Litigation Journal

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 info@osblitigation.com.

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!

Back issues of the Litigation Journal1

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

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

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