For a business litigation matter you want a trial lawyer with relevant experience.

Trial Lawyer E. J. Simmons

Although I started out as a corporate attorney, in recent years my practice is limited to litigation. Only trial work, no transactional work.

My areas of experience include business contract disputes, shareholder disputes, real estate litigation including adverse possession trials, commercial lease issues, intellectual property litigation including trademark infringement actions, and serious personal injuries including wrongful death.

To decide what makes sense for your litigation matter, you are invited to call 503-221-2000.

Civil litigation is a business process. The expense must be reasonable, given the expected outcome. It is useful to estimate the expected return on investment.

Return on investment in litigation

To estimate the expected return on investment, we need two numbers: (a) the expected expense, and (b) the expected outcome. Of course, estimates of future outcomes are not as precise as looking back.

Return on investment is a ratio, and can be expressed as a percentage. The benefit of the investment, in dollars, is divided by the cost of the investment.

Any proposed litigation approach will have a cost. If a proposed litigation approach with its investment required does not have a positive ROI, or if there are other approaches with a higher return on investment, then the path should be not be taken.

In making the calculation, the client should be encouraged to provide an estimate of the value of resources required to support the litigation. Assumptions in the calculation should be made explicit.

Note: an important consideration is the relative financial strength of each side. In some expensive litigation, the matter may exhaust the resources of a party.

Litigation Expense estimate

Expenses are easier to estimate than the outcome of the litigation. A spreadsheet is clear way to set out the assumptions and the expense as time goes by. Because the expense of litigation depends heavily on when the case resolves, the better estimates are given by phase. For example,

• document discovery,
• depositions,
• motions,
• preparing for trial,
• trial, and
• appeal if necessary.

A spreadsheet of estimated expenses of the litigation by phase is valuable to the clients. The assumptions should be stated. Such an organized estimate prevents wasteful expenditures or unfortunate surprises when litigation costs more than the client anticipates.

Related to this is the flat fee, instead of the hourly billing that became a law tradition starting in the 1950’s or so. The flat fee has the advantage of taking uncertainty out of the situation, but can be difficult to set if the case has unusual factors.

For a simple and straightforward hourly fee case, below is an example of an estimate in spreadsheet format.

Fee Estimate Example

Litigation Outcome estimate

This requires both analysis and courage. Even with a disclaimer about the uncertainty of trying to predict the future, many lawyers are hesitant to express even a range of outcomes. However, it is necessary to convey the information. One helpful approach is to consider the alternative outcomes, in broad terms, such as an excellent outcome, a good outcome, a bad outcome, or a worst case outcome.

Summary

For business litigation, business expenses should be justified by a return on investment. That is if you spend many thousands of dollars on litigation it should be with a specific purpose and goal in mind that would produce more return than if you don’t spend the money. However, many times litigation is just undertaken with no particular financial plan as to what it is going to cost and what you are trying to get.

Next Step

This article is only about financial strategy. Analysis of the expected financial aspect of litigation is necessary but not sufficient for a favorable outcome. For more information call E. J. Simmons at 503-221-2000 or email ejs@simmonstrialpractice.com.

Reality: humans make decisions based on emotions, and then justify the decision by rational explanations.

The basic process of research into emotions:

1. Work out a story to persuade, call this version 1.
2. Get feedback from surrogate fact-finders.
3. Improve the story as possible.
4. Repeat.
5. Assess the effect on strategy; what is the case worth, or if you are going to lose then settle or abandon.

Emotion Research Summary

Jurors react emotionally to facts. As a result, their decisions are difficult to predict. With no jury research, the verdict can turn on unexpected jury attitudes, even when experienced attorneys represent the parties.

As a consequence, trial presentation plans should be validated by jury research. Outside trial consultants provide the best quality validation. They should be used in cases with $1 million or more at stake. In other cases, in-house focus group research and practice trials can provide excellent information at a reasonable cost. This paper outlines how to carry out economical in-house jury research in order to win at trial.

