The
Oregon Supremes: timetables of the court's decisions.
This the first installment of a two-part story.
Every personal-injury attorney in town knows the story
of John Lakin. The Portland construction worker was
severely injured in 1990 after his nail gun kicked into
rapid-fire, sending a 31Ž4-inch nail
through his cheek and into his brain. He still suffers
from stroke-like symptoms and will never work again,
according to Bill Gaylord, one of his attorneys.
It's a tragic story of a dangerous product, but lawyers
are interested in it for another reason. Lakin's case,
arguably the most important pending case in Oregon personal-injury
law, has the potential to change state law and dramatically
affect injured people and businesses down the road.
Because of its importance, it's also become symbolic
of delays that have plagued the state Supreme Court
for the past few years.
In 1994, a Multnomah County jury awarded Lakin $9.9
million in damages, including $2.4 million for pain
and suffering, an amount far exceeding Oregon's $500,000
cap on non-economic damages. The verdict, particularly
the issue of the cap, has been appealed all the way
to the state Supreme Court. Until the court rules, no
one knows whether the cap will be declared unconstitutional,
as plaintiff's lawyers hope. But waiting for the decision
has been like waiting for orchids to bloom; it's required
an awful lot of patience.
Lakin's attorneys presented oral arguments to the court
in November 1997. Eighteen months later, there's still
no decision. What's most surprising is that this isn't
so unusual. Such delays are increasingly common for
the high court.
The justices usually gather after oral arguments to
discuss their thoughts. Then opinion-writing duties
fall to a justice who's in the majority. Other justices
can choose to write a dissenting opinion or a concurring
opinion--that is, one in which they generally agree
with the outcome but not the reasoning. After that,
the opinion (and the dissents or concurrences, if there
are any) is circulated among the justices for comments
and editing. The goal is unanimity--to present a single
voice to lawyers and the public so the law is clear.
In Lakin's case, it's likely that during the past 18
months the seven justices have tallied the votes and
know whether Lakin or the nail-gun manufacturer is going
to win the argument. But so far, Lakin and his lawyers
haven't heard a peep.
"Cases are hanging in the balance on [this one]," says
Gaylord. "Lots of lawyers are sort of anxious to have
an answer, given the significance of what's at stake,
given the magnitude of this decision."
Because of the importance of the decision, Gaylord
says, he's not expecting it to come quickly, stressing
that he's in no way critical of the court. Still, others
say such delays are unnecessary and all too common.
Of the Oregon Supreme Court cases decided last year,
the average time between the initial filing and the
opinion was 399 days. That average, though, masks a
wide disparity in the time it takes to decide different
types of cases (see "The Oregon Supremes," page 17).
There are those who think "justice delayed is justice
denied."
"I think it's a disgrace that some of the opinions
in the Supreme Court have languished the way they have,"
says one Portland lawyer. "There's no excuse for that."
In fact, there are a few legitimate explanations
for the delay.
Some of it has to do with the amount of time it takes
lawyers to submit their briefs and to get on the court's
calendar for oral argument. But even eliminating those
delays doesn't improve the picture much. For example,
in January the court ruled on a case dividing a divorced
couple's assets. It took almost two years between the
oral arguments and the decision. A December 1998 opinion
involving a relatively simple question about a jury
verdict took 21Ž2 years between argument
and opinion.
"I had a juvenile case that took 21Ž2
years," one lawyer said. "By the time the opinion came
down, my client was no longer a juvenile."
Some people, however, don't think this is a problem
because of the very nature of the work the Supreme Court
does. The justices aren't umpires deciding balls and
strikes. That's the role of trial court judges, who
decide every case separately based on the specific facts
presented. Instead, the Supreme Court is basically deciding
the rules of the whole game, rules that will apply to
every subsequent case. Thus having rules that make sense--decisions,
in other words, that are well reasoned and fit within
the body of law--is paramount, no matter how long it
takes to arrive at them.
"The Supreme Court is really trying to craft law that
will live for a long time," explains Henry "Chip" Lazenby,
an attorney for the governor's office. "The Supreme
Court is meant to be contemplative."
The problem is that over the past few years, the situation
has gotten worse. In the summer of 1993, the court was
completely "current"--that is, all of the cases argued
that term had been decided. But by the end of the 1998
term, there were 51 cases that remained undecided. A
fourth of them had been argued in 1997 or before, and
one of those was four years old. In the past five years,
the average number of days between filings and opinions
has risen more than 50 percent.
"We've got cases in this office that are at the longest
period of time I've ever seen in terms of reaching a
decision," observes Dave Groom of the state public defender's
office, adding that he is not critical of the court.
It's gotten to the point where Wallace Carson, the
chief justice, is concerned.
"I'm very hopeful that things will look better in six
months or no later than end of the year," Carson told
WW. "'The sooner [cases are decided] the better'
is my goal. I'd like to move them out as quickly as
we can."
Carson cites several reasons for the slowdown. One
is the turnover on the court. Since 1996, the court
has lost three of its seven justices: Ed Fadeley and
Dick Unis retired, and Susan Graber was elevated to
the Ninth Circuit Court of Appeals. "Over the last three
years, we have had less than the full complement of
judges, and we've had new judges," Carson explains.
"It takes a while to get in and get the work done."
There has also been an increase in the court's workload,
which has slowed it down, as well.
Many of the opinions the Supreme Court turns out are
actually the result of a two-step process. First, an
appellant submits a "petition" to the court, asking
it to hear a particular case. Before the court decides
whether to accept or reject a case, one justice must
prepare sort of a mini opinion that summarizes the issues
for the other justices. Then, as a group, they decide
which of these "discretionary" cases to accept for review.
Carson estimates that 60 percent of a justice's time
might be spent on petitions. "It's quite a process,"
he explains. "A significant part of the work we do is
decide what cases to decide."
The number of petitions for review has been increasing
over the past few years. In 1998, for example, there
were 959 petitions filed, compared with 796 in 1997.
Carson says that having additional staff attorneys would
help process the volume of petition, and he's asked
the Legislature to fund such positions.
While Carson brings up good points, others say some
of the court's slow pace has to do with its own policies
and procedures, which are so stiff and formal that they
inhibit efficiency. In part, it's about working like
a team, about each member pulling his weight and working
towards a common goal. But teamwork isn't something
that can be easily enforced.
Next week: A scorecard on Team Supreme, complete
with individual stats on the power hitters and bench
warmers alike.
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- - - - - - - - - - - - - - - - - - - - - - - - - - - - Willamette Week | originally
published April 21,
1999
