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Can You Picture a Better Outcome?

In a recent victory, Smith Freed Eberhard partner, Brian Driscoll was awarded summary judgment in favor of his client and against all of plaintiff’s claims.

The Background

Brian was assigned the defense of Michaels craft store after Michaels was sued by a customer who suffered a laceration over her eye while browsing in the picture frame aisle at one of Michaels’ Oregon locations. The customer, turned plaintiff, claimed that Michaels was negligent, and therefore responsible, for her injury when one of its picture frames spontaneously toppled over from an upper shelf where it was positioned. The plaintiff received three stitches above her eye at a cost of $300 and claimed that the laceration resulted in a permanent misalignment of her eyebrow.

Pre-Trial

From the inception, no one could picture how Michaels could be responsible for the spontaneous movement of a picture frame or how plaintiff’s claim could be worth over $200,000 in damages. As the facts of the case developed, it became clear that plaintiff had no evidence to explain how the picture frame was set into motion. Further, the facts demonstrated that plaintiff’s cosmetic injury could be corrected with a routine outpatient procedure, costing dramatically less than plaintiff’s requested $200,000 in damages.

Discovery

As would later be referenced in motions practice, Newton’s First Law teaches us that an object at rest tends to stay at rest. Without knowing how the picture frame was set in motion, how could plaintiff blame Michaels? As Brian later demonstrated in a Motion for Summary Judgment, plaintiff’s lack of evidence showing how the picture frame was set in motion meant that plaintiff could not prove that Michaels knew—or should have known—that the picture frame posed a danger to plaintiff. Through plaintiff’s deposition and the deposition of her significant other—who was shopping with plaintiff when the alleged incident occurred—Brian was able to demonstrate that plaintiff had no information to support her theories of negligence against Michaels. Plaintiff’s attorney tried, but was unsuccessful, to develop evidence of negligence through the deposition of Michaels’ manager on duty at the time of the incident. After depositions and document discovery, the table was set for summary judgment.

Motion for Summary Judgment

Relying on well-developed case law in Oregon, Brian framed a motion for summary judgment based on the argument that Michaels had no reason to know or believe that the picture frames posed any danger to customers. He also argued that more than likely, it was plaintiff herself or another customer that caused the picture frame to fall.

Mediation

While the motion for summary judgment was pending, Brian’s client agreed to try and mediate the case. The mediator, influenced by the facts set out by Brian and his team, thought that it was possible that plaintiff’s lawsuit was subject to dismissal as a matter of law. During the mediation, Brian’s client reluctantly offered what amounted to defense costs in order to gain the certainty of a full and final settlement of all of the claims against Michaels. Unfortunately for plaintiff, she declined.

Motion Hearing

Just a couple of weeks later, the motion for summary judgment hearing was held in Marion County, Oregon. From the outset, the judge made it clear plaintiff was in the unenviable position of having to convince him that Brian’s reading of the law was wrong. Plaintiff’s counsel failed to do so. The judge found that Michaels had no notice, or reason to have notice, of any potential dangers that the picture frames posed to customers. The judge instead, found that the customers often posed a greater danger to the picture frames.

Outcome

Fully agreeing with Brian’s motion, the judge drafted a letter opinion only a week later dismissing all of plaintiff’s claims. As anyone who works in Oregon knows, securing summary judgment is a rarity. On this day, however, Brian secured summary judgment in favor of his clients. Brian and his clients couldn’t have pictured a better result.

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Avoiding the Septic Storm

In a recent victory, Smith Freed Eberhard skillfully maneuvered around challenging facts to secure a favorable jury verdict on behalf of our clients.

The Background

This case is all about septic systems. SFE’s client owned a mobile home park in Vancouver, Washington that was sold to a private party as an investment property. Each lot was serviced by a separate septic tank. The seller, at the request of the realtor, had each of the septic tanks inspected to meet the County’s requirement for a pre-sale septic inspection. All of the 40-year-old septic systems passed with flying colors. The buyer was otherwise responsible for performing all due diligence in association with the sale. The purchase price was $1,000,000. Shortly after the sale closed, however, complications began to arise. The buyers purportedly began to receive numerous complaints about the septic systems overflowing and sewage backing up into the yards of the reporting tenants. There were allegations of “illegal overflow pipes.” After the buyer had the septic systems inspected by a different inspector, fourteen septic systems were replaced at the cost of almost $300,000. A lawsuit was filed shortly thereafter. The plaintiff sought to recover the replacement cost of the septic systems, plus attorney fees, alleging that the seller breached the contract by concealing defective septic systems. Plaintiff also alleged that the seller negligently or intentionally failed to disclose that the septic tanks were failing in the sale. It was at this time that SFE was hired to defend the seller.