Juries are Emotional

Some attorneys use their own instincts or experience to predict jury reaction. However, those in the jury box come from a different background than the attorneys. The attorneys have been living with the facts and wrestling with the law for a year. The jurors are confronted with both for the first time when the case is called for trial. They will not understand jargon, big words and complicated arguments. They will not care as much about the case as the attorneys or the parties. They are more swayed by emotion than the attorneys, who tend to be more swayed by logic. As a result, cases are often lost because the attorneys have not presented the case clearly enough, or because the jury has an unexpected emotional reaction to the facts.

The Advantage of Research

For a personal injury attorney, a defeat means no income. Personal injury attorneys often use jury research to improve trial presentation, to evaluate a case, and to avoid costly mistakes. Other civil litigators can and should use jury research to gain an advantage over their opposing parties.

In trial the goal is not perfection, it is to win. With simple jury research, you can modify your presentation to emphasize themes that appeal to ordinary citizens on the jury.

For a plaintiff’s case, a practice trial may reveal that an actual jury would not award the plaintiff anything, even though he suffered devastating injuries. Instead, the jury research may show that the case simply lacks jury appeal and should be settled to avoid the catastrophe of an expensive loss.

For a defendant’s case, a practice trial may point out the facts that jurors rely on to limit liability or damages. One example, developed in medical malpractice cases, is the great emphasis jurors place on a patient not following through by keeping appointments.

Whether the attorney is representing plaintiffs or defendants, the results of jury research often point out that certain themes have no effect, even after great emphasis by the attorney.

Expense of Practice Trial - With and Without Trial Consultant

Trial attorneys prefer to hire a trial consultant, to carry out research and practice trials for feedback on the trial themes. However, research and practice trials through a trial consultant’s office will be expensive, perhaps $50,000 to $100,000.

For a big case, the attorney should recommend to the client that practice trials be carried out by trial consultants. Every case with more than $1 million at stake should have the assistance of a trial consultant, including practice trials. Trial consultants are very valuable in carrying out this work.

For a big case, a trial consultant expenditure of $50,000 to $100,000 is appropriate. However, for a medium-sized case with $500,000 or less at stake, the cost is too much. This paper outlines the steps for in-house focus group research, including a practice trial, as appropriate for a medium sized case.

Preparing for the Practice Trial With Individual Interviews

Individual interviews are recommended to research the ordinary person’s attitudes toward the facts of the case. Even a few interviews will help to determine juror attitudes. They are an inexpensive way to quickly predict the jury’s view of the case. Fast feedback speeds up the development of emotional themes. With as few as 10 interviews of strangers from the street, you can be better prepared than your opponent.

To try out your presentation of the facts, write out for each side a 10 sentence list of facts to set out the main points of what happened. The plaintiff’s version should be presented first and usually starts by describing what the defendants did wrong. Whether you represent the plaintiff or defendants, you must downplay your side’s story and emphasize the opposing side’s story in order to get accurate feedback.

An assistant can conduct these interviews by going out and recruiting diverse passersby. The assistant should greet each person by saying “I am taking a survey about a law case and will pay you $5 for 5 minutes, would you like to participate?” For an example of an interview questionnaire, see Appendix B, call or email and request it.

Exposing each side’s story to a few random passersby is the cheapest and fastest way to get reactions, begin developing emotional themes, and prepare for the practice trial.

Basics of the Practice Trial

Once the case themes are planned out, you can hold a practice trial to determine how a group like the jury will react. Ordinarily, you will hold the practice trial a few weeks before the real trial, so that problems with the presentation can be corrected.

Recruit the Jury

First, imitate the source of the jury panel. For example, in the State Court in Portland, the jury panel will be Multnomah County residents chosen from the voter registrations and the Department of Motor Vehicles data. For additional jury panel information, see Appendix A.

