The Litigation Journal is published three times a year, and section membership includes a subscription to the Litigation Journal. We encourage all members to submit short articles of general interest. For more details, please email us at [email protected].

AUTHORS: We have done our best to find you all, but we have run into a few snags. If you have not already given us your written permission to republish your article(s) online, please send us an e-mail to that effect now. We have a number of back issues ready to upload as soon as we get a missing consent or two. Thank you!
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Back issues of the Litigation Journal¹

¹ Back issues of the Litigation Journal are posted to the website at least 6 months after publication.

Summer 2022

• Taxing Thoughts for Business Litigators
• Comments from the Editor
• Jury Screening for English Language Proficiency
• Book Review: A Shot in the Moonlight
• The Curious Case of the Purloined Document
• Recent Significant Oregon Cases

Fall 2021

• Remote Depositions: New Rules of the Road
• Comments from the Editor
• Remote Depositions: New Rules of the Road
• The Craft of Storytelling
• Recent Significant Oregon Cases

Summer 2021

• Clients Who Rely on Third Parties Risk Waiving Attorney-Client Privilege
• Comments From The Editor
• Ambiguous Contract? Disputed Facts? The Judge Might Still Decide What Your Contract Means
• Recent Significant Oregon Cases

Spring 2021

• Recent Significant Oregon Cases
• Be On the Lookout for Changes to the ORCP
• Comments From The Editor

Fall 2020

• An Overview of Corporate Criminal Liability for the Civil Practitioner
• Comments From The Editor
• Appellate Considerations for Trial Counsel
• Recent Significant Oregon Cases

Summer 2020

• Clarence Belnavis Receives Panner Professionalism Award
• The Right to a Jury Trial in the Time of COVID-19
• Comments From The Editor
• After the Supreme Court’s Decision in China Agritech, a Plaintiff Who Seeks to Represent a Class Should Not Wait to File
• Be All That You Can Be in the Age of “Robolawyers”
• Mandamus Petitions for Adverse Discovery Rulings
• Winning More by Losing Less: Predictable Emotional Patterns When We Lose
• Recent Significant Oregon Cases

Fall 2018

• Politics And Persuasion: Speaking to a Jury in an Increasingly Politicized World
• Comments From the Editor: Direct Examination: Old Dogs and New Tricks
• Opening Statements – Roadmaps, Recipes or Roman à Clef
• Winning More by Losing Less – Part Two
• Applying Oregon’s Unjust Enrichment Doctrine After Larisa’s Home Care, LLC v. Nichols-Shields
• Stare Decisis at the Oregon Supreme Court
• Recent Significant Oregon Cases
• 26th Annual Litigation Retreat

Summer 2018

• Robert Shlachter Receives Professionalism Award
• Comments From The Editor
• What Can You Afford to Risk?
• Self-Incrimination in Civil Litigation
• Omnicare: The Case for Application to Oregon’s Securities Law Statutes
• Winning More by Losing Less
• Recent Significant Oregon Cases

Spring 2018

• Direct Examination: Maximizing Connections
• Comments From the Editor
• A Seasoned Litigator’s Tried and True Suggestions
• Deposition Disputes – When and How to Ask for Court Intervention
• The Dramatic Expansion of Oregon’s Absolute Litigation Privilege
• Recent Significant Oregon Cases

Fall 2017

• Presidential Tweets, Yelp Reviews, FREE BOOZY, and Admissibility
• Comments From the Editor
• Uncomfortable Position: Disputed Third-Party Claims Against Law Firm Trust Accounts
• Personal Authenticity
• Recent Significant Oregon Cases
• 25th Annual Litigation Institute & Retreat

Summer 2017

• Joe Richards Receives Professionalism Award
• Jury Selection/Voir Dire Suggestions
• Framed to Win: Storytelling and the 2016 Election
• Persuasive Advocacy is Nothing New
• Spoliation Sanctions under the New Federal Rule of Civil Procedure 37(e): What Has Changed?
• What is “Known or Reasonably Available” to an Organizational Deponent?
• Recent Significant Oregon Cases

