T R I A L Winter 2022 OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Sex Abuse
1 Trial Lawyer • Winter 2022 Board of Governors Winter 2022 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 Michael Kesten at 503-246-1126, firstname.lastname@example.org. For advertising rates, contact email@example.com or 503-445-2240. Publications Committee Co-Chairs — Barb Long, firstname.lastname@example.org. 503-228-9858; Faith Morse, email@example.com, 541-773-7000 Editor — Michael Kesten, KestenMedia, firstname.lastname@example.org, 503-804-0668 Oregon Trial Lawyers Association, 812 SW Washington Ste. 900, Portland OR 97205, 503-223-5587, email@example.com, www.oregontriallawyers.org Dedicated to protecting people, holding wrongdoers accountable, and promoting a fair and equitable justice system through advocacy and education. Articles Embrace Your Clients with All Their Faults Bill Barton. ..................................................................................................... 6 Trauma Informed Interviewing Megan Johnson............................................................................................ 10 Alleging and Proving Vicarious Liability Claims in Sexual Assault Cases Ashley Vaughn. ............................................................................................. 14 Guilty and Liable: Maximizing a successful prosecution to develop a future claim Barb Long..................................................................................................... 18 Childhood Trauma in sex abuse settlements Tim Nay, Shannon Conley............................................................................ 22 Advocating for Survivors of child sex abuse image offenses Carol Hepburn.............................................................................................. 28 Human Trafficking Joel Shapiro................................................................................................... 31 Nursing Home Sexual Abuse Faith Morse................................................................................................... 36 Crash Course in school sexual abuse claims Peter Janci..................................................................................................... 40 Revenge Porn: Legislative updates Jacqueline Swanson....................................................................................... 43 Workplace Sexual Harassment: It’s complicated Blaine Clooten, Mitra Shahri. ....................................................................... 46 Departments President’s Message: COVID, connection, community Lara Johnson................................................................................................... 2 View from the Bench: Making the best use of motions in limine Judge Eric Dahlin............................................................................................ 4 Annual Partners donors........................................................................................................... 13 OTLA Guardians of Civil Justice donors........................................................................................................... 26 Comp Corner: Medical conditions Julene Quinn. ............................................................................................... 50 Between the Sheets Cody Hoesly, Lisa T. Hunt, Nadia Dahab....................................................... 51 Officers President Lara Johnson President-elect Blair Townsend Secretary-Treasurer Rob Kline Parliamentarian Melissa Bobadilla Immediate Past President Tim Williams District Governors Talia Guerriero — District 1 Nathan Sosa — District 1 Kelly Andersen — District 2 Brian Dretke — District 2 Rob Beatty-Walters — District 3 Neil Jackson — District 3 Derek Johnson — District 4 Robert Johnson — District 4 Ryan Jennings — District 5 Brent Barton — District 5 Governors-at-Large Steve Berman Erin Christison Ronn Elzinga Sonya Fischer Erious Johnson Quinn Kuranz Paul Loving Jeremiah Ross Thanh Tran Greg Zeuthen New Lawyer Governors Ron Cheng Emily Johnson AAJ Governors Kathryn Clarke Tom D’Amore Nadia Dahab AAJ State Delegates Shenoa Payne Michael Wise Apolinar Montero-Sánchez OTLA Staff Email, (firstname)@oregontriallawyers.org Main phone, 503-223-5587 Kathleen Bergin, 503-223-5587 x108 Membership Director Beth Bernard, 503-223-2558 Executive Director Nora Fogarty, 503-223-5587 x104 Development Dir. & Publications Mgr. Caroline Greenlaw, 503-223-5587 x100 Education Director Arthur Towers, 503-345-0045 Political Director/Lobbyist
2 Trial Lawyer • Winter 2022 By Lara Johnson OTLA Guardian For a brief period this July, we got a reminder of what it was like before the pandemic — traveling out of state, working out at a gym, going to family celebrations and attending social gatherings. Not exactly like before, of course, COVID, connection, community because of social distancing, masks and hand washing stations, but it was a level of togetherness many of us had gone a long time without. The OTLA convention last August was a hybrid Zoom/in-person event. At receptions, we saw colleagues we had not seen for a long time. It felt strangely like no time had passed at all and we were stepping into that moment just after we had last seen or spoken to that colleague, that friend. For me, it was a reminder of how OTLA has been woven into my life — at summer conventions, our children surprising us by taking the stage to perform at the closing reception; coffee, beer, or hike with OTLA colleagues; and the quick conversations between CLEs. It was often during those quick moments that I learned about an expert, a trial technique or a legal case that "paid" for the cost of the convention. I also learned who I should call when I got stuck thinking about a case, who to refer a case out to when it was outside my field, and generally what amazing work our member do for our fellow Oregonians. Our own community Recently, some OTLAmembers came to Eugene to meet with University of Oregon law students, to do outreach to affinity student groups and to enjoy a Ducks football game. It was a blend of the familiar and the fun set within the safety protocols required by the virus. To gather again with OTLAmembers was a reminder what OTLA gives us. Portland attorney Ron Cheng compared OTLA to family, saying that many of his closest, dearest friends are OTLA members. His parents live out of state and OTLA has provided him a community here in Oregon. His referral network President’s Message Lara Johnson
