Trial Lawyer Family Law In the Service of Justice Summer 2024 OREGON TRIAL LAWYERS ASSOCIATION
“Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education.“ ARTICLES In Our Voices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 by Samuel Hernandez Tools Lawyers Use to Shorten Family Law Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 by Blaine Clooten Breaking the Silence: Divorcing Women Take a Stand Against Domestic Violence in Civil Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 by Lake Perriguey Expert Witnesses in Family Law Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 by Gilbert Feibleman The Rewards of Working with Students with Disabilities and Their Families . . . . . . 32 by Kim Sherman Setting Yourself Up for Success on Appeal: Considerations for the Family Law Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 by Elizabeth Savage Family Law Mediation in Oregon — Everything You Wanted to Know, But Were Afraid to Ask . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 by Julie Gentili Protecting Vulnerable Children During the Legal Process . . . . . . . . . . . . . . . . . . . . . 43 by Sonya Fischer Practical ideas for working with clients who may have diminished capacity . . . 46 by Annelisa Smith DEPARTMENTS President’s Message: OTLA’s Education Powerhouse Delivers .................. 5 by Rob Kline Annual Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 View from the Bench: Making a Difference .................................. 11 by Judge Adrienne Nelson OTLA Guardians of Civil Justice 30 Comp Corner: The “Worker” is Medically Stationary . . . . . . . . . . . . . . . . . . . . . . . . . . 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 Summer 2024 OREGON TRIAL LAWYERS ASSOCIATION BOARD OF GOVERNORS Officers President: Rob Kline President-elect: Melissa Bobadilla Secretary-Treasurer: Brent Barton Parliamentarian: Rob Beatty-Walters Immediate Past President: Blair Townsend District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Tim Williams — District 2 Rhett Fraser — 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 Neil Jackson Quinn Kuranz Jennifer Middleton Jeremiah Ross Mona Moghimian New Lawyer Governors Ashley Rosenbaum-DePalo Emily Johnson AAJ Governors Tom D’Amore Nadia Dahab Shenoa Payne AAJ State Delegates Ron Cheng Ryan Jennings 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 Amy Anderson, 503-223-5587 x100 Annual Partner & Development Director, Deputy Political Director Arthur Towers, 503-345-0045 Political Director/Lobbyist Dorina Vida, 503-223-5587 x111 Communications Director Mac Hubbard, 503-223-5587 x111 Education and Project Assistant 3 Trial Lawyer | Summer 2024
President’s Message OTLA’s Education Powerhouse Delivers by Rob Kline, OTLA Guardian As my term serving as your president comes to an end, I have been reflecting on the year and all the ways OTLA serves its members. What repeatedly comes to mind is OTLA’s stellar education program. While originally focused primarily on motor vehicle and workers’ compensation cases, our Education Committee has evolved and expanded the breadth and depth of its programming to meet the needs of a larger organization with a far more diversified base of practice areas. Today it plays an outsized role in providing value to members, generating critical revenue and accomplishing OTLA’s mission. The Education Committee is near and dear to my heart, serving as my point of entry into OTLA as a committee member in 2004 and then as co-chair with Brian Dretke in 2006. But first some history. When the late Chuck Paulson, a former OTLA President and giant of the plaintiff’s bar, passed the bar exam, he put his typewriter in the car and headed out to the coast to try back-to-back, often one-day workers’ compensation cases. In those days, workers’ compensation cases were resolved at a jury trial. Claimant-side workers’ compensation lawyers were a tight bunch who shared tips, ideas and information. When Paulson was almost done with a trial, he’d call the next OTLA member on the trial docket and let them know he was wrapping up. Unfortunately, in 1995, the Legislature passed devastating workers’ compensation “reforms” eliminating many rights of injured workers including the right to a jury trial. In the aughts, the Oregon Worker’s Compensation Attorneys (OWCA) folded into OTLA. The culture of colleagues helping colleagues — a quality even more remarkable when one considers they are business competitors — remains one of the key underpinnings of the Education Committee and OTLA in general. Initially, OTLA’s education programming was something of a big-tent affair. OTLA organized six or seven CLEs per year for all members focused on motor vehicle and workers’ compensation cases. There was a small number of practice-specific sections that did not host educational programs for their members. Sections like Civil Rights, Business Litigation and Consumer Protection didn’t even exist. Much has changed over the years. Following an expansion in the number of sections, educational offerings have become both broader and more specialized to support the needs of members across a far more diverse group of practice areas. Today the sections do the heavy lifting on specialized education, offering free lunch meetings with speakers most months except over the summer. The Education Committee focuses on three big paid events each year with broader appeal: the fall Motor Vehicles CLE (Oct. 25, 2024 at the Benson Hotel in Portland), the spring All Stars CLE (Portland) and Convention (August 14–16, 2025 in Sunriver). The fall Motor Vehicle CLE features cutting edge topics, often pulled from chatter on the listserv, presented by top experts in their field. In a surprise twist, there has been a remarkable number of defections from the defense bar in the last year, which continues to provide valuable opportunities to learn from insiders in the world of insurance defense. The spring All Stars CLE has a broader focus on all aspects of trial practice which is geared to all members and often includes national-caliber speakers. My personal favorite is our annual Convention in August. It is an unsurpassed opportunity to learn, network with your colleagues and recharge your batteries. Newer lawyers can walk right up to titans in their field, strike up a conversation and ask questions. The culture of experienced lawyers providing their time — with nothing expected in return — and helping newer lawyers find their way is one of the best qualities of OTLA and is on full display at Convention. It’s what sold me on OTLA and prompted me to co-chair the Education Committee ROB KLINE specializes in cases involving motor vehicle collisions, workplace injuries and sexual abuse. Kline practices as senior counsel at the Johnston Law Firm, 200 SW Market St., Ste. 1900, Portland, OR 97201. He contributes to OTLA Guardians as the Guardians Club level. He can be reached at rob@johnston-lawfirm.com or 503-546-3167. See President’s Message p. 6 5 Trial Lawyer | Summer 2024