Pre-Trial

SFE sought to present a reasonable offer to settle the matter, in order to avoid risk and to save our client the cost of litigation. At a mediation that took place prior to any substantial discovery, the buyer and inspector collectively offered $150,000 to settle all claims. The offer was later made in the form of an Offer to Allow Judgment to potentially avoid attorney fee exposure later. The buyer declined the offer and refrained from making a settlement demand until just a couple of weeks before trial, when they offered to settle the case for almost $500,000. The case was continuing to look worse and worse for SFE’s clients.

Discovery

Plaintiff buyer produced a litany of salacious and potentially damaging evidence in his effort to hold defendant seller liable for the costs he incurred in replacing the septic systems. Plaintiff had his inspector record video of raw sewage in a heavy rainstorm which was played at trial. Plaintiff produced declarations from many of the residents of the park purporting to prove that Defendant knew of the deficient septic systems for years before the sale. Taken together, the evidence produced by Plaintiff painted an unflattering picture. Bruce, however, knew that the picture Plaintiff was attempting to paint was wrong and all he needed to do was convince a jury of that fact.

The Strategy 

SFE knew that he had to develop good themes to avoid the storm that was brewing underneath the mobile park home. To that end, he developed three. First, Bruce wanted to make sure that the trier of fact understood that the buyer was required to perform his own due diligence in relation to the septic tanks before the sale. Second, SFE sought to develop testimony from the residents of the mobile home park showing that the seller did not have significant prior notice of complaints and/or issues with the septic system before selling the park. Third, SFE knew he needed to establish that the buyer purchased the mobile home park as an investment, and, despite the cost of replacing the septic tanks, the buyer received an excellent return.

The Trial

As far as trials go, this one did not start out perfectly. Several witnesses put on the stand were given grand opportunities to support the buyer’s case, with testimony and evidence being put on that was negative for SFE’s case. Nonetheless, SFE was able to obtain several important wins. First, SFE was able to utilize the testimony of the realtor to prove that there was no conspiracy between the seller and the inspector in relation to selling the park just prior to multiple failures and that, in fact, the 40-year-old systems were already 10 years beyond an average life span at the time of sale. Second, SFE was able to again utilize the realtor’s testimony to prove to the jury that the realtor had advised the buyer to perform his own due diligence and to talk with the septic inspector if there were questions. Third, SFE obtained testimony from the buyer that the mobile home park had been appraised at $1,780,000 just a couple of months before trial, proving the investment was a good one.

The Outcome

Utilizing the favorable testimony developed at trial, SFE was able to secure a defense verdict on two of the three claims against our client. On the final negligent misrepresentation claim, the buyer was awarded only $55,000. There was an attorney fee provision in the purchase contract and the buyer sought over $200,000 in attorney fees. However, SFE was able to convince the court that the buyer was not the prevailing party and, accordingly, no attorney fees were due. Plaintiff recovered almost $100,000 than they had been offered two years prior to trial. Overall, this case had the potential to be a big stinker, but Bruce turned it into a sweet success for our client.

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Operation Trick-or-Treat

In a recent victory, Smith Freed Eberhard senior counsel Gordon Klug went above and beyond to protect the interests of his client and secure a judgment against a plaintiff who had tried to pull a fast one.

The Background Story

This case started out with a relatively small default judgment already in place against Gordon’s client. It was important to the client for the judgment to be lifted, so Gordon promptly attempted to convince the court to grant his client relief. However, the court required Gordon to personally serve the plaintiff, who had disappeared. Through teamwork and creative problem solving, Gordon and his team were able to locate the plaintiff, determine that he was actively avoiding being served, and convince the court to forgo requiring personal service. Soon thereafter, Gordon convinced the court to lift the default judgment and enter a judgment against Plaintiff for the costs of litigation.