Spring 2017

• What Tom Capps Has Taught Me About Effective Communication
• Direct Examination: Old Dogs and New Tricks
• Death with Dignity: A Risk Management Perspective
• Ninth Circuit Weighs in on Rule 23’s “Ascertainability” Requirement
• Back to Basics: Impeachment by Prior Inconsistent Statement
• Buy Local: Rely on Oregon Law, Not Federal Precedent, When Seeking a TRO or PI in State Court
• Recent Significant Oregon Cases

Fall 2016

• The New World Order of Dispute Resolution
• Comments From The Editor
• Use It or Lose It: The Right to a Jury Trial
• Tort Cap Survives Despite Trend of Increasing Liability
• On Billing: Perspectives from the Inside
• Recent Significant Oregon Cases

Summer 2016

• The Honorable Michael McShane Receives 2016 Owen M. Panner Professionalism Award
• Back to the Future
• My Favorite Plaintiff’s Damages Arguments
• Kids These Days: How to Deal with Millennials on the Jury
• Statements of Opinion as Actionable Securities Law Violations after Omnicare
• In Case You Missed It: Amendments to the Federal Rules of Civil Procedure
• Recent Significant Oregon Cases

Spring 2016

• Oregon’s Statutory Peer Review Privilege for Health Care Providers: What It Is and How to Not Waive It
• “How to Get Your Point Across in 30 Seconds or Less”
• Recent Oregon Decisions Address the Issue of Sequencing Discovery in Trade Secrets Cases: Is the Plaintiff Entitled to Discovery from Defendant Before Plaintiff Identifies Its Own Trade Secrets With Particularity?
• The Juice Is Back . . . What Were the Takeaways Again?
• ORCP 39 C(6) Does Not Circumvent Oregon’s Bar on Pre-Trial Expert Discovery
• Pay Attention to the Middle and Not Just the Bookends: Conduct During Trial
• The Application of Symbolic Convergence Theory to Trial Practice: What Are Your Jurors Fantasizing About?
• Recent Significant Oregon Cases.

Fall 2015

• “Justice Has Scales; Jurors Don’t
• Effective Cross-Examination (Think of Your Mother)
• What’s In and What’s Out: Contract Interpretation on Summary Judgment
• Durette v. Virgil – Skating (By) On Thin Science
• Can an Offer of Complete Relief to the Named Plaintiff Moot a Class Action?
• Recent Significant Oregon Cases

Summer 2015

• Jim Gidley Receives 2015 Judge Panner Professionalism Award
• Comments from the Editor
• Oral Advocacy in an Increasingly Diverse World
• The Trial Lawyer’s Duty of Inquiry
• The Scope of the Privilege Waiver in Attorney Malpractice Cases: Discovery from Non-Party Attorneys
• Whose Privilege Is It, Anyway? Asserting the Attorney-Client Privilege in Insurance Coverage Disputes
• Caveat Venditor: The Consequences of Bagley v. Mt. Bachelor, Inc. for Negligence Releases and Other Contract Provisions
• When to “Break the Rules”
• Recent Significant Oregon Cases

Spring 2015

• Email Evidence: Overcoming The So-Called “Self-Serving Hearsay” Objection
• “Winning Their Hearts:
• When Is an Appraisal Provision in a Contract an “Arbitration Agreement?”
• Avoiding Pyrrhic Victories, Risks in Joining Legal and Equitable Claims in Contract Cases
• Preparing, And Responding To, The Rule 30(b)(6) Notice
• Recent Significant Oregon Cases

Fall 2014

• Accrual of Legal Malpractice Claims: It May Be Sooner Than You Think
• Comments From The Editor
• Winning the Discovery Battle Without Losing the War
• Ode on PGE: “I didn’t ask for it to be over, but then again, I never asked for it to begin”
• Sanctions for Deposition Misconduct – Revisited
• Recent Significant Oregon Cases

