Oregon Personal Injury Lawyer Blog

Trends in Oregon Legal Malpractice Claims

Tue, 15 May 2012 11:44:30 -0800

The Professional Liability Fund (PLF) recently published its annual report. The PLF provides insurance to Oregon attorneys for legal malpractice claims. The report summarizes claims, trends, and changes to which attorney mistakes are covered and not covered by insurance. This post discusses what I found interesting in the report.

Less litigation.

Of 914 claims made in 2011, only 84 people filed lawsuits. That's only 9%, and it is part of a five-year trend away from litigation. The percentage of litigated claims follows: 2007 - 21%; 2008 - 19%; 2009 - 16%; 2010 - 14%; and 2011 - 9%. As I discuss below, that is good for the financial health of the PLF because of the high cost of litigation. But what happened to the other 90% of claims?

Claim Disposition.

The PLF reported what has happened to claims over the past ten years.

1% - Judgment for the client.
3% - Judgment for the defendant attorney.
11% - Client sued and the case settled or was dismissed before trial.
19% - PLF attorneys fixed the problem caused by the attorney.
25% - PLF settled the claim before the client had to sue.
31% - Claim abandoned (24%), claim denied (14%) or coverage denied (3%).

Areas of Law.

The PLF reported what areas of law generate claims. Again, the report only tallies the last 10 years, and it might not accurately reflect what is happening today. In particular, legal malpractice in handling employment law cases does not even register as a separate category over the past ten years, but I suspect that will change. Too many attorneys who accept employment law claims simply are not fully competent in the area. They lack the background and experience to handle them well. However, many employees are unsophisticated and trust their lawyers: they do not realize that their attorney failed them. However, based upon the calls I receive, that is changing as clients find information on line.

But for the past ten years: the top five claim areas are the following:

16% Personal Injury
16% Domestic Relations / Family Law
12% Bankruptcy & Debtor-Creditor
11% Real Estate
11% Estate Planning & Estate Tax

The Money Trail.

For 2011, the PLF paid, on average, $20,000 per claim. Of that, PLF paid 50% for defense lawyers, court costs, and other expenses. The PLF paid the other 50% to the claimant, who then had to pay his or her own court costs and attorney fees.

The high cost of claims shows how important and smart it is for the PLF to resolve claims without litigation. The five-year trend, which I noted above, shows a decline in litigation from 21% of claims to 9% of claims. If the PLF can maintain that low level, that would be good for everyone. For us attorneys, our insurance premiums can remain stable. For claimants, getting paid without litigation can be a huge savings in terms of money, time and emotion.

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

Replace child safety seats after moderate or severe car accidents

Fri, 20 Apr 2012 09:27:03 -0800

I represent a family that includes six children who were in the SUV when a truck slammed into them. I wondered whether child safety seats should be replaced, kind of like when you replace a bicycle helmet after crash. This post covers the question of when should parents trash their child safety seats.

Every family should reconsider its use of safety and booster seats annually, not just following a crash. For a lot of parents of small children, the cost of safety seats is a big investment. They know it is absolutely necessary, but they cannot afford to throw out one if it is still good.

Expiration dates

Believe it or not, seats have expiration dates because the foam and other materials do not keep their integrity forever. Manufacturer expiration dates vary. According to a materials expert interviewed by the New York Times, seats should be good for 10 years, despite manufacturer dates of fewer years. But if you can afford to replace them according to the manufacturer's advice, do it.

Post-crash recommendations.

The National Highway Traffic Safety Administration (NHTSA) reviewed all of the studies and tests it could find on crashes and child safety seats. These included
Canadian studies that used crash test dummies with new seats and seats involved in prior crash tests. The tests showed that child safety seats can withstand minor crash impacts without suffering any damage that would make a difference to children.

Based on its review, NHTSA issued its recommendation:

For minor crashes, it is okay to keep using the seats.
For anything more than minor crashes, replace the seats (and, please, don't give them to Goodwill for someone else to use.)

So what is a "minor crash?" According to NHTSA, a minor crash meets all five of the following criteria:

Oregon's Time Limits for Wrongful Death Claims

Mon, 09 Apr 2012 17:58:16 -0800

Recently, a grieving mom contacted me about the death of her child. She and her husband were confused about the statute of limitations for wrongful death claims in Oregon. They have every right to be confused. This post touches upon the timing of some of the possible claims.