(high point: getting to recruit and work with national caliber speakers; low point: emceeing with a suit and tie while everyone else wears shorts.) Over the course of some 20 years of attending Convention, I have had the benefit of getting to know not just scores of members, but often their spouses and children. It’s what former OTLA President Hala Gores calls her “OTLA family” and I couldn’t agree more. If you’ve never been to Convention before, I highly encourage you to go this year, which will be held in Salishan. Unlike Sunriver, where many members often stay and recreate outside of the resort, Salishan is largely self-contained which provides more opportunities to network and connect with colleagues. But wait, there’s more. Remember Litigator Lunches? They’re gone. They were too formulaic and attendance was declining. In their place are Emerging Topics — hot, timely topics scheduled when the need arises, such as the release of the Oregon Supreme Court’s decision in Moody. The Workers’ Compensation Section continues to be very active and puts on its own CLE every spring. The Legal Staff Section puts on a ½ or full day CLE every year and has a very active listserv. Much like the lawyer listserv, legal staffers share information and best practices tips on their own listserv. With membership of only $95 a year, it’s one of the best bargains at OTLA which includes access to the staff listserv and provides value that is exponentially higher than the cost of entry. There are so many places today to get CLE credit both in person and online. But when it comes to Oregon-specific, in-the-trenches, cutting-edge education for civil plaintiff’s trial lawyers, no one delivers like OTLA. Now is time for my pitch: if you enjoy and benefit from OTLA’s broad range of educational opportunities — and how could you not? — we need you to attend. Providing this abundance of opportunities is expensive and if folks don’t attend, it’s not cost effective. Untold hours of member and staff time go into creating and staging these events. From an annual budget perspective, if one considers the income from member attendance fees, and the recognition at events that drives contributions from our Annual Partners (businesses that recognize the importance of the work OTLA does and provide valuable services for our members and their clients), Event Sponsors (lawyer members and their law firms) and Exhibitors (businesses attending President’s Message continued from p. 5 6 Trial Lawyer | Summer 2024
specific CLE events like the All Star CLE), the revenue generated is approaching half of OTLA’s budget. Education is the economic engine that powers the whole OTLA machine. To be blunt, there simply is no substitute for butts in seats. Credit for keeping this finely tuned engine running goes to Education Committee co-chairs Marilyn Heiken and Jason Posner, and all the folks that serve on the committee and give generously of their time: Melissa Bobadilla, Ethan Chatov, Ryan Jennings, Marc Johnston, Quinn Kuranz, Faith Morse and Tim Williams. Equally important are OTLA staff who toil tirelessly behind the scenes, particularly during the long hours at Convention, making it all look seamless and easy: Amy, Mac, Dorina, Kathleen and Mary Kate. OTLA’s Mission Statement is: “Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education” (italics added.) I believe education has both an outward-facing component (including the public and legislators) and an inward-facing component (our members). In fact, the inward-facing component — which is ably discharged by our Education Committee — not only helps us hone ”[W]hen it comes to Oregon-specific, inthe-trenches, cuttingedge education for civil plaintiff’s trial lawyers, no one delivers like OTLA.” our craft, but also provides us with tools to educate juries and others about the very principles that are OTLA’s reason for existing. See you in Salishan. 7 Trial Lawyer | Summer 2024
8 Trial Lawyer | Summer 2024
9 Trial Lawyer | Summer 2024
As the year continues to unfold, a practice of gratitude and reflection about what inspires me to connect with others and build community is something I have incorporated into my life. It helps me focus on what impact I’d like to have. When I think about my own life, from growing up in a small Southern town to being a United States District Judge in the District of Oregon, I know I stand on the shoulders, dreams, hope and sacrifices of many generations before me, my great grandparents, my grandparents, my father, my mother, people known to me and people I have never met. The life I have is because they believed anything is possible and you are building a better life for yourself and those who come after you. Growing up, I was taught that America is a place where we can contribute our talents, pursue opportunities, and fulfill our dreams for ourselves and for others. As former President Barack Obama said, America is a place where we can retain pride in our lived experiences and cultural heritages, but where we recognize that we have a common creed: a loyalty to the Constitution, a loyalty to our democracy. A place where we can criticize our government but understand that we love it; where we agree to live together even when we don’t agree with each other; where we work through the democratic process to resolve disputes, rather than through violence or intolerance, where we live side by side as neighbors.1 Because of my work as chair of the American Bar Association’s Cornerstones of Democracy Commission, I’ve thought and think regularly about democracy, civics, civility and collaboration. Living for as long as I have, I recognize that the truth is being an American citizen is hard and challenging. Being part of a democratic