Trial Lawyer In the Service of Justice Fall 2024 OREGON TRIAL LAWYERS ASSOCIATION Memorable Cases
“Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education.“ ARTICLES In Our Voices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 by Robert Le Holding Space for Growth After Trauma . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 by Meredith Holley Fighting for the Unhoused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 by Shane Davis Dedicated to Sara Suarez for Her Bravery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 by Michelle Burrows My Journey Through the Courts With an Industrious Abuser 25 by Barb Long Motorcycle Madness: Ten Lessons Learned from Being My Own Client ........ 30 by Lowell McKelvey The Cat Worth Seven-Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 by Michael Fuller What We Can Learn from Our OTLA Peers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 by Chris Thomas It’s the Stories That Linger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 by Kimberly O Weingart Battles Lost and Cases Won . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 by Gene Hallman DEPARTMENTS President’s Message: Hard Work Is Where I Come From . . . . . . . . . . . . . . . . . . . . . . . 4 by Melissa Bobadilla Annual Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 View from the Bench: Civil Justice: It’s the Life We Choose That Changes People’s Lives . . . . . . . . . . . . . . 10 by Judge James C “Jim” Egan OTLA Guardians of Civil Justice 28 Comp Corner: There Is No Such Thing as Encompassed Conditions . . . . . . . . . . . . 51 by Julene M Quinn Between the Sheets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 by Cody Hoesly, Elizabeth Savage, Nadia Dahab 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 Dorina Vida at 503-223-5587 x111, dorina@oregontriallawyers org For advertising rates, contact Ronnie Jacko at ronnie@bigredm com Publications Committee Co-Chairs — Barb Long, barb@vogtlong com 503-228-9858; Faith Morse, faith@morselawllc com, 541-362-4725 Editor — Dorina Vida, 503-223-5587 x111, dorina@oregontriallawyers org Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, otla@oregontriallawyers org, www oregontriallawyers org Trial Lawyer In the Service of Justice Fall 2024 OREGON TRIAL LAWYERS ASSOCIATION BOARD OF GOVERNORS Officers President: Melissa Bobadilla President-elect: Brent Barton Secretary-Treasurer: Rob Beatty-Walters Parliamentarian: Ron Cheng Immediate Past President: Rob Kline District Governors Talia Guerriero — District 1 Mona Moghimian — District 1 Kelly Andersen — District 2 Tim Williams — District 2 Blair Townsend — District 3 Jovita Wang — District 3 Derek Johnson — District 4 Lara Johnson — District 4 Erin Christison — District 5 Sonya Fischer — District 5 Governors-at-Large Cody Berne Keith Dozier Ronn Elzinga Mark Ginsberg Chris Hill Quinn Kuranz Lowell McKelvey Jennifer Middleton Shannon Conley Jeremiah Ross New Lawyer Governors Ashley Rosenbaum-DePalo Emily Johnson AAJ Governors Nadia Dahab Tom D’Amore Shenoa Payne AAJ State Delegates Ryan Jennings Michael Wise Ron Cheng OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Amy Anderson, 503-223-5587 x113 Annual Partner & Development Director Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Chief Executive Officer Mac Hubbard, 503-223-5587 x102 Education Director and Project Coordinator Cassie Purdy, 503-223-5587 x115 Political Director/Lobbyist Arthur Towers, 503-345-0045 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Communications Director
President’s Message Hard Work Is Where I Come From by Melissa Bobadilla, OTLA Guardian Hard work. OTLA represents dedication to hard work. As trial attorneys, we dedicate ourselves to serving our clients diligently, advocating for justice and supporting each other through our efforts. When I put my name forward to serve as your president, I committed myself to work hard for this organization. I’ve been a hard worker all my life. It’s part of who I am. I grew up in Grandview, Washington, a small farming town nestled west of Richland and southeast of Yakima. Raised by hardworking parents who were farm laborers, me and my eldest sister worked alongside of them. We worked in the orchards, picking cherries, pears and apples. We picked the fruit that was in season. Once the summer harvest was in, my father would leave to Mexico and my mom worked in the warehouses and canneries. My early years were about survival. I have two sisters, one older and one younger. My mom came to the U.S. from Mexico without legal documentation when she was 15 years old. She came here seeking the American dream, a better life for herself. She met my father who was a legal immigrant. He obtained his immigration status via my grandfather through the immigration brasero program. My father commuted back and forth from Mexico. He had two women, my mom and a woman in Mexico. We all knew about this arrangement including my mom. For the longest time, she would not admit it. Finally, she had enough and told him he had to decide between her or “the one in Mexico.” My father made his choice and that was the last time we saw him. I was 10 years old. That was a pivotal time in my life because I felt abandoned. I recall making a promise to myself that I would not do that to my children. I know what it feels like to be scared because your parent is undocumented. I remember being told in school “go home, you wetback, your mom’s not from here.” Hiding in our mobile home, closing the curtains, lying on the floor with the TV very low and not leaving our home when we knew the migra was in town. Other times my mom would call in sick to work because she’d been told “la migra” would be going to the warehouse. My mom’s concern was, “If I’m taken, who is going to watch my girls?” The day my mom received her “papers,” (aka her green card) we were filled with joy. It was liberating. We no longer needed to hide. It took over 20 years for my mom to get her green card. About 10 more for her to become a U.S. citizen. I know what it feels like to have to hide from immigration, even though I was a U.S. citizen. My mom retired as a motel housekeeper. She was one of the best and her bosses knew she was a hard worker. The rooms she maintained were spotless. Securing a full-time, year-round job with benefits was priceless. My mom