BULLETINS FROM ALOHA

 How does the Supreme Court of Oregon rate with the other Top Courts of the fifty (50) states of the Union?  The  report card is in.  The Supreme Court of Oregon would get a spanking if the report card were shown to their parents.  Out of all fifty (50) states, Oregon's Supreme Court is fourth from the bottom in productivity.  Worse, the Supreme Court of Oregon is the least influential court in the nation save Oklahoma and Texas.

In a May, 2008 study by the University of Chicago Law School (Chicago), the Oregon Supreme Court rates at the bottom of the barrel in both the number of written judicial opinions per justice and the number of times Oregon Supreme Court opinions are cited by other state courts.   This definitive study entitled "Which States Have The Best (and Worst) High Courts?", authored by Professor Eric A Posner, advances the methodology of previous studies of state high court performance.

Previous state high court studies have followed a myriad of methodologies.  The annual U.S. Chamber of Commerce (Chamber) study asks senior lawyers at corporations that earn more than $100 million per year to grade their state court systems using an A to F rating.  A 2007 study by Dear & Jesson (Dear) focuses on how often a high court's written opinion is cited as authoritative by other state high courts.   The Chicago study opines that the Chamber method might give high marks to state courts that decide cases in a manner that businesses like, ---rejecting punitive damages, for example.  

The results of these studies can be used by legislatures to criticize or praise their judiciaries;  ask for reform or use the ratings to decide on the appropriate compensation for state court judges.  Business friendly high courts could be used to attract out-of-state business.   The report states that "...public institutions that are not carefully monitored and evaluated will rarely have strong incentives to perform well."

Productivity  -- The productivity ranking refers to the number of written opinions a judge/justice publishes in a year.  The Chicago study states that publication rates provide an objective measure of individual judge effort and also shares that judicial  legal reasoning with the parties and the public.  Given that the practice of law is based on an individual lawyer's ability to predict what a judge is likely to do in a given fact situation, the more a state lawyer knows about how the state high court reasons the better.

Rating:    The most productive state high court was Georgia whose high court issued 58 opinions per judge per     year. The median was Kansas which issued 23 opinions per judge per year.  Oregon issued 12 written opinions per judge per year and ranks 47th in productivity or almost at the bottom of all fifty states.  

Influence (or Opinion Quality) -- This ranking refers to the quality of the reasoning in an opinion.  It is done by proxy.  This method measures the sum of all citations to Oregon Supreme Court cases by other state high courts, federal courts and the U.S. Supreme Court.  The study reasons that a high-quality written opinion is more likely to be useful for out-of-state courts and therefore more likely to be cited by those other courts as authoritative on a particular legal subject.   Once again these well reasoned opinions help lawyers across the land predict outcomes for their clients.  

Rating:    California was the most-cited court with 34 outside citations per judge/justice per year.  The median was South Dakota with 13 outside citations per judge/justice per year.  Oregon was at the bottom (48th) with
less than 7 outside citations per judge/justice per year.  

To download the study go to  --   www.law.uchicago.edu/Lawecon/index.html

We may know now why the Supreme Court of Oregon eschews judicial evaluations.

This is a roadmap for the ordinary Oregon lawyer to effect change.  The real power at the State  of Oregon Bar (SOB) lies where?  Give up?  No, it is not with the Executive Director (who is retiring at the end of this year).  Nor with the President of the Oregon State Bar.  Not even with the Chief Justice of the Supreme Court of Oregon.  The real power of the SOB lies with the Sections and Committee groups along with local bars.  Let me explain why.

The Power  --  The manifest  heartbeat of the Oregon State Bar is located at the twenty Committees and forty Sections of the Bar.  (Sections are supposed to assist the Bar Board of Governors (BOG) in policy-making while Committees are intended to sharpen lawyer subject-matter skills.)    There are about one thousand (1,000) of you in Bar Sections/Committees.   This dwarfs the sixteen members of BOG, the one hundred members of the House of Delegates and the twenty local county bar organizations.   Enthusiasm resonates at the Sections/Committee level and with many of the local bars. 

Judicial Evaluations  --   As previously reported, in 2004 the Oregon State Bar Board of Governors decided to implement a statewide judicial evaluation program in Oregon to begin in 2007.  In 2005, the American Bar Association voted unanimously  that each state in the United States should have a statewide judicial evaluation program.   The ABA developed black-letter guidelines and a package of evaluation forms all available on the internet.  In 2006, under Dennis Rawlinson's leadership, the Oregon State Bar Board of Governors yielded to political correctness and timidity and decided not to have judicial evaluations in Oregon.  

