Oregon Association of Defense Counsel
NOVEMBER 18, 2022 | 8:00 AM – 5:00 PM | THE BENSON HOTEL, PORTLAND, OREGON
Schedule at a Glance 3
General Session: And the Beat Goes On: Moody on Appeal 4
General Session: Tips on Picking a Favorable Jury, and Dealing with Covid 31
General Session: 2022 Oregon Legislative Update 35
Lunch with Featured Speaker, The Honorable Judith Matarazzo: The New Normal? Litigating and Trying Cases 38 in a “COVID-variant” World
General Session: Navigating the OEC 104 Evidentiary Hearing With Confidence 43
General Session: Extinguishing Burnout: How to Foster Engagement in the Legal Profession 48
This information and related materials are provided to you as a registered 2022 OADC Fall Seminar attendee only. To maintain the integrity of the program, please do not share this with anyone else.
Oregon Association of Defense Counsel
NOVEMBER 18, 2022 | 8:00 AM – 5:00 PM | THE BENSON HOTEL, PORTLAND, OREGON
8:00 – 8:20 am
Registration, Continental Breakfast, Exhibits
8:20 – 8:30 am
Welcome, Announcements, And Introduction
8:30 – 9:30 am
And the Beat Goes On: Moody on Appeal
F.J.Maloney,Shareholder,MaloneyLaurersdorfReiner
9:30 – 10:30 am
Tips on Picking a Favorable Jury, and Dealing with Covid AliceBrown,ManagingAttorney,AmericanFamilyInsuranceCompany
10:30 – 10:45 am
Break & Exhibits
10:45 – 11:45 am
2022 Oregon Legislative Update
MaureenMcGee,OfCounsel,TonkonTorp
11:45 am – 12:00 pm
Break & Exhibits
12:00 – 1:00 pm
Lunch with Featured Speaker, The Honorable Judith Matarazzo
THE NEW NORMAL? LITIGATING AND TRYING CASES IN A “COVID-VARIANT” WORLD
1:00 – 1:15 pm
Break & exhibits
1:15 – 2:15 pm
Navigating the OEC 104 Evidentiary Hearing With Confidence
TheHonorableKatherinevonTerStegge&MikeShin,DeputyGeneralCounsel,TriMet
2:15 – 2:30 pm
Break, Exhibits & Exhibitor Raffle Drawing
2:30 – 3:30 pm
Extinguishing Burnout: How to Foster Engagement in the Legal Profession
KyraHazilla,Director,OAAP&HongDao,Director,PLF-PracticeManagementAssistanceProgram(PMAP)
3:30 – 5:00 pm
Social & No-Host Bar At The Benson Lobby Bar
6.0 hours CLE credits (approval pending) *subject to change
Francis “F.J.” Maloney is recognized as the “go-to” attorney in rst-party extra-contractual and “bad faith” insurance litigation. F.J. started his legal career as a Deputy District Attorney in Deschutes County, Oregon, where he gained valuable trial experience prosecuting criminal cases ranging from juvenile delinquencies and dependencies to minor misdemeanors and major felonies, including capital murder. That experience has carried over to a successful multi-jurisdictional practice. F.J. regularly litigates and tries cases in numerous states and jurisdictions, and has successfully argued cases before the Oregon Supreme Court, Oregon Court of Appeals, Washington Court of Appeals, South Dakota Supreme Court and Eighth Circuit Court of Appeals. F.J. has also been active in numerous professional organizations including the Oregon and Washington State and Federal Bars, the American Bar Association, Oregon Association of Defense Counsel and several other local bar associations. He is the past Chair of the ABA’s Subcommittee for the Tort Trial Insurance Property Section, a nationally-recognized association of insurance litigators from around the country. F.J. also actively participates in local charities and organizations, including as the past Chair of the Archdiocese of Portland Pastoral Counsel, board member for the Catholic Youth Athletic Association, and as a member of several local pastoral and school councils. Having returned in 2020 from an extended sabbatical in which he and his family sailed the Eastern Seaboard aboard their catamaran, “Wild Rumpus,” F.J. spends much of his free time in outdoor endeavors such as trail running, mountain biking and skiing. In the winter he devotes weekends to volunteering as a medical rst responder with the Mt. Bachelor National Ski Patrol.