government is hard and challenging. It’s supposed to be. All of us are called to live up to our expectations for ourselves — not just when it’s convenient, but when it’s inconvenient, when it’s tough and we’re afraid. Because it’s about the meaning of America: what kind of country do we want to be? The principles America was founded upon apply to all of us, not just a select few. It’s about the capacity of each generation to honor the creed as old as our founding: “E Pluribus Unum”, out of many, we are one.2 President John F. Kennedy said, “No form of government requires more of its citizens than does the American democracy.” Our system of self-government depends on ordinary citizens doing the hard, frustrating but always essential work of citizenship — of being informed. That work gives purpose to every generation. It belongs to me. It belongs to you. It belongs to all of us, as citizens. To follow our laws, yes, but also to engage with your communities and to speak up for what you believe in. And to vote; to not only exercise the rights that are now yours, but to stand up for the rights of others to shape our country’s course. The words on the founding documents alone are not just what makes America great, it is also the progress they’ve inspired. Our history provides us with a better story, a better blueprint for how we can win. It teaches us that when we pull ourselves out of those lowest emotional depths and we channel our frustrations into studying, organizing and banding together, we can build ourselves and our communities up. We can take on those deep-rooted problems and together we can overcome anything standing in our way. Often, people think they need to be larger than life to make a difference. That’s not true. By being you wherever you are, in whatever capacity you choose, things will be transformed over time because working strategically and consistently creates changes in the future that cannot always be foreseen in the present. Let us be reminded that individuals and collective action can make a difference. Why? Dr. Martin Luther King Jr. once put it this way: “We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.” Our collective consciousness and shared humanity are inextricably connected to civility and integrity because people with opposing viewpoints should be able to disagree without it spiraling into the negative discourse. Powerful discourse is HON. ADRIENNE NELSON is a district judge of the United States District Court for the District of Oregon, located at 1000 SW Third Ave., Portland, OR 97204. She can be reached at Nelson_CRD@ord. uscourts.gov or 503-326-8355. View from the Bench Making a Difference by Judge Adrienne Nelson See View from the Bench p. 12 11 Trial Lawyer | Summer 2024
an important thread in the fabric of our democracy; however, equally important, is having open hearts and minds to the many perspectives. We must make room in our interactions to act with humanity. I believe each of us, especially as lawyers, have a central role to play because history lives in the present. Civics education provides individuals with an understanding of how the American government works while fostering the skills necessary to discuss issues civilly and collaboratively and supplying a desire to actively participate in American society. As members of the legal profession, we have both the ability and the obligation to collaborate on facilitating civics education and creating opportunities for that education. Lawyers and judges are both uniquely positioned to promote civics education, highlight how to do so in a civil and collaborative manner, and, in some instances, demonstrate civics in action. Civics education is a bipartisan issue — both Democratic and Republican government actors have recognized the value of a public that understands its government and its role within that government.3 In fostering civics education, we must also seek to foster community by maintaining respect and civility as we work together to fill knowledge gaps. Civics, civility, and collaboration encourages and builds confidence in the justice system, the Constitution and the rule of law. The need for civility in these discussions is why the legal community is an essential component to promoting engagement in civics education. The essence of a lawyer’s role is to “agree to disagree.”4 When motions are filed and oral arguments are heard, or when an attorney objects to the admission of evidence, each attorney believes their position is correct. However, the arguments are maintained with civility because each attorney is trained to focus on the merits of their position and the arguments being made rather than the individual who is making the opposing argument.5 When the judge makes their ruling, the losing attorney takes the loss with respect and, although they may disagree with the decision, the attorney continues with the trial in a civil manner. An attorney’s job is innately adversarial, but an adversarial role does not require “Lawyers and judges are both uniquely positioned to promote civics education, highlight how to do so in a civil and collaborative manner, and, in some instances, demonstrate civics in action.” “In fostering civics education, we must also seek to foster community by maintaining respect and civility as we work together to fill knowledge gaps.” View from the Bench continued from p. 11 12 Trial Lawyer | Summer 2024
incivility or disrespect. The ability to approach difficult topics, where opinions and beliefs may differ, in a civil and respectful manner is what attorneys need to model when they engage in civics education. In a sense, an attorney’s behavior can be an example of the very civic values that civics education seeks to implement: the ability to civilly dialogue and engage with individuals who hold different perspectives than our own. While modeling civility, attorneys also have an opportunity to impact the civic knowledge aspect of civics education. Attorneys are well-positioned to engage in discussions and educate individuals about the functions of government precisely because their jobs touch upon each government branch. The legal education of attorneys allows them to engage in fundamental discussions about civics in a way that enhances the understanding of individuals who do not have that benefit. Further, attorneys can aid the flow and direction of discussions during