T R I A L Summer 2023 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Discovery & Investigation
1 Trial Lawyer • Summer 2023 Board of Governors Summer 2023 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Association and is distributed as a membership benefit. For permission to reprint articles, contact Michael Kesten at 503-804-0668, michael@kestenmedia.com. For advertising rates, contact law@llmpubs.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, barb@vogtlong.com. 503-228-9858; Faith Morse, faith@morselawllc.com, 541-362-4725 Editor — Michael Kesten, KestenMedia, michael@kestenmedia.com, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers.org, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles Suing the United States of America: What to do when nothing works Michelle Burrows............................................................................................6 Crowdsourcing: And other modern investigative techniques Scott Lucas....................................................................................................10 Obtaining Information: From third-party witnesses Angie Ferrer..................................................................................................14 Interviewing Techniques Meredith Holley............................................................................................18 Records Do Not Lie: How an audit trail can lead to truth Marilyn Heiken ............................................................................................24 Deposing the Organization Don Corson..................................................................................................32 Airbag Control Module: Demystifying the black box of car crash litigation Blaine Clooten..............................................................................................37 Oregon Public Records: Common questions about an unfamiliar law Timothy Walsh.............................................................................................40 Departments President’s Message: What a difference a year makes Blair Townsend...............................................................................................2 View from the Bench: Pay attention to discovery Hon. Jenna Plank ...........................................................................................4 OTLA Guardians of Civil Justice . .................................................................................................................... 30 Comp Corner: Attorney fee factors Julene Quinn................................................................................................44 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 45 Annual Partners . .................................................................................................................... 52 Officers President Blair Townsend President-elect Rob Kline Secretary-Treasurer Melissa Bobadilla Parliamentarian Brent Barton Immediate Past President Lara Johnson District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Brian Dretke — District 2 Rob Beatty-Walters — District 3 Rhett Fraser — District 3 Erin Christison — District 4 Diego Conde — District 4 Derek Johnson — District 5 Tim Williams — District 5 Governors-at-Large Steve Berman Ronn Elzinga Sonya Fischer Neil Jackson Ryan Jennings Quinn Kuranz Paul Loving Jeremiah Ross Thanh Tran Greg Zeuthen New Lawyer Governors Ron Cheng Emily Johnson AAJ Governors Kathryn Clarke Tom D’Amore Nadia Dahab AAJ State Delegates Apolinar Montero-Sánchez Shenoa Payne Michael Wise OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Caroline Greenlaw, 503-223-5587 x100 Development Director Arthur Towers, 503-345-0045 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Education and Communications Director
2 Trial Lawyer • Summer 2023 By Blair Townsend OTLA Guardian I always get sick after a trial. In the weeks leading up to trial, some internal summit takes place in which my health and sleep make concessions to adrenaline and stamina — with the caveat that amends would be made when the trial is over. Sure enough, after a March trial, I stayed home from the office What a difference a year makes the rest of the week. Tito, my partner, generously (particularly after the strain we all put on our partners when we are in trial mode) took care of me as I “paid the piper.” But this time, I was nauseous and blanched at the smell of certain foods. He joked that I was pregnant and we laughed — impossible! — until the faintest line appeared on our pregnancy test that weekend. If I had any goals about my presidential year at OTLA, they were, primarily, to (1) not sink the ship, (2) get through our firestorm legislative and political year as unscathed as possible and (3) learn and soak up as much as I could from OTLA’s other members. I certainly did not anticipate also discovering an unexpected pregnancy and opening my own law firm within the same month! We have years when everything seems to happen all at once…and what a difference this year has made in my life. Acting as OTLA president only made me feel stronger and braver in opening my own firm. Making strides As OTLA celebrates its 70th anniversary this year, being visibly pregnant at our convention while still president makes me feel proud as a woman, trial lawyer and OTLA member. I hope it is emblematic of the strides toward equality we’ve made as an organization with the important acknowledgment we still have so much to do to learn about diversity, equity and inclusion and to continue to grow so that we better reflect and respect our underrepresented communities. When I write I hoped to “not sink the ship,” I mean that I don’t think a president should come into their year with an agenda seeking to upend the organization. Rather, the president should act at the direction of our elected board with a focus on the strategic plan, and should support and hopefully cultivate amazing programs OTLA already has in place. For instance, DEI has been a defined and long-term top priority for OTLA’s leadership. At the board retreat at the beginning of this presidential year, we hired a leadership and organizational psychologist who specializes in the intersection of bias, power and change. We asked Dr. Tiffany Brandreth to lead a DEI strategy session to educate and foster a conversation within our board that was at times challenging but ultimately President’s Message Blair Townsend