The Strategy

Gordon knew that lifting the default judgment was of the utmost importance to his client. To that end, he needed to convince the court to set aside the default judgment through a motion for relief. However, the motion needed to be served on the plaintiff. Unfortunately, Plaintiff was refusing to answer his door while at home and had repeatedly escaped the process server’s attempts. Undeterred, Gordon and his paralegal, Sandy Barbour, came up with “Operation Trick-or-Treat.” With the client’s approval, Gordon paid for Halloween costumes for the process server and her daughter. The plan was to knock on Plaintiff’s door for Halloween, and instead of getting a treat, the process server would trick Plaintiff in the form of service of Gordon’s motion. Displaying his ongoing, serious aversion to service (as well as holiday cheer), Plaintiff refused to answer the door on Halloween.

At this point, Gordon believed he had exercised all of his options and presented to the judge to request a waiver of the personal service requirement. After the judge heard about Operation Trick-or-Treat, he was convinced that Gordon had done enough to warrant waiving personal service. Soon thereafter, Gordon’s motion for relief from the default judgment was granted.

The Outcome

The default judgment against Gordon’s client was lifted. Further, Gordon identified that the plaintiff had engaged in some questionable behavior in securing the original default judgment. Specifically, Plaintiff had mailed a copy of the summons and complaint to the Florida location of a national insurance agency and then applied for, and was granted, a default judgment only four days after filing. Upon presentation of these facts to the court, Gordon secured a judgment for the full value of his litigation costs against Plaintiff. In addition to a great story, Gordon secured swift justice for his client.

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Bringing a Claim to a Complete Stop

In a recent victory, Smith Freed Eberhard’s team achieved a defense verdict through teamwork, diligent discovery, and effective use of expert affidavit at arbitration.

The Background Story

This case started out with an issue that tends to cause trouble in Washington litigation. Specifically, a claimant was unable to segregate which portions of her injuries were related to which of the three accidents she was involved in. If the claimant was found to be fault-free, the multiple defendants would be found jointly and severally liable for her injuries. The only way to avoid that mess was to either pin fault on the claimant or show that the insured was without fault.

The Strategy

The first step in the strategy was to engage in thorough discovery to uncover an argument that would prove the insured was fault-free. Paralegal stepped up to the plate to help find the answer the team needed. She worked up the case thoroughly and uncovered a piece of evidence that corroborated the insured’s story. Specifically, she discovered that the insured’s vehicle had a “black box,” an onboard computer that recorded discrete movement data before and after the subject collision. After uncovering this evidence, an expert witness was retained to accurately decipher the recording on the black box and develop an affidavit stating that the insured’s vehicle was stopped at the time of the collision. This is where Attorney Gordon Klug stepped up. He worked with the expert witness to develop the affidavit into an effective tool to wield at arbitration.

The expert witness found data on the vehicle’s black box that showed her vehicle was at a complete stop before reporting a collision. Attorney Gordon Klug utilized the expert affidavit at the arbitration and explained to the arbitration panel that the insured could not have been responsible for a rear-end collision if she was not moving. Rather, the defense’s position reflected the insured’s recollection that the claimant had struck her vehicle when the claimant drove in reverse. Through effective use of the arbitration documents and persuasive arguments, the team was able to convince the arbitration panel that the insured was 0% at fault for the accident.

The Outcome

The arbitrator filed an award in favor of the claimant for $40,000. However, the arbitrator simultaneously found that the insured was fault-free. Accordingly, a defense verdict was awarded to our team and the remaining co-defendants were pinned with joint and several liability. The team’s diligence, teamwork, attention to detail, and convincing arguments led to another success.

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Small Claims, Big Headache

In a recent victory, Smith Freed Eberhard partner Tasha Lyn Cosimo achieved an expeditious dismissal of a small claims case. Not only did Tasha get the case dismissed, but she recovered a money judgment against the plaintiffs, reimbursing her client for the costs of litigation.

The Background Story

In this case, the plaintiffs had been involved in a motor vehicle accident, sued an insured driver in small claims court, and recovered a modest amount in non-economic damages. After the insured driver’s carrier paid the small claims judgment, the same emboldened plaintiffs turned around and sued the insurer for punitive damages and bad faith, again in small claims court. The plaintiffs were essentially seeking compensation for having to go through the claims process.

In Oregon, unlike at the trial court level, attorneys generally cannot represent clients in small claims court. Additionally, defendants have no mechanism by which they can quickly dismiss frivolous claims without proceeding to at least one hearing. This small claims case was turning into a big headache for the insurer. Read on to find out how Tasha turned this situation into a success story.