educational opportunities by identifying legitimate points and disrupting misinformation correctly because they understand the topics at a deeper level. In essence, attorneys engaging in civics education can help to provide Americans with an accurate, foundational understanding of civics that encourages them to engage more meaningfully in society, while also emphasizing the importance of engagement because attorneys understand how impactful civic engagement can be. Judges also have a role. Civics education provides judges with an opportunity to shrink the gap between the judiciary branch and the public, but it does so in a way that does not ask or require judges to abdicate their necessary neutrality. Engaging in civics education allows judges to model collaborative civility, while also providing the public with a more accurate representation of the judiciary branch, how it functions and its goals in contrast to the way they are sometimes portrayed to the public. See View from the Bench p. 14 13 Trial Lawyer | Summer 2024
Through my service, I try to make this world better than the one I was born into and honor those who came before me whose shoulders I stand upon. I hope my efforts create connection, understanding and a community where our lived experiences are valued, and we can all be our authentic selves. I know there is much work to do. Again, as Dr. Martin Luther King Jr. said, “[I]t’s only when it’s dark enough that you can see the stars.” I truly believe it is possible for the stars to be reachable for everyone by living in abundance, rather than in fear or scarcity. So, I have an ask of each of you to be aware of the discontent in our country today but to not be overwhelmed or silenced by it. Look beyond your assumptions and see the person before you. It is uncomfortable to talk about why we are so disconnected to each other, but we must do it. Part of what keeps us separate is we don’t connect in an open-hearted way that allows us to understand each other’s lived experiences. Although we are what we are exposed to and we don’t trust what we don’t understand, we now should step beyond our exposure to create the change in our daily lives, communities and country that we envision. With tools of civics, civility and collaboration, I encourage you to do something to create a better America than the America our forefathers envisioned, because it is the obligation of every citizen to do their part to sustain a democracy. As Margaret Mead said, “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it is the only thing that ever has.” Do something to build community and a better country because individual and collective action can make a difference with commitment and sustained effort. Just doing the right thing can set the pace for others to follow in all kinds of settings. Our voices and efforts are more important than ever. It is our moral imperative to make this country better than we found it just as generations have done before us — not just for ourselves or our families but for our neighbors and future generations to come. 1. White House Office of the Press Secretary, Remarks by the President at Naturalization Ceremony, Nat’l Archives (2015). 2. See id. 3. See, e.g., USA Civics Act of 2022, S. 4403, 117th Cong. (2022) (proposed by Senator Cornyn, a Republican, seeking same goals as USA Civics Act of 2021); USA Civics Act of 2021, H.R. 3242, 117th Cong. (2021) (proposed by Representative Blumenaeur, a Democrat, seeking to reauthorize American history and civics grant program to “promote knowledge of American political thought and history, free institutions, democracy, and participation in political and civic life”). 4. Deborah Enix-Ross, Agree to Disagree: Civics, Civility and Collaboration Can Guide Us to a Better Society, Am. Bar Ass’n J., Oct.–Nov. 2022, at 6. 5. See id. (“Lawyers appreciate that although our differences may be stark, we know how to work together to resolve them.”). View from the Bench continued from p. 13 14 Trial Lawyer | Summer 2024
In Our Voices by Samuel Hernandez “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. Wake up at 5 a.m. to get practice questions out of the way before driving to school for bar exam prep class. Go to the gym after class and go over legal concepts between sets. Group and individual study until 10 p.m. Sleep. Repeat every day for three weeks. A couple of friends and I had this same routine when studying to take the bar exam in 2010. Our aim was to take the exam only once. Seeing my name on the list of passing students signaled the culmination of what, up to that point, had been a tumultuous and uncertain road. I was now an attorney. I grew up in a small town in Michoacan, Mexico. As a child, I enjoyed doing cartwheels in the dirt, playing with an old bicycle rim with a wooden stick and running through corn fields barefoot. My parents always told us we were poor because we lived in a single-room house made of mud bricks. My mom would tell me stories of how, at the age of six or seven, I would go to our neighbor’s house asking for chores to earn pocket change. We used the money to buy cookies we would later eat with some lemon tea. Sometimes, she would say, that’s all we would have to eat. Our lives were simple, but I never saw ourselves as poor. That’s just where we were at the time. My father was a very driven and hardworking man. Unfortunately, opportunities in our small town were lacking, so he migrated to the United States to provide for his family. After several years, my father made the decision to relocate to Oregon when I was nine years old. I remember traveling in a big white van through long stretches of farmland and high desert, city after city. It was all a grand adventure to me where I got to eat my first hamburger. I learned I didn’t like pickles, but I loved french fries with ketchup. The summer we arrived in Oregon, my father would take me and my older brother to pick strawberries, blueberries, cucumbers and blackberries in order to help pay rent and household expenses. We worked in the fields for two or three years during the summers. I didn’t mind working in the fields because it meant earning money for the family. Besides, I loved the egg and potato burritos my mother made for us every day, and getting to drink an ice-cold soda in the middle of the day was like winning the lottery. After our first year in Oregon, we