Oregon State Bar, 1995 Washington State Bar, 2012
U.S. District Court for the Dist. of Oregon
Maloney is recognized as the “go-to” attorney in rst-party extra-contractual insurance litigation. F.J. started his legal career as a Deputy District Deschutes County, Oregon, where he gained valuable trial experience criminal cases ranging from juvenile delinquencies and dependencies to minor and major felonies, including capital murder. That experience has carried successful multi-jurisdictional practice. F.J. regularly litigates and tries cases in states and jurisdictions, and has successfully argued cases before the Oregon Court, Oregon Court of Appeals, Washington Court of Appeals, South Dakota Court and Eighth Circuit Court of Appeals. F.J. has also been active in numerous
U.S. District Court for the Western Dist. of Washington U.S. District Court for the Eastern Dist. of Washington
U.S. Eighth Circuit Court of Appeals
U.S. Sixth Circuit Court of Appeals Education
University of Oregon, J.D., 1995
Boston College, B.A., English and Environmental Geosciences, 1989
Alice is the Managing A.orney for American Family Insurance Company in Washington and Oregon. She previously worked as Managing A.orney for GEICO Staff Counsel and was a Staff A.orney for State Farm for 18 years. Alice has tried over 100 civil trials to verdict. She teaches Trial Advocacy at The University of Washington Law School and Emory Law School. Alice also teaches both deposiKon skills and trial skills with the NaKonal InsKtute of Trial Advocacy(NITA) and is NITA Teacher CerKfied. Alice lives in Sea.le and in licensed in Washington, Oregon and Texas (inacKve). Alice serves on the Board of Directors for the Washington Defense Trial Lawyers AssociaKon and during COVID worked on the Washington Board of Judicial AdministraKon Court Recovery Task Force – civil commi.ee – a group made up of judges, jusKces, plainKff and defense a.orneys tasked with keeping liKgaKon running during pandemic. She is also the WDTL liaison to the Superior Court Judges AssociaKon.
a.Get to Know the jurors b.Key concepts c.Establish Rapport
a.Proper orienta<on b.Set the stage c.Get them talking d.Open-ended ques<ons e.Difficulty v. ability f. Alterna<ve route to uncover bias g.Design ques<ons using “bad” answers h.Juror par<cipa<on i.Be persistent
a.Educate About Bias b.Normalize the Concept of Bias c.Locate
i.How many people have feelings about….. d.Eliminate e.Examples f. Binary absolutes
a.Doing all the talking b.No follow up
c.Ques<ons not tailored to specific case d.Lack of Prepara<on e.Path of least resistance (in spite of your best efforts)
a.Benefits
b.Issues c.Tips for BeZer Remote Voir Dire
Maureen McGee is an attorney Of Counsel in Tonkon Torp’s Government Relations & Public Policy Practice Group, and she has an extensive background in Oregon legislative-level matters. In her nine years serving Oregon lawmakers, most recently as a Senior Deputy Legislative Counsel, she provided nonpartisan, policy-neutral legal advice and legislative drafting services to the 90 members of the Oregon Legislative Assembly. Maureen was the lead nonpartisan legislative counsel attorney on all carbon pricing legislation in Oregon from 2015-2020, and has been involved in many other issues involving everything from air toxics to product stewardship and broadband accessibility. In private practice, Maureen provides strategic legal and legislative advocacy services for a wide variety of clients, including corporate clients and trade associations, throughout Oregon and the Pacific Northwest.
Fall Seminar, Nov. 18, 2022, 10:45 – 11:45 am 2022
Maureen McGee, Of Counsel, Tonkon Torp Outline
• The Oregon Legislature, a primer: a quick review of the composition, structure, and leadership history of the Oregon Legislature, with a specific focus on the 2022 short legislative session
• Legislative issues of interest to OADC during the 2022 short legislative session
o SB 1581 – Judicial salaries
o HB 4002 – agricultural overtime
o SB 1586 – Non-Disclosure Agreements
o SB 1515 – paid family and medical leave updates
• The legislative interim/uncertainties heading into the 2022 election
• 2022 election results and potential policy and political implications of results
• Potential legislative issues of interest to OADC going into the 2023 long legislative session
Judge Judith Matarazzo was elected to the Circuit Court in 2006. Prior to serving as a Judge she was in private practice in Portland, Oregon specializing in the area of personal injury and medical malpractice. She also served frequently as a mediator and arbitrator. Judge Matarazzo served on the Oregon State Bar Disciplinary Board, Oregon Trial Lawyers Board of Directors as well as the Oregon Law Institute Board of Directors. While on the bench, she has served on the Multnomah County Civil Case Management Committee, Jury Orientation Committee, Gus Solomon Inn of Court, Judicial Conduct Committee in addition to teaching a Trial Practice Class at Lewis and Clark Law School. Judith is active in the community and has sat on the board of the following Organizations:
Oregon Society of Artists Child Care Aware of America
Colonial Dames of America, Oregon Chapter
American Heart Association, Gala Chair Bosco-Milligan Foundation, Auction Chair
Salvation Army Capital Campaign Cabinet
Trinity Episcopal Cathedral Oregon Law Institute/Lewis and Clark Law School Oregon Trial Lawyers Association Board Triangle Lake Camp and Conference Center
A native of Nashville, TN, she is married to an attorney and is the mother of one adult child. In her spare time, she can be found in the kitchen, where she enjoys cooking and entertaining.