The Strategy

Tasha knew that attorneys typically cannot represent clients in small claims court. Undeterred, Tasha submitted a motion to appear through counsel, describing the hardship that her out-of-state insurer would have to endure by sending a representative to Oregon. In a rare move, the small claims judge was persuaded by Tasha’s motion, and granted her motion to appear on behalf of the insurer for all proceedings in the case.

Tasha’s next step was to find a way to immediately engage in motions practice, seeking dismissal of the frivolous claims. After demanding a jury trial in trial court, and being advised that the case would need to run its course in small claims court before landing in trial court, Tasha utilized creative litigation methods to persuade the small claims court to allow her to submit a motion to dismiss for failure to state a legally cognizable claim, without having to wait for the transfer to the case to trial court. Tasha drafted and submitted the motion to dismiss, ultimately convincing the court that the plaintiffs did not have any legal grounds upon which to rest their claims against the insurer. Additionally, Tasha sought her client’s costs for having to defend the case, which were awarded by the court. Those costs have since been collected and returned to the insurer.

The Outcome

Insurers are no strangers to frivolous lawsuits. Unfortunately, insurers often wind up paying “nuisance money” or high defense costs to deal with these cases. Instead, Tasha was able to resolve the case while keeping costs low, handling the matter expeditiously, and even compensating her client for the costs of litigation. This success story has earned Tasha another appreciative client.

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Diligent Preparation and Spotting Fatal Flaws in the Other Side’s Case Leads to Favorable Outcome

Smith Freed Eberhard Partner Ryan McLellan recently obtained a very favorable settlement after moving for a directed verdict against in an equine on the grounds that she had not established causation or damages during the presentation of her case in chief. Recognizing that the motion for directed verdict would likely be granted, Plaintiff’s counsel accepted a minimal settlement offer that was roughly 80% less than her pre-trial demand.

The Background Story
The case arose out of the foaling of a horse. Ryan’s client operates a horse training and foaling facility. The owner of the horse hired Ryan’s client to “foal out” her horse. This generally includes monitoring the horse’s pregnancy and assisting with the delivery of the foal if needed. Roughly a month after the horse was delivered to the client’s facility, an employee of the client discovered that the horse had unexpectedly gone into labor. The employee called the foaling attendant, who lives on the property, who arrived within a few minutes and determined that the foal was in an abnormal posture. As a result, the foal was stuck. The foaling attendant corrected the abnormal posture, then worked with two other employees to get the foal out of the horse. For unknown reasons, the foal was delivered stillborn. The client called the owner to let her know about the stillborn foal. Critically, the owner did not authorize a necropsy to be performed. The client then called a veterinarian to come and examine the mare. The horse was subsequently moved to another boarding facility.

Ryan’s client filed a lawsuit against the horse owner seeking approximately $1,000 after the horse owner failed to pay her bill. The horse owner responded with a $65,000 counterclaim alleging that the foaling facility had been negligent in various respects, resulting in injury to the horse and the death of the foal. Of this amount, $15,000 was based on past, and future veterinary expenses and $50,000 was based on alleged loss due to the death of the foal and injury to the horse. The horse owner also asserted claims of breach of bailment and violation of Oregon’s unfair trade practices act. The unfair trade practices act allows for a claimant to recover their attorney fees if they are successful. In essence, the horse owner alleged that some language on the client’s website was misleading with respect to how often the horse would be monitored and that the failure to monitor the horse as represented in the website statements caused the horse’s injuries.

The horse owner’s attorneys took a scorched earth approach to the case, threatening and filing a litany of motions and initially holding back discovery documents in response to requests for production (and presumably incurring significant attorney fees). The case required the parties to take many depositions, including the depositions of multiple veterinarians that had treated the horse.  The horse owner’s attorneys took the position that due to injuries sustained during the foaling, the horse could never have foals again. As a result, they took the position that the horse’s value was now essentially zero since her true value before the incident had been as a broodmare. Meanwhile, the horse owner’s attorneys refused to engage in meaningful settlement discussions.

The Strategy
As trial approached, Ryan lined up various witnesses to testify in support of his client’s conduct. This included the client’s veterinarian as well as several of the client’s competitors. Ryan also retained a veterinary expert with a background in criminal horse abuse cases as well as a horse appraisal expert to discuss the loss of value allegations. Both experts testified well, particularly the veterinary expert (who supported the client’s conduct and challenged the horse owner’s assumption that the horse could not have foals again in the future).