were evicted from our apartment and homeless. I remember sleeping in the back of the big white van during early winter and later living in a halfway house with other families down on their luck. My mom tells how she would hold back tears while taking us to a nearby park, wondering why things were so difficult. I don’t remember it that way. I remember playing with other kids at the halfway house and walking with my family for hours, exploring the City of Hillsboro from end to end. I never heard my parents complain, especially my father. Rather, I saw my father get up every day to go to work, which I later learned was up a mountain pruning Christmas trees. They were doing everything they could, that’s what I remember. My parents always told us education was the most important thing and would often ask us what we wanted to do. At the time, I didn’t have an answer because I was ignorant of what people could do with their lives. When I was around 12 years old, I found a job, along with my older brother, doing yard work at an attorney’s house in Forest Grove, OR. I remember his home being big and his car new, a white Camero with a drop top. Later, my mother got a job cleaning the offices of a group of attorneys in Hillsboro. Naturally, the kids would go help her at night to get the job done faster. I remember dusting the offices and looking at the law school certificates and professionalism awards on the wall and thinking I could do that. That is why I am a strong proponent of children being shown industries and professions SAM HERNANDEZ specializes in employment litigation, representing employees with claims of harass- ment, discrimination, retaliation, wrongful termination, disability discrimination, unpaid wages and whistleblower. He owns AmicusPoint Law, located at 9600 SW Oak St., Ste. 325, Tigard, OR 97223. He can be reached at samuel.hernandez@amicuspoint.com and 503-974-3037. See In Our Voices p. 16 15 Trial Lawyer | Summer 2024
outside of their common environment, helping them understand they can be something different from what they are used to seeing in their everyday lives. I joined the Oregon Army National Guard in 1999 as an enlisted soldier for two reasons. The first was to give back to the country and my community. The second was to help pay for college. Joining the National Guard allowed me to perform my military duties and finish college at the same time. It wasn’t until my third year in the military that a senior military officer asked me if I had ever thought about becoming an officer. I realized then I could make a bigger impact on my career as a military officer, and so I applied to Officer’s Candidate School, becoming an infantry second lieutenant by the time I graduated from Portland State University in 2005. The Afghanistan War was well underway at this point, and I received orders to deploy on my first combat tour in January 2006, leaving my wife and one month old daughter behind. During the deployment, we ran missions with Afghan, multinational and Special Forces in the Farah province of south-eastern Afghanistan. Being in fire fights, having artillery rounds launched at us at night, and driving through improvised explosive device (IED) laced roads was a common occurrence. You get used to the chaotic nature of a combat environment, and watching people shooting at you loses its initial effect. Our small outpost feared taking a shower more than getting into a firefight because the shower had an electrical wire near it that would sometimes get activated, shocking you back to your senses. During my deployment, I thought about what my next step would be: become a neuropsychologist, get an MBA or perhaps be an attorney. As fate would have it, I found an old LSAT prep book during a trip to the main military base in Kabul. After reading half of the book, I coordinated to take the LSAT during my mid-tour leave. I applied to Lewis & Clark Law School while still deployed and was accepted to start in the fall of 2007. At this point, I was the only one in my family to have graduated from college or be accepted into a professional level program. All of this taught me that you must grapple with adversity with an eye towards the future and not let the circumstances you were born into define or hold you back. After law school, I worked for Oregon Supreme Court Chief Justice Paul De Muniz, a giant in the Oregon legal profession. Justice De Muniz was my example of how attorneys and judges should approach the legal profession — with humility, tenacity, professionalism and understanding towards the public they represent. To this day, I value all the conversations and wisdom Justice De Muniz shared with me on an almost daily basis. Prior to starting my firm, AmicusPoint Law, I was fortunate to work for two notable law firms, Barran Liebman and K&L Gates. It was here that I found a sense of purpose and belonging, working with remarkable attorneys on interesting and complex legal problems. The attorneys at both firms were more than colleagues, they were mentors, friends, and examples of what right looks like. Now, as a practicing attorney and a retired infantry major with three military deployments under my belt, one of my goals has been to promote the understanding that the legal profession is not a goal attainable only by those whose life appears privileged. Adversity and few resources should be no reason for giving up before getting started. Rather, a person’s future is crafted by the thoughts, decisions and actions they take. This is a lesson I try to impart to both my daughters now and to every law student or prospective law student I meet. In Our Voices continued from p. 15 16 Trial Lawyer | Summer 2024