3 Trial Lawyer • Winter 2022 comes from other OTLA members who he has grown to know through OTLA events. Roseburg attorney Robert Johnson shared, “For me, OTLA has been both a springboard and a safety net. OTLA has introduced me to a community of thoughtful and caring colleagues who have helped me navigate the early part of my career. I cannot understate the impact that OTLA has had on me personally and professionally, and I have a hard time imagining what things would be like if I didn’t have OTLA to count on.” Nathan Sosa, who joined us with his wife and fellow lawyer Aimee FenderSosa, said the weekend made him long for the good ‘ole days when we all got together. Sosa, like Cheng, grew up outside Oregon, and in OTLA he has found home. He told me, “When you are a member of OTLA, you never feel alone.” Feeling understood and connected to others is one of the most powerful experiences in life. It is through that connection we can build trust and inspire change. It is also important to personal happiness and health. The longest-running study on human happiness, the Harvard Study of Adult Development, began in 1938. It started with following 724 Harvard students, expanded to include the students’ children and then expanded again to include more diverse participants. Dr. George Vaillant, who was the study’s lead researcher from 1972 to 2004, said when the study began, nobody cared about the role of empathy or attachment in happiness or longevity. As the study evolved, what became apparent is the role human connection and healthy relationships have in promoting longevity and health. Volunteering for or being involved in activities that strengthen communities are ways of building that connection. This year, we continue to face a challenge together as members of a global community, as Americans, as parents, as employers and employees, and as OTLA members. Some OTLA members chose early retirements due to COVID. Other members worried about how their practices would be affected by the pandemic and have reduced or stopped their contributions to the Guardians program. The temptation with COVID is to step away, perhaps to isolate more. Stepping up OTLA has not stepped back but stepped up to provide community. OTLA hosted CLE programs with nationally recognized speakers and our local luminaries. OTLA continued to work tirelessly on behalf of our clients and Oregonians generally, lobbying to put an end to the arbitrary limit on jury verdicts in personal injury cases, to expand employee rights and safeguards, and to defeat a number of bad bills seeking immunity for wrongful conduct and restricting access to public records. As this year’s president, I ask each of you to consider what being a member of OTLA means to you, what it has done for your practices, your clients and you personally, and what you hope OTLA can achieve in the future. Whatever COVID brings next, we will want OTLA to be a strong as possible. If you are able to give to the Guardians program, please reach out to your respective board members or executive committee member. Guardians dollars make OTLA what it is today, not only as a place for connection and community for its members, but also as an effective advocate for access to justice for all Oregonians. Lara Johnson is a shareholder in the Corson & Johnson Law Firm. She specializes in mo t o r veh i c l e c o l l i s i on s , nur s ing home abuse and neglect, and medical negligence. She contributes to the OTLA Guardians of Civil Justice at the Guardians Club Level. Her office is located at 940 Willamette St., Ste. 500, Eugene OR 97401. She can be reached at 541-4842525 or firstname.lastname@example.org. Friends and OTLA colleagues gather prior to an Oregon football game. From left to right, Nathan Sosa, Ron Cheng, Robert Johnson, Lara Johnson, Don Corson, Aimee Fender-Sosa and Apolinar Montero-Sánchez.
4 Trial Lawyer • Winter 2022 By Judge Eric L. Dahlin Multnomah County Circuit Court Motions in limine are a valuable tool in the trial lawyer’s toolbox, if used appropriately. That statement is so elementary it seemingly doesn’t bear mentioning, yet even though the sentiment may be well understood, in practice it is not always followed. From a judge’s perspective, it feels that some motions in limine are an afterthought, as if the attorney went through a pre-trial check list that said to file motions in limine so they threw something together because they thought it would seem odd if they didn’t file something. Other times there may be very serious evidentiary issues that require significant explanation and thought, yet those issues are given short shrift, possibly because the attorney either did not think through the evidentiary issues earlier and/or simply did not start drafting the motions until the last minute. View From The Bench Hon. Eric L. Dahlin Making the best use of motions in limine If an evidentiary issue is not raised before trial but instead is raised in the middle of trial as the evidence is sought to be introduced, and if the issue is complicated and nuanced, there is a better than even chance the attorney raising the legal issue — either seeking to admit evidence or to exclude evidence — may not carry their burden and will not prevail, if for no other reason that it is not practical to take a lengthy break in the middle of a jury trial to argue and research a complicated issue. But if the issue is teed up ahead of time, not only will the moving party have a better opportunity to fully develop and articulate the argument, the judge will have an opportunity to think about it and digest the issue. It's more likely that the attorney will carry their burden on the motion if they raise it in a thoughtful manner rather than springing it on the other side — and the judge — for the first time in the middle of trial. Following are some additional tips to help make motions in limine more effective. Day one diligence Think about evidentiary issues starting on day one. It is helpful to start preparing a list of possible evidentiary issues the first day you get the case and keep updating that list throughout the life of the case. If you keep a running list you won’t forget to possibly raise an issue, and you can free up mental space by not having to remember these items. You will likely be able to scratch many of the items off your list, either after conferring with the other side or realizing there is not a disputed issue after all. It is much easier to subtract things from the list than it is to remember while in the throes of trial preparation every issue you once thought about. Confer meaningfully The parties should meaningfully confer on motions — i.e. actually have an intelligent, thoughtful discussion in an attempt to reach a resolution — before filing and, hopefully, even before drafting. The first step would be to have the moving party simply email the other side a list of the issues to see if there is any dispute, and then the lawyers should follow up with a phone call to hash out any differences. This simple act of conferral will likely knock out a large portion of the potential motions. There have been K e s t e n M e d i a Your client has a story to tell. Hire a communication professional to help tell it. VIDEOS • MULTIMEDIA PRESENTATIONS for mediation, arbitration or trial Michael Kesten, Emily Smith Harrington 503-804-0668, email@example.com, firstname.lastname@example.org