First, you need to determine whether there are any quirky claim notice rules. For example, if you believe the death occurred because of something a government hospital or agency did wrong, then you must deliver to the government agency a "Tort Claims Notice" within one year. (ORS 30.275). If you believe that a ski resort, tavern or bar caused the death of a loved one, then you must serve formal written notice within 180 days.

Next, before filing a lawsuit, a court must appoint a personal representative (PR) of the estate, because only a court-appointed PR may file a wrongful death lawsuit. Consequently, you must plan on some time to do this before the filing deadline.

Generally, wrongful death statutes must be filed with three years. (ORS 30.020). But the question is: Three years from what? The statute of limitations expires on the earliest of the following:

Three years from the date of death.

Three years after the injury that caused the death was discovered or should have been discovered by the decedent or a legal beneficiary (such as parent, spouse, child, etc). If, for example, a car accident caused a serious injury and the person died 7 months later, then the statute of limitations would start running from the date of the car accident and not the date of death.

Any other overriding time limitation statute.

More confusing yet -- which almost ruined the claim of my recent caller -- is that other statutes can trump the general, three-year statute. For example if a government truck driver or Oregon Health & Sciences University caused the death, then the Oregon Tort Claims Act requires the filing of a lawsuit within 2 years. Another example is that even if a wife just last month learned that a doctor's malpractice caused the death of her husband, it still could be too late to sue if the doctor failed to diagnose the cancer five or more years ago. (ORS 12.110(4)).

The take home point is that nonlawyers will think they know what the law is. This is especially true now that people can look up information (sometimes useful AND sometimes misleading) on the Internet. A prime example is the mother who called me thinking she had another year and 4 months in which to file a wrongful death claim (based on the general rule) but, in reality, she had only four months. So, if you think you have a legal claim - any legal claim - the first thing to do is hire a lawyer to pin down your time deadlines.

Jeff Merrick, Oregon Trial Attorney
Personal Injury & Wrongful Death
503-665-4234

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

Disability Discrimination in Employment - Recent Cases From the EEOC

Tue, 27 Mar 2012 14:12:27 -0800

The EEOC reported on four disability discrimination cases in March. Collectively, they show that some employers either do not understand their obligations or take calculated business risks when deciding to break the law.

Managers should not nickname bipolar workers "Psycho."

In Maryland, a Jeep Dealership was not exactly compassionate when its office worked disclosed she had bipolar disorder. Instead, management started referring to her as "psycho" and "pill popper." While the employee was out on medical leave, the employer fired her.

The employer stood firm, refusing to settle before a lawsuit. Then, the EEOC sued, alleging illegal harassment and discrimination because of disability or a "record of disability." Psychiatric conditions may constitute a disability, too. The employer settled the lawsuit by agreeing to pay monetary damages and distributing a written policy to all employees on disability harassment and discrimination.

You want medical leave? We want you gone.

In Wisconsin, an employee was on approved medical leave when she requested an extension of leave to treat the osteoarthritis that was killing her knee. After the request, and while the employee was still on approved leave, the employer fired her without discussing how they might work through the issues. The Americans with Disabilities Act (ADA) requires an "interactive process" to discuss "accommodation alternatives."

The EEOC sued the employer, alleging that the employer's action violated the ADA. The lesson for employers is to, AT LEAST, talk to the employee and see if a reasonable accommodation is possible.

Request for leave denied, and your fired.

In North Carolina, a licensed practical nurse working for a nursing facility was diagnosed with a major depressive disorder. She had an episode that caused her to be admitted for psychiatric evaluation and treatment. Her husband called in, reported the problem, and said that the employee needed a medical leave of absence. Two days later, the employer refused the leave request and fired her. The EEOC tried pre-lawsuit negotiations, but the EEOC could not broker a deal. So, the EEOC sued, seeking back pay, compensatory and punitive damages, and other relief.

Retaliation for reporting harassment.