Recommended Prac,ces for Civil Jury Trials in Multnomah County Circuit Court, available at h?p://www.mbabar.org/assets/documents/courts/civiljurytrialreport.pdf
Daily Trial Call Docket 9:00 am in Presiding
A. All a?orneys must report in person, if you are unable to appear have another a?orney report for you.
B.If you are reporJng ready for your hearing or trial, you may report in advance to Presiding per SLR 7.055(8)(b).
C. If you are not ready for trial, do not wait unJl Call to announce you need a postponement. Use the sJpulated Postponement Form, come to Exparte, or schedule a Trial Scheduling Conference through the Presiding Clerks to request a postponement.
D. If you are sent out for trial and the lawyers request a set-over, they must return to Presiding court.
A. A?orneys should make sure they appear with the paperwork or, if they plan to appear remote, have emailed their documents to Mul.Presiding@ojd.state.or.us at least 24 hours before they intend to appear.
B.Civil a?orneys may prefer to a?end 1:30 ExParte as the morning ExParte may be delayed due to lengthy morning dockets.
C.If you have a disputed ma?er, please wait unJl the end of Ex Parte.
D. If your ma?er involved a great deal of material (i.e., TROs), please make sure it is sent in advance to Presiding. If materials are not sent in advance, the ma?er may have to be postponed allowing the judge Jme to read the material.
E.MoJons for a Si_ng Judge to hear a moJon for Summary Judgment will be heard at Ex Parte, and if granted, the parJes will be asked to contact Judge Marshall for
assignment. Once all parJes have filed an appearance and a moJon is filed, the civil department will assign a moJon judge within 10 days. If the case is not at issue and a moJon judge is needed the parJes may seek appointment of a moJons judge at Ex Parte.
A. Scheduling Conferences are set with the Presiding Judge on Wednesday abernoons between 2:00-4:00 pm and are set in 10-minute increments.
B.Scheduling Conferences will address requests for Complex designaJon or contested trial set over requests. Requests for contested abatements may also be set for a Scheduling Conference so long as the parJes can make their arguments in 10 minutes or less. If a longer period is needed, parJes need to file a MoJon for Abatement and schedule a hearing with their moJons judge.
C.To set a conference, parJes must contact Presiding to get available dates and Jmes. ParJes must then confer with all sides on an agreeable date and Jme and return to Presiding to schedule.
D. Complex Case Assignments need to be requested as soon as the case becomes at issue. What cases are likely to be given Complex Case DesignaJon
A. Beginning in September, all civil cases, where all parJes have filed an appearance making the case at issue will receive a form and instrucJons from the court advising them to talk with opposing counsel and find a trial date within certain parameters.
B. The form must be filed out and submi?ed to the court within 35 days. If a date cannot be agreed upon, counsel is to contact Presiding Court (MUL.Presiding@ojd.state.or.us or 971-274-0660) to request a scheduling conference.
C. If the trial date submi?ed is denied the case will be placed on a Trial Scheduling Docket. These dockets are held on Tuesday and Thursday at 2:00 PM.
D. If no acJon is taken, a 30 noJce of dismissal will be sent.
Medical Malprac;ce Docket
A. Counsel Tables and Chairs
B.IT and Available Technology
C.Witness Box LocaJon
D. Juries
E.Use of Juror QuesJonnaires
F. SJpulaJons to remote tesJmony
Remote Hearing PJO
von Ter Stegge was appointed a Multnomah County Circuit Court in 2017. She previously worked in the Multnomah County Attorney’s Office, was a trial attorney at the Oregon Department of Justice and as a prosecutor in the Multnomah County District Attorney’s Office. She began her career as a law clerk for a federal judge in West Virginia. She is a graduate of the University of Virginia and the University of Virginia School of Law. She is a member of the Oregon State Bar’s Board of Governors.
