9 Trial Lawyer • Winter 2024 By Kirc Emerson OTLA Guardian As trained problem solvers and issue spotters, attorneys gravitate to helping their clients with all sorts of issues. It’s likely part of the reason why many people became an and to make sure the client is fully informed of the risks. Kirc Emerson represents plaintiffs in legal malpractice cases, and specializes in figuring out complex legal issues on all kinds of matters. He is a partner in the firm Allegiant Law, 100 SW Main St., Ste. 400, Portland, OR 97204. Emerson contributes to OTLA Guardians at the Rising Star level. He can be reached at [email protected] or 503-517-8202. 1 Most of the case law in Oregon surrounding comparative fault defenses professional malpractice relate to medical malpractice actions. See, e.g., Son v. Ashland Cmty Healthcare Servs., 239 Or App 495 (2010); See also Gardner v. Oregon Health Sciences Univ., 299 Or App 280 making framework. News coverage, public commentary and third parties can help demonstrate the need for disclosure. Finally, in the words of the late Aaliyah, “If at first you don’t succeed, dust yourself off and try again.”9 Sometimes, our pride in being a collegial bar in Oregon (which is a good thing, don’t get me wrong) can cut too hard the other way, and can make us forget that we are, in fact, adversaries in an adversarial system. There are fights where we know we are right, but it may take us a few tries to prove it. In those moments, find your inner Lloyd. Pick yourself up from the dirt of the bullpen, dust yourself off and try again. Rian Peck is a civil rights lawyer, focusing on criminal defense and police and government misconduct. They contribute to OTLA Guardians at the Rising Star level. They have their own practice, Visible Law LLC, at 333 SW Taylor St., Ste. 300, Portland, OR 97204. You can reach them at 503-773-0103 or [email protected]. 1 Burrows is no longer counsel of record on the case. 2 ORS 181A.674(3) provides: “A public body may not disclose information about a personnel investigation of a public safety employee of the public body if the investigation does not result in discipline of the employee,” subject to the exceptions outlined in ORS 181A.674(4). 3 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Opinion and Order on In Camera Review (ECF 159), at *3 (D. Or. Dec. 2, 2022). 4 Kerr v. United States District Court, 511 F.2d 192, 197 (9th Cir. 1975). See also Estate of Bui v. City of Westminster Police Dep’t, 244 F.R.D. 591, 595-96 (C.D. Cal. 2007) (discussing factors to analyze for Official Information Privilege). 5 Kelly v. City of San Jose, 114 F.R.D. 653, 669 (N.D. Cal. 1987). 6 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Opinion and Order on Motion to Quash (ECF 169), at *3 (D. Or. Feb. 24, 2023). 7 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Redacted Motion to Require Destruction and Prevent Further Use (ECF 222), at *4 (D. Or. May 17, 2023). 8 Malaer v. Kirkpatrick, et al., No. 1:20-cv00049-CL, Opinion and Order on Motion to Quash (ECF 206), at *1 (D. Or. Apr. 11, 2023). 9 Aaliyah, Try Again (2000).
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