only has a fifth-grade education. This was “success in America.” Despite only completing fifth grade, she considered this stability and security as the epitome of her dream — a true measure of success. Her daughters have always held immense pride in her accomplishments and my children, in turn, deeply respect their grandmother’s achievements. We never felt any shame in her occupation. My mom never once complained about having to work two jobs or to provide for her girls on her own. She would always say, “I gave birth to you. You’re my responsibility.” I admire her for it. When life gets tough, I always remind myself my life is way easier than what she went through. My mother always wanted for my sisters and me to have a better life, an aspiration I deeply respect and never take for granted. I instill the same values in my children. In our culture, we honor the struggles and sacrifices of our elders by openly discussing their experiences and our own. We reveal our vulnerabilities and dreams, hoping that our children, the next generation, will surpass us and their grandparents. We want them to learn from our mistakes and lead better lives. I hold this responsibility with great seriousness. My life is significantly better because of the efforts of my mom and grandparents. MELISSA BOBADILLA specializes in personal injury law, handling cases ranging from everyday car crashes to catastrophic injuries occurring on or off the job. She has developed a niche in assisting vulnerable clients who have suffered severe injuries or lost loved ones seeking immigration relief. She is a Guardian Club member. Bobadilla is the sole practitioner at Bobadilla Law, PC., 4915 SW Griffith Drive, Ste 200, Beaverton, OR 97005. She can be reached at [email protected] and 503-496-7500. 4 Trial Lawyer | Fall 2024
See President’s Message p. 6 I’m a Generation X Latina/Chicana. For my generation, it was common to get married young and have kids in your early 20s. I got married when I finished my sophomore year in college. My husband, Israel, and I are very close. We grew up together. We’ve been there for each other during our struggles, challenges and happy moments. My husband served eight years in the Army. He was a soldier and proudly served his country. I was an army wife. The military has a special place in our hearts. While in the service, we made friends for life. Years later, we still keep in touch with our Army friends. My family instilled a strong work ethic in me. It was instilled in our culture that “Latinos” work hard — you earn it and it will be hard. It was common for myself and everyone in my family to have two jobs. I got my first job “being officially on the payroll” at the age of 14. I started working for McDonald’s. My sister worked there and I started chatting with the boss. He offered me a job to be a party hostess. I worked up to having every weekend full of party celebrations because I became good at it. I would work the maximum hours allowed by labor laws. I eventually worked up to being a supervisor and would be in charge of people my age or older than me. This boss helped me get the next job — a job at the bank where he banked, Bank of America. He put in a good word for me knowing I would leave my supervisor job. I worked at Bank of America as a bank teller but learned how to do many other positions. The branch managers entrusted me to run the teller line and, on weekends, to do the job of a personal banker. My first branch manager is still a friend today. She gave me a chance and continued to help me move within Bank of America while I attended college. I also worked in retail while working at Bank of America. I did it to get the clothing discount so I could buy “nice clothing” for work and school. These are the “nicer jobs.” I also cleaned toilets and houses, and managed apartments (so I could live rent free while I attended college). Even while in high school, I always held two jobs. Study hall for me was studying then sneaking out of class to make it to my first job before school ended. While in law school, I continued to work at the bank and clerked. I would put a minimum of 20 hours during school and 40–50 hours a week in the summer. As a young child I lived in a trailer home. It was probably no bigger than 600 square feet. In a child’s eyes everything looks bigger. My mom gardened outside to make the front yard look nice. As a young child, until I started earning my own paycheck, having a lot of clothes was a luxury. I only had three pairs of jeans for school, however, my clothing was always clean and nicely ironed. I had more tops to give the impression I had more. I only had one pair of dress up shoes and one pair of sneakers. I never felt that I “lived in poverty” even though I knew we were poor. Society reminded me I was poor and made me feel as if that was wrong and unacceptable. I hated those feelings. I wanted a better life for me and someday for my kids. Education was my ticket out of poverty. My family had no money, nor was I the valedictorian of my class. Back then, I had no clue what that meant. School loans allowed me to get an education and opened doors. My first mortgage was my school loans consolidated as one loan – loans to be paid off in 30 years. My college education started at Western Washington University. I hated it. After the first quarter, I wanted to quit. I felt so confused and lost. Before attending WWU, I thought I was moderately intelligent. WWU made me feel ignorant. I had no idea what it meant to “drop in during office hours,” why the class was taught by two TAs and no professor or why my class was the size of my high school graduating class. I hated living on campus. I did not fit in with the campus culture. My “Perhaps the biggest impact on my career path was when a personal injury attorney helped my mom.…He treated her with respect, making her feel important even though her case was small.” 5 Trial Lawyer | Fall 2024