3 Trial Lawyer • Summer 2023 impactful. We learned we must do the work and not rely on our members from the impacted communities to do the heavy lifting. If change begins at the top, OTLA leadership must continue to champion its commitment to DEI, assess our biases and structures, and take actions to course correct and implement strategies for organizational change. OTLA’s DEI Committee is a shining star that has accomplished so much in a very short amount of time. Starting as a task force that identified ways OTLA could be better, it has also blossomed into an incredibly active committee that has fostered community, while accomplishing most of the goals set out in the original DEI action plan. The committee, chaired by Past President Hala Gores and Board member Thanh Tran, created a Listserv and organized meetings and lectures on DEI issues including the 21day racial equity and habit building challenges. As for OTLA’s political year, frankly, I feel selfish. While I certainly have political experience, your OTLA president did not lead the charge on this year’s state elections and legislative session. I listened and learned from OTLA’s PAC committee, our legislative committee, the incomparable Richard Lane who has since become Governor Kotek’s general counsel and our 7am Tuesday legislative brain trust work crew. I'm disappointed that we didn't pass everything on OTLA’s list, but remain convinced we are on the right course. Our legislative priorities are longterm quests for solutions requiring the confluence of the right legislators in the right political climate, plus the endurance, strategy and will of our members and, in particular, our Guardian members who fund our attempts at legislative change. A bright future Since I started practicing law in Oregon, I have been an OTLA member. When I became president, I already knew many of our members and counted many as friends. I’ve met so many more this year who have taught me about their particular practice areas, challenges and the generational and identity differences that bind but also diversify us as an organization. I am so damn grateful for this year, and the exposure and education I have received. As a relatively young president, I had some anxiety coming into the role, particularly when so many of my predecessors were already titans of their field when they started. That said, our membership is younger, the world is rapidly evolving, and we need more voices from new generations. The way we practice law has evolved. Attitudes about being in the office versus working remotely has changed. Relationships with authority and the legal system are being challenged. I hope we understand more about the structural inequities that are in place and our younger generations are active in upending them. With this comes communication breakdowns between generations. As president, I have observed the only way to bridge that gap is to come together with respect, an open mind and a mutual desire for understanding. We have so much to learn from each other. Isn’t our curiosity and love of lifelong learning an integral component of our attraction to this wild, uphill life of plaintiff's civil litigation? The OTLA of ten years from now will not look the same as the OTLA of today. I look forward to being part of that work. Thank you all for this opportunity for which I will always be grateful and appreciative. Blair Townsend specializes in personal injury, wrongful death, medical malpractice and business litigation. She contributes to the OTLA Guardians at the Guardians Club level. She practices at The Townsend Law Firm LLC, 50 Pine St. Ste. 400, Portland, OR 97204. She can be reached at blair@btownsendlaw.com or 503-7151896.
4 Trial Lawyer • Summer 2023 By Judge Jenna Plank Multnomah County Circuit Court Before taking the bench, I worked as a prosecutor. In that role, my world of discovery obligations was pretty well outlined in ORS 135.815 et. al., and the guiding principle that most anything favorable or of use to defense gets disclosed. I did not have clients, and I had the luxury of adopting a “when in doubt, turn it over” attitude. Such is not the case, of course, in the world of civil suits. Everyone is advocating on behalf of a client. All sides must do their best to unearth discovery supporting their position while simultaneously protecting their client from undue burden and embarrassment. Complaints, defenses and, ultimately, resolution are shaped by the ongoing discovery process. Given how much of civil practice is driven by discovery, it’s only natural the View From The Bench Hon. Jenna Plank Pay attention to discovery scope and process of discovery is frequently disputed. In speaking with several colleagues, discovery disputes also happen to be one of the most frequent sources of judicial frustration. For a variety of reasons, attorneys often make avoidable missteps when scheduling and litigating discovery disputes. Below are a few ideas to keep in mind when your next discovery dispute requires judicial intervention. Be clear, concise and selective Trial courts generally possess broad discretion when deciding discovery disputes. The standard of appellate review for a discovery decision is abuse of discretion, meaning a trial court’s decision on discovery matters is frequently affirmed. In short, it is imperative to make your best argument the first time around on a discovery issue. Be selective in your arguments. Exercise discretion on which issues you want to raise versus which ones you’re willing to let go. Judges have limited bandwidth, and it serves neither your client nor the court to shoot at every target in sight. Pick your strongest and most important arguments and focus on those. The court, in