The fourth ADA case reported so far in March came from Buffalo, New York. A sales associate with Family Video Move Club, Inc, a huge outfit located in 19 states, had major depression and social anxiety disorder. He was subjected to harassment on the job because of his disability. When he complained about it, the employer had a duty to investigate and take immediate and appropriate corrective action. Instead, it fired the employee after he complained.

The EEOC sued, and the case settled via a consent decree, which is a court order to which the parties agree. Under the decree, Family Video must pay $70,000 in damages to the employee, and the employer must prepare anti-discrimination policies and procedures, provide training, and monitor its own workplace for three years. This could be a big deal because if another discrimination case happens, then the employer could be in violation of a court decree, not just the laws against discrimination.

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

Another Remedy for Clients Ripped Off by Oregon Lawyers.

Tue, 20 Mar 2012 16:55:28 -0800

People call me when they have trouble with their lawyers. Often they want me to sue for legal malpractice. However, Oregon provides another route to seek compensation when a client loses money because an Oregon attorney is dishonest or crooked. That's the Client Security Fund.

Client Security Fund ("CSF") statistics are in for 2011. Last year the fund paid nineteen claims and denied 16 claims. This post provides some information on how the fund works.

Q. Who may apply for benefits?
A. A (1) client or (2) a beneficiary hurt when the attorney acted in a fiduciary capacity as part of his or her law practice. Opposing parties or anyone else need not apply.

Q. For what?
A. Money lost because of dishonesty or criminal conduct. Attorney negligence or stupidity is not covered. For that, you must pursue a legal malpractice claim.

Q. For how much money?
A. Actual losses up to $50,000. CSF does not pay for emotional distress.

Q. How can I apply for reimbursement from the fund?
A. Here's a link to the application form.

Q. Can you give me some examples of payouts made by the Client Security Fund?
A. Yes, see below.

The fund paid out the maximum of $50,000 to the estate of a client of Thomas La Follette, a former Canby attorney. La Follette acted in a fiduciary capacity of personal representative of an estate. He paid himself $100,000, and he could not account for more than $50,000 of estate funds.

The fund paid five clients of Keith Hayes, a former Salem attorney who has been disbarred. In one case, he charged the client and received payment from legal insurance, which was supposed to be the only fee. In two bankruptcy cases, the court ordered Mr. Hayes to pay back the fee the clients had paid him. On two other cases, he took a fee but did not perform work of any significance.

The fund paid a client of disbarred attorney Daniel Dickerson. Dickerson took $5,000 as a retainer toward attorney fees, but did not deposit it in his lawyer trust account. Dickerson stopped communicating with the client. The next attorney found no evidence that Dickerson had performed any significant work, and the CSF repaid the client his or her $5,000.

You can read more examples in this article.

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

My Husband Lied About His Assets, Can I Re-do The Divorce Settlement?

Wed, 14 Mar 2012 18:31:00 -0800

I've had calls from people wanting to sue their lawyer, or the opposing lawyer, for legal malpractice because not all assets were disclosed and considered in the divorce settlement agreement and decree. So, what can be done?

Generally, if the settlement and judgment are procured through improper deception, then the deceived party may (1) Move to set aside the judgment because of "fraud . . . , misrepresentation or other misconduct of an adverse party;" (2) Disaffirm the settlement agreement and sue for rescission, thereby restoring the parties to their prior position of adversaries in litigation; or (3) Affirm the settlement agreement and sue for damages based upon fraud.

Lying about ability to pay crosses the line between permissible and impermissible prevarications in negotiations. Take, for example, the casual lie of the husband's attorney who told the wife that her husband was "broke," despite knowing of husband's recent inheritance. Wife could sue husband's attorney for fraud. In another case, plaintiff's personal injury attorney worked to minimize what his client paid to physicians for unpaid medical bills. The attorney falsely said, "the verdict was not sufficient to satisfy all outstanding financial obligations." The court disciplined plaintiff's attorney.

So, if you later discover that you agreed to a settlement -- any settlement -- because the other side lied about ability to pay, then you might have the legal right to a "do-over."