priorities were to go to school and work. After the first quarter, I forfeited my dorm deposit and moved off campus. I got an apartment and one of my suitemates followed me. After my second quarter, I transferred home to my local community college. Financially, it made sense for me because I was racking up a lot of school loans. I finished community college and then transferred to Pacific Lutheran University. I enjoyed PLU and wish I had gone there from the beginning. The professors made sure I was going to finish. They taught me the concept of building relationships and networking. They taught me to think differently and my passion for learning was born. PLU holds a special place in my heart. I tell young people today that there’s a college for everyone, you just have to find what works for you. In the end, most employers don’t care where you went to college. All they care about is what you are able to do and your commitment to your work. I obtained a master’s degree at the University of Oregon. There I met Professor Steven Bender. He guided me, took me under his wing and helped me apply to law school. He pointed me in the right direction to pay for a prep course for the LSAT. The first time I applied to law school I did not get in. I did not know you should take a prep course – I had no time, nor the money. Bender pushed me to get back on the track of law school and directed me to an LSAT program at U of O that was affordable. It was not the top program, but I am grateful it existed. Bender told me I should apply to law school and he would write a recommendation letter. The next time I applied, I got in. I will never forget my hands trembling as I placed the law school applications in the mail box. Eventually, I made my way to Lewis and Clark and obtained my J.D. I enrolled in what the school called the “night program.” I disliked that name, because it felt like we were second class citizens. I chose to call it the four-year track. I attended both day and night classes. I attended classes that fit my work schedule. I would attend summer classes so I could carry a lighter workload during the school year and still be able to graduate in four years. I’m grateful the school had this program. Not working never crossed my mind. My first son was born during my second year in law school. When people looked at me, I would explain “he was a planned baby”. They would look at me as if to say “are you crazy?” I wanted to have my first child before I started my career. While attending law school and having a baby, my husband was working on his B.A. We would tag team. He would drop the baby off while I was on campus and he’d head to his campus to continue his studies. When I graduated from law school, my eldest was two-years-old. My youngest child was born when I decided to be a solo practitioner. We wanted a second child and knew there would never be a perfect time to have one. My journey to becoming a lawyer began in childhood, translating for my mom and others. I saw and felt how uncomfortable they were telling me what to say. I do not wish that on anyone. A pivotal moment was when a doctor asked me to translate for a stranger with a broken leg. I fainted at the sight of the fracture but continued translating from the doorway. At that moment, I knew a career in medicine was not for me, but my heart went out to the injured person. Perhaps the biggest impact on my career path was when a personal injury attorney helped my mom. He spoke my mom’s language, explaining everything directly to her without needing me to translate. He treated her with respect, making her feel important even though her case was small. This personal touch contrasted sharply with other attorneys, who treated her like a number and used me as the interpreter. I knew if I became a lawyer, I would speak directly with my clients, regardless of their case size. I continue to uphold this promise, ensuring each of my clients receives personal attention and respect. Another significant aspect of that experience was that the settlement money allowed my mom to purchase a home and achieve greater stability. Witnessing this, I began to associate becoming a lawyer with the potential for a decent income. Inspired by an adjunct professor in estate planning who stressed the importance of joining local, specialized organizations, I joined OTLA as a new lawyer. My mentor described professional groups as the “pipeline” for staying updated with legal changes, highlighting them as the easiest and most affordable way to remain current. She was right. When I started clerking, I asked a partner at the law firm I was working at about which organization to join. He pointed me to OTLA, the right direction. OTLA serves as the essential pipeline for Oregon trial attorneys, offering the latest news on laws that impact our profession and the clients we represent. The benefits of membership far exceed the annual dues, providing not only the CLE credits needed to maintain one’s license, but also trial training skills and practical advice on managing a law office. As technology continues to evolve, I believe solo practices will become more common. I have observed this trend in my generation and anticipate advancing technology will further enable plaintiff trial attorneys to open their own offices or form small partnerships. I joined the OTLA Executive Committee to encourage others, regardless of firm size, to pursue leadership roles within the organization. As a solo practitioner, I bring a unique perspective and aim to show fellow solos that they, too, can offer valuable contributions and insights. By stepping into this role, I hope to inspire others to recognize their potential and actively participate in shaping the organization. At our core, I know it’s the same for you as it is for me. The great equalizer is hard work. President’s Message continued from p. 5 6 Trial Lawyer | Fall 2024