turn, will be more apt and able to follow your arguments to the result you desire. To that end, the most persuasive arguments are generally the clearest and most concise. Tell the court what the theory of the case is, how the discovery sought is relevant to that theory and why the information sought is reasonably calculated to lead to the discovery of admissible evidence. Simply stating you believe a category of discovery will be favorable to your position, without also being able to articulate how, is a recipe for disaster. If you are objecting to a discovery request or seeking a protective order, specifically tell the court why you are objecting or believe a protective order is warranted. Do not present an oral argument that consists of nothing more than just disagreeing with opposing counsel. Saying a protective order is warranted to protect a client from undue burden or embarrassment without being able to articulate why or how the client will suffer a particular undue burden or embarrassment is rarely a winning argument. If you are moving the court for a protective order, also be prepared to articulate exactly how
5 Trial Lawyer • Summer 2023 you think the order should be structured. We cannot create documents It seems self-evident, but it bears repeating that the court cannot create discovery. If opposing counsel responds that they possess no documents or information responsive to a request, the court cannot order them to turn over what they assert doesn’t exist. Either modify the request to encompass documents adjacent to what was originally sought or, if you believe an opposing party is being disingenuous, present the court with something to support that position. Complaining about unsupported suspicions doesn’t provide the court with grounds for relief. If you iron it out, let us know Very often, parties resolve, in part or in total, discovery disputes after motions have been filed but before a scheduled hearing. If any portion of a discovery dispute has been resolved prior to a hearing, please, please, please let the court know in advance of the hearing. Knowing which specific portions are still in dispute and which are not allows the court to better focus and better prepare for argument on what’s still at issue. The need for expedited hearings Sometimes an expedited hearing on a discovery issue is needed. In order to get a matter heard in an expedited manner in Multnomah County, parties need to contact the assigned motion judge’s staff and schedule a quick 10-15 minute hearing (usually over the phone) to explain to the court why the motion must be handled in an expedited fashion. This is not meant to be a hearing on the merits of the motion. Only after the court hears the justification for expedited hearing and grants an expedited hearing, can the motion itself then be set before the motions judge in an expedited time frame. Parties cannot and should not assume the court will automatically grant a request for an expedited hearing, particularly if they have been sitting on a discovery issue for some time. An upcoming trial date does not suddenly make a long-standing discovery issue urgent to the point of automatically justifying an expedited hearing. Let the court know what you want Frequently, parties file discovery- related motions, responses and replies, and ask for a hearing to be set. After the hearing time and date are set, parties then file additional affirmative motions. It is incorrect to assume that the motions judge will hear all filed discovery motions at the date and time set for hearing on the first motion if parties only requested hearing dates/times for the first motion. If parties wish to address additional motions, they need to contact the assigned motions judge, give notice and ask additional time be added to the previously set motion hearing. Judges make concerted efforts to thoroughly review filed materials in advance of motions argument, and this cannot be done if there is inadequate notice of what the parties intend to address. Unless the court is specifically put on notice, most judges will not agree to hear subsequently filed motions for lack of notice, preparation and time on the docket. Really try to talk In 2018, U.S. District Court Judge Fred Biery authored a discovery-related order that directed as follows, “Make time for earspace, i.e. talking and listening as opposed to texting and emailing.” It seems so basic, but Judge Biery’s order bears repeating. Many practitioners have forgotten post-COVID that Uniform Trial Court Rule 5.010(2) states “[t]he court will deny any motion made pursuant to ORCP 36 through 46, unless the moving party, before filing the motion, makes a good faith effort to confer with the other parties concerning the issues in dispute.” In most courts, including Multnomah County, “conferring” means “to talk in person or on the phone . . . [g]enerally, sending a text message or email is not considered to be conferring.” Multnomah County Motions Judges Consensus Statement, p.4 (Aug. 2018), full text available at www.courts.oregon. gov. Often parties have never actually talked to one another about a discovery dispute prior to a hearing on the matter. Once everyone is together in court, parties frequently reach compromise positions on discovery matters with no intervention from the court. Please make a concerted effort to speak to opposing counsel about a discovery issue prior to setting a hearing. Even if no resolution is achieved, parties will better understand opposing counsel’s position, and the court will be less inclined to suspect gamesmanship where parties have tried more than just email or written correspondence to resolve disputes. Hon. Jenna Plank serves as a judge in Multnomah County Circuit Court. Her office is located at 1200 SW 1st Ave., Portland, OR 97204. She can be reached at jenna.r.plank@ojd.state.or.us or 971236-8661. 1 Order at 2-3, HouseCanary, Inc. v. Quicken Loans, Inc., No. SA-18-CV-0519-FB (W.D. Tex. Aug. 14, 2018). Often parties have never actually talked to one another about a discovery dispute prior to a hearing on the matter.
