26th Annual Litigation Institute and Retreat Cosponsored by the Litigation Section Friday, March 1, 2019 1 p.m.–5:30 p.m. Saturday, March 2, 2019 8:30 a.m.–12:15 p.m. 7.75 General CLE credits 26TH ANNUAL LITIGATION INSTITUTE AND RETREAT INSTITUTE PLANNERS Chair: Dennis Rawlinson, Miller Nash Graham & Dunn LLP, Portland Leslie Johnson, Samuels Yoelin Kantor LLP, Portland Thomas Johnson, Perkins Coie LLP, Portland Jeanne Loftis, Bullivant Houser Bailey PC, Portland Kimberly Stuart, Washington County Counsel, Hillsboro OREGON STATE BAR LITIGATION SECTION EXECUTIVE COMMITTEE Kimberly Anne S. Y. Stuart, Chair Jeanne F. Loftis, Chair-Elect Scott C. Lucas, Past Chair Ben Eder, Treasurer Lindsey H. Hughes, Secretary John R. Bachofner Honorable Matthew Donohue Gilion C. Dumas David J. Linthorst Honorable Josephine H. Mooney Lucas W. Reese Renée E. Rothauge Jennifer S. Wagner Kate Anne Wilkinson Xin Xu The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2019 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 26th Annual Litigation Institute and Retreat ii Thank you to our sponsors Breakfast Lunch Breaks Reception After-Dinner Wine Reception 26th Annual Litigation Institute and Retreat iii 26th Annual Litigation Institute and Retreat iv TABLE OF CONTENTS Schedule. .vii Faculty. .ix 1A. Legal Writing . 1A–i — The Honorable Erin Lagesen, Oregon Court of Appeals, Salem, Oregon 1B. Advanced Written Persuasive Advocacy—Zusman’s Top 10 Tips . 1B–i — Kelly Zusman, U.S. Attorney’s Office, Portland, Oregon 1C. Brief Writing . 1C–i — The Honorable Donald C. Ashmanskas (deceased), U.S. Magistrate Judge, District of Oregon, Portland, Oregon 2A. From the Bench: Lessons Learned from Handling Jury Issues in High-Profile Cases . 2A–i — The Honorable Anna Brown, U.S. District Court, District of Oregon, Portland, Oregon 2B. Media Access in High-Profile Cases . 2B–i — The Honorable Julie Frantz, Multnomah County Circuit Court, Portland, Oregon 3A. Learning from Jurors . 3A–i — The Honorable Stephen Bushong, Presiding Judge, Multnomah County Circuit Court, Portland, Oregon 3B. Notes on Jury Feedback . 3B–i — The Honorable Susie Norby, Clackamas County Circuit Court, Oregon City, Oregon 4. Persuading the Jury: What Works and Doesn’t Work. 4–i — The Honorable Stacie Beckerman, Magistrate Judge, U.S. District Court, District of Oregon, Portland, Oregon — William Barton, Barton Law Firm PC, Newport, Oregon — Stephen English, Perkins Coie LLP, Portland, Oregon — David Markowitz, Markowitz Herbold PC, Portland, Oregon — Charese Rohny, Charese Rohny Law Office LLC, Portland, Oregon 26th Annual Litigation Institute and Retreat v 26th Annual Litigation Institute and Retreat vi SCHEDULE Friday, March 1, 2019 10:30 Registration 11:00 New Lawyer Workshop—Crafting Legal Writing Learn strategies for crafting your own refreshing brand of legal writing for any season. Hear about tips and practical tools to efficiently and effectively persuade your judicial audience at trial and beyond. The Honorable Virginia Linder, Senior Justice, Salem 12:15 Workshop Adjourns Noon Lunch Buffet 1:00 Advanced Written Persuasive Advocacy—What You Write Is as Important as What You Say Moderator: The Honorable Mary Mertens James, Marion County Circuit Court, Salem The Honorable Erin Lagesen, Oregon Court of Appeals, Salem The Honorable Virginia Linder, Senior Justice, Salem Kelly Zusman, U.S. Attorney’s Office, Portland 2:15 From the Bench: Lessons Learned from Handling Jury Issues in High-Profile Cases Moderator: Hannah Horsley, U.S. Attorney’s Office, District of Oregon, Portland The Honorable Anna Brown, U.S. District Court, District of Oregon, Portland The Honorable Gloria Navarro, Chief U.S. District Judge for the District of Nevada, Las Vegas The Honorable Julie Frantz, Multnomah County Circuit Court, Portland 3:30 Break 3:45 Rancho Rajneesh—Legal Battles in Wild Country’s “Utopia” Moderator: Robert Weaver, Garvey Schubert Barer, Portland The Honorable Edward Leavy, US Court of Appeals, Portland William Gary, Harrang Long Gary Rudnick PC, Eugene 4:45 Murder, Mayhem, and Massacre: Oregon’s Most Historic and Sensational Trials Kerry Tymchuk, Oregon Historical Society, Portland 5:30 Adjourn to Hosted Reception 6:30 Dinner and Presentation of the 22nd Owen M. Panner Professional Award to the Honorable Anna Brown, U.S. District Court, District of Oregon, Portland Saturday, March 2, 2019 7:45 Late Registration and Breakfast Buffet 8:30 From Ordinary to Extraordinary: What Makes a Great Trial Lawyer The Honorable Michael Mosman, Chief U.S. District Judge for the District of Oregon, Portland 8:45 A Litigation Profile: Sharing Observations and Experiences from the Bench and Bar The Honorable Michael Mosman, Chief U.S. District Judge for the District of Oregon, Portland Craig Wessel, Portland Business Journal, Portland 26th Annual Litigation Institute and Retreat vii SCHEDULE (Continued) 9:15 Inside Edition: What