Every summer, my wife and I arrange to meet her coworkers on the banks of Quartzville Creek just above Foster Reservoir in rural East Linn County. We bring paddleboards, kayaks and jet skis. I smoke salmon fillets and a brisket. People bring side dishes and we spend a day on the water away from stressful work. Many in attendance were investigators at Child Protective Services and their community partners. During this outing two years ago, one of those community partners met me on the dock for a jet ski lesson. “You don’t remember me, do you?” Mary Middleton asked. “Of course, I know you, Mary. You have worked with Michelle for years. She gushes over the services you provide.” I thought this was a great opportunity to shore up an already strong relationship between my wife and her friend. Then the conversation took an unexpected turn. “Yeah, but you don’t remember that you represented my stepfather when I was a kid. I was a teenager and you really changed the trajectory of our lives.” Middleton told me her dad’s name and the memories came gushing back. He was a Vietnam War veteran who drove a bus for a living. He loved photography and had a rebellious teenage daughter! We laughed and I asked about her stepfather. He passed away a decade earlier. Thinking about him, she paused and then choked up. “He always tried his best to make our lives better,” she said. “He was very vulnerable during the lawsuit. The money that came in from that case stabilized our lives. It allowed him to choose a better life for us.” Middleton reinforced what I always believed about civil justice. The life you choose as a civil justice lawyer changes the lives of your clients. That is a perspective that followed me from private practice to the bench and leads to an overarching question in each and every case I hear: how will this decision effect people’s lives? I end up asking myself that question in the oddest contexts. How did ORS 31.710(1) (commonly called liability caps) effect people’s lives? How did the Oregon Constitution effect ORS 31.710(1)? How did the workers’ compensation law effect liability caps? The Oregon Supreme Court seemed to answer those questions in Lakin v. Senco Products, Inc., 329 Or 62, 987 P2d 463, clarified, 329 Or 369, 987 P2d 476 (1999). Then came the tectonic change in Horton v. Oregon Health Science University, 359 Or 168, 376 P3d 998 (2016). Overnight, the debate shifted from “caps do not apply” to “is proportionality under the remedies clause of the Oregon Constitution an answer to caps?” Or “is there a statutory exception to caps?” Attorneys from the OTLA asked those questions and made those arguments because liability caps adversely effected the trajectory of people’s lives. Because of those vigorous debates and the hard work of civil justice lawyers, we learned the answer to some of those questions. The constitutional principle of proportionality under the remedies clause of Article I § 10 of the Oregon Constitution did serve as an exception to caps. Laws like Oregon’s workers’ compensation statute did limit the imposition of caps. Vasquez v. Double Press Mfg, Inc., 364 Or 609, 437 P3d 1107 (2019). While the legislature answered those questions by eliminating liability caps, other questions remain. The other question that immediately comes to mind is whether the liability caps in cases of wrongful death are truly legislative mandates that did not exist when the legislature created the wrongful death statute. This is an important issue yet to be resolved. OTLA remains relevant because attorneys like you, attorneys who engaged in civil justice, dedicating your lives to creating positive changes in the lives of others, people like Middleton. JUDGE JAMES EGAN serves on the Oregon Court of Appeals. In the past, he served as a circuit court judge for Linn County where he presided over many civil and criminal trials. Egan also served as the chief judge in the juvenile court, probate court and civil court in Linn County. The Oregon Court of Appeals is located at 1163 State St, Salem, OR 97301. He can be reached at [email protected]. View from the Bench Civil Justice: It’s the Life We Choose That Changes People’s Lives by Judge James C. “Jim” Egan “OTLA remains relevant because attorneys like you … dedicating your lives to creating positive changes in the lives of others.” 10 Trial Lawyer | Fall 2024
In Our Voices by Robert Le, OTLA Guardian “In Our Voices” is a column published in each edition of Trial Lawyer featuring members from underrepresented communities and their personal stories. These personal stories focus on adversity encountered, perceptions, general thoughts with the hope of bringing awareness to the larger legal community. Why did I become a trial lawyer? I have been asked this question thousands of times and the answer is always the same: I know how it feels to be nobody and know nobody, and have no money and no voice. I’ve known this since my earliest childhood, as the son of refugee parents who fled Vietnam in the ‘70s to come to California. Life was safer and opportunity greater, but still they struggled. Bills came, and night after night I heard my mother on the phone with bill collectors, pleading to drop the late fees and for more time to pay. I saw the power differences that exist in society and how humiliating they can be. Life in our poor neighborhood was hard for everyone — white, Hispanic, Asian — but sharing our diverse cultures gave me a deep sense of empathy for everyone regardless of race or status. With my parents’ strong work ethic, I thrived, attending college with plans to be a restaurateur and working nights as a supervisor at Johnny Rockets. Unpaid wages and death threats changed that. The story of eventually finding legal representation for the kitchen staff — many with poor English and some undocumented — and compensating them fully for their work has been told in these pages before1 so I won’t repeat it. But that experience profoundly changed my life: I realized the power of the legal system to give voice to those with nothing who had been harmed or treated unfairly. I knew I could make a difference, so I changed my major from restaurant management to philosophy and then went to law school. After graduation, I opened my own office. Starting out was hard — I had no experience and few resources, but fortunately mentors shared theirs — along with their wins and losses, and their passion for this work. One even paid for me to attend a trial practice academy. I knew I could overcome any hardship by staying hopeful, being persistent and working hard. My goal was always to make the most of my clients’ cases. But I also struggled to overcome my own obstacles. One eye-opening lesson came in my very first case, which I lost. Although embarrassing to admit now, my cultural hesitancy about speaking up and arguing led me to rely on the judge to rule based only on the papers. Thankfully, the judge pulled me aside afterwards to chide me: I had to argue my case, just as the other side did, and only then could the judge appreciate all the facts and rule fairly. I learned that doing this work required listening with an open mind, being nonjudgmental, empathetic and thinking outside of the box. As