Tools Lawyers Use to Shorten Family Law Trials by Blaine Clooten There are a variety of tools family law practitioners may use to narrow issues at trial. The procedures used will vary based on client need. Therefore, I’ll use a common fact pattern to describe the process. I sit down to consult with Freddy Smith, a father of four who is married to Cindy Smith. He is ready for a fight, wants a divorce and doesn’t want to pay child support. “Cindy is going to blow any money I give her. She’s terrible with money.” Smith moved out of the family home seven days ago, and he sees his kids for a couple of hours every day after work. After listening for about ten minutes, there is a break in Smith’s story. I pull out a sheet of blank paper and draw a line down the middle. On one side I write “children” and on the other side I write “property.” Then I explain, “We’re going to talk about both. Where do you want to start?” My method isn’t secret sauce. I suspect most attorneys consult in a similar way. This case will present a variety of complex property issues including a qualified domestic relations order for division of Smith’s retirement account, selling the family home, splitting proceeds of sale after paying off outstanding creditors and dealing with auto leases in both parties’ names among other things. But guess where Smith starts? About the only thing on his mind is child support. In Eastern Oregon, where I practiced until recently, a larger percentage of our cases went to trial than in the tri-county area, where we see more mediation. Regardless of the finish line, I still start in the same way. From the moment I first meet with a client, I’m preparing for trial. Once I understand the facts, I can start to prepare strategies to narrow the issues at trial. Here’s a crash course in child support: there’s only a couple of ways to avoid paying — either be dead, or in prison. Otherwise, expect to rely on the child support calculator to arrive at a figure, found at https://justice.oregon.gov/guidelines/. The key components to this final figure are income and the number of overnights each parent receives with the children. Unless Smith wants to take the kids 50% of the time or more, he’s going to be forking over some child support money.1 In short, to meet Smith’s goal to pay as little child support as possible, I need to increase Smith’s parenting time or reduce his income. Let’s assume the parents are not going to stipulate to a parenting time plan, which of course would be the easiest route. For this fact pattern, let’s also assume no abuse between the parents and/or children. From a child support obligation reduction perspective, let’s start with parenting time and increasing Smith’s overnights with the children. Keep in mind, the judge is going to base their decision on the best interests of the child, and if Smith has not shown he can handle having equal time with the children, the court is unlikely to order it. See ORS 107.102. There is a misconception about how often the court awards equal parenting time and it is best to set expectations about a realistic parenting time plan early to encourage resolution. During the consultation, I don’t precisely know Smith’s means or cash reserves, but I may recommend a custody evaluation. While custody evaluations are a double-edged sword (think the evaluation doesn’t go in your client’s favor) they almost always narrow the trial issues. If the parties don’t stipulate to the evaluator’s findings, the judge is likely going to give great weight to the evaluator’s testimony, potentially eliminating large swathes of testimony from collateral witnesses regarding custody and parenting time. If a custody evaluation is not in the cards for Smith, I’ll start to consider temporary motions. Assuming Smith doesn’t feel like he’s seeing the kids enough right now, I’ll likely file a BLAINE CLOOTEN is a trial attorney specializing in personal injury, business litigation, family law and estate planning. Clooten is an attorney at Brownstein Rask LLP and receives mail at 1 SW Columbia Street STE 900 Portland, OR 97204. Clooten can be reached at 503-412-6720 or bclooten@brownsteinrask.com. 18 Trial Lawyer | Summer 2024
motion for order to show cause regarding temporary issues. Temporary issues may include parenting time, child support, spousal support, exclusive use of the home or vehicle(s), payment of expenses, suit money or other necessary issues. As the name suggests, a temporary order is temporary, not final. But the standard the Court follows to make a ruling is often the same as a final ruling after trial. Therefore, a temporary order is a barometer of what the Court will likely do during or after trial. Sometimes a temporary hearing can help adjust unrealistic expectations of either party going forward in negotiations. Temporary orders do more than simply resolve issues for the immediate future. The Court has now heard evidence in the case and made rulings. This gives the parties a better sense of what to expect at the trial and positions them for settlement. Armed with a temporary order and/or judgment, Smith may well be ready to negotiate a final resolution in his case. Alas, Smith is not ready to settle, he feels Cindy is still being unreasonable. So, what’s next? I’ll talk to Smith about settling limited issues. For instance, if the parties can agree on certain property distribution(s), we can put those stipulations on the record or enter a limited judgment. This can be useful to keep trial issues narrowed down to custody and parenting time, which is helpful in courts facing limited docket availability. Narrowing trial issues will also limit the time you will need in court, meaning your case can often be heard sooner. Aside from direct negotiations with the other side, we may also consider mediation or a settlement conference. Experienced mediators are often effective to bridge the gap between a client’s expectation and the reality they will face in trial. As their lawyer, you’ve probably told the client many times about what to expect at trial, and yet, hearing it from a neutral third party can be what they need to hear to move the case along. I didn’t necessarily intend this to be a primer on child support but while we’re on the topic, unmarried parents can always apply for child support through the Department of Justice (DOJ). If a party is awarded spousal support and is also receiving child support, the DOJ will assist in collecting both awards. Parents can file to modify the ”Oregon needs more family law attorneys. You are the perfect candidate. You know how to put together a case. You love advocating. … [T]here are a ton of deserving clients that need your help.” See Tools Lawyers Use p. 20 19 Trial Lawyer | Summer 2024