Summer 2014

• The Honorable Mark D. Clarke Receives 2014 Owen M. Panner Professionalism Award
• Integrated Advocacy
• Direct Examination: Old Dogs and New Tricks
• Ninth Circuit Gives Guidance Regarding Claims for Injunctive Relief and Rules on a Trademark Case of First Impression, Part 2 of 2
• Non-Competes: The California Myth
• Recent Significant Oregon Cases

Spring 2014

• Sanctions for Deposition Misconduct By David B. Markowitz and Joseph L. Franco Markowitz, Herbold, Glade & Mehlhaf, PC
• Comments from the Editor
• Can For-Profit Corporations Discriminate Based on the Religious Beliefs of Their Owners? BOLI Says “No”
• Ninth Circuit Gives Guidance Regarding Claims for Injunctive Relief and Rules on a Trademark Case of First Impression – Part 1 of 2
• Trial Presentation Made Easy
• Pro Hac Vice: Procedure and Practice in Oregon
• Recent Significant Oregon Cases

Fall 2013

• The Juror as Audience: The Impact of Non-Verbal Communication at Trial
• Undue Influence – How Many Millions Are Not Enough?
• Ethics in Deposition: Do the Rules of Professional Conduct Require Self-Restraint by the Questioning Lawyer?
• Comments from the Editor
• Ninth Circuit Rejects Jim Brown’s False Endorsement Claim Against Provider of Madden NFL Video Game Series
• Standing, Ripeness and Mootness: Tools to Identify Nonjusticiable Cases
• I Need Some Advice… The Uncertain Status of Communications with Law Firm In-House Counsel
• Recent Significant Oregon Cases

Summer 2013

• Bill Barton Receives 2013 Owen M. Panner Professionalism Award
• Comments From the Editor
• Removal Jurisdiction: Are Attorney Fees Included?
• “Co-First Chair?” An Open Letter to the Senior Trial Bar and Our Heirs
• Recent Significant Oregon Cases

Spring 2013

• Class-Action Waivers in Employment Arbitration Agreements After Concepcion
• Comments From the Editor: Avoid Predeposition Information Overload
• Creative Fee Agreements – Blending Interests and Expenses
• The Role of the Corporate Attorney in a Closely Held Corporate Derivative Suit
• Has Patent Reform Changed Texas?
• Recent Significant Oregon Cases

Fall 2012

• 40 Years (Almost) in the Wrong Profession
• Comments from the Editor: Credibility
• The Oregon State Court Perpetuation Deposition: Opportunities for the Prepared and Pitfalls for the Unwary
• Using Legislative History in Interpreting Statutes After State v. Gaines
• From Business Initiative to Regulatory Imperative: What the New Era of Corporate Social Responsibility Means for Oregon Businesses
• Presenting and Challenging Expert Testimony: Winning the Battle and the War
• Recent Significant Oregon Cases
• 20th Annual Litigation Institute and Retreat

Summer 2012

• 2012 Owen M. Panner Professionalism Award
• They Don’t Think Like Lawyers
• THE F.R.C.P. 30(b)(6) Primer: Learn It. Know It. Live It.
• Different Types of Cross-Examination
• Recent Significant Oregon Cases

Spring 2012

• The Vanishing Trial, Revisited
• Revisiting the First Principles of Cross-Examination
• Repetition and Skating… but not on Ice
• Organizational Depositions: Do they allow a Second Bite at the Apple?
• Does ORCP 82 Really Require Security for Every Preliminary Injunction? Why In Re Tamblyn was Wrongly Decided
• Recent Significant Oregon Cases

Fall 2011

• Direct Examination: Old Dogs and NEW Tricks
• Oregon Condemnation Procedure Revisited (Again)
• Simplifying a Complex ERISA Case
• Surviving Winter: The Ninth Circuit Reaffirms the “Serious Questions” Test for Injunctive Relief
• Security Interests in Collateral – How Secure is Your Interest? Part II
• Oregon’s Anti-SLAPP Statute: an Addendum
• Being Social in Practice: Incorporating Social Media into Litigation Strategy
• Recent Significant Oregon Cases