Mike is Senior Deputy General Counsel at TriMet, where he represents the agency in civil li;ga;on and related ma>ers. At TriMet, he has handled mul;ple state jury trials and court-annexed arbitra;ons and frequently par;cipates in media;ons. Prior to joining TriMet, Mike worked in the Appellate Division of the Oregon Department of Jus;ce and held a variety of posi;ons in government agencies in both civil and criminal law and also worked for a civil li;ga;on firm.
The Nuts and Bolts (and Monkey Wrenches) of OEC 104 Hearings Judge Katharine von Ter Stegge & Mike Shin
I.Mechanics of OEC 104
a.Gatekeeping FuncKon b.Burden
• Proponent of evidence generally has the burden of establishing the factual prerequisites for admissibility - State v. Arellano, 149 Or App. 86, 90 (1997) c.Standard of Proof
• Preponderance of the Evidence - State v. Carlson, 311 Or 201 (1991) d.Rules of Evidence
• Court not bound by OEC for factual issues, except for privilege e.UlKmate DeterminaKon of Factual Issues for Jury f. CondiKonal Relevance – OEC 104(2) g.Hearings
II.Common Issues
a.AuthenKcity/FoundaKon b.Hearsay c.Relevance, OEC 403 d.ScienKfic TesKmony (Brown/O’Key hearing) e.Expert TesKmony (OEC 702) f. Prior Acts Evidence g.Expert QualificaKons h.Applicability/Waiver of Privilege
III.OEC 104 v. MoKons in limine
IV. Recent Cases
• Trial court rulings reviewed for errors of law - State v. Rogers, 330 Or 282, 313 (2000) (“[T]his court reviews the record to determine whether any evidence supports the trial court's ruling.”)
Kyra M. Hazilla, JD, LCSW, is the director and an attorney counselor with the Oregon Attorney Assistance Program (OAAP). In her legal career, Kyra was primarily a public defender practicing juvenile law.
Kyra is a 2006 graduate of the University of Michigan Law School (JD) and School of Social Work (MSW), and studied psychology and music at Vassar College (BA, 2002). She was a public defender practicing juvenile law for most of her legal career, advocating for children and families struggling with myriad challenges. She is a trained counselor having completed more than 3,500 postgraduate social service hours, whose experience includes crisis intervention, working with victims of sexual assault, drug and alcohol dependency, and many years helping survivors of interpersonal violence and their children. kyrah@oaap.org | 503 226 1057, ext. 13
Kyra M. Hazilla, JD, LCSW, is the director and an attorney counselor with the Oregon Attorney Assistance Program (OAAP). In her legal career, Kyra was primarily a public defender practicing juvenile law. Kyra is a 2006 graduate of the University of Michigan Law School (JD) and School of Social Work (MSW), and studied psychology and music at Vassar College (BA, 2002). She was a public defender practicing juvenile law for most of her legal career, advocating for children and families struggling with myriad challenges. She is a trained counselor having completed more than 3,500 postgraduate social service hours, whose experience includes crisis intervention, working with victims of sexual assault, drug and alcohol dependency, and many years helping survivors of interpersonal violence and their children. kyrah@oaap.org | 503 226 1057, ext. 13
Hong Dao is the director and a practice management attorney with Practice Management Assistance Program (PMAP) at the Oregon State Bar Professional Liability Fund. She and her team provide confidential practice management advice and education to Oregon attorneys to help them manage their malpractice risk.
Hong Dao is the director and a practice management attorney with Practice Management Assistance Program (PMAP) at the Oregon State Bar Professional Liability Fund. She and her team provide confidential practice management advice and education to Oregon attorneys to help them manage their malpractice risk.