Attorneys Can Learn from Post-Trial Juror Interviews Moderator: The Honorable Michael Mosman, Chief U.S. District Judge for the District of Oregon, Portland The Honorable Stephen Bushong, Presiding Judge, Multnomah County Circuit Court, Portland The Honorable Karin Immergut, Multnomah County Circuit Court, Portland The Honorable Susie Norby, Clackamas County Circuit Court, Oregon City 10:30 Break 10:45 Persuading the Jury: What Works and Doesn’t Work Moderator: The Honorable Stacie Beckerman, Magistrate Judge, U.S. District Court, District of Oregon, Portland William Barton, Barton Law Firm PC, Newport Stephen English, Perkins Coie LLP, Portland David Markowitz, Markowitz Herbold PC, Portland Charese Rohny, Charese Rohny Law Office LLC, Portland 12:00 The Exceptional Trial Lawyer Demystified: Final Thoughts from the Chief The Honorable Michael Mosman, Chief U.S. District Judge for the District of Oregon, Portland 12:15 Adjourn 26th Annual Litigation Institute and Retreat viii FACULTY William Barton, Barton Law Firm PC, Newport. Mr. Barton’s national practice focuses on medical negligence, institutional sexual abuse, and insurance bad faith. Since 1972, he has tried over 500 jury trials to verdict, and he has over 40 million-dollar-plus verdicts and settlements. He also serves as a state trial judge pro tem. Mr. Barton is a Fellow of the International Academy of Trial Lawyers, the American College of Trial Lawyers, the International Society of Barristers, and the American Board of Trial Advocates, and he is past president of the Oregon Trial Lawyers Association and Western Trial Lawyers Association. He is the author of Recovering for Psychological Injuries, 3rd Edition. Mr. Barton has been a guest instructor for Harvard Law School’s Trial Advocacy Workshop and has lectured on trial advocacy over 450 times in 35 states and 5 countries. He is also the “Camp Commandant” of Barton’s Advocacy Boot Camp, now in its 14th year. Mr. Barton has received the Oregon Trial Lawyers Association “Distinguished Trial Lawyer Award.” In 2013 the Oregon State Bar Litigation Section recognized Mr. Barton with its Professionalism Award, and in 2015 he was presented with the Oregon State Bar’s highest honor, the Award of Merit. The Honorable Stacie Beckerman, Magistrate Judge, U.S. District Court, District of Oregon, Portland. Judge Beckerman was appointed to serve as U.S. Magistrate Judge in January 2015. Prior to joining the bench, she was an Assistant U.S. Attorney for the District of Oregon, prosecuting violent, white- collar, and environmental crimes. She has also served as an Assistant Attorney General at the Oregon Department of Justice, Appellate Division, and as an adjunct professor at Lewis and Clark Law School. Prior to government service, Judge Beckerman was a litigator for many years, focusing on securities class actions, shareholder derivative actions, insurance defense, and pro bono civil rights cases. Judge Beckerman is chair of the Ninth Circuit Pro Se Litigation Committee, vice chair of the Ninth Circuit Magistrate Judge Executive Board, the coordinator of the U.S. District Court Pro Bono Panel, a board member of the U.S. District Court of Oregon Historical Society, a member of the District of Oregon Corrections Working Group, a board member of Oregon Women Judges, an advisory board member of the Campaign for Equal Justice, and past president of Queen’s Bench (the Multnomah County Chapter of Oregon Women Lawyers). The Honorable Anna Brown, U.S. District Court, District of Oregon, Portland. Judge Brown was appointed United States District Judge for the District of Oregon by President William Jefferson Clinton, and her appointment was confirmed by the United States Senate on October 15, 1999. She assumed “Senior Status” as a United States District Judge on July 27, 2017. In her years as a trial judge, Judge Brown worked in the full range of general-jurisdiction, state, and federal trial court proceedings, as well as presiding over numerous complex civil and criminal jury trials. She presided pretrial and at two complex, multi-defendant criminal jury trials arising from the 2016 occupation of the Malheur National Wildlife Refuge in southeastern Oregon. Judge Brown shares her extensive trial court expertise with new and experienced lawyers through frequent state and federal continuing legal education programs and as an instructor and mentor for new lawyers and trial judges. The Honorable Stephen Bushong, Presiding Judge, Multnomah County Circuit Court, Portland. Judge Bushong has been a Circuit Court Judge in Multnomah County since 2008. He was named Chief Civil Judge in 2013 and Presiding Judge in 2018. He worked for the Oregon Department of Justice from 1994 until he was appointed to the bench. At DOJ, he served as an Assistant Attorney General, Attorney-in- Charge of the Special Litigation Unit, and Chief Trial Counsel of the department’s Trial Division.