5 Trial Lawyer • Winter 2022 countless times where I am faced with a lengthy set of motions in limine filed the day before trial, only to learn the following day there is no objection to most of the motions. Had the parties conferred about the motions, they could have saved time and money for their clients by not drafting the motions, and the judge would not have needed to spend time preparing for them. The right number of motions File as many motions as you need but no more. If there is a key issue on which you need a ruling and were not able to resolve with the other side, definitely file a motion to alert the court of the issue. But a lawyer does not get extra points for filing a long set of motions in limine. In fact, the more motions one files, the more likely it is that a particularly important motion might not seem as important because it is buried among with all the others. Just because the lawyer has filed a particular motion in limine in a prior case doesn't mean it needs to be filed in the current case. File early Even though state court rules may not require motions in limine to be filed until the day before trial, there is no rule prohibiting them from being filed early. The attorneys should confer well in advance of trial about a briefing schedule for motions that would allow for the opposing side to file a thoughtful written response. To those who think there is a strategic advantage in waiting until the last minute to file motions, believing this will put the other side at a disadvantage because they won’t be able to thoughtfully respond in writing, such thinking is misplaced and can actually hurt the moving party. If the issues have not been fleshed out enough the judge won't be in a position to make a decision as quickly or easily as if there was full briefing, so the default option is no action would be taken on the motion at the time and the parties would be left with uncertainty. A late motion which keeps the opposing party from filing a written response also hurts the moving party because they are then deprived of knowing the other side’s position and won't have time to fully digest and prepare for their argument when it is made orally. Make it easy to track the rulings It is important to have a method for easily tracking and remembering rulings, especially in complex, lengthy trials with many motions. If an evidentiary ruling occurs on the first day of trial but the actual issue does not arise until days or even weeks later while everyone is in the fog of trial, not everyone will remember what the ruling was so it is important to be able to quickly find the ruling. I find it helpful for the attorneys to give the judge a chart that lists each motion and perhaps a summary sentence, and includes columns where everyone can check a box indicating if the motion was granted, denied, or deferred, and a column to place additional comments. That way, all the rulings are in one easy-to-find place, as opposed to having to thumb through dozens of pages of briefing to find the motion and see what the ruling was. For cases with a small number of motions a chart may not be needed, but it is still helpful to include directly after each motion, but before any written legal argument, the words “granted” “denied” and “deferred” so everyone can keep track of the rulings by simply circling the word that corresponds to the ruling. The bottom line is the more thoughtful and intentional a lawyer is with motions in limine, the better the chance of having thoughtful rulings from the court, which can lead to a better outcome at trial. Judge Eric L. Dahlin serves at Multnomah County Circuit Court, 1200 SW 1st Ave. Portland, OR 97204. He can be reached at email@example.com or 971274-0666.
6 Trial Lawyer • Winter 2022 By Bill Barton OTLA Guardian As I review my career, most of my clients have had plenty of blemishes on their character and in their lives. I was born into the world’s dark underbelly, so growing up I rarely met anyone who wasn’t beat up or broken. Maybe that’s an explanation for why I’m so comfortable representing real people, with all their shortcomings and flaws. It’s easy for me to see the best in prostitutes, the homeless and society’s “failures.” When younger, I took this quality for granted. However, with age I’ve come to understand it as a gift. My judgmental shadow always lurks nearby, however, it’s a short step to compassion and hope. I’ve had multiple bouts of therapy, and I work hard to live in keeping with my “better angels.” Maybe that’s why, when representing my “unworthy” and/or disadvantaged clients, I feel like I’m looking across, and sometimes even up, rather than down. I view jury trials as referendums of citizenship between the parties and their lawyers. This demands that you embrace all your client’s admissible flaws. Your honesty must shine through. As the plaintiff’s lawyer, you’re the one attorney who must overcome the burden of proof. You must wear the white hat, or at least the whitest one. Remember, if you’re pointing your finger at an opponent, your other three fingers are pointing back at you. First, try to get rid of the worst or most damning facts with a pretrial motion to exclude them because they’re too prejudicial per ORE 403. This argument is often successful. However, if you lose, then, the sooner you own your problem facts, the more credible you will be. Yes, you might lose the trial, but it won’t be for the wrong reason, meaning you and your client lacked credibility. Begin with liability There’s never just one approach to maximizing damages. I always begin with the defendant and liability facts. Why? Because strong liability keeps the jurors’ “focus of judgement” on the defendant. I go upstream as far as possible in a vigorous investigation and discovery to try and turn otherwise vanilla allegations of fault into a choice motivated by indifference, self-interest or profit. Then I return to the present and show every time this prior “choice” was affirmed and a potential advantage gained. I’m also searching for any effort by the defense to minimize or hide this danger. My argument is the defendant knew, or should have known, that sooner or later someone was going to get hurt. The question is not if, but when. Therefore, the plaintiff is not just a statistic, but an accident waiting to happen and, therefore, a cost of doing business to a commercial defendant. This turns my case into a public de facto class action and is what the Reptile1 is all about. When your opponents inevitably defend by highlighting your client’s many shortcomings, it further legitimizes your arguments that it is they who lack character. Your client is their victim, they effectively picked her, and now they opportunistically want to complain about what she’s not. No, it’s not the plaintiff who lacks character, it’s the defendants Bill Barton EMBRACEYOUR CLIENTSWITH ALL THEIR FAULTS
