Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may remind you that suing your neighbor when they won’t replace the fence that Fido knocked down last week may not be the best option. This week’s word is the latter.

Written by: Lauren E. Trent

Most people imagine a dramatic courtroom battle when they think of resolving legal issues.  What they may not realize is that court isn’t always the best place to settle a dispute between private parties. Maybe there is more than money at stake, or perhaps the cost of litigation is too high when compared with the amount of money at issue. Sometimes there may not even be a clear legal remedy for the problem. In all of these cases, parties might turn to a mediator to help them resolve the dispute, instead of going to court.*

A mediator does not act as a judge, an arbitrator, or any other type of decision-maker. Rather, a mediator is a neutral third party that helps people to resolve an issue themselves. With the help of a mediator, you and your neighbor might sign an agreement to split the cost of the fence that their dog knocked down-after all, recall that your kids were using it as a jungle gym everyday last summer.  

Mediation presents the most distinct advantages over litigation when the parties have a relationship that will continue after the current issue resolves, or there is a need for creativity when fashioning a solution. There is just something about being served and going to court that makes people surly, and not likely to offer to get your mail the next time you go out of town. Mediation helps preserve relationships by avoiding the embarrassment of being hauled into court, and by giving people the opportunity to air concerns that a court would rightly ignore when evaluating a legal claim. The process also allows people the freedom to solve their problems in a way that best fits their situation, increasing the likelihood that they will abide by their agreements and feel good about the resolution. The key here is flexibility. 

In some areas of the law, mediation is a required first step rather than a pure substitute to litigation. In many counties, for example, parties to a small claims court action must attempt to resolve the issue in mediation prior to going before the judge. If the parties reach an agreement, nothing further happens with the court (unless one party fails to hold up their end of the deal). The defendant avoids a judgment on their record, and may be able to convince the plaintiff to accept a payment plan. Meanwhile, the plaintiff can avoid the time and risks involved in going forward with trial, and increase the likelihood that they will collect money from an insolvent defendant by entering into that payment plan. 

Mediation is rapidly gaining popularity, and many larger cities and counties now offer free or low-cost community mediation services. Even if parties must pay for a mediator out of pocket, in many cases it will remain  cheaper than litigation. So the next time you find yourself at war with a neighbor, landlord, or ex-partner, consider calling a local mediation service before filing those papers. 

*While mediation occurs in a variety of contexts, including labor disputes, disputes between organizations, or even states, this explanation focuses on the kind of mediation that most of us might encounter in our daily lives.

Written by Tom Lininger
Associate professor, University of Oregon School of Law (B.A., Yale; J.D., Harvard).

Professor Lininger has been a member of the Oregon faculty since 2003, where he teaches evidence, legal ethics, criminal procedure and alternative dispute resolution. Before he came to the U of O, Professor Lininger worked as a federal prosecutor, as counsel to a subcommittee in the U.S. Senate, and as a litigation attorney with the law firm Skadden, Arps, Slate, Meagher and Flom in San Francisco.

For over two decades, the Supreme Court’s interpretation of the Confrontation Clause set the limits for prosecutors’ use of hearsay. In a series of decisions from 2004 to 2007, however, the Supreme Court abdicated this role with respect to a large category of hearsay deemed “nontestimonial.” State legislatures should now fill the void. State law should protect confrontation rights in certain situations to which the Supreme Court no longer applies the Confrontation Clause.

A hypothetical example shows what’s at stake. Imagine that the government prosecutes a defendant for an alleged assault. The accuser does not testify at the trial. Instead of calling the accuser as a witness, the government calls a police officer who would repeat an out-of-court statement that the accuser made to the officer. Should the judge allow this evidence, or should the judge bar it because the defendant cannot confront the accuser in court?

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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may make you reconsider telling Crazy Uncle Larry what you really think of him. This week’s word is the latter.