Jeff Merrick, Oregon Trial Attorney
503-665-4234

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

Footnotes:

1. ORCP 71B(1)(c), FRCP 60(b)(3); see, Matter of Marriage of Eltzroth, 67 Or App 520, 679 P2d 1369 (1984) (Decree could be set aside because husband misrepresented value of his business. Court noted higher duty of husband to wife.); In re Marriage of Conrad, 191 Or App 749, 81 P3d 754 (2003) (Reopened judgment because wife concealed ownership of assets); Spaulding v. Zimmerman, 116 NW2d 704 (Minn., 1962) (vacated judgment because defendant did not disclose serious medical condition of injured child it discovered during defense medical exam).
2. Amort v. Tupper, 204 Or 279, 282 P2d 660 (1955) (Oregon requires election of remedies when contract procured by fraud.).
3. E.g., Exotics Hawaii-Kona Inc., v. E.I. DuPont De Nemours & Co., 173 P3d 1021 (Haw, 2007) (Plaintiffs could sue for difference between actual settlement and a more fair value for which they would have bargained had they been aware of scientific data indicating contamination of fungicide, which data defendants withheld during discovery.); Bogy v. Ford Motor Co., 538 F3d 352 (5th Cir 2008) (Mississippi law allowed plaintiff to affirm settlement and sue for damages based upon fraudulent inducement to settle.).
4. McVeigh v. McGurren, 117 F2d 672 (7th Cir 1941).
5. Florida Bar v. McLawhorn, 505 So2d 1338 (Fla, 1987) (public reprimand and costs).

Voiding A Minor's Release or Waiver of Liability in Oregon

Wed, 07 Mar 2012 10:47:51 -0800

Releases or waivers of liability are common provisions in many agreements. Sometimes, a company will defend against a personal injury or wrongful death claim by presenting a release of claim allegedly made before the person was injured or killed. Whether the release will stand up in court turns on many issues. This post addresses only one of those issues when a child suffers personal injury: How can a minor "disaffirm" the release of liability?

To give up any legal right, including the right to sue, the "waiver" must be "knowing" (you must know what you are giving up), voluntary, and intentional. The waiver must be clear, not questionable or ambiguous. Often, businesses will include waiver language in customer contracts. Sometimes minors sign papers that include a release or waiver of their rights to sue. If, for example, a child suffers a disabling injury on a ski slope or on a motorcycle course, does the waiver language bar a lawsuit alleging that the business did something negligent that caused the personal injury?

Generally, minors may disaffirm contracts for nonessential things during the time they are children or within a reasonable time after reaching legal adulthood, which is age 18 in Oregon. How to disaffirm a contract is not set in stone and might depend on the circumstances. One way is to tell the other side; it's best to do that in writing, perhaps by certified mail with a return receipt. Of course, with general contracts, you need to give back whatever you got in the deal. For example, if a 17 year old bought a car and changed his mind, he has to give the car back and demand his money back. Also, the person (or legal representative) can sue to rescind or void the agreement.

As with most legal issues, it's best to consult with a lawyer. Everything you find on the Internet, even what I write, is not reliable because there are so many exceptions to every "rule." But the takeaway point of this post is that a minor may disaffirm contracts, including contracts waiving legal rights, if he or she does so promptly.

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

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

How to Mediate Insured Claims and Other Monetary Disputes

Sat, 25 Feb 2012 10:12:27 -0800

Mediators fantasize about converting fierce opponents into genial joint problem solvers. However, in the real world of personal injury and other lawsuits for money, mediators must help parties who respond to demands by shouting, "That's insulting! Don't they realize. . . ?" Mediator J. Anderson Little shared his strategies for facilitating resolution of such disputes in his book, "Making Money Talk: How to Mediate Insured Claims and Other Monetary Disputes." Little's ideas are useful to both mediators and advocates who negotiate civil lawsuits over money.

Have a plan, work the plan, and revise the plan.

Little's primary message is, Have a plan for movement. Before attending mediation, consider where you will to start and end the negotiations. Plan the moves you will make to achieve settlement within your authority. During mediation, consider what message you communicate with each offer and how to avoid miscommunication.

Reactions to Unrealistic Offers.

