their own misconduct. Experienced family law practitioners can use methods like this to help their clients leave a failed or failing marriage in a strong position and to avoid allowing abusers to get away with physical and emotional abuse. Was this extra work? Absolutely. However, vindicating the rights of abuse survivors through the legal system using all the means available, not just the ones that come most readily to mind, is part of our work as advocates for our clients. This must always be governed by the client’s desires and choices, but zealous advocacy calls for the consideration of all claims. There are many torts that may come into play in situations such as this: intentional infliction of emotional distress; battery or assault; property destruction; intentional interference with business relations; intrusion upon seclusion; public disclosure of private facts; false light; invasion of personal privacy; conversion; abuse of process; and more. The Oregon State Bar book on tort law has a primer on each of these and is worth a gander to remind us about claims we last thought about in law school. The law in this area — torts between spouses — still has many unanswered questions. How do consent and privilege apply in this context? Is the standard of care for a spouse different from that of a stranger? How much should cohabitation and knowledge of each other’s abilities and tendencies be considered as part of the totality of the circumstances in determining whether conduct was reasonable? What claims apply to an individual case and which are wisest to bring belong to the solid discretion and judgment of the lawyer and the client’s decisions. But these tort claims are useful tools to have available at the lawyer’s option when the facts support the claims. “[V]indicating the rights of abuse survivors through the legal system using all the means available, not just the ones that come most readily to mind, is part of our work as advocates for our clients.” Breaking the Silence continued from p. 23 24 Trial Lawyer | Summer 2024
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