lawyer Atticus Finch says in To Kill a Mockingbird, “You never really understand a person until you consider things from his point of view … until you climb into his skin and walk around in it.” Eventually, the facts come alive and a case that seemed hopeless or small can become powerful when presented to a jury. There, the dynamic shifts and the community has the power — not the side with more resources. Over time, I learned the importance of setting aside my own biases — often the same ones inherent in the defense position or even the legal system itself. I took cases other lawyers rejected — the harm was evident, even if proving it was hard. Together with other young lawyers or on my own, I prevailed against daunting odds to win relief for a nurse with severe but undiagnosed pain after being rammed by a sheriff’s car that ran a red light; a homeless but harmless man with schizophrenia who was shot to death as a supposed threat; and a low-level Wells Fargo call center rep who knew his employer was cheating customers but had only a single email to prove it.2 The first of these cases was tried to a jury, while the other two settled on the eve of trial — a reflection of the power of the jury system. ROBERT LE practices consumer protection and class actions. He is an OTLA Guardian at the Sustaining level. Robert Le is the Legal Director at Oregon Consumer Justice Law. 850 SE 3rd Ave. Ste 302. Portland, Oregon 97214. He can be reached at [email protected] and 503-751-2249. 12 Trial Lawyer | Fall 2024
But my world was upended once again when the pandemic hit. This was the biggest challenge I faced as a trial lawyer. It made me re-examine my values, my calling and my entire mission as a plaintiffs’ attorney. Working from home was the easy part. I bought some office equipment and I was ready to go. Yes, I was still paying the rent for my empty office, but being a trial lawyer, I knew how to take financial loss gracefully. But when the courts closed, insurance companies suddenly had the upper hand. They knew we could not take them to the court, so my biggest hammer was gone. They bombarded us with paperwork, and all we could do was research the law and write back. The problem — they were being paid and we were not. Bills stacked up; credit cards maxed out. A year went by and the uncertainty was unbearable. One of the saddest days of my career was letting go of the invaluable staff member who worked with me the longest. The pressure to settle cases far below their value became overwhelming. My clients needed money too. Should we settle or keep fighting? While my mind struggled with finding the right answer, my heart came to the rescue. I knew how it felt to be vulnerable and I knew I was there to help my clients in whatever way I could. I started to do what my mother did, call creditors and ask for more time to pay. I managed to keep the office running until January 2022 when the courts reopened. And I was euphoric to once more present a case in front of my favorite people of all time, the jury. The wins followed, so did the complexity and value of the cases. Although the overwhelming majority of civil cases settle before trial, I tried over two dozen civil trials and arbitrations, and settled hundreds of cases. To the present day, this same “people first” attitude is what motivates Oregon Consumer Justice, where I currently work as Legal Director. OCJ’s unique mission is to advance a justice movement putting people at the center, taking on flawed systems, bad actors and economic policies favouring profits over people. The goal is to ensure a safer and stronger future where everyone has the freedom to thrive. I believe that my experiences contribute to OCJ’s mission to achieve equity and fairness for all Oregon consumers, particularly those who face the greatest barriers. On their own, any individual plaintiff or lawyer may feel limited in their power, but when the community organizes, powerful incentives for change occur. OCJ works to make this happen within the broad community of lawyers, law students, judges, advocates and legislators. This is why I am a lawyer. 1. Finding Your Stories: The power of trial, OTLA Trial Lawyer (Winter 2020), 18–20. 2. These cases are described in greater detail in the article mentioned above. “On their own, any individual plaintiff or lawyer may feel limited in their power, but when the community organizes, powerful incentives for change occur.… This is why I am a lawyer.” 13 Trial Lawyer | Fall 2024
Holding Space for Growth After Trauma by Meredith Holley “Well, guess what?” a former client, whom I will call Margaret Hall, recently emailed me. “I just got invited to be a keynote speaker at a conference!” This was an inside joke between us that might not sound as hilarious as it is because you were not there for her first consultation. It was late Spring of 2018 when I first met Hall and I had only recently started my own practice. I left a firm in late 2017 to focus on helping employees resolve harassment and discrimination issues without losing their jobs. When I designed my business, I decided to create an almost completely online practice. This was before the COVID-19 pandemic made remote meetings ubiquitous, but to me it was an important decision for three reasons. In part, this seemed more financially responsible than carrying the weight of a lease; in part, I am an incredibly distracting person to work with in an office setting, even to myself; and in part, I noticed that in-person office spaces can create accessibility issues and feel very intimidating to clients who are already struggling with feeling marginalized and abused at work. For example, when my clients who had sexual assault claims needed to park and come up a fancy elevator with security people monitoring, it often took them three or four cancellations before they would make it to their appointment. Online, they show up in whatever clothes are comfortable to them and with whatever comforts they need. Hall was one of the people who appreciated the accessibility of an online consultation. We first met on Zoom and, for part of the meeting, she was under a blanket and shaking so badly I got a little bit seasick watching her on video. She told me she recently received several medical diagnoses, including those typical of people experiencing harassment at work: high