7 Trial Lawyer • Winter 2022 who failed the community’s citizenship test, and in court they are once again showing their true colors by how they choose to defend themselves. You cannot argue the golden rule (ask the jurors to put themselves in the plaintiff’s shoes), however, jurors can’t help but think “there but for the grace of God go I,” or “it could have been me.” In trial, rather than personally attack the defendants, I like to prosecute the danger the defendants have created. Nothing ad hominem, this keeps you on the high ground. In other words, you’re judging acts, not people. When they inevitably attack your client, it then legitimizes you to respond in kind. Once we get to court, the defendants’ lawyers have replicated their clients’ lack of citizenship by their chosen defense tactics. When the defense suggests your client is exaggerating, call them on it. This is an opportunity to make the case not just about who’s telling the truth, but the citizenship of the defendant who would seek advantage by inuendo and opportunism. Prosecute the defendants for their defense.2 Damages Now let’s switch to damages. In many unappreciated respects, Oregon’s rules of damages and causation are favorable to the injured. Carefully study the UCJI. First, I want to discuss the liability rule of foreseeability, UCJI 20.03, that often blends nicely into damages with the benefit of the confirmation or hindsight bias. For example, a fragile plaintiff is clearly at risk and within the class of people threatened by the defendant’s conduct, and what has happened is foreseable given the plaintiff ’s precarious circumstance. For damages, start with the “as is” or previous infirm condition rule found in UCJI 70.06. It means all parties are equal before the law, and that includes the sick, aged and least among us. In fact, they need the protection of the law more than the strong, beautiful or rich. I like to frame my client’s otherwise modest objective damages as a loss of hope, dignity or humanity. Then go to the multiple causation instruction, UCJI 23.02. The law doesn’t require singularity, i.e., the cause, but only that the defendant’s conduct was a cause (the exact words are “a substantial or material contributing factor”). Then, read the basic damages instructions found in UCJI 70.02 regarding pain, suffering, and humiliation. What more do you need? Well, there is more. Consider submitting the following additional special instructions: • Enhanced future susceptibility: In assessing the plaintiff’s damages “the jury is also to consider any increased suscept ibi l i ty to problems and complications the plaintiff may sustain in the future because of the defendant’s negligence.” Feist v. Sears, Roebuck, &Co., 517 P.2d 675, 677-79 (Or 1973). • Allergic reactions to medication, and any adverse reactions to treatment are compensable. Graham v. Roberts, 441 F.2d 995 (D.C. Cir. 1970). • Any subsequent negligent care necessitated by the defendant’s misconduct is compensable. Seitz v. Heep, 10 So.2d 150, 153 (Ala. 1942); Ash v. Mortensen, 150 P.2d 876, 877 (Cal. 1944); West Digest Topic Damages, Key number 115k34 (Aggravation of Injuries by Disease or Other Cause). See Embrace Your Clients 8
8 Trial Lawyer • Winter 2022 Conservative jurors tend to be rulebased. The law is your weapon, use it. The judge reads the law to the jurors, you argue the law and share the reasons why it applies and is important, and then the jurors take a written copy of the law with them into deliberations. Problems and challenges I create a comprehensive list of all my client’s prior problems and challenges. This walks right into the multiple causation instruction of UCJI 23.02. The longer the list, the more fragile and vulnerable (“as is”) the plaintiff was. This strategically encourages you to embrace all your client’s admissible short-comings. It’s counter-intuitive and akin to the analogy of the “straw that breaks the camel’s back” or a tipping point. Position yourself on the high legal and moral ground. You know the defense will go after your client, so anticipate it and turn it to your advantage. My suggestions will at least minimize its impact and will allow you to punish the defense for the effort. Like the martial art of judo, use your opponent’s anticipated force against them. Don’t polish your client in an effort to help them look as good as they want to believe they were before the liability event. If you honestly have a great client and great damages, then more power to you. I rarely see them. In Don’t Eat the Bruises, Chapter 13, “Owning Their Favorite Facts,” Keith Mitnik does an excellent job of reframing an opponent’s best facts by putting them “in context.” He illustrates this with examples from low impact cases (MIST) and known complications in medical negligence claims. Strategies to consider Let me offer you a few additional strategies. Consider having a conservator appointed to represent the plaintiff per ORS Chapter 125 et. seq. This involves an order by a judge finding that the plaintiff is not qualified to manage their assets or this claim. This can be a tacit shield that helps to protect your client from explicit and implicit allegations of comparative fault. I call the court approved conservator as a witness (technically they are the party plaintiff) and have them explain what their fiduciary duties are and how they must file annual accountings with the court that a judge must review and approve. This means your drug addicted client can’t blow any money the jury awards on more drugs and alcohol. When I’ve sued churches or youth service organizations, their lawyers can’t Embrace Your Clients Continued from p 7 Like the art of judo, use your opponent’s anticipated force against them.