A large part of a mediator's job is to help the parties process their negative reactions to unrealistic offers. Usually, one party will open with a unrealistic offer. The mediator can discuss with the offeror the reasons for the too-high (or too-low) offer and identify the benefits and risks of such an offer. If, nevertheless, the party wants the mediator to present an outrageous offer, then the mediator must help the other side control their negative reaction. One approach is to talk through the pros and cons of the following options: (1) get up and leave, (2) make a counteroffer that is similarly outlandish, (3) or, in effect, ignore the outrageous demand. Pretend that the initial offer was reasonable, and counter with what you would have offered, anyway.

Movement Breeds Movement.

"The greatest motivation of the parties to settle is the perception that the case can settle. And the greatest impediment to settlement is the perception that the case will not settle," observed Little. If parties begin negotiations on opposite planets of, say, $800,000 and $8,000, then they feel discouraged from making offers in a "real" range. One common response is to make small moves -- $780,000 and $8,200 -- thereby trying to pull the other side toward a real range and trying to avoid a signal that you're willing to split the difference. Small moves breed small responses. On the other hand, a big move will often motivate the other to make a significant move, too. "The solution to getting better movement then, is counterintuitive. The way to get movement is to make movement," says Little.

There's a time in most mediations when litigants get discouraged about the chances of resolution. "We're not getting anywhere!" Or "We've made our best efforts." As litigators, the optimism with which we began the day has soured into fatigue, frustration, and anger that the other side is so pigheaded. However, from my own experience as a litigator, it is during this last phase of the mediation that we can best serve our clients. Everything before was just the preliminary ritual. Now, the real negotiations begin.

Does Oregon's Skier Law Limit Snowboarders' Rights?

Sat, 18 Feb 2012 10:37:30 -0800

Skiers, tubers, snowboarders, tobogganers and others pay for the privilege to play in the snow. Sometimes they suffer serious personal injury or wrongful death. Oregon law has different rules for lawsuits by skiers. One says it's on the skier if he or she gets hurt from an "inherent risks of skiing." Another requires a skier to notify the ski area operator of his or her injury within 180 days or else lose the right to sue (ORS 30.970 - 30.990). But what about the other people who get hurt, including snowboarders? Do the regular lawsuit rules apply to them?

Unless the Oregon Supreme Court ever rules on the question, we won't have a definite answer. I'm not going to try to answer the question. I only want to raise some questions.

Oregon enacted its skiing statute in 1979, before anyone was snowboarding. One part says "an individual who engages in the sport of skiing, alpine or nordic, accepts and assumes the inherent risks of skiing insofar as they are reasonably obvious, expected or necessary." Another part requires 180-day notice of "an injury to a skier." These provision do not mention other people injured on the slopes, whether it is someone walking into the lodge and hit by a tuber, or any other person.

On the other hand, a "skier" "means any person who is in a ski area for the purpose of engaging in the sport of skiing or who rides as a passenger on any ski lift device." So, is the "walker" a "skier" if she is in the area for skiing but not for tobogganing? Who is covered as a "passenger?" What was the legislature's intent? What if a boarder is hurt on the first run from the lodge and never used the ski lift?

Have the risks of injury at ski areas changed since 1979? When skiers AND snowboarders share the runs, does that increase the risk of injury? As a skier, do you feel scared when boarders are zooming all around you? One part of the law defines "ski area" as "any area designated and maintained . . . for skiing." Do the operators lose some of their protection by opening up the area to activities other than skiing?

When interpreting statutes, courts follow big-picture guidelines. One of those guidelines says that when a statute changes or limits common law rights, then the courts must not stretch the statute to cover something else. Because Oregon's ski statute changes the common law, the courts cannot stretch it. One court dealt whether its skier law could be stretched to cover a tuber. In that case, the New Hampshire Supreme Court held that their state's ski law did not cover a tuber on a snow tubing run.

The take home message is that if a ski operator tries to use Oregon's ski statute against you, then you need to make sure that the statute really covers the situation.

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

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

Oregon BOLI's New Discrimination Case Processing Policy

Mon, 13 Feb 2012 18:10:24 -0800

Brad Avakian is the Commissioner of Oregon's Bureau of Labor and Industries. Yesterday, he shared with me and several other attorneys around a conference table what he's doing to ensure BOLI does a better job of enforcing discrimination laws.