blood pressure, hair loss, weight loss, sleep disruption and panic disorder. Her doctor also believed the stress she was under was developing into an autoimmune disorder. She was struggling to get out of bed and experiencing complete collapse. At the time, I was still learning how to do an effective consultation, as we never learned that in law school. I was practicing the two questions that are key to any sales conversation: (1) What is an ideal outcome to this problem for you? (2) What is the biggest challenge you are facing in trying to create that outcome? Hall, like many people in a harassing work environment, struggled with the first question. At one point, I believe she said her ideal outcome would be to feel well enough to get out of bed and go to work. That was about as far as she could think and even that was a stretch. It did not feel realistic to her to expect that. Only a couple of years before, Hall was at the top of her field. She was working under someone who was groundbreakingly influential in his work. They were so successful they were traveling internationally, making a tangible difference locally and in other countries. Unfortunately, that was when her boss told her he was in love with her. Hall looked up to him, seeing him as a mentor and an inspiration. She believed he was a genius and could do no wrong. She saw him as the reason for her successes and she could not imagine working without him. When she rejected his romantic advances, telling him she loved her husband and saw him as only as a mentor and friend, he was crushed. He spent days crying, he struggled to be around her after that. He withdrew and blamed her for his declining mental health. She felt awful. She knew she did not have romantic feelings for him, but she did not want him to suffer. He started assigning work to another woman working for him. Hall accepted this, feeling badly for rejecting his advances. Ultimately this meant Hall was almost completely cut off from the work that built her career and that she loved. A narrative started in the workplace that Hall was difficult to work with and just a problem in general. Support staff started delaying work Hall assigned them and “forgetting” to order her supplies. Hall bought into this narrative because she continued to defer to her boss’s judgment: The real problem was Hall rejected his advances, not that he made them and was weaponizing his feelings against her career. At the same time, Hall knew she did good work. She knew she shouldn’t be excluded from big events simply because she MEREDITH HOLLEY helps resolve toxic workplace conflict through workplace conflict mediation and coaching. She is the founder of Eris Conflict Resolution and co-host of the Empowered Communication Podcast. She can be reached at [email protected] or 458-221-2671. 14 Trial Lawyer | Fall 2024
was not attracted to her boss. But she questioned herself. Was she really the problem? For months she lived with the cognitive dissonance of implicitly trusting her boss and also knowing she was good at her work and should not have it stripped from her. The incident leading to the collapsed state I met her in was when she tried to get help from her organization. She went to a high-level leader, a woman, believing that a more experienced woman would know what to do. She told this woman what she experienced, and the woman responded, “That must be so hard for [boss],” empathizing with his feelings of rejection rather than recognizing that his impact on Hall’s career was the real harm. Another senior leader told Hall her problems were really all about competition with the woman who was now getting Hall’s work. Rather than seeing that Hall’s boss was engaging in classic quid pro quo sexual harassment and making Hall’s job dependent on her willingness to be sexualized, her superiors characterized Hall as aggressive and competitive for seeking help. She managed her boss’s harassment for years, but it was her organization’s response that finally pushed her to become the shaky, frail woman, hiding under covers and dreaming of just being able to go to work. Not only had she experienced the betrayal of being punished in her work because she did not share her boss’s feelings, but now her organization believed she was the bad guy. Over a year later, Hall reminded me of our initial consultation call. She said, “Do you remember when we first met and you asked me what an ideal outcome would be?” I knew I always asked that question, but I only had a vague memory of our conversation. She reminded me that she told me getting out of bed and getting to work seemed like a stretch. She said, “I remember you said to me, ‘What about leading the organization? It’s possible at some point you could do that!’” She laughed and told me her thought at the time was, “Well, this girl is crazy, but at least it seems like she’ll help me.” We both laughed because at that point she created her own successful program within the organization and was considering applying for a leadership role. Now, many years later, she is delivering keynote presentations based on the work that inspires her and making a huge, tangible impact on the world. And what happened to Hall’s old boss? He’s probably fine. He retired around the time that Hall settled her claims against the organization. His fragility was only one component of Hall’s growth. See Holding Space for Growth After Trauma p. 16 15 Trial Lawyer | Fall 2024