As a reasonable imitation of the jury pool, my office has called people at random from the local telephone book. On a weekday, in the early evening, the assistant calls a random telephone number and says: “Hello, I am calling to recruit people for a jury survey next Saturday, and will pay $60 for 5 hours attendance, lunch is provided. Would you like to participate?” Some will be interested. The assistant should ask a few questions to ensure that the participant will not be biased.

When speaking with potential jurors, you assistant should never use the terms “focus group,” “mock jury,” or even “practice trial.” In addition, all communication with a prospective juror must be neutral. Any question by the prospective participant about which side is doing the trial must be answered, “I’m sorry, I cannot answer that question.”

You must completely disguise who is paying for the trial. Otherwise the jury will be biased and try to tell you what you want to hear. Moreover, the amount of payment should be the minimum to get average income people to participate, and no more.

Overbook by 50%. If you want 8 people to emulate a federal jury, then recruit 12 people to attend. Confirm by written note, with a map to the site. If confidentiality is an issue, this can be signed by a legal assistant in a friendly law office.

Recruit Opposing Counsel and Judge

You must prepare both sides’ presentation. This forces early presentation of the basics of the case, and by itself will improve your trial presentation. But you should use a colleague as opposing counsel.

Conduct the Trial

On the day of the trial, the assistant should set up the room with a camcorder before the jurors arrive. The assistant should have each juror sign a confidentiality agreement. See Appendix B for a form. The entire process should be video taped.

The judge will instruct the jury similar to standard jury instructions. Each side will make its opening statement. Each side will introduce basic evidence, e.g. witnesses and documents. If experts are important, you may wish to show some video or have the expert or an actor provide that information. Actors will play the opposing party and opposing witnesses. To get feedback on the effect of demonstrative evidence, you should use three visuals for each side.

Make sure that the presentation slightly favors the opposing side. Unjustified optimism is not acceptable. The presentation will take about two hours for a simple case, more for a complicated case.

After the presentation, the judge will charge the jury and the assistant will check to verify that the video tape is running. All deliberations will be video taped, but the attorneys will leave the room. When appropriate, provide lunch for the jury. The video should be kept running throughout the entire process. When the jury reaches a verdict, it should fill out a verdict form and give it to the assistant.

Predictions

When you review the video tape of the deliberation, you will be amazed. Then, after you recover, you will greatly improve your presentation for the real trial.

Expense of In-House Practice Trial

In-house research is less informative than research by experienced trial consultants, but it is much less expensive. Typical costs for an in-house practice trial will be around $10,000.

Attorney Time (at $400/hr)
Your Side (apprx. 2 days) $6,400
Adverse Side (1/2 day) $1,600
Judge (2 hours) $800
Subtotal $8,800

Expert Witness – Your Side $1,000
Actors for Opposing Witnesses $600
10 Jurors (including lunch) $700
Room $500
_____
Total Client Expense $11,600

To further economize, ask friends to volunteer or discount their time to serve as opposing counsel, judge, opposing party and witnesses, and have the trial in your office.

Mistakes to avoid

To get accurate feedback from the jurors, the entire exercise must be conducted with the seriousness of a real trial. Everyone helping must not joke, laugh or socialize, whether before, during or after the deliberations. Moreover, everyone must avoid terms such as “focus group”, “mock jury”, “practice jury” and “practice trial”. Such terms demean the process, weaken the seriousness of all participants and make the result less like the real trial. The juror participants are “Jurors” and this is a “Trial”.

More Resources

In Portland, I have used Tsongas Litigation Consulting, Inc., and highly recommend their assistance for Portland or Seattle. http://www.tsongas.com/.

David Ball is a jury consultant headquartered in North Carolina. For a more detailed analysis of practice trial techniques, I recommend his book, How to Do Your Own Focus Groups, published by the National Institute for Trial Advocacy, http://www.nita.org/bookorder.asp.

Conclusion

You can never predict with complete accuracy what a jury will do. But perfection is not required. All that is required is that you be better prepared than your opponent. The best preparation for a jury trial is good jury research. The first step is to determine how much is at stake. Then, decide whether you need to hire an outside jury consultant or do your own in-house research. Depending on the case, in-house research is often the best way to win by improving the trial presentation.