Commissioner Avakian started with the statistics. BOLI receives 25,000 to 40,000 calls per year from people who believe they have suffered discrimination in employment or housing. 2,000 to 3,000 people file formal complaints. Of those formal complaints, BOLI finds substantial evidence of discrimination about 10% of the time. That means BOLI spends a lot of its scarce resources investigating the other 90%. So, Avakian's goal is to (1) unburden innocent employers and landlords faster, (2) spend less agency time on the cases with no merit, and (3) fully investigate and prosecute cases of serious sexual harassment cases or other truly bad conduct of employers or landlords.

Here's the new program. Discrimination complaints will be categorized as A, B or C cases. "C" cases are the ones that seem to have no merit on their face. Instead of requiring the employer to prepare a formal response, BOLI will dismiss the case and issue a "right to sue letter." The letter gives the accuser 90 days in which to file a lawsuit if the accuser thinks she has a case worth pursuing in court.

"A" cases are those that BOLI believes are likely to have the most merit and will be investigated thoroughly. "B" cases will get more scrutiny than "C" cases, but might also be dismissed faster than the norm. Over the past several years, it seems like it takes about 11 months to resolve wrongful termination or other employment discrimination complaints. With the new system, some complaints will be resolved right away and others shortly after filing. This will benefit employers, who will not have to waste their time on cases with little apparent merit. It will benefit taxpayers, because BOLI will spend fewer tax dollars investigating crummy cases.

But most important, the new system will help fulfill the goals of Oregon's anti-discrimination law. More time will be spent enforcing the law against bad actors.

Commissioner Avakian is doing what Republicans and Democrats should both like: he's doing his job better with less money.

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

Portland, Oregon Jury says Les Schwab owes Overtime Pay to Assistant Managers.

Sun, 12 Feb 2012 16:29:43 -0800

Last week, a Portland, Oregon jury found that Les Schwab Tire Center should have paid assistant mangers overtime wages, and that these employees averaged 66 hours per week. The case illustrates that the job duties determine whether an employee gets overtime pay; it is not the job title or only whether they are paid a "salary." The verdict determined the liability phase. Another phase of the trial will determine the dollar amount due.

The final verdict will likely be multimillion dollars. considering the following. The decision could impact up to 200 workers, who averaged $4,000 per month in wages. For the additional 26 hours per week, Les Schwab will likely owe about $3,900 per month per employee. A court may double the wages due as a penalty, unless the employer can prove that it operated in good faith. Other penalties may be at stake, too. Plus, the employer will have to pay the attorney fees of the employees.

Oregon and United States law controls hours of work. Generally, employers must pay workers 1½ times their normal rate of pay for hours worked more than 40 in one week, unless the employees are "exempt" from the law. Here are a few of the general exemptions:

EXECUTIVES and SUPERVISORS, who (1) direct the work of at least two employees, (2) play a big role in hiring and firing employees, (3) customarily exercise judgment or discretion, as compared to being told what to do, (4) management is their primary duty, AND (5) their salary exceeds a certain threshold. Apparently, the decision in Les Schawb had much to do with whether these "assistant managers" are primarily managers or mostly ran around changing tires.

Also exempt are PROFESSIONAL EMPLOYEES, who must meet several tests. A partial list, includes (1) they perform work that requires advanced knowledge customarily acquired by a prolonged course of study, (2) perform work that requires invention, imagination, originality, etc., (3) teach in a school system, practice law, or medicine, and (4) their primary duties are the professional duties.

Others who are exempt, include, (1) outside salespersons, (2) casual babysitters, (3) certain agricultural workers who meet the criteria, (4) seasonal employees summer camps for nonprofit organizations, or for profit businesses that gross less than $500,000.

The above is just a partial list. For more information, the US Department of Labor publishes information on the Fair Labor Standards Act. Oregon's Bureau of Labor and Industries publishes information on the Oregon's Overtime Wage law.
BOLI answers some overtime pay FAQs, too.

Sometimes, the problem with overtime wages arises after the employer fires a person. When people contact me thinking they suffered a wrongful termination, we will sometimes discover a violation of overtime pay laws. A careful lawyer should look for both issues when hired by an employee.