Over the years, my best guess is I have worked with around 200 people overcoming toxic work environments, harassment and discrimination, and Hall’s is one of many that continue to inspire me. In fact, I struggled a bit to write this article because I admire so many of my past clients for different reasons; their experiences are vulnerable and easily misunderstood. Should I tell you about my client who experienced extreme racial violence and betrayal by the legal system? Should I tell you about my client who was a political figure and experienced death threats? Should I tell you about my client who came out as non-binary through the process of advocating for a subordinate in their workplace? There truly are so many amazing people making the world better through very difficult challenges. As plaintiffs’ lawyers, we are privileged to be able to work with them every day. Hall’s story stands out to me both because of the remarkable transformation she achieved and because of the hard coaching work she engaged in to recover from her experiences at work. When I represent clients who are still working in toxic environments, they go through a coaching program I designed based on the work that transformed my own life. While the clients have had very different experiences in the workplace and been targeted based on different experiences, there are many commonalities they share. I call these the three pillars of Empowered Communication™: Boundaries, Reprogramming Hegemony and Accountability. First, Hall made tangible safety plans for enforcing her boundaries. When we first started working together, her brain played scenarios over and over, terrorizing her about what might happen if she ran into her old coworkers or people found out about her experience. What if leadership turned against her again? What if she got trapped in an office with her old coworker? What if someone asked her why she left and she didn’t know what to say? What if she ran into her old boss again and he started crying? She outsourced enforcement of her boundaries, trusting her boss and her organization’s leadership to enforce them for her. While that seems reasonable most of the time, other people are not responsible enough to enforce our boundaries for us. And we still deserve to have clear and safe boundaries. This means making plans for them to be violated, to enforce them and then to reward ourselves for doing something hard. Second, Hall repaired her relationship with herself. She later described this, saying, “I kind of went into a deep, stressful place. I wasn’t functioning very well. I had to get on my feet and be able to be confident in myself after feeling like the bottom had fallen out for me. I like who I am now more than I liked who I was before the harassment even started.” Like most of us, it was very important to “There truly are so many amazing people making the world better through very difficult challenges. As plaintiffs’ lawyers, we are privileged to be able to work with them every day.” Holding Space for Growth After Trauma continued from p. 15 16 Trial Lawyer | Fall 2024
Hall to connect with the people she worked with, but that led to her buying into an abusive narrative about herself. In other words, she was so committed to connecting with her boss and coworkers that she lost her connection with herself. She did very hard work to repair that relationship with herself and come to the place of understanding that, although many people, including herself, defaulted to thinking she was responsible for her boss’s feelings, she actually would not have that expectation for a friend. She practiced treating herself like a friend instead of a problem. Finally, Hall practiced accountability, meaning taking responsibility for her actions and dropping the responsibility she was taking for other people’s actions. She started dreaming about what was possible for her to create with the work she loved and making tangible plans around the actions she could take to build the career she wanted. She stopped inwardly debating about whether showing up in the world made her a bad person, whether she was too much and whether other people would always take advantage of her. She gave herself room to show up too big, make mistakes, and say the wrong thing while she was trying to create the career she wanted. One of the goals she set for herself was to be a sought-after keynote speaker. She did not accomplish that goal overnight, but through daily work of enforcing her boundaries, maintaining a healthy relationship with herself, and taking sometimes difficult and sometimes boring action to get there. Like so many people, she went from shaking under a blanket to speaking on a stage. Hall’s story is a reminder that while our clients may, at times, appear frail and broken, and even believe themselves to be, it is possible for them to recover and make incredible impacts on the world. 17 Trial Lawyer | Fall 2024
Fighting for the Unhoused by Shane Davis, OTLA Guardian In late August 2019, my morning walk to work changed as my usual route through the parking lot between Willamette and Oak Street in downtown Eugene was blocked off with police tape. I didn’t think too much about it, simply heading another block up before cutting over to work. Later, reading the local paper, I learned of the tragic death of an unhoused woman who had been run over by a garbage truck while sleeping in the parking lot that morning. I had only been an associate for a week, not even a lawyer yet, still waiting for bar results, but four years later, this would turn into my first jury trial. It wasn’t too long after the woman’s death that her daughter contacted our office. She lived in Oakland, CA and had no idea her mom was living in Oregon before receiving a call from a police officer to tell her the horrific news. Her mother, having lost her home in the 2008 financial crisis and spending years dealing with progressing mental illness, was homeless for over a decade. She had a falling out with her then-teenaged daughter a few years before that and the two hadn’t seen each other or spoken in close to fifteen years. After our office took the case, we sent a demand letter to the garbage company seeking the statutory wrongful death cap in settlement. Their response: $9,999. They refused to pay five figures “out of principle.” Unfortunately, as every tort practitioner knows, Oregon law does not assign value to the loss of human life for its own sake. Rather, ORS 30.020 provides recovery for the loss of society, companionship and services to the decedent’s family. In our case, this made seeking damages at trial understandably tricky. There were no economic damages and, as the garbage company would argue, there was no loss of society or companionship. During one of our firm’s weekly meetings, Scott Lucas asked the other attorneys for permission to take this case to trial with the full resources and backing of the firm. Even though we thought we would probably lose, we also had to stand behind our principles. There wasn’t a second of hesitation amongst the other lawyers, it was a resounding yes. So, after retaining the best crash reconstructionist in the state, our trial team of Lucas, fellow associate Kevin Yolken and I went to trial. We knew