North Portland Attorney

Initial Documents for Simple Wills

admin — Thu, 02 Sep 2010 18:12:58 +0000

One common service we offer are simple wills. The questionnaire attached is what we suggest a client fill out and then either we can discuss the matter further or I can draft the will from the questionnaire. When it says what the client had it mind, I then bring the client in to execute it. An execution sounds ominous but is simply having the client, with an intent to sign a will, do so before witnesses. We often can supply the witnesses. When a person does a will, it is a convenient time to address the issues raised in an Advance Directive. This latter document does not need an attorney but is attached for client’s convenience. I also do Powers of Attorney which are generally durable meaning they continue the ability to act on behalf of the person giving the power even if he or she becomes incompetent. While very handy for helping an elderly parent or relative, the person giving the power must be aware that as between the person to whom the power was given and the rest of the world, the person with the power has fully capacity to bind the giver of the power. Although it is true that the person to whom the power is given is to act according to the wishes of the person who gave the power, as a practical matter, there may be no recourse if the person with the power goes a drift. Ask the family of the old man who gave the power to his favorite waitress who went about selling and pocketing all the old man’s assets. The family did not know anything about the giving of the power until the old man was dead and the waitress long gone.

Be sure to check our seminars. The wills and probate one is very popular and in two hours I can really cover a lot of ground, personalize it to the people who are there, and we generally have a good time. See you there. Will Questionnaire Advance Directive pdf.cwk

Initial Questionnaires for a Divorce

admin — Tue, 17 Aug 2010 00:53:49 +0000

Dom Rel Quest-Part 1 Dom RQ-Part 2 Uniform Support Affidavit Attached are forms to get you started to file or respond to a divorce. You should also go onto the state of Oregon’s website for free forms and the child support calculator. Maybe one of the most irksome parts of getting a divorce is having to get and stay organized at such a low emotional point. But it is crucial because the overwhelming number of divorce decisions are fact driven. Getting the forms and taking your time to calmly hunt up the information is one of the most constructive things you can do for yourself.

Heedless Driving: The difference between negligence and recklessness- Morehouse v. Haynes

admin — Wed, 30 Jun 2010 20:50:57 +0000

In Morehouse v. Haynes, ___ Or App ____ (2010), the Oregon Court of Appeals discussed the difference between negligence and recklessness in motor vehicle collisions.

This was an important distinction for plaintiff as Oregon does not allow noneconomic damages (commonly known as Pain and Suffering) for those plaintiffs who did not have their own car insurance at the time of the injury or up to 180 days before and the collision was caused by negligence. See ORS 31.715(1) (prohibiting noneconomic damages) and ORS 806.010 (requiring insurance)

However if the collision is caused by the defendant’s (think Bad Driver’s) recklessness, it does not matter whether plaintiff was insured. That exclusion is also in ORS 31.715. Oregon defines recklessness in ORS 161.085(9) as:

“a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Plaintiff alleged here that defendant, rounding a corner 20 miles an hour faster than the speed limit and one defendant routinely drove on (and therefore knew the sharpness and the dangerousness) was driving recklessly. The Court found “defendant’s driving, as a matter of law, was not reckless as that term is defined in ORS 161.085(9). Defendant did not consciously disregard a substantial and unjustifiable risk that he would cause a motor vehicle accident by driving into a curve above the speed limit and adjusting his radio.”

There were prior cases finding these facts very facts were only negligent behavior, not reckless. “Heedless driving” under Bland v. Williams, 225 Or 193, 357 P2d 258 (1960) was negligence, and “racing or showing off…is consistent with the current analysis of recklessness.”

The Court cited State v. Schlender, 199 Or App 253, 259, 110 P3d 653, rev den, 339 Or 230 (2005), as its examples of recklessness: in Schlender “the defendant drove recklessly where he was aware of and consciously disregarded a substantial and unjustifiable risk to human life when he drove his car into a restaurant wall even though there were lights on in the restaurant that indicated that a person might be inside” In State v. Testa, 155 Or App 52, 58, 964 P2d 274 (1998), “defendant drove recklessly when he was aware of and consciously disregarded a substantial and unjustifiable risk when he drove at 25 to 30 miles per hour through a parking lot parallel to a two-lane road, looked at a passenger in a car driving on the two-lane road, and then swerved onto the road toward that car, forcing the driver into the oncoming lane of traffic.”

Therefore Plaintiff in Morehouse was out of luck as the court found the defendant was negligent. By not carrying car insurance, plaintiffs in Oregon risk not being able to collect anything more than economic damages.

Successes: Elizabeth Elected Vice President of Peninsula K-8’s PTA

admin — Wed, 30 Jun 2010 19:55:54 +0000

New case law on ORS 20.080- Kile/Coffey v. York

admin — Thu, 17 Jun 2010 23:40:00 +0000

Kile/Coffey v York, 234 Or App Ct ___ (March 17, 2010):

Defendant supposedly offered each plaintiff $2,000 a few hours before they filed their claim. At trial they each received a judgment slightly under $2,000. The trial court gave the plaintiff attorney fees because the offer was not made a least one day before the complaint was filed. However, the Oregon Court of Appeals overturned the one day requirement, stating:

“…the text of ORS 20.080(1) unambiguously requires that a defendant’s tender be made before the complaint is filed with the clerk of the court; it does not contain any further requirement that the tender be made at least one day before the complaint is filed.”