Meanwhile, during cross-examination of the owner’s veterinary expert, Ryan effectively forced the expert to admit that she had not actually practiced veterinary medicine for several years. In addition, included in the expert file produced to the defense team prior to the expert’s testimony was an outline of questions (with answers) prepared by the horse owner’s attorney, as well as the expert’s handwritten notes. The expert testified that she had provided most of the answers in the outline, but had to admit that she had not provided all of the answers.

The basis for a directed verdict came when the defense team realized that the owner’s experts never testified that the opinions they expressed were based on a reasonable degree of certainty in their respective fields. Critically, the veterinary expert never testified that her opinion that Ryan’s client had caused the death of the foal or injury to the horse was based on a reasonable degree of medical probability. Meanwhile, the owner’s legal team never presented testimony that the veterinary expenses being sought were reasonable and necessary.

Consequently, at the end of the owner’s presentation of their case, Ryan’s associate Brian Kernan moved for a directed verdict on the grounds that there was not competent evidence to submit to the jury regarding either causation or damages. This included an argument that the owner’s unfair trade practices act claim was not legally cognizable because she had not presented evidence of an “ascertainable loss” (i.e., an objectively verifiable loss), a requirement under the statute. Critically, the owner’s horse appraisal expert had testified that “a horse is worth whatever someone is willing to pay for it” and “horse appraisal is subjective.”

The judge frustratingly denied the motion with respect to the unfair trade practices act claim but granted it with respect to the veterinary expenses (thereby striking $15,000 from the owner’s claim). Meanwhile, the judge stated that he needed to review the record, but indicated that he was inclined to grant the motion on causation grounds if the owner’s experts had, in fact, failed to say the “magic words” during their testimony. Thereafter, Ryan presented a minimal settlement offer to the owner’s attorney. Realizing that they had failed to lay the proper foundation for the expert’s opinions, the owner quickly accepted the minimal settlement. Given that there was significant attorney fee exposure to the client if the judge were to have determined the unfair trade practices act could go forward and the owner prevailed on that claim, the settlement was a great way to cap the risk.

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Persistence and Staying Focused on the Facts Leads to Unanimous Defense Verdict

Persistence and Staying Focused on the Facts Leads to Unanimous Defense Verdict
In a recent trial victory, Smith Freed Eberhard Partner Cliff Wilson and his team obtained a unanimous defense verdict in a dog bite case by taking a hard position and successfully presenting evidence that lead to the jury to find that his client had no knowledge of the dog’s dangerous propensities.

The Background Story
Defendant took in a stray dog, which happened to be a “pit bull” mix, off the streets on a snowy winter day in January. Defendant contacted the humane society but was told they don’t take in strays. Pursuant to directions on the animal shelter’s website, she tried to find the owner herself before she brought the dog into the shelter. Defendant posted lost dog notices and announcements on Facebook and other websites. During her time with the dog, it was friendly and exhibited no aggressive behavior to anyone. 10 days after she found it, plaintiff came to defendant’s home to pick up defendant’s daughter for a date.  Plaintiff entered the home, walked up the stairs, approached the dog, knelt down with his face in close proximity to the dog, rubbed the dog’s ears, and said something to the effect of “good doggy.” In that instant, the dog bit plaintiff on the left side of his face and ran away. The bite caused lacerations to plaintiff’s left eyelid, tear duct and lip. The injuries required reconstruction of plaintiff’s tear duct and required alleged lifetime future care of the duct. Plaintiff sued defendant for animal negligence, alleging personal injuries and seeking over $800,000 in damages.

The Strategy
Smith Freed Eberhard Partner, Cliff Wilson, and his team were asked to represent the defendant.  Under Oregon law, in order to be held liable, a possessor of an animal must have known or had reason to know of the dog’s dangerous propensities and that it would bite if not controlled or confined.  Cliff’s conversation with the defendant and careful investigation of the case made it clear that defendant had no way of knowing that the dog had any dangerous propensities or had ever exhibited aggression toward anyone.  In fact, the dog had interacted with multiple people in the ten days that it was in defendant’s home, showing no aggressive tendencies.

Cliff asked the court for summary judgment, arguing that defendant had no possible way of knowing that the dog was likely to bite a visitor. Plaintiff’s counsel identified a visitor that previously came to defendants home and did not want to pet the dog when invited to do so. The court denied Cliff’s motion, finding that the visitor’s refusal to go up the stairs and pet the dog could be construed as evidence that the dog had exhibited aggressive tendencies toward him.