Next Step

To discuss what would work for a particular case, call E. J. Simmons at 503-221-2000 or email ejs@simmonstrialpractice.com.

Thanks for requesting the forms. To download these examples, just right-click on the links below and save-as to save the forms to your computer. Let me know if you have any questions.

Best regards,
- E. J. Simmons

Fee Estimate Spreadsheet (in Microsoft Excel format)
Fee Estimate Cover Letter text (in Microsoft Word format, with information about Excel formulas)

It will be straightforward to revise the example form to fit your matter, because the example form is in Microsoft Excel format. For example, you will need to put in your hourly rates, your estimate of hours, etc.

The cover letter text is in Microsoft Word format, for you to copy and paste into your letter.

To get the fee estimate spreadsheet and to get the email newsletter, fill in your name and email address below.

After you click on the blue “Click here” button, you will be sent a confirmation email with the subject line “Welcome and download link for the fee estimate spreadsheet”. Please open that email and click the confirmation link, to verify that it really is you who requested the information.

Chief Judge Kozinski

The Ninth Circuit held that the domain names buy-a-lexus.com and buyorleaselexus.com could be fair use of the Lexus trademark. Toyota Motor Sales, U.S.A., Inc. v. Tabari, opinion by Judge Kozinski dated July 8, 2010. Excerpts are below.

The district court applied the eight-factor test for likelihood of confusion articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979), and found that the Tabaris’ domain names — buy-a-lexus.com and buyorleaselexus.com— infringed the Lexus trademark. But we’ve held that the Sleekcraft analysis doesn’t apply where a defendant uses the mark to refer to the trademarked good itself. … The Tabaris are using the term Lexus to describe their business of brokering Lexus automobiles; when they say Lexus, they mean Lexus. We’ve long held that such use of the trademark is a fair use, namely nominative fair use. And fair use is, by definition, not infringement.”
…
In cases where a nominative fair use defense is raised, we ask whether (1) the product was “readily identifiable” without use of the mark; (2) defendant used more of the mark than necessary; or (3) defendant falsely suggested he was sponsored or endorsed by the trademark holder.
…
The third factor speaks directly to the risk of such confusion, and the others do so indirectly: Consumers may reasonably infer sponsorship or endorsement if a company uses an unnecessary trademark or “more” of a mark than necessary. But if the nominative use satisfies the three-factor New Kids test, it doesn’t infringe. If the nominative use does not satisfy all the New Kids factors, the district court may order defendants to modify their use of the mark so that all three factors are satisfied; it may not enjoin nominative use of the mark altogether.
…
The injunction here is plainly overbroad … because it prohibits domain names that on their face dispel any confusion as to sponsorship or endorsement. The Tabaris are prohibited from doing business at sites like independent-lexus-broker.com and we-are-definitely-not-lexus.com, although a reasonable consumer wouldn’t believe Toyota sponsors the websites using those domains. Prohibition of such truthful and non-misleading speech does not advance the Lanham Act’s purpose of protecting consumers and preventing unfair competition; in fact, it undermines that rationale by frustrating honest communication between the Tabaris and their customers.
…
[Under the injunction by the Trial Court, t]he Tabaris may not do business at lexus- broker.com, even though that’s the most straightforward, obvious and truthful way to describe their business. The nominative fair use doctrine allows such truthful use of a mark, even if the speaker fails to expressly disavow association with the trademark holder, so long as it’s unlikely to cause confusion as to sponsorship or endorsement.
…
The inclusion of such words [e.g. "independent"] will usually negate any hint of sponsorship or endorsement, which is why we mentioned them in concluding that there was no infringement in Volkswagenwerk. …But that doesn’t mean such words are required … Our subsequent cases make clear they’re not.
…
[in footnote 3:]
Where these or other factors suggest that nominative use is likely to cause confusion, a disclaimer may well be necessary. But a disclaimer is not required every time a URL contains a mark.
…
When a domain name consists only of the trademark followed by .com, or some other suffix like .org or .net, it will typically suggest sponsorship or endorsement by the trademark holder.
…
Toyota asserts that, even if the district court’s injunction is overbroad, it can be upheld if limited to the Tabaris’ actual domain names: buyorleaselexus.com and buy- a-lexus.com. We therefore apply the three-part New Kids test to the domain names, and we start by asking whether the Tabaris’ use of the mark was “necessary” to describe their business. Toyota claims it was not, because the Tabaris could have used a domain name that did not contain the Lexus mark. It’s true they could have used some other domain name like autobroker.com or fastimports.com, or have used the text of their website to explain their business. But it’s enough to satisfy our test for necessity that the Tabaris needed to communicate that they specialize in Lexus vehicles, and using the Lexus mark in their domain names accomplished this goal.
…
[in footnote 9:]
The Seventh Circuit has similarly upheld the right of a seller of Beanie Babies to operate at “bargainbeanies.com” on the grounds that “[y]ou can’t sell a branded product without using its brand name.”
…
The disclaimer stated, prominently and in large font, “We are not an authorized Lexus dealer or affiliated in any way with Lexus. We are an Independent Auto Broker.” While not required, such a disclaimer is relevant to the nominative fair use analysis. … Because there was no risk of confusion as to sponsorship or endorsement, the Tabaris’ use of the Lexus mark was fair.
…
On remand, Toyota must bear the burden of establishing that the Tabaris’ use of the Lexus mark was not nominative fair use. A finding of nominative fair use is a finding that the plaintiff has failed to show a likelihood of confusion as to sponsorship or endorsement. … A defendant seeking to assert nominative fair use as a defense need only show that it used the mark to refer to the trademarked good, as the Tabaris undoubtedly have here. The burden then reverts to the plaintiff to show a likelihood of confusion.
…
We vacate and remand for proceedings consistent with this opinion. At the very least, the injunction must be modified to allow some use of the Lexus mark in domain names by the Tabaris. Trademarks are part of our common language, and we all have some right to use them to communicate in truthful, non-misleading ways.