6 Trial Lawyer • Summer 2023 Michelle Burrows By Michelle Burrows OTLA Guardian “We cannot understand our present moment without recognizing the lasting damage caused by allowing white supremacy and racial hierarchy to prevail . . .” Bryan Stevenson, Director, Equal Justice Initiative In June 2020, several lawyers came together forming a team dedicated to suing the United States for the horrifying abuses witnessed during the summer of 2020. The plans were big, the goals lofty, the passion real, but reality quickly challenged even the most hardened and experienced litigator. The United States is a nearly impossible foe and often presents a real and serious danger for justice and due process if left in the hands of the wrong people. On May 28, 2020, following George Floyd’s death, months of sustained protests in Portland began. The Portland Police responded with generalized violence including the use of batons, pepper balls, sonic weapons and tear gas. Between June 9 and June 30, 2020 limitations were imposed on the use of tear gas and other force. On June 26, 2020 reacting to Oregon’s attempt to de-escalate police violence against protestors then-President Trump issued Executive Order 13933 unlawfully deploying over 700 federal agents to Portland. The Department of Homeland Security, Secret Service and the US. Marshal’s Service deployed unidentified agents without any insight as to who the agents worked for. For over 30 days, these deployed agents engaged with the public as enemy combatants. On July 6, 2020, Portland U.S. Attorney’s office advised the ostensible purpose of the deployment was to protect federal property and personnel. However, immediately on arrival, federal agents acted to quell nonviolent protesters by engaging in crowd-dispersal operations, deploying tear gas and impact munitions well beyond the immediate surroundings of federal property. Federal agents chased down protesters, observers, medics, journalists and even bystanders through the streets, pursuing them as many as 10 blocks beyond federal property while simultaneously firing potentially lethal munitions including pepper-spray balls, rubber bullets and flashbang grenades. Sometimes citizens were simply taken from the streets and tossed into unidentified vans. Federal agents blanketed numerous blocks of Portland public streets surrounding the courthouse in toxic tear gas and chemical agents during a global pandemic, concealing or blocking the pathways for protestors to safely disperse. Identifying the defendants The class action Clark v. Wolf USDC 3:20-cv-0143 was a Fourth Amendment Bivens action against individual agents involved in unreasonable force during the summer of 2020. Bivens’ actions must be brought against individuals. The first task was simply to identify the agents involved. Each agents wore a heavy gas mask, gloves and bore no identification of agency or personal name. They were the faceless provocateurs in an invasion of Oregon streets. The United States appeared but not as a named party. It held the discovery and information needed to advance the Clark case. Several supervisory defendants were named. A mandatory Rule 26 discovery conference must be held in any federal case. No one knew who the 700 unidentified defendants were and the United States would not provide information for service or identification. The plaintiff first sought consent from the court to issue a third party subpoena for the sole purpose of identifying the suing the united states of America: what to do when nothing works
7 Trial Lawyer • Summer 2023 See When Nothing Works p 8 individual federal agents. The named supervisor defendants intended to file motions to dismiss claiming they were immune from a lawsuit, refusing to consent to early discovery or a case planning meeting. The legal position advanced by the government was contrary to existing law in the Ninth Circuit. The court granted the motion for limited third party discovery for the purpose of identifying the John Doe Defendants. One month later, the government sought to limit the early discovery to a particular geographic zone and to only those line officers using force. The government sought to have the individual officers who randomly shot folks proceed anonymously, which the plaintiff argued “runs afoul of the public’s common law right of access to judicial proceedings.” “Anonymity is not appropriate here.” The ability of the public to identify officers promotes accountability and discourages police misconduct. Index Newpapers LLC v. City of Portland; Pettibone et al v. Trump et al, No. 3:20-cv-01464. There was no specific showing of why the officers should not be named. In the meantime, no discovery was forthcoming. The plaintiff had no idea which unnamed officer used force. On February 23, 2021, three months later, the court ordered the United States to identify all the officers using force inside the “protest zone” for eight discrete days in July 2020. The order included supervisory officer identification “within the chain of command” of the line officers using force. The court ordered the officers who shot and tear gassed citizens could proceed anonymously. Judge Immergut denied the plaintiff’s request to share all discovery with the plaintiffs in Pettibone and Index Newspapers. The plaintiff did eventually receive a spreadsheet of involved officers with “identifiers.” Between March 16 and June 23, 2021, the United States produced responsive information but it was limited to names of supervisory and patrol-level officers. The production did not include the location of the officers’ use of force, the date or time of the officers’ use of force, the nature or type of force used, or the address for service of summons of each individual officer. Absent that information, the plaintiff could not even determine in good faith who was involved in the incidents or how to serve them. To obtain information the United States failed to produce, the plaintiffs prepared Rule 30(b)(6) deposition subpoenas serving them on the United States. On August 27, 2021, the United States advised the plaintiffs the subpoenas were “legally ineffective” and they were unwilling to “voluntarily engage in the proposed discovery.” On October 5, 2021, the date for subpoena response and the Rule 30(b)(6) deposition, the plaintiffs received nothing. The plaintiffs requested the United States produce, at the very least, the information previously ordered by the court in a new amended complaint. The United States refused to do so. The government resisted service of process. Service on defendants in D.C. was complicated by the inter-relationship between the Federal Rules, Oregon Rules and D.C. rules. The plaintiff sought alternative service by mail via First Class Mail and Certified Return Receipt. The government lawyers had no authority to accept service and most government buildings were closed due to COVID restrictions. Judge Immergut denied the motion for alternative service. On May 4, 2021 the government lawyer who represented the United States finally accepted service for two of the named defendants. Eventually mail service was permitted for service in Washington, D.C. A brick wall On October 25, 2021, the plaintiff moved to compel production of information to allow service on the anonymous officer. This was nearly a year after the case was filed. We named Chad Wolf, acting secretary of Homeland Security, and Ken Cuccinelli, acting deputy secretary of Homeland Security initially. These two "top managers' filed motions to dismiss claiming they were "too distant" from the actions and decisions in the federal response. Judge Immergut agreed contrary to federal law. The judge dismissed defendants Wolf and Cuccinelli finding they were immune from July 28, 2020. Tear gas deployed multiple times on peaceful protesters.