Summer 2011

• Bill Crow Receives Owen M. Panner Professionalism Award
• From the Editor: How to Get Your Point Across in 30 Seconds or Less
• A Tale (or Two) of Two (or more) Forums
• Security Interests in Collateral – How Secure is Your Interest?
• Taming the Social Media Beast
• Aiding and Abetting Claims: A Growing Trend
• Recent Significant Oregon Cases

Spring 2011

• Transforming a Personal Purgatory into a Successful Outcome
• An Underused Defense Tool? Special Motions to Strike
• From the Editor: Experience Teaches Us to be Diplomats and Ambassadors
• Visual Advocacy: The Effective Use of Demonstrative Evidence at Trial
• Getting Paid: Attorney Fee Recovery in Oregon State Court
• Recent Significant Oregon Cases

Fall 2010

• From the managing Editor
• A Different Measure of Damages: Qualitative v. Quantitative
• The Basics for Deposing Entities Under Rule 30(b)(6)
• Avoiding Removal and Dismissal Under the Secuirties Litigation Uniform Standards Act of 1998
• Becoming a Trial Lawyer
• Discharging Environmental Claims in Bankruptcy: Or, What do you mean that I still have to clean that up?
• The Perils of Inattention – Discussion of Recent Decisions on Discovery Sanctions for Improper Preservation of Evidence
• Recent Significant Oregon Cases

Spring 2010

• From the Managing Editor
• Acting Like Lawyers
• Are Mandatory Mediation Clauses Enforceable?
• Climate Change Litigation: Understanding, Avoidance, and Adaptation
• Standing on a Carbon Footprint
• Attorney Liens in Oregon: Tool or Trap?
• Exit Rights, Withdrawal and the Captive LLC Member: a Need for the Minority Oppression Doctrine?
• Recent Significant Oregon Cases

Winter 2010

• Cooperation Gains Support as a Means to Manage E-Discovery
• From the Managing Editor
• Offers of Judgement in Oregon State Court
• A Changing Landscape for Recovering of Attorneys’ Fees in Condemnation Actions
• Making a Legal Record Under the Oregon Constitution or… “If you don’t raise it, you lose it”
• Part Two: Trial Strategies and Evidence
• Recent Significant Oregon Cases

Fall 2009

• From the managing Editor
• Trial Strategies and Evidence
• In the Pocket: Considerations When Using Judgments by Confession and Judgments by Stipulation as Settlement Tools
• A Story Well Told…
• Recent Significant Oregon Cases

Spring 2009

• From the managing Editor
• Analyzing the Definition of “Covered Class Action” in the Securities Litigation Uniform Standards Act of 1998
• Using Depositions during Opening Statements
• Minority Shareholder Oppression in Oregon; Is It a Legitimate Business Decision?
• Maintaining Client Confidences and Secrets in the Face of Subpoena
• Protective Orders Deconstructed
• Recent Significant Oregon Cases

Winter 2009

• “Through a Glass Darkly” or the Lawyer Who Ends Up a Client
• From the Managing Editor
• Disqualification in Oregon State and Federal Courts
• Summary Judgment Motions on Discovery-Rule Claims: An Exercise in Futility?
• 20 Tips for Trial: A List of Little Things That Can Make a Big Difference
• You Want Info From the Feds? You Have an Uphill Battle
• Recent Significant Oregon Cases

Fall 2008

• Carl Burnham Receives 2008 Owen M. Panner Professionalism Award
• From the Editor
• Reflections/Observations from a Jury Trial
• The Diminishing Viability of Wrongful Discharge Claims
• Contributory Negligence(!) in Economic Loss Cases
• “Laws Provide against Injury from Others, but not from Ourselves”
• Recent Significant Oregon Cases