At the time of this case, ORS 20.080 was for claims of $5,500 or less. ORS 20.080 is now $7,500. See our blog on the new ORS 20.080!

Deepwater Gulf Oil “Spill”

admin — Tue, 08 Jun 2010 15:14:13 +0000

In Billy’s Seafood, Inc. v Transocean Holdings, (USDC of SD Alabama, May 25, 2010) the court denied a motion for stay by Defendant, BP. As the court stated: “On April 20, 2010, there was an explosion onboard the Deepwater Horizon drilling rig in the Gulf of Mexico. A massive and heavily publicized oil spill ensued, with the potential to jeopardize property, livelihoods, wildlife, and a vast array of other interests across the entire Gulf Coast region. This case is one of dozens of putative class actions that have been filed in at least seven federal district courts (as well as in state courts) throughout the southeastern United States in recent weeks as a result of that oil spill. To date, no defendant has filed an answer or Rule 12(b) motion in this action. Additionally, it appears that no discovery has commenced and no Rule 26(f) conference has been conducted.”

There has been a rush by BP to have the many plaintiffs’ cases consolidated for pretrial proceedings. The court recognized that it had discretion in this matter but decided that if it were to stay this matter it would give the defendants a three month reprieve from the date of service in which to respond. Since they would have to do so anyway, the court ruled that the defendants should begin the process now.

This is a good example of attempts at positioning at the start of litigation. Delay rarely benefits plaintiffs.

International abduction or infringement on custody?

admin — Thu, 27 May 2010 21:33:42 +0000

On January 23, 2010, Abbott v. Abbott, 542 F.3d 1081, 1082 (5th Cir. 2008), cert granted , 129 S. Ct. 2859 (2009) was argued in the US Supreme Court. As part of a divorce in Chile, the judge gave a “ne exeat order” which prohibited either parent from removing the child from Chile without the agreement of both parents. Mother was granted custody and father was granted visitation rights. Mother then moved to the United States with the child without father’s agreement. Father claimed that the order was a part of his custody rights under the Hague Convention. A finding for him would require the United States to return the child who had been “wrongfully removed” from his country of habitual residence, in this case Chile.

Mother argued that the order only gave the father a right of access and would not require a return to Chile.

Various groups weighed in including those who argued that the standard should be what was in the best interest of the child and those who wanted to safeguard the effective cooperation of participant countries in the Hague Convention. The result would also hinge on the choice of law: the one arising from the Convention or out of a particular country’s law.

The DOJ v Public Interest Attorneys

admin — Thu, 27 May 2010 02:57:04 +0000

Lewis v Beyer and Oregon PUC, 235 Or App ___ (May 26, 2010) reversed a trial court award for attorney fees in a public interest law suit because of lack of adequate findings. The case is interesting because it checklists the various legal theories a plaintiff’s attorney can pursue for compensation after a successful attack against a state agency. It also checklists all the legal arguments the defendant state agency uses to attack back. It road maps exactly what the court needs to rule on the appeal. So it is a great resource for lawyers.

As a policy matter, it is safe to say that protective legislation that is adequately enforced is probably more economical than litigation but therein lies the catch. Without the likes of Dan Meek and Linda Williams the public wouldn’t know until there has been considerable damage what has been occurring. But if they can’t get compensated, however, can they continue?

An Earlier Boy Scout Case- Wilson v USA and Boy Scouts of America

admin — Tue, 25 May 2010 16:00:14 +0000

Wilson v USA and Boy Scouts of America, 989 F2d 953 (8th Cir 1993) gives the universal rule of law. “Under the doctrine of respondeat superior an employer is liable for the negligent acts or omissions of his employee which are committed within the scope of his employment. Liability based on respondeat superior requires some evidence that a master-servant relationship existed between the parties. The test to determine if respondeat superior applies is whether the person sought to be charged as a master had “the right or power to control and direct the physical conduct of the other in the performance of the act.” If there is no right to control, there is no liability.

This case arose out of a Boy Scout camping trip at a military post. Three boys got into some activities outside while their leaders were inside and were electrocuted. In finding that neither of the defendants had vicarious liability the court used clarifying language such as no consent to control, no supervisory powers over the method or manner of accomplishing tasks, and no direct control over the specific activities at the lowest level.

Value of Homemaking in Divorces

admin — Fri, 21 May 2010 15:19:50 +0000

It is by now well known that a homemaker has a presumption of equal contribution with respect to a couple’s marital assets. However, this presumption can be overcome by evidence showing that the bread winning spouse contributed more to the acquisition of the asset. This doesn’t mean that the homemaker either gets half or nothing. The court needs to decide what is fair under the circumstances of the case. In Hixson v Hixson, 235 Or App___ (May 5, 2010) the homemaker was found not to have contributed equally toward the acquisition of a veterinary clinic. However, she was nonetheless granted a half interest because she had been a homemaker over the course of the nine years of marital cohabitation, she had a low earning potential, and was granted a relatively brief duration of spousal support (stepped down maintenance spousal support for five years.)

This case shows how unpredictable domestic relations decisions can be. The wife had already received consideration for her homemaking through receipt of spousal support. Then because support would be for too brief a time for the wife to become self-sufficient, a time that the court itself approved of, she was also granted a substantial share of the equity in the husband’s business.