The opinion did not mention the Anticybersquatting Consumer Protection Act. The ACPA prohibits cybersquatting on a domain name that is confusingly similar to another person’s trademark, with a bad faith intent to profit from the registration typically by selling the domain name to the trademark owner.

The Tabaris ran an actual automobile brokerage business using their websites, and nothing was said about any attempt to sell the domain names to Toyota. In the absence of intent to profit by selling the domain names, there was no bad faith under the ACPA, and the ACPA was not applicable.

For additional commentary on the trademark infringement issues raised in the opinion, see blog post by Prof. Barbara Tushnet, and a blog post by Prof. Eric Goldman that compares this opinion to an earlier domain name opinion, also by Judge Kozinski.

The long awaited opinion by the US Supreme Court in the Bilski case was released today and discusses business method patents, but does not yet invalidate them. For the opinion click here.

Holding not based on invalidity of business method patents

The opinion by Justice Kennedy affirmed the denial of a patent, based on the unpatentability of abstract ideas. However, the opinion did not preclude business method patents.

“Petitioners’ application seeks patent protection for a claimed invention that explains how buyers and sellers of commodities in the energy market can protect, or hedge, against the risk of price changes. The key claims are claims 1 and 4. Claim 1 describes a series of steps instructing how to hedge risk. Claim 4 puts the concept articulated in claim 1 into a simple mathematical formula.”

Business method patent on energy hedging process?

The opinion leaves the limits of business method patents for future development.

Section 101 similarly precludes the broad contention that the term “process” categorically excludes business methods. The term “method,” which is within §100(b)’s definition of “process,” at least as a textual matter and before consulting other limitations in the Patent Act and this Court’s precedents, may include at least some methods of doing business.

. . .

