Category Archives: Oregon trial attorney

Kristin Olson and Scott Brooksby recognized in The Best Lawyers in America©

Scott Brooksby is recognized in Best Lawyers in America for his commercial litigation and product liability litigation defense practices.

Kristin Olson is recognized in Best Lawyers in America for her commercial litigation practice.

Best Lawyers® compiles its lists of outstanding attorneys by conducting peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current edition of The Best Lawyers in America© 2023 is based on more than 5.5 million detailed evaluations of lawyers by other lawyers.

Best Lawyers is the oldest and most respected peer-review publication company in the legal profession.

Recognition by Best Lawyers is widely regarded by both clients and legal professionals as a significant honor, conferred on a lawyer by their peers. For more than four decades, Best Lawyers has earned the respect of the profession, the media and the public as the most reliable, unbiased source of legal referrals anywhere.

The Best Lawyers in America© lists of outstanding lawyers are compiled by conducting exhaustive peer review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. If the votes for a lawyer are positive enough for recognition by Best Lawyers, that lawyer must maintain those votes in subsequent polls to remain in each edition. Lawyers are not permitted to pay any fee to participate in or be recognized by Best Lawyers.

Olson Brooksby selected as a Tier 1 “Best Law Firm” for Commercial Litigation in the Portland Metropolitan Area by US News

US News designates Olson Brooksby as a Tier 1 Commercial Litigation firm in the Portland Metropolitan Area.

Firms that are included in the 2023 “Best Law Firms” list are recognized for professional excellence with consistently impressive ratings from clients and peers.  Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

The first tier in each metropolitan area includes those firms that score within a certain percentage of the highest-scoring firms based on client surveys and peer review.

The Impact of Covid-19 on Aviation: The Economic, Social, Operational, and Litigation Fallout.

Scott Brooksby, the firm’s aviation litigation chair, travels the country giving speeches about the impact of Covid-19 on the airline industry.

Scott has produced a paper for those interested in information about the way Covid-19 has impacted aviation, including the economic, structural, social, and litigation impact of Covid-19 on the aviation industry.

You can download that paper here:

kristin olson and scott brooksby recognized in The Best Lawyers in America© for 2022

Olson Brooksby PC is pleased to announce that Kristin Olson and Scott Brooksby have once again been selected by their peers for inclusion in The Best Lawyers in America (2022).

Best Lawyers compiles its lists by conducting peer–review surveys to determine the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical region and legal practice area. 

Recognition by Best Lawyers is based entirely on peer review. Their methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

After receiving more than 10,000,000 peer evaluations, Best Lawyers honored approximately 5% of practicing lawyers in the United States, exemplifying the work of the most elite and top-rated lawyers in the country.

Kristin Olson is listed in the practice areas of Commercial Litigation and Litigation-Insurance.

Scott Brooksby is listed in the practice areas of Commercial Litigation and Product Liability Litigation – Defendants

for the third year in a row, olson brooksby is included in U.S. News & World Report’s 2021 list of “best law firms”

Since 2019, Olson Brooksby has been included in U.S. News and World Report’s list of “Best Law Firms.”

In 2021, Olson Brooksby has the distinction of being selected by U.S. News for two separate practice areas in the Portland, Oregon regional law firm rankings: Commercial Litigation and Product Liability Litigation–Defendants.

Also in 2021, Scott Brooksby has been selected by his peers for inclusion in Best Lawyers® and The Best Lawyers in America© in two separate practice areas: Commercial Litigation and Product Liability Litigation–Defendants.

Previously, Scott Brooksby has been recognized by Best Lawyers and The Best Lawyers in America since 2018 for his work in Product Liability Litigation–Defendants. In 2021, Scott is recognized for his work in both Product Liability Litigation–Defendants and Commercial Litigation.

Kristin Olson has been selected by her peers for inclusion in Best Lawyers and The Best Lawyers in America since 2019 for her work in Commercial Litigation.

This is the third year in a row Olson Brooksby has been included in U.S. News and World Report’s list of “Best Law Firms”. 2021 is the first year that the litigation firm has been recognized for its work in two separate practice area categories: Commercial Litigation and Product Liability Litigation–Defendants.

Law firms that are included in the 2021 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Receiving a tier designation reflects the high level of respect a firm has earned among other leading lawyers and clients in the same communities and the same practice areas for their abilities, their professionalism and their integrity.