8 Trial Lawyer • Summer 2023 When Nothing Works Continued from p 7 litigation. They were too high in the chain of command according to the court. That dismissal was appealed. The motion to compel sought the names of patrol-level officers who used force, the method and manner they used force, whether the officers prepared a use of force report and the legal basis for the use of force. The plaintiff sought a service address for the patrol officer and their supervisors. This information was necessary to make a good faith determination of which patrol level officers should be named and to complete service of a summons and complaint. The government responded saying the requested discovery was not authorized since each officer would be entitled to qualified immunity and such discovery was pointless. The government wanted it all to be secret so they could win a motion for summary judgment without handing over any discovery. Anyone can win if they cheat. On February 3, 2022, over a year after the case was filed, Judge Immergut issued an order dismissing Bivens claims against named supervisory defendants claiming Bivens did not extend to supervisory personnel in contrast to well- established law. This opinion conflicted with an opposite finding by Judge Simon that Judge Immergut deemed irrelevant claiming she conducted her “own analysis” of the relevant conduct. The relevant conduct in the Pettibone case was identical to that alleged in the Clark matter. No discovery, other than the names of the involved officers, had been provided. The plaintiff still did not know who to sue. On June 8, 2022 the Supreme Court issued an opinion in Egbert v. Boule severely limiting the scope of Bivens actions against federal agents for Constitutional violations. This opinion made a Bivens action against any of the 700 federal agents in Clark a difficult task. The team decided to dismiss the Bivens action and finalize filing federal tort claim notices for the Clark class and several individual plaintiffs who were severely injured by federal officers in July 2022. The majority of the two years spent litigating the Clark case involved trying to find the identities of the individual officers who were deployed in the response to the protest. The plaintiff sought repeatedly to determine who fired the tear gas and who ordered it, who fired “less lethal” weapons at protesters, who was involved in arrests and who was involved in chasing down protestors. Some individuals were shot in the head, sometimes as they ran away, causing severe injuries including detached retinas, broken bones, loss of hearing and respiratory difficulties. But Judge Immergut was unwilling to allow any information to provide the identities of the agents and the actual use of force at issue. It was a revolving door of reasonable requests met with deep
9 Trial Lawyer • Summer 2023 resistance by the court. The plaintiff never received any real discovery other than what was available publicly or could be begged from other litigants. The plaintiff tried various strategies including seeking consent from the court for early discovery, issuing third party subpoenas to the United States, attempting to schedule Rule 30(b)(6) depositions with records subpoena. The government lawyers were implacable. To dismiss The final tactical move allowed the plaintiffs after the devastating opinion in Egbert was to dismiss without prejudice and later refile against the United States government in a simple tort action. After all, it was the government that sent in all the federal officers, ordered and authorized the wholly inappropriate and unreasonable uses of force, and was the cause of the injuries received by citizens. The government also failed to document the individual uses of force or even keep track of what each of their officers was doing each night. It was a massive maelstrom of terror and violence that left a number of protestors badly injured. The federal courthouse was badly damaged as were several buildings downtown. It is difficult to assess whether the government visited the destruction on the building, but they did blanket the city with enough tear gas that the smell and effects lingered for some time after the protests ended. Most of the protests started very peacefully with barbeques, music and dancing. As the month progressed the crowd increased to staggering sizes as people who never protested before came out wearing ski goggles and carrying umbrellas. Moms in yellow t-shirts lined up arm-in-arm in front of the courthouse to protect others behind them. Many of those women of varying ages and sizes were shot, gassed and brutally detained by heavily armed officers. The protests had been dwindling after the Portland Police stopped using tear gas — until the federal agents showed up. Folks were showing up to protest police brutality and were subjected to brutality. Perhaps they showed up then to protest the military invasion of Portland by Trump. Reporters and legal observers were specially targeted as were folks handing out water and providing first aid in the park. The protests were videotaped by most everyone present including members of the press. The scenes caught on those videos are horrifying as protestors fled fearing for their very safety as federal agents ran wildly through the crowd shooting anyone who moved often shooting folks in the back and face. The team of lawyers working on Clark and the separate related cases volunteered because of the horrific images flashed across screens every night and what those implied about our government. The fight started over police abuses against the Black community, evolved into protests against police brutality and then it became about accountability and then it became about the preservation of Democracy. Perhaps some could say it was an existential fight but to the protestors, legal observers and reporters it had the feel and smell of battle. We should not tolerate or allow the government to invade, shoot and kidnap citizens. We should fight until there is no more fight left in us. But how do we fight if our own government hides the names, information and truth about what happened in the protests of the summer of 2020? We just fight on. Never, ever give up. Michelle Burrows represents plaintiffs in actions against law enforcement, prisons and other governmental bodies who wrongly interfere with protected rights held by everyone. She contributes to the OTLA Guardians of Civil Justice at the Guardians Club level. Her office is located at 1333 NE Orenco Station Pkwy., Ste. 525, Hillsboro, OR 97124. She can be reached at 503-241-1955 or michelle.r.burrows@ gmail.com. 1 I made a call to lawyers to join a team. David Sugerman, Nadia Dahab, Jane Moison, Gabe Chase, Joe Puicci, Chris Larsen, Dave Park and Erious Johnson answered. Some of the team became judges, others retired, but the team fights on.
