27 Trial Lawyer • Winter 2024 ciary duty by using about $50,000 worth of the company’s lumber and labor for a personal project. That, even though the company had a policy permitting employees to do exactly that, with reimbursement to be obtained from the employee at a later date. The company claimed that this alleged breach of fiduciary duty constituted “cause” to terminate the plaintiff under his employment agreement and extinguished his right to be paid his wages. Because the employment agreement contained an arbitration clause, the plaintiff initiated an arbitration to recover his wages, which included unpaid commissions and variable compensation based on company performance. The three-arbitrator panel included former Oregon Supreme Court Justice Richard Baldwin as well as two well-respected private practitioners. They unanimously found in favor of the plaintiff on all claims and also awarded him attorney fees under ORS 652.200. When the plaintiff moved to confirm the arbitration award in the circuit court, the company objected, asserting that the arbitrators had committed “manifest disregard of the law” in issuing their award(!). The trial court confirmed the award, and the company appealed. The plaintiff’s lawyer hired me to defend the judgment. I did the appeal on contingency, with my fee being whatever the appellate court awarded as a reasonable fee. Initially, the plan was for me to do just a little background work: advice about appellate procedure and strategy, and light editing of the plaintiff’s brief. The trial lawyer did do a great deal of work on research and initial drafting, but I ended up ultimately writing the brief (so there was some redundancy in our efforts) and handling oral argument. We won. The Court of Appeals held that “manifest disregard of the law” is not a valid ground for challenging an arbitration award under Oregon law. Floor Solutions v. Johnson, 322 Or App 417 (2022). We then filed a fee petition with the Court of Appeals, asking for all our time. The case settled before the court ruled on the fee petition, however. I got paid for all my time, and the trial lawyer got paid for basically all his time too. But I’m not entirely sure if we’d clarified among ourselves exactly how we would have split the award if the court had awarded only a portion of our hours without specifying whose hours it was cutting. That’s a good conversation to have for that type of fee arrangement, which can apply also in the setting where an appellate lawyer is providing only trial support. That’s what friends are for Many lawyers do the whole case themselves, from trial to appeal. I do. I find that my trial work informs and improves my appellate work and vice versa. But if you’re not the type who likes to do appellate work, or if you feel you could use some appellate assistance in the trial court, “that’s what appellate lawyers are for” as Dionne Warwick sang (sort of). So keep smiling, keep shining, knowing you can always count on us for sure. Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Guardians Club level. Hoesly is a shareholder at Barg Singer Hoesly PC, 121 SW Morrison St., Ste. 600, Portland, OR 97204. He can be reached at 503-2418521 or [email protected].
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