Practical Magic  --  Well guess what folks, there already IS a user friendly statewide judicial evaluation program for Oregon on the internet.  It is located at ---therobingroom.com.  Here is how to use it:

    1.  Put   ---therobingroom.com  --  in the address bar.

     2.  Scroll down the left side and click on 'Oregon'.

    3.  A map of Oregon will appear and click on your county directly on the state map.

    4.  A list of your county judges will appear.  Click on 'rate this judge'.

    5.  Follow the instructions and provide comments if relevant.

Potential Power to Implement Judicial Evaluations in Oregon:  Phase 1.  Individual Oregon lawyers can begin evaluating your local judges now at this internet site.  Phase 2.  The Section/Committee chairs could alert their organizations about this judicial evaluation opportunity now.  Phase 3.  Local bar presidents could obtain the ABA judicial evaluation program and implement the entire comprehensive judicial evaluation program in their counties during the next year.  Phase 4.  Each Section/Committee chair and local bar president could alert their local media of the judicial evaluation results before the next local election cycle.   Moral of the story  --  All of us should be judged fairly if we are judged at all.  

It has been pointed out to me that I identified the wrong judge in my May 13, 2008 tome on judicial evaluations.  I meant to identify Multnomah County Circuit Court Judge Robert P.  Jones in the fourth paragraph.  Thank you readers for that information. 

Good lawyers do good for their profession and the public without expecting recognition, awards nor money for their efforts.  This is a representative tale of two attorneys with kind hearts.  It is a representative tale of 90% of the legal profession.  The other 10% are venal, self absorbed fascists who cause the harm to the rest of the legal profession.  Unfortunately, this 10% makes up the leadership of the Oregon State Bar and the Oregon judiciary.  This minority is leading the legal profession over a cliff and it is a short drop to the bottom.  This minority gives itself awards while the unwashed 90% go painfully unsung.

     I looked into her anguished eyes.  She is a local lawyer who, while putting herself through law school, also had multiple children during the  three long years of the required legal education process.  Now, after having done well with a downtown law firm, she decided to hang out her own shingle.  She was lamenting to me that the pro bono (for good) work that she did was taking a toll on her practice and it seemed like there should be a more coordinated program for doing good in our community.  She had established a fine reputation in the legal community and was active in the local bar.   Oddly, the Oregon State Bar does not have a coordinated, statewide, formal legal pro bono program. 

     Several years later marital discord interrupted her upward ascent and her ability to cope.  Our profession has some rescue vehicles, but there is a well-founded suspicion that these rescue vehicles are also a fast ticket to being disbarred.  Observing her plight, there seemed to be few options for one who had literally given their all to the legal profession for very little in return. 

     A new male lawyer to the profession and to the local community was seated beside me at a bar association dinner.  Soon, I  learned he had an unusual background before entering the legal profession.  He specialized in artificial insemination of farm animals.  Adroitly, he located a solo law office in the outskirts of the urban growth boundary near a small town.  His mien was humble, his manner infectious.  He demonstrated no ego whatsoever.   This man was the Everyman of the legal profession.  After awhile, his name started to appear in local papers because he was representing the small town in various legal matters with distinction.  As the lady mentioned above, he was very active in his local bar association.  [There are two sorts that become active in their local bars.  Those on the make to be a judge and those who simply want to do good for their chosen legal profession.  He was of the latter.]

     Several years later, I bumped into him and he seemed preoccupied, though friendly as always.  His law practice seemed to be thriving. 

     There is a burn-out period in the legal profession.  That also goes for participating in local bar associations and soon people go their separate ways.  Because of this I didn't see him for awhile, then the roof fell in.  I learned that the Bar association had invaded his office looking either for dirt or to help him out of dire straits.  To this day, I am not sure which.  Several months later I made contact and he was very candid with me on what happened.

     Both lawyers are the sort that you would like as a friend.  Both are a credit to their community and the legal profession.  Both were solo lawyers.  Both sought to do good.  The grand fiction is that lawyers make a lot of money.  My guess is that most lawyers who practice alone earn less than $50,000 per year, take home pay.  Therefore, there is not much room for error when it comes to just earning a living.  Neither lawyer got an award.  To the contrary, their reward for entering the legal profession and for doing good was stress and heartache.  No one is telling their tale.  Our leadership turns silently away.  The public is denied these LAWYERS WITH KIND HEARTS,  that do good, because of the failure of that bar leadership.  Bar leadership give themselves awards (Justice Peterson gets the 'Justice Peterson' award and Justice Carson gets the 'Justice Carson' award!----the outright pandering is ugly) .   Otherwise, bar leadership ignores these lawyers with kind hearts and ignores such people across our land.  It is a sad picture. 
 