10 Trial Lawyer • Summer 2023 Scott Lucas By Scott Lucas OTLA Guardian In the old days (i.e., when I started practicing in the mid-90s), if a case needed investigation, the only question was whether to hire an investigator or do the investigation ourselves. We had the luxury of having an in-house investigator who was ex-law enforcement and someone we considered to be the best investigator in the state. I watched this professional investigator document the scene of a crash or the damage to vehicles, and I read the investigator’s reports of witness interviews. Later, I often did that work myself. The advent of digital images made it easy and inexpensive to take pictures of all angles of a car or an intersection. When we were considering suing a polluter for contaminating the groundwater of a neighborhood, I went doorto-door speaking with homeowners and tenants to find out what they knew. I frequently called witnesses listed on a police report. My early experiences investigating cases or assisting with professional investigations were invaluable to my development as an attorney, but they were also time-consuming and often inefficient. Sometimes, there is no alternative to a good, old-fashioned, in-person investigation, but today, many investigations can be done more efficiently and more thoroughly using technology. Lately, I've become a user of crowdsourcing techniques using social media, where information collected by others and crucial to proving a case can often be found. What is crowdsourcing? In general, crowdsourcing is the practice of obtaining information or input into a task or project by enlisting the services of a large number of people, either paid or unpaid, typically via the internet. Crowdsourcing typically involves a large group of dispersed participants contributing information, ideas or opinions. Crowdsourcing usually involves gathering information via the internet, social media or even smartphone apps. You may be enjoying the benefits of crowdsourcing without even realizing it. For example, if you use a traffic app like Waze, other users are reporting crashes and other roadway incidents that then provide real-time, updated information to app users. The reason that you knew to take a back road to the airport instead of your usual route on the freeway was because of information crowdsourced from other drivers. Gathering information Crowdsourcing can yield information about a case. When Sara took in a case where an explosion killed employees at an industrial plant and devastated a neighborhood, she realized the event would be newsworthy. She logged onto Reddit and Facebook to see what people were saying about the explosion, and she found posts by eyewitnesses. The posts included photos that pinpointed the origin and cause of the explosion, showing that a fire in a tanker truck ignited nearby storage tanks at the plant. This told Sara that her client, who was an employee of the industrial plant, had a potential third party claim against the owner-operator of the tanker truck involved in the explosion. Sara also found a horrific but dramatic photo of her client engulfed in flames following the explosion that she could use to support her case. In another case, Channing was preparing for trial, and they were worried because they needed evidence that what AND OTHER MODERN INVESTIGATIVE TECHNIQUES CROWDSOURCING
11 Trial Lawyer • Summer 2023 See Crowdsourcing p 12 their client said about the conditions at the client’s workplace was actually true. The problem was the client’s ex-employer had clamped down on its employees, forbidding them from talking to Channing or their team. Channing needed a whistleblower, but did not know how to find one. A new associate at Channing’s law firm suggested using social media. They made posts to Twitter and Reddit, asking that anyone who had worked at the client’s former employer contact them. It was a longshot, but they identified two former employees, and those individuals suggested four more witnesses willing to testify at trial. Valuable opinions Businesses use crowdsourcing to identify products that will appeal to their customers. For example, game manufacturer Lego hosts an “idea platform” where nearly a million Lego enthusiasts submit pictures of their Lego model ideas which are then voted on by other users. Ideas that garner 10,000 votes are then considered by Lego for production and sale as a new Lego set. An attorney can do something similar with elements of a case. For the past several decades, this has been done on a much smaller scale through the use of focus groups. Focus groups have more recently moved online, allowing for larger participant groups and easy repetition of evidence. But most focus groups are by nature expensive, and not usually very adaptive or dynamic. If done right, crowdsourcing opinions can be a nearly-free, massive focus group for a case. When Carlo graduated from law school, he ignored warnings against the risk of hanging a shingle and starting his own firm. Then he ignored more warnings about taking cases for people injured in low property damage car crashes. Now he was facing his first trial, and he was worried about whether jurors would believe his client had actually suffered the injuries claimed, given what the cars looked like after the crash. Carlo decided to find out. He posted representative photos of the cars to social media, along with a description of the injuries suffered by his client. He did not even have to ask for opinions. People started posting their thoughts about the claims, and Carlo got even more worried. Then he began to add more information. He posted that his client was only 23 at the time of the crash and worked as a clerk at the courthouse. He noticed some movement