Northwest Business Litigation

Ater Wynne scores trial victory for NAACP

Ater Wynne's Seattle trial lawyers, Steve Kennedy and Rob Roy Smith, today prevailed in a lawsuit filed against the NAACP, following a week-long bench trial in King County Superior Court.  At issue was whether the national office of the NAACP was liable for legal malpractice, breach of contract, and negligence, arising from the alleged acts and omissions of a lawyer who also happened to work as a volunteer officer at the Seattle-King County Branch of the NAACP. 

The plaintiff alleged that the lawyer mishandled his earlier race discrimination lawsuit against a former employer.  Plaintiff also alleged that he thought he was being represented by the NAACP, which had supposedly "assigned" the lawyer to his case.

Relying on the U.S. Supreme Court's 1982 decision in NAACP v. Clairborne Hardware Co., the trial court found that there was no credible evidence that the NAACP authorized or ratified (either expressly or by implication) any of the activities of the local lawyer in connection with the previous discrimination lawsuit.  The court found that neither the NAACP nor the Seattle-King County Branch was acting as the plaintiff's lawyer;  rather, the plaintiff separately retained the lawyer as a private attorney.

Tailoring court filings to the on-line reader

As more courts require electronic filing, the possibility arises that judges will read pleadings and briefs from a screen rather than on paper.  This post on the CEBblog discusses the challenge of making briefs lively and readable in an electronic format, suggesting that the answer may lie in adopting the style and formatting found on web sites.

Oregon Court of Appeals limits comparative fault defense in medical malpractice cases

This month, the Oregon Court of Appeals addressed the comparative fault defense in the context of medical malpractice cases in Son v. Ashland Community Healthcare Services.  Sara Burns died while under the medical care of Ashland Community Healthcare Services ("ACHS") after she attempted suicide by overdosing on various drugs.  Her mother, as personal representiatve of Sara's estate, brought a wrongful death action against ACHS alleging professional negligence in its treatment of Sara.  ACHS raised the comparative fault defense, alleging that Sara failed to inform ACHS of her ingestion of a particular drug that would have changed ACHS' treatment plan and likely prevented her death.  The jury returned a verdict for the plaintiff for $740,000, after which the court reduced the award by a percentage because of Sara's comparative fault.  Plaintiff appealed.

    The Oregon Court of Appeals reversed, addressing for the first time the comparative fault defense in the context of medical malpractice cases.  The general rule for comparative fault comes from Fazzolari v. Portland School Dist. No. 1J and has been stated as "whether facts of the case indicate that the plaintiff took some action or failed to take some action which a reasonable person could have foreseen would increase the risk of harm to the plaintiff, and that the plaintiff did indeed suffer harm of the type which could have been foreseen."  The Oregon Court of Appeals narrowed the rule in medical malpractice cases to the injury caused by the negligent treatment, not the oringal injury that necessitated the need for treatment.  Here, the court found that Sara's negligent conduct occured prior to ACHS' negligent treatment and was therefore not eligible to be considered as comparative fault. 

In sum, the court annouced a new rule that, "as a matter of law, conduct that merely creates the need for medical treament cannot cause the type of harm at issue in medical malpratice cases--the injury resulting from the malpractice."

Multnomah County offers fast track to civil trials

In response to the long-term decline in the number of trials in civil cases, Multnomah County Circuit Court now offers an expedited track for jury trials.  Presiding Judge Jean Kerr Maurer has announced a new initiative for "summary jury trials."  If parties choose to participate, they will conduct limited discovery and will be able to go to trial within four months.  See more details here.

Oregon Court of Appeals tackles defamation claim against a clergy member

Last week, the Oregon Court of Appeals addressed a First Amendment issue that had been untouched by both the United States Supreme Court and the Oregon courts. In Tubra v. The International Church of the Foursquare Gospel, the Oregon Court of Appeals determined that the First Amendment did not divest a lower court of jurisdiction to consider a defamation claim against a church pastor.

Plaintiff was the interim pastor of Vernonia Foursquare Church.  He was appointed by Pastors Cooke and Swor, the district superintendent and supervisor.  After a permanent pastor was hired for Vernonia and plaintiff was released, Cooke and Swor drafted a letter that Swor read aloud to the Vernonia congregation regarding the circumstances surrounding plaintiff's departure. The letter accused plaintiff of misappropriation of church funds and dishonesty during his tenure as interim pastor.  Plaintiff sued Cooke, Swor and the International Church of the Foursquare Gospel for, among other things, defamation based on the letter.