If you haven't noticed, there is a new way to market the family farm.  In this day of stagnant real estate sales and uncertain financing, a real estate auction may be the wave of the future and the right marketing approach for your property. This article compares residential real estate auctions with the conventional listing of a home with a real estate agent.   (Also see the related article below entitled "Subprime Odyssey" at page 2, dated February 26, 2008.)

Step One:    A conventional real estate transaction begins with interviewing and hiring a real estate agent.  The formal process includes signing of a multiple listing agreement that requires the seller to pay a six (6) percent commission when the house sells.  Unfortunately, most real estate agents do not disclose nor formally commit to what actual marketing steps they are going to take in your behalf nor when.  In reality, many real estate agents have become cheap and lazy.  Instead of significant marketing action of your property, they put up a sign, put your listing on the internet and then retire.  The seller is at the mercy of the real estate agent's efforts and timetable after those two events and there is no date except eternity that determines when your real estate is going to sell.    An auction gives the seller a date certain. 

The auction process begins in Alabama.  Sounds a little rough doesn't it?   The big daddy's of real estate auctions are J.P. King, Albert Burney and the Redfield Group all from Gadsden, Alabama.   There is a guide to Real Estate Auctions on the internet for you to find an acceptable company in your local area.   The friendly real estate auction salesperson will come and visit you for free, even from Alabama, but here is where the difference begins. 

Step Two:   As the auction salesperson will soon disclose, they want to be paid up-front for the marketing expense.  In a straight forward residential sale the up-front expense could be as little as $10,000 or as much as $100,000 for a Lake Oswego imperial mansion.  The catch is that half their budget is for their office overhead rather than actual outside vendor marketing expense (such as slick sales brochures).  That up-front expense should be considered in your negotiations.    Auction companies appear to be much more professional about their marketing and virtual tour packages.    They are also much more professional about the team approach to selling your property.  The auction company also is more sophisticated as to how to entice out-of-state buyers to get interested in your local property. 

Step Three:     The principle difference between a conventional sale and the auction is the timeline.  The auction concept has a carefully coordinated sixty (60) day sales plan with the actual auction to occur about sixty days after you have hired the auction company.   They don't want their sale too much longer than sixty days because they key their marketing to the immediacy of the distribution of their marketing materials.  In other words, they want the sale to follow within about a month of the dissemination of their marketing materials.  Thus, the seller has a date certain for sale of the property.

A significant nuance is the "absolute auction".  This is the 'no reserve' sale which means the house will sell to the highest bidder come rain or shine.  There are a number of ways to attenuate this, such as by having a 'conditional sale'  This means the sale is conditioned on acceptance by the seller.  The second alternative is to state the starting bid price in the marketing materials.  This is a soft way of setting the reserve in advance. 

An actual sale  --  The Bar M ranch is a huge dude ranch in eastern Oregon.  The family which owned the property had various squabbles and no one in the family could agree on how to market the property.  Finally, they sold the property through J.P King auction company from Alabama.    The property was appraised at about $2 million dollars, but had numerous capital improvement issues.    There were over ten people who qualified for the sale.  Three qualified bidders showed up and only one bid for the property.  The bid was 1.4 million and sold for that amount.  The sellers were happy and the eastern Oregon rancher who bought the property was happy.

Buyer's premium  --  Built into the marketing material is a clear understanding that this is an unconditional sale as to the buyer (meaning that house inspections and other 'due diligence' must take place before the auction date).  The auction team arrives on site at least eight days before the auction to facilitate 'due diligence'.  Also made clear is that the bidders must post a certain deposit to make them qualified bidders.  Finally, the materials make clear that the buyer must also pay a buyer's premium of ten percent commission to the auction company when the high bid is accepted.

Thus, the up-front marketing money paid by the seller at the front end is, in fact, the commission payment to the (real estate) auction agent by the seller with the remaining profit for the auction company coming from the buyer under that 'buyer's premium' concept. 

These auctions work, they are fun and not as risky as they sound.  There are numerous local companies getting interested in this concept in this age of foreclosures.  It is important to note, an auction is not a liquidation sale.  The auction companies market the property to achieve the maximum possible price, because, after all, their profit is based on the ultimate sale price.