in some of the opinions in favor of his client. A few days later, he updated his post to include the fact that his client was an avid cyclist, who competed in local semiprofessional bike races. He included images of his client crossing the finish line, along with some race results showing his client near the top of the table. More opinions were posted that gave Carlo hope that his trial was not over before it started. He continued this process, honing his arguments, learning which swayed people his way and which did not. On thing Carlo did not have was dash cam or other video of his crash. When I first started practicing, it would have been unheard of, bordering on inconceivable, that there would be video showing a crash or other incident forming the basis of a claim. Today, if an attorney really investigates, it may be more likely than not that video does exist. Dash cameras placed by motorists are ubiquitous. Many of the newest cars continuously record video from multiple cameras mounted on the car, which then preserve the footage if sensors on the car detect a collision or other trigger event. Most of the larger trucking companies equip their rigs with cameras facing forward and at the driver. Note that requesting that this kind of data be preserved and then produced by defendants should be regular practice in most cases. Surveillance cameras are also common both in and on commercial buildings, capturing what happens in the building, and what might be happening on nearby roads. It takes resources to track down this kind of footage, but if it is important to a case, it may be worthwhile. The investigators I use always search the area around the incident for cameras that may have captured key evidence, and approach businesses and building owners about obtaining relevant footage. Think, for example, how valuable video of a drunk driver being overserved can be in a dram shop case. If information is needed about what those cameras captured, an attorney could imitate what a local police department might do through posting images of car thieves or suspects stealing packages from a porch, asking the community if they recognize the perpetrator. Social media users dedicated to identifying people involved in the January 6 insurrection also used this approach. An attorney searching for a hit and run driver or witnesses to a crash could do the same thing. I know of cases where dash cam or other surveillance footage has been posted to social media to gauge the reaction of viewers. In a case involving an allegedly defective autonomous driving system, footage showing a crash that occurred while the driver was relying on the car’s autonomous driving technology was posted to YouTube and TikTok. You are likely already using crowdsourcing and not know it. Social media can be a useful inquiry tool.
12 Trial Lawyer • Summer 2023 Viewer comments streamed below the footage, complaining that drivers sometimes use weights to fool the autonomous system into thinking the driver’s hand was on the wheel, or claiming that manufacturers advertise that these systems work and can be relied on, so they should. Arguments raged between those who blamed the driver of the autonomous car and those who blamed the truck that sped by and changed lanes into its path. For the lawyers handling this case, or one like it, these posts can be invaluable. Dangers While most of our cases will not “go viral,” or organically generate enough interest to allow us to simply lurk on social media sites to learn what people think about them, we can generate that interest and interaction if we are creative in our use of these new tools. That said, there are significant risks that must be appreciated before venturing into this new area. An extreme example of a crowdsourcing danger is what happened following the Boston Marathon in 2013. As most everyone will remember, bombs were planted near the finish line of the marathon by two brothers. The bombs detonated, killing three and injuring hundreds. The day after the bombing, a Reddit user created a subreddit to collect information surrounding the bombing in an effort to identify the culprits. By the next day, over 3,000 people had joined the subreddit in order to crowdsource the investigation of the evidence. The day after that, the FBI released photographs of two suspects. Someone on the subreddit then identified a Brown University student who had been missing for about a month as one of the suspects. Identifying a suspect without evidence violated Reddit’s terms of service, but the moderators of the subreddit did not delete the post. The erroneous crowdsourcing then exploded. Others said the student looked like the man in the photo, mainstream news organizations picked up the story, and several tweets went out identifying the student as the prime suspect. None of this was correct. Soon after the FBI identified the suspects by name, the student was found dead from suicide. Prior to his death, the student’s family had been mercilessly harassed, and a virtual posse pursued him. Online vigilantism was born. Today, as soon as the details of a sensational crime are published, threads dedicated to following the incident sprout up all over social media. The Boston Marathon example is extreme, but a lawyer who causes an innocent person harm by negligently or recklessly accusing a person of wrongdoing or misidentifying them could be liable for defamation. Although it is probably far-fetched, attorneys should be careful to avoid any claim that they tampered with the jury pool through their use of social media. Though passive observation of posts that appear organically on social media should pose no danger whatsoever, when the lawyer creates social media posts there is a danger that they could go viral and be picked up by local media. A more realistic danger to worry about is over-reliance on the opinions and information contained in social media. When I was knocking on doors, talking to neighbors, or our investigator was interviewing witnesses identified in a police report, we were reasonably certain that we were contacting actual witnesses. When we took photographs of a scene or received photographs taken by law enforcement, we knew they were accurate depictions of what they purported to show. When purported eyewitness statements are culled from social media, an attorney cannot be certain that the person was even there, or that their statement is reliable. Crowdsourcing Continued from p 11
