally
defined needs of clients.

�� Collective
Orientation
�� Extended Family
- Beyond the sphere of
traditional nuclear
family
- Family: blood,
marriage, role of
godparents, village,
tribe, etc.
- Source of physical,
emotional, economical
and social support.
�� GENDER ROLES:
– Female or “Marianismo”
�� Traditional gender roles
– Sacrifice their well-
being to maintain the
family unity.
– Raise to depend on
male: father, husband,
etc.
– Male or “Machismo”
�� Provider and Protector
of the family
�� Traditional roles =
excessive authority,
power, social freedom.
Cultural barriers to legal services…
�� Historical distrust
�� Client and attorney
relationship
�� �� Misunderstandings
of terminology,
language, or body
language
–Eye Eye Contact
(women)
–Touching Touching
– Bowing
Legal system…what does that
mean to the communities?
�� No legal system
�� Corruptions
– Misconception that all police are
dishonest
dishonest
��Fear Fear of removal from the United States.
– Notaries vs. Lawyers?
�� Pay off to attorneys, judges, police
officers
�� No word for attorneys/judges
21-3
I/R Mental Health Issues
Mental Health
– Posttraumatic stress disorder (PTSD)
��PTSD PTSD incidence rate among adult and child
refugees g from war zones ranges g from 25%
to 94%.
– Combat stress reaction (CSR)
– Depression
–Suicide Suicide
– Asylee/Refugee
– Credibility
Cultural Considerations
�� Self Awareness: Understanding of own
personal and cultural values, beliefs,
and power as a first step in
appreciating importance of
multicultural lti lt l id identities titi i in th the li lives of f
people.
�� Cross Cultural Knowledge
�� Develop knowledge and understanding
about the history, traditions, values,
family systems, and communication
approaches of client.
Culturally sensitive office management
�� Staff/Policy
– Bilingual/Bicultral Staff
�� Client confidentially
�� �� Interpretation/translati
on
�� Family involvement
�� Building trust
�� Going with them to
court and check
�� Social
service/attorneys

Managing clients expectations
�� Time to arrive
�� Confidentiality
�� Fees
�� �� Family involvement
�� Appearances in
court
�� 3 rd Party Release of
Information
Cultural Commandments
�� PATIENCE – with yourself and your clients
�� LISTEN, Listen, Listen - verbal/nonverbal
language
�� NO stereotype (no single characteristic fully
defines you or your client – gather your facts).
�� �� GIVE GIVE RESPECT RESPECT the client client’s s values. values
�� NO Judgments – walk in their shoes (explore,
understand, solve)
�� Speak – talk about the differences and use it to
strategize for your case.
�� SLOW DOWN – You don’t know everything but
you do have to give your best effort to
understand, listen, learn, and grow.
United Nations High Commissioner for Refugees (UNHCR) The Office of
the United Nations High Commissioner for Refugees was established on
December 14, 1950 by the United Nations General Assembly. The
agency is mandated to lead and co co-ordinate ordinate international action to
protect refugees and resolve refugee problems worldwide.
U.S. Department of State – Bureau of Population, Refugees, and
Migration (PRM) The State Department's Bureau of Population, Refugees
and Migration (PRM) provides aid and sustainable solutions for refugees,
victims of conflict and stateless people around the world, through
repatriation, local integration, and resettlement in the United States.
PRM also promotes the United States' population and migration policies.
U U.S. S Offi Office of f R Refugee f R Resettlement ttl t (ORR) As A As part t of f the th Department D t t of f
Health and Human Services, the Office of Refugee Resettlement (ORR)
provides refugees with direct assistance, services, and critical resources
to assist them in becoming integrated members of American society.
U.S. Citizenship and Immigration Services (USCIS) The USCIS is a
bureau of the Department of Homeland Security (DHS) which is
responsible for the administration of immigration and naturalization
adjudication functions and establishing immigration services policies and
priorities. These functions include: adjudication of immigrant visa
petitions; adjudication of naturalization petitions, adjudication of asylum
and refugee applications, adjudications performed at the service centers,
and all other adjudications.
21-4
�� What to do:
– Tell them that they have right
to legal interpretation and
access to these services.
– Ask what language they speak
and what dialect.
– Confirm that your client
understands understands. “Asian Asian Nod” Nod
– If there are no words describe
the word (i.e., Domestic
Viloence, Mental Health).
– Confirm that it is not someone
they know (before hand).
Interpreters
Resources
�� Do not:
– Do not use children or family
members to interpret.
– Use people who have an stake
in the outcome.
– Make sure they are translating
word for word and not
summarizing
– No side conversations with
client (even to clarify –
permission first).
�� Immigrant & Refugee Community
Organization (IRCO)
–Asian Asian Family Center (AFC)
–Africa Africa House
–International International Language Bank (ILB)
�� Catholic Charities
�� Lutheran Community Services
�� Sponsors Organized to Assist Refugees
(SOAR)
�� Asian Health & Service Center
�� Intercultural Psychiatric Program (IPP)
IMMIGRATION RESOURCES
�� 1. ICE Northwest Detention Center (Tacoma):
http://www.ice.gov/doclib/dro/facilities/pdf/cscnwwa.pdf
�� 2. ACLU Know-Your
Know Your-Rights: Rights: http://www.aclu.org/racial
http://www.aclu.org/racial-justice/know
justice/know-your your-rights rightsbustcard
bustcard-spanish spanish
�� 3. Resources for pro pro-se se litigants: http://www.firrp.org/resources/prose/
�� 4. American Immigration Council: http://www.americanimmigrationcouncil.org/
�� 5. American Immigration Lawyers Association: http://www.aila.org/
�� 6. Oregon State Bar: http://www.osbar.org/
�� 7. Immigration Court – Legal Aid:
http://www.justice.gov/eoir/probono/freelglchtOR.htm
�� 8. USCIS: www.uscis.gov
�� 9. USICE: www.ice.gov

Questions ?
21-5

Chapter 21
BRIDGING THE CULTURAL GAP
Resources
The reports below are published by Coalition of Communities of Color and are available
through the link below.
The Asian and Pacific Islander Community in Multnomah County
The Latino Community in Multnomah County:
The Native American Community in Multnomah County:
http://coalitioncommunitiescolor.org/research/research.html
The reports below are published by the U.S. Department of Health and Human Services
Office of Refugee Resettlement and are available through the links below.
Refugee Arrivals
http://www.acf.hhs.gov/programs/orr/data/fy2011RA.htm
State of Oregon Office Of Refugee Resettlement Funded Programs
http://www.acf.hhs.gov/programs/orr/data/state_or_ffy11.htm