After a trial on the merits, during which the jury found for plaintiff, the defendants moved for a judgment notwithstanding the verdict, arguing that the First Amendment operated to deprive the court of jurisdiction over the defamation claim.  After a hearing, the trial court agreed and overturned the jury's verdict.

The Court of Appeals reversed, concluding that church pastors are not per se exempt from defamation claims.  The court announced that the same test guiding courts in fraud cases against religious institutions should guide courts dealing with defamation claims against church pastors. Jurisdiction hinges on whether the representation at the heart of the fraud or defamation case is "purely religious as a matter of law."  If so, the First Amendment deprives the court of jurisdiction; if not, the court may hear the case. 

Determining whether a representation is purely religious involves three inquires.  First, is the defendant organization of a religious nature?  Second, does the representation itself relate to the religious beliefs and practices of the organization?  If the answers to these first two inquires are "yes," the First Amendment deprives the court of jurisdiction unless the statements were made for a "wholly secular" purpose.  Some ideas, such as "the nature of a supreme being" and "the value of prayer and worship" must always and in every context be purely religious as a matter of law.  Other ideas, however, can be religious only because the one espousing them is doing so for a religious purpose.

Here, the Court of Appeals determined that the alleged defamatory statements --that plaintiff had misappropriated money and demonstrated a willingness to lie -- did not relate to the religious beliefs and practices of the International Church of the Foursquare Gospel, and as such, were not purely religious as a matter of law. 

U.S. Supreme Court blocks Ninth Circuit plan to broadcast trials

The "Proposition 8" gay marriage trial in San Francisco won't be broadcast after all, and neither will any other federal trial within the Ninth Circuit, at least for now. 

The U.S. Supreme Court extended its stay of an order allowing the broadcast on the ground that the Ninth Circuit Judicial Council hadn't followed established procedures in adopting a pilot program to allow cameras in federal courtrooms.  In a 5-4 decision, the majority concluded that the pilot program amounted to a change in the local rules without adequate opportunity for public notice and comment, in contravention of federal law.

See our earlier coverage here and here, and other law blog coverage here and here.

Broadcasting of federal court trials hits a snag

The Ninth Circuit's plan to allow broadcasting of non-jury civil trials was curtailed today when the U.S. Supreme Court temporarily blocked an order to stream video of the California gay marriage trial both live to courthouses across the country, and on a delayed basis on You Tube.  Shortly before the start of trial in San Francisco on the constitutionality of the state's gay marriage ban, the Supreme Court ordered that the broadcast must be limited to rooms within the court house, and barred posting on You Tube.

The Supreme Court's order is in effect until Wednesday and is subject to "further consideration" by the Court.

See further coverage of the order here and here.  See our earlier post on the Ninth Circuit's experimental program to broadcast trials here.

Cameras will be allowed in federal district courts in the Ninth Circuit

Ninth Circuit Chief Judge Alex Kozinski yesterday announced that, for the first time, video recordings will be allowed in the district courts within the circuit.  Criminal cases and jury trials will be excluded from the experimental program.  Chief judges of each district will select cases to be recorded, and will report on their experiences to the Judicial Council of the Ninth Circuit. 

Oregon Supreme Court adopts a new approach to statutory interpretation

The Oregon Supreme Court issued an opinion last week that refines the judiciary's approach to interpreting statutes.  Oregon courts may now consider a statute's legislative history, even where its text and context are unambiguous.

In State v. Gaines, the Court concluded that, in light of the 2001 amendments to ORS 174.020, the appropriate methodology for interpreting a statute continues to place the most significance on a statute's text and context.  However, application of the State v. Gaines methodology will no longer require an ambiguity in the text of a statute as a necessary predicate to consideration of pertinent legislative history.  Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute's text.  The extent of the court's consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.  Finally, if the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.

This opinion moves the courts away from the methodology adopted in 1993 in PGE v. BOLI, which barred consideration of legislative history absent an ambiguity in the statutory text and context.

LA Times on ideological battles in the Ninth Circuit

The Los Angeles Times yesterday published this article about the influence of conservative judges on the Ninth Circuit Court of Appeals, including what observers say is strategic use of dissents from denial of en banc rehearing.  The article notes that a bill pending in Congress could add six more judges to the court, bringing the number of active judges to 35.