Olson Brooksby top Portland litigation firm
Kristin Olson and Scott Brooksby honored once again by Best Lawyers in America

How will COVID-19 AFFECT LITIGATION AND TRIALS?

On June 10, 2020, the New York Times published an article entitled, “Jurors, Please Remove Your Masks: Courtrooms Confront the Pandemic” by Shaila Dewan (hereinafter “the article”). This article explores the complications of jury trials in the US, and particularly in Oregon state courts, as the counties in Oregon gradually re-open. It focuses on criminal trials, which are starting to move ahead again in Oregon, given the state requirement that criminal defendants not be in custody for more than 180 days after their arrests.

We will explore some of the issues outlined in that article, as well as some of the issues we are thinking about as trial lawyers here in Oregon.

At least one judge in Ohio has denied a request for postponement of a jury trial, despite the fact that one of the lawyers had been exposed to COVID-19 and was ordered to self-quarantine for two weeks.

One complication of jury trials during COVID-19 is the judge’s discretion regarding whether the trial should move forward, even if a lawyer has been exposed to the novel coronavirus and is under doctor’s orders to quarantine for two weeks. According to the article, at least one judge in Ohio ordered a trial to move forward over a lawyer’s objections that he had been exposed to COVID-19 and was under doctor’s orders to self-quarantine. The lawyer felt obligated to tell prospective jurors during jury selection that he had been exposed to the virus and that his doctor had advised him to self-quarantine. One can only imagine what that did to his jury pool.

Do jurors have to wear masks during jury selection?

Another issue is whether judges are able to exercise discretion to ask jurors to take their masks off during jury selection. According to the article, some judges have asked prospective jurors to take off their masks only when answering questions. The problem with this is that lawyers will likely have trouble gauging masked jurors’ reactions to questions and comments at all other times. Making things more complicated is the possibility that judges may not order prospective jurors to take off their masks at any time, ever.

Before COVID-19, lawyers have always relied on jurors’ nonverbal communications when selecting a jury. Studies have shown that between 60 to 65 percent of people’s total communication occurs through nonverbal cues. Jeffrey T. Frederick, Ph.D., Mastering Voir Dire and Jury Selection 39 (2005). If a lawyer can’t comprehend the majority of the communication she is receiving from her prospective jurors, how will she pick a favorable jury for her client?

Of course, it’s not just during jury selection that lawyers attempt to predict jurors’ likely votes in any particular case. However, jury selection is arguably the most important part of any trial and is a period of time when it is critical that lawyers “read” their jurors nonverbal communications.

Masks will likely impede connections between the bench, the bar, the parties, and the jury. The nonverbal tools lawyers used to use to persuade and strategize will have to change if masks are involved in trials.

Most of us cannot forget Johnnie Cochran Jr.’s emotional pleas to his jurors in the OJ Simpson case. “If it doesn’t fit, you must acquit!” It is hard to imagine the late Mr. Cochran making such a powerful argument while wearing a mask. Certainly, the emotional impact of the argument would not be the same. Lawyers’ attempts to connect with their jurors on an emotional level will likely be severely impaired by masks.

It will also likely be difficult for lawyers to nonverbally connect with their clients at trial in a way that soothes their clients, prepares them for testimony, or assists their clients in making emotional connections with the jury. A lawyer representing a particularly likable client will have difficulty getting the full import of her client’s testimony to come across to the judge and the jury if no one can see her client’s face.

Similarly, trial lawyers often quietly communicate with their clients during trials–not just during breaks, but during the trial itself. Masks obscure the ability to read lips and to hear (whispering is especially difficult). If the lawyer and her client are both wearing masks, their ability to communicate during the trial will be severely impacted. For this reason, the article notes that some lawyers and clients are foregoing the use of masks altogether because it impedes effective representation.

Determining the credibility of parties and witnesses will become extremely difficult if they are wearing masks, particularly if they are wearing masks while testifying.

One of the biggest jobs of a lawyer during a trial is making determinations concerning the credibility of the parties and the witnesses. Lawyers use the nonverbal cues of parties and witnesses to make strategy decisions, such as whether to engage in cross-examination, how to determine the length of the examination, whether to call their clients to testify, and what kinds of follow-up questions to ask. If a witness testifying against your client seems incredible, it can be beneficial to ask that witness particular questions to expose those credibility fissures to jurors. However, a lawyer who cannot see the face of the witness or a party she is questioning will have an uphill battle engaging in the strategies she is used to relying on if everyone is wearing a mask. Similarly, jurors will likely yearn for the full facial nonverbal reactions of parties as those parties sit and listen to particular portions of testimony during the trial. Did the criminal defendant seem calm when the alleged victim testified against him? Did he seem angry or defensive? Did he have a small smile on his face?