9 Trial Lawyer • Winter 2022 resist attacking my clients as underachieving low-lifers (and by community standards there may be some merit to this). I just let them go (not that I have much choice). Then, during closing, I say it’s not my client who’s lost their way; no, it’s the Boys Scouts. “This is your son. The worse he is, the more he needed the Scouts (or any other church or youth organization) to be at their best.” I then quote the lofty goals the defendant service organization publicly touts during their fund-raising efforts, how they are a beacon of character, and all the ways they claim they will guide our youngsters. The more compromised my client was, the more likely they would be the target of predatory pedophiles, and now that is their defense! Sometimes I never bring my client into court when I know the plaintiff will make a poor impression in their depo and probably won’t do much better in person. Don’t be fooled, the plaintiff’s chair in court is never empty. The jury will impute or project into the chair the person they believe the plaintiff actually is. Of course, the defense can always play the plaintiff’s deposition. I know that and prepare my clients accordingly. My record will include some personal photos of the plaintiff, and I will find a few special witnesses who will testify regarding the best of my client — even if well hidden. I have a treating therapist testify pursuant to ORE 803(4)3 to everything the plaintiff has told them for the purpose of diagnosis and treatment and, further, explain the emotional damages the plaintiff would suffer if they were unnecessarily called to court and asked to publicly relive the original trauma. Their treater can explain why the plaintiff behaves in often self-destructive and unattractive manners and how, after multiple sessions of intense therapy, the counselor has come to know the “real” person. Needless to say, this is a strategic decision that requires informed consent made on a client-by-client, case-by-case, basis. Don’t make your case about your client. If you do, the inevitable result is the jury is invited to be constantly scrutinizing your client. It’s called “counter- factual reasoning.” The jury will replay the liability facts over and over coming up with all the ways this tragedy never would have happened if only the plaintiff hadn’t _______ (left for work early, hadn’t taken the elevator, didn’t wear high heels, etc., etc., etc.). The list never ends. That’s one more reason why you want to start with the defendant and never let up. Quantitative and qualitative Next, I want to discuss the difference between quantitative and qualitative damages analysis and arguments4 by considering the multiple possible responses to the simple question: “Who has lost more?” Assume we have two people, one is a millionaire and the other a beggar with only one dollar. Take away half of what each person possesses and then ask, “Who has lost more?” We know under a quanitative or numeric model it’s obviously the millionaire. He’s lost $500,000, which is far, far greater than the 50 cents the beggar lost. Smug with the knowledge that half a million is always more than half a dollar, shift the focus of the same question using a qualitative or more intimate and personal analysis and ask which loss means more to each of them.5 As you do this, reflect upon the biblical story of the Widow and the Mites (small coins). The Gospel of Luke, Chapter 21, verses 1-4 says: And he looked up, and saw the rich men casting their gifts into the treasury. And he saw also a certain poor widow casting in thither two mites. And he said, Of a truth I say unto you, that this poor widow hath cast in more than they all: For all these have of their abundance cast in unto offerings of God: but she of her penury hath cast in all the living that she had. This scriptural material is powerful, not necessarily because of any historical accuracy, but for the social and moral values it embodies. Regardless of anyone’s particular religious orientation, this story expresses essential moralities in our culture’s Judeo-Christian heritage. This is the heart of the “as is” values embedded in UCJI 70.06. When a jury returns a large verdict, defense lawyers sometimes express surprise saying it was a “runaway” jury. What more often happened is a good plaintiff’s lawyer persuaded the jury to analyze the damages through a qualitative or intrinsic lens instead of from a quantitative or subtraction model. My approaches are well suited for beginning lawyers who don’t get the big cases with large, obvious objective damages. When I was younger this is how I processed my early cases to maximum value. Immerse yourself in the values behind rules, embrace your clients with all their flaws, become their shepherd. Bill Barton is a trial attorney at Barton Law Firm PC. He contributes to OTLA Guardians at the Guardians Club level. His office is located at 214 SWCoast Hwy., Newport, OR 97365. He can be reached at firstname.lastname@example.org or 541-265-5377. 1 Ball, David and Keenan, Don, “Reptile: The 2009 Manual of the Plaintiff’s Revolution” (2009). 2 Friedman, Rick, “Polarizing the Case, Trial Guides”, Portland OR (2007). 3 ORS 40.460 Rule 803. Hearsay exceptions: (4) Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 4 These arguments are developed in Chapter 1 of my book, “Recovering for Psychological Damages”, 3rd Ed., Trial Guides, Portland OR (2010). 5 For my generation, the argument belongs to the great Moe Levine, who died in 1974. Trial Guides has compiled many of Moe’s closings and speeches in “Moe Levine on Advocacy” (2009).