voir dire would elicit a lot of strong language toward the unhoused community. What surprised us was the level of sympathy jurors also felt and described. When asked about their thoughts on homeless people, jurors tended to speak more favorably toward unhoused individuals who were suffering from mental illness, but less sympathetically toward those using drugs or alcohol. We were able to strike one juror who said he could never find against the garbage truck driver who was “only doing his job” and we used our three preemptory strikes on jurors who seemed to indicate a similar opinion. Part of our strategy was to frame the case as much as possible against the corporation and not the driver. After the jury was seated and sworn in, I gave our opening statement. It was my first appearance before a jury. My focus was keeping things brief and staying focused on the facts and why the garbage company was responsible. I described the driver’s path through the parking lot and read the Uniform Civil Jury Instruction on Lookout. The garbage truck entered the parking lot and drove across to a dumpster he emptied before backing up to execute a turn and drive out through an alley. It was when the driver turned that his rear wheels drove over our client’s mom. The defense’s opening rambled over an hour and a half, describing why they thought the driver couldn’t have seen the sleeping woman in his backup camera in the dark parking lot. They argued that another car might have hit her first and ended with blaming the victim for her own death for choosing to sleep where she did. My first witness was the lead investigating officer from the EPD Major Crashes Unit. The officer performed a full FARO 3-D laser scan of the parking lot the morning of the woman’s death and he later performed a reenactment of the driver’s path of travel using the same garbage truck. EPD investigated the case for a potential criminal hit and run because the driver left the scene. The reenactment and scans proved incredibly SHANE DAVIS practices personal injury, medical malpractice and products liability law. He is a Sustaining member of OTLA Guardians. Davis is an attorney in the firm Johnson Johnson Lucas & Middleton, 975 Oak St., Ste. 1050, Eugene, OR 97401. He can be reached at [email protected] and 541-484-2434. 18 Trial Lawyer | Fall 2024
helpful. We successfully argued in motions in limine to be able to talk about the driver leaving the scene after driving over the sleeping woman. Our next witness was our retained crash reconstructionist. He performed a total scan of the garbage truck with the same FARO technology used by EPD and was able to utilize their scans from the parking lot to make a three-dimensional computer model of the scene. The garbage truck’s path that morning was captured on the security camera of a local arcade bar. Through reverse projection photogrammetry, our reconstructionist was able to align the video with the 3-D scans of the parking lot and then place the scanned garbage truck into the model. Our expert also mapped out the dimensions of the backup camera and modeled a bright green cone coming off the back of the garbage truck representative of the camera’s field of view. By doing this, our expert showed the jury exactly when the sleeping woman entered the garbage truck driver’s field of view as it traveled through the parking lot. By calculating the speed of the garbage truck off the security video, our expert was also able to determine the woman was visible to the driver for seven seconds in his backup camera before he turned and ran her over. This was the most important evidence to prove liability in the case. The defense was unsuccessful in attacking the evidence on cross examination. Still, we knew another argument would be the contrast or visibility of a body in the garbage truck’s backup camera. Even if she was visible, was she noticeable? To answer that, we called another EPD officer involved in the reenactment who rode inside the cab of the truck. He testified that the backup camera screen in the truck made it easy to see a person behind the driver’s path. Although we thought we established liability against the garbage company, there was concern for comparative negligence against the sleeping woman. To address the drug and alcohol concerns we gathered from voir dire, we called the medical examiner from Lane County. He was able to rule out drug and alcohol intoxication at time of death. We also called the investigator from the medical examiner’s office who was involved in collecting evidence at the scene. Her testimony gave us a surprise benefit when Yolken asked her to describe a scene photograph of the victim’s body. It was understandably graphic and we struggled to decide how to get the evidence into the case without offending the jury. Through happenstance, Yolken asked the witness to describe the photo, expecting a one sentence answer allowing him to enter it into evidence. Instead, she gave a detailed description to the jury of exactly what she was looking at and the condition of the victim’s body in a way the jury could understand the terrible nature of the fatal injuries without having to see first-hand. We entered these photos into evidence, placed in an envelope with a warning on the outside. I don’t know if the jury ever opened it, but it was an effective way to deal with graphic evidence I plan to use in the future. To address other concerns of comparative negligence, we subpoenaed several fact witnesses whom we thought could explain why the victim would be sleeping in the middle of a dark parking lot. A big problem for us was there was a well-lit homeless services location just a half block away at a nearby church. First, we called two Crisis Assistance Helping Out On The Streets workers. CAHOOTS is a mobile crisis intervention program staffed by personnel from White Bird Clinic, an organization providing health services to unhoused and vulnerable people. In Lane County, CAHOOTS workers are held in extremely high regard for the difficult work they do. “Oregon law does not assign value to the loss of human life for its own sake. Rather, ORS 30.020 provides recovery for the loss of society, companionship and services to the decedent’s family.” See Fighting for the Unhoused p. 20 19 Trial Lawyer | Fall 2024
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