Cliff’s strategy for trial was to focus on the facts, primarily, defendant’s lack of knowledge of the dog’s history. Plaintiff’s counsel was Gregory Kafoury, a prominent Oregon personal injury attorney known for pursuing big verdicts. Mr. Kafoury took an aggressive strategy of attacking defendant’s credibility based on inaccuracies on a form she filled out when she dropped the dog off at the animal shelter the day after the bite incident. Plaintiff’s attorney was also very set on identifying the “inherent” dangerousness of pit bull mixed dog breeds, and drew on popular media bias and common public misconceptions about this breed of dogs. Cliff cut through the smoke and mirrors with the assistance of a dog behavior expert, and focused the jury on the actual facts of the case.

The Outcome
Cliff’s persistence, strategy, and preparation for trial paid off.  Following deliberation, the jury returned with a unanimous verdict in favor of defendant.  In the end, it was clear that the jury focused on the facts and that despite the severity of the injuries and the plaintiff’s attempts to characterize the dog as inherently dangerous based on its breed, the plaintiff had simply offered no evidence that would show the defendant had any knowledge or should have had any knowledge that the friendly dog would bite him.

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Litigation Success: Due Diligence and Maintaining Position Leaves Ashley with a Happy Client

Litigation Success: Due Diligence and Maintaining Position Leaves Ashley with a Happy Client
Smith Freed Eberhard Associate Attorney Ashley Nagrodski recently obtained a settlement just minutes before arbitration, where the other defendant accepted all responsibility and agreed to pay the claim. Read on to learn more about this interesting case and to learn how Ashley’s approach to the case resulted in a successful settlement and a very happy client.

The Background Story
This case involved a spontaneous combustion that began on the balcony of a condominium unit. The defendants include the company that purchased the unit and a contractor hired to remodel and restore the unit. During the remodel, a fire started on the balcony of the unit where paints, solvents, and rags were being stored by the company hired to remodel and restore. The fire caused the sprinkler system to engage, resulting in water damage to multiple units throughout the condominium. Following the fire, one of the residents (the plaintiff) sued both defendants to recover damages caused by the water damage to her unit. The plaintiff damages included storage fees while her unit was repaired and the expense for alternative living arrangements during that time.

The Strategy
Smith Freed & Eberhard Partner Thomas McCurdy and Associate Attorney Ashley Nagrodski were asked to represent the defendant that purchased the unit. Following a careful review of the evidence obtained and after meeting with her clients, Ashley denied liability on behalf of her client and filed a cross-claim against the company that was hired to remodel the unit. Unsurprisingly, the company hired for reconstruction and remodel refused to accept liability, and early attempts to settle the claim were unsuccessful.

Ashley was able to save costs for her client by relying on the expert retained before litigation, who performed an investigation shortly after the incident.  The investigator determined the fire started by spontaneous combustion of staining materials being stored on the balcony by the company hired for reconstruction and remodel.

After speaking with the expert, Ashley reaffirmed her position that her client was not responsible for the plaintiff’s damages and that sole liability resided with the company hired for the remodel. With that position in mind, Ashley and her team worked hard to prepare for arbitration. Fortunately, the other defendant saw the strength of Ashley’s argument and chose to settle just minutes before arbitration.

The Outcome
Ashley’s approach to the case and preparation proved to be successful.  The company that was hired for remodel accepted responsibility settled the case right before arbitration and agreed to pay the entire claim to the plaintiff.  In the end, Ashley was left with a happy client, who was not required to pay any portion of the claim.  The outcome of this case is particularly important because the parties anticipate further claims will be made by other condominium owners in the future.

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Whose Fault is it Anyway?

Tasha Lyn Cosimo recently won a complete defense award in a hotly disputed liability case.  The case in question was a classic car collision in which each driver claimed that the other was at fault in the accident.

The Background Story

Our client’s version of the facts was that the plaintiff cut him off when he made a last minute right turn from the wrong lane across two lanes of traffic.  The plaintiff stated that our client rear-ended him when he made a turn from the proper lane and did not cut off our client.  Examination of the damaged vehicles gave no conclusive evidence as to who caused the accident.  In addition, there were no witnesses to the collision other than our client, the plaintiff and the plaintiff’s passenger.