10 Trial Lawyer • Winter 2022 By Megan Johnson OTLA Guardian Anna Harper’s trauma history dated back to early childhood, at the hands of abusive and neglectful parents. She was intermittently removed from her home by child protective services, but never fully protected. As a teen, she tumbled into the arms of countless abusive boyfriends, married one of them and had two children with him. Her life hit the bottom when her children were removed from her custody due to her inability to protect them from his violence. With therapy, she began the slow, painstaking process of rebuilding her life, at 31-years-old. Her path out was marked by joblessness, housing insecurity and turmoil, but her strength and spirit prevailed. With the agreement and support of her therapist, she began building new friendships and eventually tried dating. Her next abuser came along more quickly than she could have ever imagined. She was sexually assaulted on a first date. This time, Harper went directly to the police. She reported her abuse, participated in the criminal process, and reached out to me for help. The attorney trigger In my office, she presented herself as “all business.” She was organized, logical, and seeking support and guidance for her next steps in the remarkable act of standing up for herself. She brought with her a satchel containing calendars, notes, contact information, and folders of records of her life history. She spoke clearly, but her hands shook with fear and adrenaline as she sat across fromme. She blinked back tears, and valiantly won the inner battle to not lose composure. She had me from the get-go. I liked her. I knew I was uniquely situated to help her. I knew her life had been marked by deep, ugly trauma. I would do my job — represent her to the best of my ability, in a trauma-informed way. Being a successful advocate for trauma survivors is a multi-faceted skill. First, it requires understanding of the science behind trauma memory creation and storage. Second, it requires utilizing practices that use the science—“traumainformed practices” — to support trauma survivors. Finally, a successful trauma-informed attorney must cultivate Megan Johnson trust and bring a high level of empathy to best support and represent victims of trauma. After 18 years of working with abuse survivors, I assumed her shaking hands belayed her biggest fear — the daunting and unfamiliar process of standing up for herself. To that end, I calendared her for a phone call every 30-days. My reliabili ty, cons i stency and crystal -clear communications would soothe her fear of the unknown, and build the trust and confidence I needed to fully represent her. Our calls were difficult. She would clam up and offer me little to no information unless I directly asked her pointed questions. I felt like I was cross-examining a hostile witness, so I went slowly, gave her space and repeated myself often. On the third or fourth call, she offhandedly told me she thought she was going to throw up every time she saw my number on her caller ID. I was stunned. She told me the calls were a reminder that her civil case was going to go horribly, terribly wrong. She finally cried and told me she learned, long ago, that she Trauma Informed Interviewing ...I dedicate a piece of my p ra c t i c e t o en s ur i ng a communi cat i on plan i s developed with my clients, not dictated to them.
11 Trial Lawyer • Winter 2022 was never going to catch a break in her life. For Harper, the next bad thing is always just around the corner. Her civil suit was going to go horribly wrong, and my calls were a reminder of that unavoidable fact. It was only then I realized I had unwittingly retriggered my client’s trauma. I realized what I should have done from the very beginning — not assume that I knew what she needed. I told her I needed to speak to her regularly about her case to provide updates and spend time getting to know her. I asked her how she wanted to go about that. She simply said she would call me every month or two. And she did. After that, our calls were productive. She would share, laugh, cry, tell me what was going on with her life and ask me what was new with her case. I learned about her history, her goals, her successes and her fears. I learned the names of the people who could help her case. I learned she had stumbled on an online social media platform where other women were issuing public warnings about her abuser and his behavior on dates and in social settings. I learned that the things I needed to know about her, her case, her damages and her experience were all inside her, and the key to getting those things out was for her to control the time and space for that to happen. After that, if I needed to speak to her, I would email her and let her know nothing was wrong with her case but that I had a question or needed to give her a good update, asking her to give me a call. At intake, I now ask clients how they prefer to receive my communications. I inform my clients we need to speak regularly, for check-ins and to answer questions. I give them communication options and let them dictate the terms. I tell them for some, having me around is helpful, and for some, having me around is stressful and for most, it’s a little bit of both. I tell them we can change up the terms as often as they like, but regular communication is necessary and important. I never want to hear that our communication plan makes my client want to throw up, and I dedicate a piece of my practice to ensuring a communication plan is developed with my clients, not dictated to them. For most trauma victims, it takes heroic effort to trust an attorney with the whole of their experience. Clients will safeguard from disclosure the things that haunt them the most. The unraveling of that tightly held truth takes place slowly, over time. But it’s in that unraveling that the power of the case makes itself apparent. An attorney who hasn’t taken the time with their client will miss opportunity to fully understand the extent, and value, of their client’s harm. Few experts can tease out that which a client has decided to safeguard. Gaining trust I represented Mr. and Mrs. Green, whose child was non-verbal and autistic. He had been physically assaulted by his daycare provider at a center. He suffered bruising that was diagnostic of physical abuse. Damages were stacking up to be tricky because he couldn’t discuss his trauma with anyone and because the bruising faded within a handful of days. The Greens and I had an excellent rapport. In my estimation, I knew everything there was to know about what had happened and how to present the case. We communicated often and clearly. Toward the end of my representation of them, as I covered some of the key concepts of their case for the third time, they disclosed that months ago, their son began hitting and forcefully grabbing himself while in the bath, in the very same locations in which the bruising had been apparent after the assault. We had spoken at least once or twice since their son had exhibited this bath time behavior, specifically about how difficult proving damages would be given that See Trauma p 12