Summer 2008

• Carl Burnham Receives 2008 Owen M. Panner Professionalism Award
• From the Editor
• Federal Arbitration Act Preempts Oregon’s Legislature’s 2007 Amendement to Oregon Arbitration Act
• Oregon Condemnation Procedure Revisited
• Legal Issues Involving Video Depositions Revisited
• Take Me out to the Ballgame… and the Courthouse
• Recent Significant Oregon Cases

Spring 2008

• Don’t pray at the gate (and other travel tips)
• From the Editor
• FRCA: Class Actions Net Insurance Policyholders $72 million
• Know It Before You Waive It: A Primer on Constitutional Rights of Corporations
• Summary Judgment Motions on Discovery-Rule Claims
• The Hidden Interrogatoy in the Oregon Rules – ORCP 39C6
• Recent Decisions in Electronic Discovery
• Assessing Appealability
• Recent Significant Oregon Cases

Fall 2007

• Advertising Agencies as Co-Defendants in Product Liability Actions
• From the Editor
• Class Arbitration: Permissible? Preventable? Who Gets to Decide?
• The opening statement: a process and a result
• Recent Significant Oregon Cases

Spring 2007

• From the Editor
• Proper Measure of Damages Under Oregon’s Timber Trespass Statute
• A Different Point of View
• When the Accused Knocks, the Constitution Answers
• Think Twice before Accepting an Assignment of Insurance Rights
• Recent Significant Oregon Cases

Fall 2006

• Evidence in Employment Cases: Have the Courts Really Gone Too Far?
• From the Editor
• Vexing Questions: Deposing Percipient “Experts” in Oregon
• Some Differences between State and Federal Trial Courts in Oregon
• The Lis Pendens Doctrine in Oregon: Caging the Golden Goose in Real Estate Litigation
• The Equitable Accounting: Not All Fiduciaries Have the Same Obligation
• Lawyer Liability for Assisting in Breech of Fiduciary Duty
• Recent Significant Oregon Cases

Summer 2006

• 2006 Owen M. Panner Professionalism Award
• From the Editor
• Computer-Generated Animation and Simulation Evidence
• The Role of the Jury in Our Trial System
• Be Careful Who You Slapp
• The Benefits and Limitations of Courtroom Technology in Presenting the Complex Case
• The Role of Storytelling in Motion Practice
• Preserving Issues for Appeals in Oregon Civil Actions
• Recent Significant Oregon Cases

Spring 2006

• Commonsense Electronic Discovery Planning
• From the Editor
• Mandamus in Land Use Cases
• Ninth Circuit Opinion Highlights Importance of Timely Privilege
• The Collateral Consequences of a Parallel Investigation or “Excuse Me, Can I Talk to You, Please?”
• “Relevant Background Evidence” is Swallowing Rule
• Preserving Issues for Appeals in the Ninth and Tenth Circuits
• Recent Significant Oregon Cases

Fall 2005

• 2005 Owen M. Panner Professionalism Award
• Comments from the Editor
• Pretrial Professionalism in Oregon
• Practical Advice and Inexpensive Sources for Legal Research
• Jury Empowerment: Cross-Examination – Going beyond the Ten Commandments
• Reefer Madness at the Court of Appeals
• Are Federal Courts Enforcing the Deposition Rules?
• U.S. Money Judgments in Germany
• Interlocutory Appeals of Class Certification Orders
• Oregon Adopts a Dentist-Patient Privilege
• Recent Significant Oregon Cases

Spring 2005

• When Customer Service Hits an All-Time Low
• Comments from the Editor
• Letter to the Editor
• Shareholder Derivative Litigation Update
• Video Depositions
• Deposition of an Organization: What You Don’t Know Can Hurt You
• Does a Discovery Standard Postpone the Running of Limitations against a Contract Action?
• The Privilege against Self-Incrimination in Civil Proceedings
• Principles of Marketing a Personal Injury Case
• Recent Significant Oregon Cases