The Strategy

The plaintiff did not make it easy for Tasha to work up the case.  In fact all of the discovery documents that our defense team requested for case were not provided until four months after the deadline.  When Tasha deposed the plaintiff’s passenger, it turned out that he did not agree with the plaintiff’s view of how the accident happened.  In fact, he stated that the plaintiff did turn from the wrong traffic lane, which supported the defense argument.  Tasha never actually met the plaintiff in the case; she ended up deposing him over the phone.

On the evening before the arbitration, Tasha got wind that the plaintiff’s passenger, who was key to her case, might be getting cold feet when it came to testifying.  Realizing that if he didn’t testify it would have a dramatic impact on her case, Tasha stayed late into the night and wrote a motion to allow his testimony from the deposition to be allowed in as evidence.

The Outcome

Sure enough, on the day of the arbitration the plaintiff’s passenger did not appear.  When they attempted to reach him by phone, it was discovered that the phone was disconnected.  Tasha’s motion to allow the deposition transcript was granted.  Due to Tasha’s advocacy the arbitrator awarded a complete defense award!   Our client was extremely pleased with the result, and is hoping that this verdict will dissuade any future liability claims or lawsuits.

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Occam’s Razor at Work

Occam’s Razor at Work: Simplifying Matters for Jurors

Smith Freed Eberhard recently overcame steep odds to achieve a favorable verdict for its client by successfully framing the case as a simple matter to which the jurors already had the answer, thereby avoiding a thorough examination of certain specific details and effectively dismissing otherwise solid arguments by the defense.

The Background Story

This matter involved an employee of a film production company injuring a cyclist while driving a rental vehicle in the course of his work. The cyclist filed two suits; one against the driver, and a second against the insurers for the driver, the film production company and the rental car company (SFE’s client). Two years after filing, all but the rental car company had settled out. In fighting these claims, the rental car company ended up with a judgment against it for $13,000.00 in damages and $30,000.00 in attorney fees, instead of settling for an estimated $4,000.00.

Next, the rental car company sued the film production company for retrieval of that $43,000.00 plus its own attorney fees on the grounds that, if extra protection is not purchased at the time of rental, the rental agreement indicates that any damages to or caused by the vehicle while in a renter’s possession are the responsibility of the renter.

The defense countered with the argument that the rental car company should have settled for the reasonable sum of $4,000.00 and then billed them for that amount, rather than racking up an additional $39,000.00 in damages and then seeking reimbursement for that unnecessary sum. Due to the strength of this argument, the rental car company’s prior counsel was forced to withdraw only two and a half months prior to trial to allow him to testify to the strategy he employed in resolving the claim and the associated high costs. In a particularly problematic turn, it was discovered that prior counsel had recently penned an article in which he recommended early resolution of these types of claims, and then chasing the money, instead of fighting tooth and nail – the opposite of his actions.

Further, the defense pointed to a clause in the rental agreement that indicated that the rental company would indeed owe PIP in cases like these, if a state requires it by law. The fact that Oregon law does contain such a stipulation was perhaps the most significant hurdle among many for SFE.

The Strategy

In order to frame the matter as a straightforward one that didn’t require deep consideration of specific contractual elements, beginning in voir dire, spent more time than usual talking with the jurors about things they were familiar with. For example, SFE asked the jurors if they had ever rented a car before, if they had ever read the associated contracts before and the fine print therein, and, using suggestive diction, asked if it was correct that all the jurors already knew that if you don’t purchase additional protection from a rental company then you are liable for any damages incurred.

By focusing on shared experiences and assumptions, SFE framed the case to the jury as an easy one in that the jurors were already personally familiar with the rules that spoke to the issue at hand. SFE lent further support to this theme of simplicity by using only a few, straightforward, clear exhibits in contrast to an extensive PowerPoint presentation delivered by the defense. In doing so, the defense’s arguments appeared convoluted and tangential in relation to what came across as a simple, easy-to-understand position.

The Outcome

The jury delivered an unusual verdict that represented a sort-of middle ground in terms of damages. The decision indicated that the rental car company failed to mitigate costs and fees but that the defendant had breached the rental agreement. As such, they granted restitution for all medical payments (minus the $4,000.00 it was presumed the rental car company could’ve settled for) along with one-half of the attorney fees sought, for a total of $25,000.00.

This sum represented a higher number than the offer of judgment from a few months prior, ensuring another very appreciative client for SFE, particularly in light of the difficulties posed by the defense’s valid contractual argument and the questionable strategy of the client’s prior counsel.

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