child support award through the DOJ every three years upon a showing of change in circumstances. If child support is awarded through a circuit court case, the parties can either make payments directly or apply to have payments collected through the DOJ. If one party disagrees with direct payments, they can apply for payments to be made through the DOJ. If unmarried parents agree on parenting time and don’t want court intervention on custody, they may opt to simply obtain a DOJ child support award which will garnish the paying parent directly. Going back to trial narrowing strategies, in Oregon, we have this notion of trial by ambush. The reality is, you’ve likely already exchanged a large percentage of the documents you intend to offer at trial. If you’re interested in shortening trial, consider stipulating before the trial starts to certain exhibits, like text messages, school records and medical records. You can avoid having a custodian of records appear or arguments about the weight of the evidence and save significant time by communicating with counsel before trial starts. While you’re communicating with counsel, you might consider stipulations to remote testimony. Filing stipulated orders in advance of trial saves hearings and arguments that the court would otherwise have to hear and decide. Judges tend to appreciate a well-written trial memorandum in advance of a trial. Aside from the obvious benefits, this will allow you to waive opening. Attorneys disagree about the appropriate length of a trial memorandum. You may also consider additional motions to narrow issues, such as a motion for a separate trial or to bifurcate issues. Finally, consider trimming the fat. This is a bench trial, there is no jury. If you have ten witnesses willing to testify to the fact one parent never made it to the child’s soccer game, perhaps one witness will suffice. This is where knowing your judge will really pay off. Family law can be intimidating because it touches on so many areas of the law, from railroad retirement to bankruptcy and everything in between. However, the fact patterns start looking familiar very quickly and issue-spotting isn’t necessarily difficult. You can build a community of experts to help you with the specialized areas. A good portion of family law comes down to soft skills and empathizing with clients. I didn’t spend much time talking about client control and there’s a good reason for that. Most injury attorneys are already excellent at setting expectations. Often, that’s what domestic relations is about. I remember a practitioner saying to potential clients something to the effect, “At the end of this divorce, you will not be happy. But my goal is to leave you the least dissatisfied possible.” In closing, Oregon needs more family law attorneys. You are the perfect candidate. You know how to put together a case. You love advocating. Yes, it’s stressful, but there are a ton of deserving clients that need your help and plenty of attorneys willing to show you the ropes. You might consider starting with just a property division divorce or just custody. Ideally, the parties would be largely in agreement. Oh, and as for Smith. He got his day in court. He eventually conceded to paying child support, not that he had a choice. But whatever makes him feel like a hero to his kids is fine by me. 1. Research examining the associations among child support, parental conflict, and contact generally supports the belief of complementarity between child support and contact. Parenting time has been shown to be positively associated with payment of child support. Smith doesn’t want to hear this but paying support benefits both him and his kids. Hofferth SL, Forry ND, Peters HE. Child Support, Father-Child Contact, and Preteens’ Involvement with Nonresidential Fathers: Racial/Ethnic Differences. J Fam Econ Issues. 2010 Mar 1;31(1):14-32. doi: 10.1007/s10834-009-9172-9. PMID: 20357896; PMCID: PMC2847273. Tools Lawyers Use continued from p. 19 20 Trial Lawyer | Summer 2024
Breaking the Silence: Divorcing Women Take a Stand Against Domestic Violence in Civil Court by Lake Perriguey, OTLA Guardian Vashti Millefuegos, a very educated and professional woman, loved clothing. She had been the same size since high school and amassed a collection of contemporary and vintage clothing. Her collection favored French and Italian designers. She even had a vintage 1965 Emilio Pucci stewardess uniform designed for Braniff International Airlines. Vashti Millefuegos was married to Howard Millefuegos. They lived, unhappily, in a leafy Portland suburb with their two children and a Labradoodle. Howard Millefuegos lost his job. Actually, he was fired, in large part because of his volatile temper in the workplace. He did not leave it at work. Millefuegos was often, though unpredictably, emotionally volatile and cruel in his actions toward his wife. He never physically hit her, so she held out hope that one day he would go to couples counseling as he promised. Maybe now that wasn’t working, he would no longer use the excuse he was too busy and actually call the counselor and set an appointment. The couple enjoyed the first week of the kids’ winter break and Vashti Millefuegos was looking forward to working on their relationship. They were going out on their first date in months, a New Year’s Eve party at the home one of her co-workers. At the party, Howard Millefuegos became upset with her when she had a second glass of champagne, envious of her ability to let loose while he was anxious about being unemployed. He left before midnight. When he got home, he texted Vashti Millefuegos and told her the kids were in bed, the sitter had gone home, and he was removing all of her clothes and putting them out onto the driveway. She called her husband, pleading with him not to do it as it would alarm the children. He hung up on her. Millefuegos called an Uber and headed across the bridge. When the car rounded the corner of her street, she saw the bright light emanating from her house before she saw the flames. He torched her wardrobe. Vashti Millefuegos contacted me, and we immediately filed a dissolution case seeking custody and asking the court to establish a parenting plan. Howard Millefuegos hired a lawyer, choosing a law firm with sexist advertising that fills the radio waves with proclamations that they are lawyers “for men.” The only significant marital asset was the equity in the house. Her clothing collection had some value, but that was gone. She had a claim for marital waste within the divorce due to her husband’s intentional destruction of marital property. For most of Oregon’s history, state law required a party provide evidence to establish the grounds