The Confrontation Clause of the Sixth Amendment will likely be impaired by wearing masks.

Under the Confrontation Clause of the Sixth Amendment, criminal defendants have the right to confront any witnesses who testify against them. Similarly (although not for the same legal reasons) civil defendants have generally enjoyed the right to see and to question, face-to-face, the plaintiffs who file lawsuits against them. If everyone is being shielded by a mask, there will no longer be true face-to-face confrontations.

Sentencing hearings where the judge and the criminal defendant are wearing masks, or sentencing hearings that take place remotely, may be damaging to our criminal justice system.

Although judges can still technically look criminal defendants in the eye when they are sentencing them and vice-versa, a mask arguably shields the judge and allows her to distance herself from the criminal defendants she is sentencing. There is a risk that judges may unconsciously dehumanize masked criminal defendants.

Further distancing judges and criminal defendants is judicial sentencing via video (or worse, telephone) conferences, which keeps judges from sentencing criminal defendants face-to-face. In our system, we are used to the idea that the judge hands down her sentence to the criminal defendant in person. Remote criminal sentencing hearings have necessarily changed the nature of the way criminal sentences are handed down in our country.

Due to COVID-19, some criminal defendants are asking to be released for health reasons. Some of these criminal defendants are leaving confinement, only to be sequestered with their alleged victims.

Many of us have read about the COVID-19 tinderboxes that jails and prisons have become for criminal defendants. Criminal defendants who have underlying health problems have requested early release dates or releases from confinement pending trial or sentencing. Sometimes these criminal defendants are leaving confinement only to be sequestered (particularly if their states or counties are in the early phases of re-opening) with their victims. Courts are struggling to balance risks to the lives of the criminal defendants with risks of release posed to the defendants’ alleged victims, particularly victims that are forced to shelter-in-place with their perpetrators. Prosecutors face the difficult task of calling victims in some cases to alert them to the fact that their perpetrators will be released and, worse, will be coming to live with them.

Difficulties with pursing particularly sensitive civil cases.

Many civil plaintiffs file lawsuits because the criminal system has failed them. Additionally, many plaintiffs in sexual abuse cases file civil lawsuits in lieu of proceeding through the criminal system because they have no confidence in the police. In fact, less than twenty percent of sexual abuse victims report to the police. Mary Wood, City Attorney Shares Reality of Prosecuting Sexual Assault Cases, University of Virginia School of Law News and Media, (date accessed: June 11, 2020), https://www.law.virginia.edu/news/2001_02/zug.htm.

In civil cases, particularly in civil sexual abuse cases, the only source of leverage the plaintiffs’ lawyer generally has is via the threat of a jury trial. Without the threat of an imminent jury trial hanging over the defendant’s head, a defendant is less likely to feel pressured to resolve the case short of trial. Furthermore, it will be extremely hard for plaintiffs’ lawyers to promise their clients any kind of a resolution without a set civil jury trial date.

Even if a plaintiff in a civil sexual abuse case does have jury trial, it is likely to be extremely difficult to conduct if everyone is wearing a mask, for most of the reasons outlined above.

Kristin Olson wins a motion to dismiss in a complex commercial breach of contract case against Dave’s Killer Bread

Kristin Olson recently obtained a dismissal of all claims in a breach of contract case brought by Dave’s Killer Bread against Kristin’s client, Montana Merchandising, Inc., a Montana grain company.  Dave’s Killer Bread, Inc. v. Mont. Merch., Inc., Case No. 3:17-cv-0237-YY (D. Or. July 12, 2017).

Dave’s Killer Bread filed a lawsuit against Kristin’s client in Oregon.  Kristin’s client responded by suing Dave’s in Montana.  A dispute arose regarding the most appropriate venue–Oregon or Montana–for this complex commercial litigation case.

In a Motion to Dismiss, Kristin argued that the case should be litigated in Montana and that the Oregon lawsuit should be dismissed in its entirety.  The United States District Court for the District of Oregon agreed, and dismissed the case against Kristin’s client.

Kristin Olson, Oregon commercial litigation attorney
Kristin Olson obtains a full dismissal of a lawsuit brought against her client by Dave’s Killer Bread