12 Trial Lawyer • Winter 2022 their son couldn’t communicate with anyone. I couldn’t believe they hadn’t mentioned it — we all knew this behavior was their son’s non-verbal communication about his assault. I communicated this information to opposing counsel, and the case settled within weeks. The Greens felt guilty and responsible for placing their child in the care of someone who would eventually hurt him. His expressions of pain and trauma, and the evidence that he still remembered his assault while in the bath, had pained them deeply. I had to show up, listen and prove I could be trusted. I had to begin to empathize with them and communicate that empathy to them, to build that trust. I had to understand and feel their feelings, and communicate that to them before they would turn over such important and heavily guarded information. Trust building and empathy takes time, and is perhaps the most challenging aspect of the entire representation. Always remember to set boundaries about the time, space and location of these conversations, and thank the client for helping you understand their case at the end of each conversation. It helps remind everyone of your purpose. Trauma is, at its essence, horrific loss, the aftermath of which is hallmarked by powerlessness. Think of their experience at your firm as their first opportunity to reclaim some power. Every single time you offer them an opportunity for choice, for direction, you listen to their fears and concerns, you are moving closer to creating a practice that responds positively to trauma. I found the article "TraumaInformed Legal Practice with Clients" by Pete Singer to be immensely helpful. Also, the National Women’s LawCenter’s pre-recorded webinar is excellent. These resources remind us to slow down, consider your client, offer and repeat information in a variety of ways, and, in every circumstance possible, to offer choices, Trauma Continued from p 11 to empower and to thoughtfully consider your client’s best interests in a way specifically tailored to their needs. Representing trauma survivors is challenging. Designing a practice that honors their healing process is daunting, but the right thing to do. Investing the time and emotional energy to truly understand the case from an empathetic perspective is simultaneously fulfilling and draining. But the look in the eyes of a well-cared for client, who feels they have stood up for themselves and received some measure of justice is irreplaceable. Megan Johnson specializes in plaintiff’s personal injury — specifically child abuse, sexual assault, elder abuse and crime victim representation. She contributes to OTLA Guardians at the Sustaining Member level. Johnson is an attorney at Pickett Dummigan McCall LLP, 210 SW Morrison, 4th Floor, Portland, OR 97204. She can be reached at email@example.com and 503-223-7770.
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14 Trial Lawyer • Winter 2022 By Ashley Vaughn OTLA Guardian With all of the high-profile sex abuse scandals in the news, such as against the Catholic Church or Boy Scouts, a person could get the impression every sex abuse lawsuit involves widespread institutional failures at the highest level. Or at least some sort of negligence that resulted in the abuse. Those of us who practice in this area know this is not always the case and rely on a powerful tool to assist our clients when negligence isn’t provable: vicarious liability claims. Vicarious liability, also known as respondeat superior, is a form of strict liability against an employer — an individual or a corporation — for an employee’s tortious conduct.1 With a vicarious liability claim, a victim of sexual assault can sue the assailant’s employer, instead of or in addition to the assailant, potentially reaching deeper pockets or insurance coverage. Oregon is one of a handful of states that allows a plaintiff to hold an employer liable for the sexual assault by its employee, but doing so is not automatic. Each case requires a fact-specific inquiry to determine whether vicarious liability is appropriate. Vicarious liability v. direct liability An employer can be vicariously liable even if the employer had no prior knowledge that the employee was dangerous. “A corporation . . . ‘can only act through its officers, agents or employees.’” Doe v. Or. Conference of Seventh-Day Adventists, 199 Or App 319, 328 (2005). Vicarious liability can be assessed against an employer for an employee’s torts with no fault on the part of the employer, whereas direct liability against an employer results from the employer’s own wrongdoing, such as negligent hiring or failure to supervise. Why a vicarious liability claim? Many times, there won’t be any evidence an employer knew the employee was a risk — that’s why vicarious liability claims can be a powerful tool, even with limited or nonexistent “notice” evidence. Asserting a vicarious liability claim does not preclude the plaintiff from asserting direct liability claims, if you have evidence of employer misconduct. Also, the reality is that many perpetrators of sexual assault — or individual tortfeasors in general — do not have sufficient assets to compensate a victim for the significant damages that can result from such an assault. And most of the time the perpetrator’s insurance, if existent, won’t cover the assault. A vicarious liability claim against the employer potentially makes more assets and insurance available to cover a judgment. Also, while perhaps not as compelling as with a negligence claim, vicarious liability claims against employers can promote important policy changes. See, e.g., G.L. v. Kaiser Foundation Hospitals, Inc., 306 Or 54, 57 (1988) (“[A]n employer who receives the social and economic benefit of employing others must also be responsible for the fact of employees who are only acting in this fashion because of their employment.”). Even if an employer insists it “did nothing wrong,” a lawsuit can still spur it to reduce risks. Basic framework The basic framework for determining whether vicarious liability for sexual assault exists consists of two parts: (1) Was the assailant an agent of the principal Ashley Vaughn Alleging and Proving Vicarious Liability Claims in Sexual Assault Cases