April 2004

• The Evolution of the Trial Lawyer
• Comments from the Editor
• Message from the Chair
• Consumer Project Reporting Requirements Under the Federal Consumer Product Safety Act: A Primer for Litigators
• Winning Takes Care of Itself
• When Was the Last Time You Handled a Death Penalty Case?
• Oh, Oh . . . the Injured Party is Receiving Government Benefits
• Final Judgments in State Courts Not Necessarily Preclusive in Bankruptcy Courts
• Recent Significant Oregon Cases

October 2002

• Compelling Discovery from Non-Parties in Arbitration
• Comments from the Editor
• All Sums or Pro Rata? Dealing with Multi-Year Insurance Coverage Issues
• Timing is (Almost) Everything: Why Appraisal Exchange in Condemnation Needs Fixing
• Ask the Deponent to Guess
• A Primer on “E-VIDE-N.C.E.”
• Recent Significant Oregon Cases

April 2002

• But, I Don’t Sell Securities . . . Collateral-Participant Liability Under Oregon Securities Law
• Comments from the Editor
• Is Proof of Damages Essential to Establish a Triable Issue of Contract Breach? No!
• I Spy . . . Monitoring Employee E-Mail and Internet Use
• Taking a Byte out of Electronic Discovery
• It’s About Change: Recent Amendments to the Federal Rules of Civil Procedure
• Recent Significant Oregon Cases

November 2001

• Judy Danelle Snyder: Professionalism Award
• Comments from the Editor
• Warranties for the Sale of Goods Under Article 2 of the UCC
• Asserting the Fifth Amendment Privilege in Civil Litigation
• The Opinion Rule, Knowledge Rule, and Admissions
• Consumer Expectations Test
• Arbitration Clauses in Employment Agreements in the Ninth Circuit
• Recent Significant Oregon Cases

July 2001

• Comments from the Editor
• Message from the Chair
• The Opinion Rule, Knowledge Rule, and Admissions
• Taking Video Depositions – Legal Issues
• How Much is too Much
• The Impact of HIPAA on Litigation Practice
• Pro Bono Representation in Death Penalty Cases
• Recent Significant Oregon Cases

August 2000

• W. Eugene Hallman — Professionalism Award
• Comments from the Editor
• Reexamining the Definition of a “Prevailing Party”
• Reeves Rejects the “Pretext-Plus” Analysis for Employment Discrimination Cases
• Federal Deposition Practice
• Daubert, Joiner, Kumho Tire, and the Ninth Circuit
• Recent Significant Oregon Cases

October 1999

• Ignorance of the Law May Well Be an Excuse, at Least When It Comes to Punitive Damages for Employment Discrimination
• Comments from the Editor
• A Pursuit for the Truth
• Oregon Condemnation Procedure
• Products Liability
• A Lawyer’s Lawyer
• Recent Significant Cases

July 1995

• The Statute of Ultimate Repose in Medical Malpractice Actions: A reprise (Part 2)
• Comments from the Editor
• Oregon State Bar Annual Convention
• Experts and the Bases of Their Opinions; Issues Surrounding the Presentation of this Data to a Fact-Finder
• Juror Interviews in Oregon . . . sort of
• An Indian War
• Can Real Lawyers Learn Anything from Television Lawyers?
• Recent Significant Oregon Cases
• 1995 Campaign for Equal Justice

June 1994

• Depositions of Out-of-State Parties
• Comments from the Editor
• Upcoming Events
• Court of Appeals Holds Unconstitutional Oregon’s Statutory Limit on Noneconomic Damages
• A Guide to Phrenology: Using Legislative History to Explain “Imperfections on [a Statute’s] Head”
• Preserving Issues for Appeal in the Ninth Circuit
• Amended Federal Rule 11: Sanctions and Safe Harbors
• Recent Significant Oregon Cases

June 1992

• Litigation Journal to Take New Direction
• Surviving in Federal Court
• From the Chair
• Speaking From Experience Beginnings of Oregon CLE
• Recent Significant Oregon Cases
• Upcoming Seminars
• “Using Deposition at Trial” CLE/Tigard and Sunriver