Ms. Dao came to the U.S. from Vietnam with her family as boat refugees after the Vietnam War and started a new chapter in their lives in Colorado. She received a B.A. from the University of Denver and her J.D. from Drake University Law School. Before joining the PLF in 2014, Ms. Dao worked as a staff attorney at the Oregon representing, advising, and advocating for clients in employment, housing and and presenting community education programs. Prior to that, she worked the Criminal Division of the U.S. Attorney’s Office in Oregon. She has been an adjunct instructor of business law at Portland Community College since 2012. hongd@osbplf.org |503 726 1467
Ms. Dao came to the U.S. from Vietnam with her family as boat refugees after the Vietnam War and started a new chapter in their lives in Colorado. She received a B.A. from the University of Denver and her J.D. from Drake University Law School. Before joining the PLF in 2014, Ms. Dao worked as a staff attorney at the Oregon Law Center, representing, advising, and advocating for clients in employment, housing and consumer law matters, and presenting community education programs. Prior to that, she worked as a contractor with the Criminal Division of the U.S. Attorney’s Office in Oregon. She has been an adjunct instructor of business law at Portland Community College since 2012. hongd@osbplf.org |503 726 1467
• Title: Ex%nguishing Burnout: How to Foster Engagement in the Legal profession
• Descrip+on: Burnout has long been an issue for us in the legal community. With long hours, heavy caseloads, and other problema%c aspects of legal culture contribu%ng to high rates of burnout before the pandemic, the past two years have seen burnout increase to record levels. In this CLE, Kyra Hazilla from the Oregon AHorney Assistance Program and Hong Dao from PLF Prac%ce Management Assistance Program will discuss what is driving burnout, its impact, and what we can do individually and organiza%onally to spark change. Lawyers who aHend will gain an increased understanding of burnout and learn about prac%cal %ps and strategies that individuals and firms can implement to mi%gate and prevent burnout.
• Speakers: Kyra Hazilla and Hong Dao
• Date/+me: Friday, November 18, 2022
• MCLE Credits: 1 hour MHSU and .5 H Prac%cal Skills
• Speaker Bios:
Kyra M. Hazilla, JD, LCSW, CCTP, is an aHorney counselor with the Oregon AHorney Assistance Program (OAAP), and the legal director for CASA for Children. Kyra is a 2006 graduate of the University of Michigan Law School (JD) and School of Social Work (MSW), and studied psychology and music at Vassar College (BA, 2002). She was a public defender prac%cing juvenile law for most of her legal career, advoca%ng for children and families struggling with myriad challenges. She is a trained counselor having completed more than 3,500 postgraduate social service hours, whose experience includes crisis interven%on, working with vic%ms of sexual assault, drug and alcohol dependency, and many years helping domes%c violence survivors and their children.
Hong Dao is the Director of Prac%ce Management Assistance Program (PMAP) at the Oregon State Bar Professional Liability Fund. She leads a team of Prac%ce Management AHorneys who provide confiden%al prac%ce management advice and educa%on to Oregon aHorneys to help them manage their malprac%ce risk. She received a B.A. from the University of Denver and her J.D. from Drake University Law School. Before joining the PLF in 2014, Ms. Dao worked as a staff aHorney at the Oregon Law Center, represen%ng, advising, and advoca%ng for clients in employment, housing and consumer law maHers, and presen%ng community educa%on programs. Prior to that, she worked as a contractor with the Criminal Division of the U.S. AHorney’s Office in Oregon. She has been an adjunct instructor of business law at Portland Community College since 2012.
•
•
Introduc%on: Burnout is pervasive - legal culture, organiza%onal culture, personal habits
• What burnout is and isn’t
• Burnout symptoms
• Myths about burnout
• Top reasons for work-related burnout
▪ From Maslach Burnout Inventory:
• Common Individual traits that tend to cause burnout
• Organiza%onal factors that contribute to burnout:
• 2020 research from HBR on burnout
• 2021 research on legal community and burnout
• Why burnout is bad f
• Mental health perspec%ve
• Prac%ce management perspec%ve
• What can be done (%ps and strategies):
• Solos:
• Issues: Heavy caseloads, demanding clients, %ght deadlines, repe%%ve work
• Tips: ▪ Use legal technology ▪ Learn to delegate ▪ Have good rela%onships with staff ▪ Create bonds with other solos ▪ Focus on business development ▪ Take mini vaca%on ▪ BE good boss to yourself ▪ Find a therapist ▪ Know when to hire or contract out for addi%onal help
• Individuals in firms:
• Op%ons: • Set boundaries • Job crading • Find support/community • Advocate for self • Manage stress • Find a therapist
• Firm-wide
• Good culture = leadership + people + policy
• Focus on leadership ▪ Brain-based leadership ▪ SCARF leadership ▪ Servant leadership • Focus on people ▪ Reassess workload ▪ Empower employees ▪ Make recogni%on a rou%ne ▪ Encourage connec%ons among colleagues • BeHer policies ▪ Have firm-wide values ▪ Beef up HR ▪ Smart budge%ng