13 Trial Lawyer • Summer 2023 Similarly, when attorneys develop and organize a focus group, we can control the demographics of the participants. We can target, or at least know, the characteristics of the participants that we feel are important in any given case. When opinions or ideas are crowdsourced off social media, we lose all control over these things. Sara might rely on video of a fire appearing to ignite in a tanker truck, then spreading to industrial storage tanks, when the truth was that a leak from the storage tanks actually spread to the pavement under the truck before catching fire. Channing might rely on the whistleblowers who self-identified on social media, not realizing that they were imposters intending to sabotage the multi-million dollar hostile work environment case. And Carlo might think his case is hopeless because he does not know that 95% of the users interacting with his case synopsis are from the same demographic known to disfavor cases like his. Conclusion I have an attorney friend who was assisting with a high-stakes case against a foreign manufacturer where a crucial jurisdiction dispute hinged on whether a physical plant in Australia actually existed. When my friend was invited to a wedding in Hawaii, he took the opportunity to take the twenty-three hour, round trip flight to Sydney. He was only in Australia for five hours, but when he left he had irrefutable proof the defendant in his case was lying. Today, he could answer the same question in several minutes using Google Earth. What else? I’m old, but.... Scott Lucas practices personal injury, medical malpractice and product liability law. Lucas contributes to OTLA Guardians at the Guardians Club level. He is a shareholder at Johnson Johnson Lucas & Middleton, 975 Oak St., Ste. 1050, Eugene, OR 97401. He can be reached at 541-4842434 or slucas@justicelawyers.com.
14 Trial Lawyer • Summer 2023 By Angie Ferrer Whether they are providing valuable context that helps an attorney understand their case or testimony to corroborate (or refute) key facts, thirdparty witnesses can play an important role in litigation. How an attorney approaches obtaining information from third-party witnesses will vary depending on the circumstances of each case and the type of information the witnesses may have to offer. In one recent case, third-party witnesses were particularly essential. After his sudden termination from his job, my client, John, demanded his contractual severance and other unpaid wages. Rather than paying the outstanding wages, the company went on the defensive and filed a lawsuit against John, alleging, among other claims, that he was in violation of a noncompetition and non-solicitation agreement, and had lured away its customers. The company’s allegations were unfounded. In forming his own business after his termination, John was careful to operate within the scope of his contractual post-employment restrictions and to refrain from contacting or working with any of the company’s customers. In fact, multiple customers had contacted him after his termination to seek his services and, mindful of the restrictive covenants and the company’s lawsuit against him, John had told them he could not work with them for the time being. Because we were in federal court, the parties had to provide initial disclosures identifying individuals likely to have knowledge of relevant facts and, since the company alleged that John had taken its customers, I insisted that the company’s initial disclosures list the customers it contended John had lured away. Many of the potential witnesses on the company’s disclosures were the same individuals who had reached out, unsolicited, to John, and whose business he had politely declined. These third-party witnesses’ testimony would be essential in defending against the company’s claims. Direct contact One of the first things to consider before reaching out to a third-party witness is whether the lawyer may communicate directly with the person. Does the witness have an attorney? Under Oregon Rule of Professional Conduct 4.2: In representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) The lawyer has the prior consent of the lawyer representing such other person; (b)The lawyer is authorized by law or by court order to do so; or (c) A written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person’s lawyer. In John’s case, I reached out directly to many of the customers listed on the company’s initial disclosures, and most of them were happy to help. One of the witnesses decided to retain his own attorney to help him determine whether he should sign a declaration. Although that meant I could not talk with the witness directly anymore — or, at least, not without his lawyer’s permission—the Angie Ferrer From Third-Party Witnesses OBTAINING INFORMATION In John’s case, I reached out directly to many of the customers listed on the company’s initial disclosures, and most of them were happy to help.
www.oregontriallawyers.orgRkJQdWJsaXNoZXIy MTY1NDIzOQ==