15 Trial Lawyer • Winter 2022 and, if so, what kind of agent? (2) If yes, did the agent commit the tortious actions within the course and scope of the agency relationship? An agent of the principal Many practitioners skip this crucial step, but it is often the biggest fight we have in our cases. Don’t assume that if the assailant was a paid employee, liability against the employer will stick. Complexity arises if the assailant is really an independent contractor, “nonemployee” agent or apparent agent. The label an employer assigns, be it “contractor,” “employee,” or other, is given little weight. The same is true of compensation — liability can attach for the torts of volunteers as well as paid employees. The crucial inquiry is: did the principal have the right to control the day-to-day employment conduct of the agent? This is a fact-intensive inquiry. See Kowaleski v. Kowaleski, 235 Or 454, 458 (1963) (articulating a multi-factor test). Defense counsel likes to focus on whether the employer actually exercised control to divert from the real issue — the employer’s right to control the agent’s conduct. In a case I litigated against the Assemblies of God Church for sexual abuse in its “Royal Rangers” program (think Boy Scouts in church), counsel for the national defendant repeatedly argued the national level did not control the conduct of the local-level volunteers. However, multiple judges found there were sufficient facts of the national defendant’s right to control the volunteers’ conduct — as seen in part in the volunteer manuals the national defendant published and required volunteers to use. They contained instructions on how to form relationships with boys, hold meetings and use camping trips to “win the souls” of boys — to defeat summary judgment. If you’re unsure what type of agent the assailant was, it is best to allege classifications in the alternative, then use discovery to sort it out. Also, an agent can be a dual agent for multiple defendants. If you are alleging multiple agency relationships, you need to prove agency for each defendant. We frequently litigate child sexual abuse cases against churches and sue the local church, the regional entity that oversees the local branches and the national entity that oversees all of the churches within that denomination. We then have to prove that each level had the right to control the day-to-day employment conduct of the assailant. Often, you can weaponize these multiple defendants against each other because they’ll want to have it both ways — the lower levels will want the protection (and insurance coverage) of the higher levels as their “agents,” but the higher levels will want to disclaim any responsibility for the lower levels. Tortious act within agency relationship The second step entails alleging and proving the sexual assault was within the empl oyee’s cour s e and s cope of employment. Oregon’s vicarious liability case law for sexual assault claims is some of the most robust and liberal in the country. Most states do not allow plaintiffs to claim vicarious liability for sexual assault. For many years, this was the case in Oregon, too. That changed in 1988 with the Oregon Supreme Court’s holding in Chesterman v. Barmon, et al., 305 Or 439. In Chesterman, an employee ingested a hallucinogenic to help him focus at work, which led to him sexually assaulting a woman on his way home fromwork. The court held it is “inappropriate to determine whether respondeat superior applied as of the time when the injury occurred.” Fearing v. Bucher, et al., 328 Or 326, 373 (1999) (citing Chesterman, 305 Or at 444). The court articulated a three-part test for these “time-lag” cases: 1. Whether the act leading to the assault occurred substantially within the time and space limits authorized by the See Vicarious Liability 16
16 Trial Lawyer • Winter 2022 employment. 2. Whether the employee was motivated, at least partially, to serve the employer. 3. Whether the act was of a kind that the employee was hired to do. 305 Or at 442. In 1999, the court broadened this test to non-“time lag” assault cases to reverse dismissal of vicarious liability claims in two child sexual abuse cases, one against the Boy Scouts for abuse by a volunteer (Lourim v. Swensen, 328 Or 380 (1999)) and the other against the Archdiocese of Portland for abuse by a priest (Fearing). In both cases, the plaintiffs alleged acts within the perpetrator employees’ scope of employment — such as forming close relationships of trust with minors — directly led to the perpetrators abusing them. The Oregon Supreme Court agreed, holding a jury reasonably could infer the assaults were “merely the culmination of a progressive series of actions,” that the authorized actions were a “necessary precursor” to the assaults, and the assaults were a “direct result” of the authorized actions. Lourim, 328 Or at 386-87. In short: the Chesterman three-part test is used to determine whether the employer had the right to control the authorized conduct at issue that directly led to the sexual assault. This ensures that there is a nexus between the employee’s job duties and the employer, so liability is not imposed arbitrarily. Be wary of cases in which a job provided a “mere opportunity” for two people, one of whom later assaults the other, to meet. There has to be more of a nexus between the assailant’s authorized job duties and the assault. For example, Oregon cases have held that vicarious liability was inappropriate when a supervisor of a pizza parlor sexually assaulted one of his employees at his apartment (Minnis v. Or. Mutual Ins. Co., 334 Or 191 (2002) and when a co-worker sexually assaulted another co-worker at a hotel attached to an academic conference they both attended (Johnson v. Or. St. Bd. of Higher Edu., 272 Or App 710, 719 (2015). If a father who is also a church pastor sexually abuses his daughter, it will be difficult to assess vicarious liability against the church, because the father primarily formed the relationship with his daughter through their familial relationship. Evidence to prove course and scope Evidence you want to look for to prove the actions were within the course and scope of employment include documentary evidence such as the employee’s job description and outline of responsibilities, the employment contract, the rules and regulations that applied to the employee (e.g. employee handbooks), and company representations to third parties about the employee. Think creatively and look beyond formal “employment documents.” You can often find good evidence of the right to control fromwebsites (for example, spas advertising massage therapy services), social media sites, newsletters, calendars and other customer-facing marketing materials. Usually, prior to litigation, the employer is happy to reap the benefits of the employee and tout their connections and accomplishments, but when litigation hits, will act like they barely knew the employee from some random person Vicarious Liability Continued from p 15 You can often find good evidence of the right to control from websites (for example, spas advertising massage therapy services), social media sites, newsletters, calendars and other customer-facing marketing materials.