for a divorce. The pre-requisites to obtain a divorce included cruel and inhumane treatment, adultery, felony conviction and impotence. In 1972, the Dissolution of Marriage Act abolished fault related to the grounds for a divorce in favor of “irreconcilable differences that have caused the irremediable breakdown of the marriage.” There is still no right to a divorce if both parties simply want to be unmarried without a factual allegation about how it cannot be remedied. Along with abolition of fault as grounds for divorce, the new statute limited the evidence a party could bring into court about the wrongful conduct of the other party. The limitation on evidence of a spouse’s wrongdoing, including abuse, survives today in ORS 107.036 (2): “The court shall not receive evidence of specific acts of misconduct, excepting where child custody is an issue and such evidence is relevant to that issue, or excepting at a hearing when the court finds such evidence necessary to prove irreconcilable differences.” In other words, Howard Millefuegos’ psychological abuse against his wife and the trauma she endured was barred by law from introduction in the divorce court for any purpose other than custody and parenting time. LAKE PERRIGUEY handles domestic relations, civil rights, and intellectual property cases in state and federal courts. He contributes to OTLA Guardians at the Sustaining Member level. Perriguey owns Law Works LLC in Goose Hollow at 1906 SW Madison St., Ste. 201, Portland, OR 97209. He can be reached at lake@law-works.com and 503-227-1928. See Breaking the Silence p. 22 21 Trial Lawyer | Summer 2024
Early common law barred either spouse from claims for personal injury against the other. However, in 1988, Oregon abolished the rule opening the door for spouses to make claims for torts committed inside a marriage. The Second Lawsuit Vashti Millefuegos wanted to hold Howard Millefuegos accountable and to publicly warn future partners he was volatile and violent. She also wanted to keep her house and doing so would be difficult if he forced the sale or insisted on half of the equity in the dissolution case. Howard Millefuegos set his wife’s prized wardrobe on fire in their driveway as punishment for enjoying the evening. Breaking the Silence continued from p. 21 22 Trial Lawyer | Summer 2024
So, Millefuegos filed a lawsuit against him, alleging a claim for Intentional Infliction of Emotional Distress and specifically described his actions on the early morning of New Year’s Day. Most family law lawyers practice only family law. And this was certainly true of Howard Millefuegos’ lawyer at the “law for men” firm. By filing the second lawsuit, alleging a tort, he now had to find a second lawyer who understood how to defend civil cases (and who wanted to defend this kind of conduct). This one-two approach put Vashti Millefuegos in a strong position to negotiate a favorable resolution to the divorce case. Howard Millefuegos had no incentive to take an intentional infliction of emotional distress case to trial, with facts like the ones he created. The case resolved in her favor. Getting Away, Leaving Money Behind Too often, women leaving or fleeing abusive relationships are so relieved to be rid of the abuse that may leave significant claims unaddressed and substantial money on the table, putting them at a financial disadvantage and rewarding the abuser. As attorneys, we may want to ask our clients whether there are facts of abuse within the statute of limitations that could be asserted in the civil court contemporaneously with the dissolution negotiations. For younger clients, the statute of limitations for sex abuse has been extended until the victim is 40 years old. See ORS 12.117. The American Dream Meredith Issah is a 43-year-old woman who won the US Immigration lottery and came to America alone from Ghana almost 15 years ago. She is a mental health care professional who commutes daily to the Oregon State Hospital. After her husband, Winbil Aduku, who was also from Ghana, punched her in the face, loosening her tooth and splitting her lip, he knocked her to the floor and pulled a handful of her hair from her head by the roots. He put his foot on her. Issah called the police, who took her husband away in handcuffs. Though he was criminally charged, Issah worried that Aduku, the father of her nine-year-old daughter who was in the next room during the abuse, would not fare well in Portland’s criminal justice system as a black man, making things even harder for their daughter. Aduku moved out, but he would come back to the house unannounced, sometimes covering the cameras while taking things from the house. Issah sought and was granted a restraining order. Aduku contested the restraining order, and, after a trial, the judge found he abused Issah and ordered he stay away from her for a year. Thereafter, we filed a custody case. The parties were already divorced in Ghana, so we could not address the house in the domestic relations court. We would have to file a partition action. Issah paid for most of the down payment and had been making most of the mortgage payments. Aduku was being unreasonable about the house, refusing to tell her how much of the equity he wanted. To obtain leverage and to assert Issah’s rights in the house, and the right to her bodily autonomy, we filed a battery lawsuit in civil court contemporaneously with the custody case. Aduku filed a counterclaim, alleging Issah battered him and sought $550,000 in damages. Over the next year and a half, Aduku had four different lawyers, each of whom was unable to participate in meaningful resolution discussions. In April 2024, after a two-day trial, a jury returned a verdict in Issah’s favor, awarding her tens of thousands of dollars and declaring her former husband battered her and, as a result, she suffered non-economic damages. Issah’s pain and trauma were validated. The house remains in both their names, but now Issah has a credit against any interest he may claim. Wholistic Approach Having taken a wholistic legal approach to these cases, both women gained significant advantages in their divorce cases and their recovery from abuse. All it took was simply following through on other legal claims their now ex-spouses created through See Breaking the Silence p. 24 23 Trial Lawyer | Summer 2024
www.oregontriallawyers.orgRkJQdWJsaXNoZXIy Nzc3ODM=