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

Book Review: "Getting Past No"

Tue, 07 Feb 2012 20:50:10 -0800

"Getting Past No," is William Ury's sequel to "Getting to Yes," the classic book on how negotiators should bargain. "Getting Past No" provides basic strategies on how to deal with difficult people and situations. In other words, the book tries to answer the question of what to do if the other side does not "play nice." This post highlights some of Ury's key concepts. My one-sentence summary is: Be the adult in the room, and keep your attention focused on your goal, which is to achieve a result superior to what you will likely achieve without settlement.

Successful negotiators turn adversaries into problem-solving partners. Author Ury identifies five barriers to such cooperation. (1) Your own emotional reaction to the adversary's conduct. (2) The other side's emotion, which might include anger, hostility, fear, distrust, or the feeling that they are right and you are wrong. (3) Their efforts to state a position and insist that you give in. (4) Their desire to avoid losing face by accepting your proposals. (5) Their power and lack of interest in cooperating.

Ury offers strategies to address each of the five barriers. The first is to "Go to the Balcony," his metaphor for looking at yourself and the situation as an observer rather than as a fighter who naturally reacts. Once on the balcony, (a) you name the tactic used by the other side, whether stonewalling, attacking or tricking, (b) give yourself a chance to think, and then (c) determine your best strategy for response, which, hopefully is, "Don't get mad; Don't get even; Get what you want."

The response is what I call being the adult and what Ury calls, "Step to their Side." Use your best listening skills. Agree with and acknowledge their feelings and their points, to the extent you can. Measure your words and tones so as to not provoke a negative response in an effort to create a better environment for negotiating.

Step three for Ury is to "reframe" rather than reject. Ury provides strategies and examples of how to get the other side off their positions and how you can deal with their tactics. His examples throughout the book draw from many situations: from international diplomacy, to business negotiations, to parent-child discussions. This section of the book offers useful reminders to litigators of the different mindset we must have when our goal is to convince an adversary to do something as compared to winning before a judge or jury.

Step four is to "Build Them a Golden Bridge," between their initial position to a mutually acceptable place. Ury identifies obstacles to agreement, including (1) it was not their idea, (2) their interests are not met, and (3) their fear of losing face. Here, the biggest mistake a negotiator makes is to downplay the importance of the process or ritual of negotiations and to announce that he has divined the correct solution. A skilled negotiator takes a step-by-step approach and involves the other side. Give them the opportunity to leave their positions in a face-saving way.

The last step is to use your power to educate the adversary, not to escalate the battle. Sharpen the choice between the face-saving settlement and the consequences of no settlement. Begin with reality-check questions: "What do you think will happen if we do not agree?" Then, "warn, don't threaten." Such subtleties convert negotiation from a skill to an art. A threat is what you will do to them. A warning is an objective and respectful statement of what will likely happen. Continue to contrast the choice between the opportunities of settlement to the consequences of no settlement.

The overall message I received from "Getting Past No" is that negotiation is a process and ritual. To succeed one must:

- Identify your adversary's tactics.
- Identify and control your own visceral response.
- Be the adult and try to guide the other side to a sensible outcome.
- Stay focused on the goal: to improve upon your likely alternative to settlement.

Jeff Merrick, Attorney & Mediator
503-665-4234

Court Requires Attorney to Pay Back Up To $1 million to Client.

Fri, 27 Jan 2012 08:01:10 -0800

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

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

See any conflict of interest here?

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

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

Jeff Merrick, Oregon Trial Attorney
503-665-4234

Oregon Court Says Death Does Not Extend Time to Sue Government.

Wed, 25 Jan 2012 19:22:57 -0800

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

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

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

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

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

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

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

Oregon Employers Use Employment Termination Agreements More Frequently.

Mon, 23 Jan 2012 08:47:08 -0800

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

In 1987, I wrote an article saying Oregon employers would be smart to use termination agreements. I believed that most good lawyers could identify a potential claim against even private, non-union employers. Termination agreements made sense for employers because it is cheaper to eliminate the risk of an expensive lawsuit by paying the employee extra money for him or her to release or waive any rights to sue. 25 years later, employees have even more rights to sue employers, and employers frequently offer termination agreements.

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

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

Letter of "reference" for the employee

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

The employee will not reapply for employment.

Employer releases any claims against employee, too.

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

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