[W]hile §273 appears to leave open the possibility of some business method patents, it does not suggest broad patentability of such claimed inventions.

. . .
Finally, even if a particular business method fits into the statutory definition of a “process,” that does not mean that the application claiming that method should be granted. In order to receive patent protection, any claimed invention must be novel, §102, nonobvious, §103, and fully and particularly described, §112. These limitations serve a critical role in adjusting the tension, ever present in patent law, between stimulating innovation by protecting inventors and impeding progress by granting patents when not justified by the statutory design.

…

petitioners’ claims are not patentable processes because they are attempts to patent abstract ideas. Indeed, all members of the Court agree that the patent application at issue here falls outside of §101 because it claims an abstract idea.

Concurring opinion hostile to business method patents

The concurring opinion by Justice Stevens makes a statement about business method patents.

The wiser course would have been to hold that petitioners’ method is not a “process” because it describes only a general method of engaging in business transactions—and business methods are not patentable.    More precisely, although a process is not patent-ineligible simply because it is useful for conducting business, a claim that merely describes a method of doing business does not qualify as a “process” under §101.

The Stevens concurring opinion comments on the economic effect of business method patents.

Even if a business method patent is ultimately held invalid, patent holders may be able to use it to threaten litigation and to bully competitors, especially those that cannot bear the costs of a drawn out, fact-intensive patent litigation. That can take a particular toll on small and upstart businesses. Of course, patents always serve as a barrier to competition for the type of subject matter that is patented. But patents on business methods are patents on business itself. Therefore, unlike virtually every other category of patents, they are by their very nature likely to depress the dynamism of the marketplace.

Also available online are the merit briefs and amicus briefs that were submitted.

A recent Ninth Circuit opinion sets out an expansive jurisdiction analysis. The case was for copyright infringement.

The opinion sets out the minimum contacts requirement for jurisdiction.

“This Court employs a three-prong test to determine whether a party has sufficient minimum contacts to be susceptible to specific personal jurisdiction:
(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum,
thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant’s forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.”

The Court then discussed the first requirement, of purposeful direction or availment. A purposeful availment analysis applies to contract actions; a purposeful direction analysis applies to tort actions.

Since copyright infringement is characterized as a tort, purposeful direction is determined using the three-part “Calder-effects” test, taken from the U. S. Supreme Court’s decision in Calder v. Jones, 465 U.S. 783 (1984).

Under this test, “the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state.”

The mere maintenance of a passive website alone cannot satisfy the express aiming requirement.

The express aiming requirement is satisfied when the defendant engaged in wrongful conduct targeted at a plaintiff, and the defendant knows the plaintiff is a resident of the forum state.

“By thus individually targeting Brayton Purcell, a known Forum resident, Recordon expressly aimed its conduct at the Forum. Assuming the dissent is correct that something more than knowledge of the residence of the plaintiff is required for there to be express aiming at the Forum, such a requirement is satisfied here; the parties are competitors in the same business so that the intentional infringement will advance the interests of the defendant to the detriment of the Forum interests of the plaintiff. The express aiming prong is therefore satisfied.”

The dissent argues that this was not enough.

“Pebble Beach and Schwarzenegger establish that knowledge of the plaintiff’s residence and a foreseeable harm to the plaintiff are, standing alone, insufficient to establish express aiming; ‘something more’ is required in order for the state of the plaintiff’s residence to constitute a proper forum.”

The opinion is available at Brayton Purcell v Recordon & Recordon.

On the job construction site accidents

You may want to visit the personal injury site provided by a construction accident attorney in Portland with specific points on this topic.

The workplace, especially a construction site, can be dangerous. The landlord may not have inspected and corrected unsafe conditions. The general contractor may have tolerated a dangerous situation, and a construction worker can be injured or killed.

If the person injured or killed was on the job, then he will be covered by workers compensation.

• The advantage of workers compensation is that fault or negligence is not required. Moreover, the worker is covered even if the worker himself was negligent.
• The disadvantage of workers compensation is that the amount paid out is low.

The employer has to pay for an on the job injury, through the employer’s insurance company. The workers compensation law includes a bar to any additional claim against the employer.

There can be additional claims, beyond the workers comp claim, against other companies in the case of a job site injury.

For example, the injury could have been caused by dangerous equipment. This can result in a products liability claim.

In addition, there can be an Employer Liability Law claim above and beyond the workers compensation claim. Many states, including Oregon, provide a law that protects the worker. The Employer Liability Law applies generally as follows.

Before the Employer Liability Law can be made basis of claim for relief by injured worker suing defendant other than employer of worker, defendant must be in charge of or have responsibility for work involving risk or danger in either (a) situation where defendant and plaintiff’s employer are simultaneously engaged in carrying out work on common enterprise, or (b) situation in which defendant retains right to control or actually exercises control as to manner or method in which risk-producing activity is performed. Miller v. Georgia-Pacific, 294 Or 750, 662 P2d 718 (1983)

Here is the general provision requiring every care, even when expensive:

Oregon Revised Statutes 654.305 Protection and safety of persons in hazardous employment generally. Generally, all owners, contractors or subcontractors and other persons having charge of, or responsibility for, any work involving a risk or danger to the employees or the public shall use every device, care and precaution that is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices.

In applying the ORS 654.305 requirements, “Public” includes worker whose employer is engaged in common enterprise with in-charge third party. Trout v. Liberty Northwest Ins. Corp., 154 Or App 89, 961 P2d 235 (1998).

All owners and companies involved must comply with the Employer Liability Law safety requirements:

Oregon Revised Statutes 654.310 Places of employment; compliance with applicable orders, rules. All owners, contractors, subcontractors, or persons whatsoever, engaged in the construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure, or in the erection or operation of any machinery, or in the manufacture, transmission and use of electricity, or in the manufacture or use of any dangerous appliance or substance, shall see that all places of employment are in compliance with every applicable order, decision, direction, standard, rule or regulation made or prescribed by the Department of Consumer and Business Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to 654.780.
Oregon Revised Statutes 654.315 Persons in charge of work to see that ORS 654.305 to 654.336 are complied with. The owners, contractors, subcontractors, foremen, architects or other persons having charge of the particular work, shall see that the requirements of ORS 654.305 to 654.336 are complied with.
Oregon Revised Statutes 654.320 Who considered agent of owner. The manager, superintendent, foreman or other person in charge or control of all or part of the construction, works or operation shall be held to be the agent of the employer in all suits for damages for death or injury suffered by an employee.

The law is well established that there are 3 ways a company can have liability for an injury on the job: To recover under Employer Liability Law against person other than the injured worker’s employer, the injured worker must establish that defendant

• had actual charge of plaintiff’s work; or
• had right to control manner in which plaintiff performed that work; or
• that defendant and plaintiff’s employer were engaged in work on common enterprise.

Torres v. US National Bank of Oregon, 65 Or App 207, 670 P2d 230 (1983), Sup Ct review denied; Quackenbush v. PGE, 134 Or App 111, 894 P2d 535 (1995), Sup Ct review denied; Moe v. Eugene Zurbrugg Construction Co., 202 Or App 577, 123 P3d 338 (2005).

If you or a loved one had a serious injury or death on the job, you should consider whether additional companies, beyond the employer, have liability for an Employer Liabilty Law claim. For more articles about accidental injury claims, see the personal injury accident page. If you would like a free consultation, see the contact page.

These resources are for those injured in accidents, and their families. This law office has other websites focused on injuries caused by negligence, and you are invited to visit for information from a personal injury attorney in Portland. Specific information is also linked to below.

Construction site injuries, including Employer Liability Law claims. According to OSHA, one of every five workplace fatalities is a construction worker.

If the injured person died as a result of the accident, see death accident claims.

Electrical accident injuries, including trees left to grow and hide power lines.