Written by: Amy E. Seely

Here’s the thing about wealth: when the grim reaper calls your number, you can’t take it with you.  So, to whom do your worldly possessions go?  The short answer is “it depends.”

If a will exists, then it is certified valid by the court (or “probated”) and the deceased’s written wishes are honored. If no valid will exists, the deceased is said to have died “intestate,” and who gets what is decided by local intestacy rules. The rules for determining the deceased’s heirs vary, and may be determined by statute or based on common law. 

Generally speaking, the court with jurisdiction over the deceased’s estate will appoint an administrator to distribute his property to his heirs (usually his next of kin). In certain circumstances, this may result in an heir receiving more by intestacy than he or she would have if a valid will had been in place, especially in cases of parents disowning their children or leaving a surviving husband or wife nothing in a will. 

A person can die intestate for a number of reasons, ranging from the rational to the absurd. First, many people find the idea of preparing for death to be a morbid concept, choosing instead to leave their potentials heirs’ inheritances undocumented rather than admit their own mortality. Others attempt to execute their own wills, not knowing that many states have specific requirements for the document to be considered valid. Still others may hire an attorney to draft a will, only for their heirs to discover that a small error on the part of the drafter has cost them millions. Just as unfortunate are the cases where a valid will exists, but no one in the grieving family knows where the will is kept! In a world full of natural disasters, invalid wills, and people determined to live forever, it’s not surprising that the deceased’s estate can go from probate to intestacy faster than one can say “rest in peace.”

So, what happens when someone dies and no heirs can be found?  When a person dies “heirless,” the estate is said to “escheat,” or pass directly to the government.  In fact, inheritance hunting has turned into a lucrative career in the US, where people scour obituaries and look for long-lost relatives to inherit large fortunes…with a percentage deducted as a finder’s fee, of course. So, as awful as it may sound, it may be a good idea to send that second cousin twice-removed a birthday card this year, and don’t forget to ask how their Microsoft stock is doing!

Written by: Kimberly Brandt
Researched by: Jeff W. Richards
Edited by: Amy E. Seely and Jay D. Hall

On Halloween, 2007, the Muggle world was ablaze with news that Harry Potter author J.K. Rowling and movie studio Warner Bros. Entertainment, Inc. had filed suit against RDR Books. Their goals? To prevent the publication of an unofficial Harry Potter companion, as well as collect damages for copyright and trademark infringement, and any profits the book generates.

The Harry Potter Lexicon (”Lexicon“) is a reference book based on author Steve Vander Ark’s website of the same name. While the site is popular among Harry Potter fans (and even the author herself), Rowling and Warner Bros. claim that the Lexicon book exploits Rowling’s literary works. This leaves fans to wonder: will the Lexicon book be Avada Kedavra‘d before it hits the shelves?

Although Warner Bros.’ periodically cracks down on certain Harry Potter fan sites, it’s important to note that the Lexicon suit is seeking to halt publication of the book, not the website. The Lexicon website, according to the First Amended Complaint, is a free-of-charge site that contains over 700 internet pages. It includes such information as the recipe and effects of Polyjuice Potion, original artwork by Harry Potter fans, essays, a discussion board, and more. By comparison, the Lexicon book is allegedly a 400-page encyclopedia listing elements from all the Harry Potter books and Rowling’s companion books, “without any analysis or commentary.” Supposedly the Lexicon provides plot summaries and character descriptions, but does not contain the fan fiction, art, and trimmings from the website. The questions that remain are: (1) does the Lexicon infringe on Rowling and Warner Bros.’ copyrights, and (2) if it does, can RDR sell the book anyway?

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Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may help you live a worry-free afterlife. This week’s word is the latter.

Written by: Jeff W. Richards

Alice, worried that her next trip down a rabbit hole might not end quite so happily, decides to write her will. While doing so, Alice realizes that, in the event of her death, she needs somebody to make sure her wishes are followed. In her will, Alice decides to name her most trusted friend, the White Rabbit, as executor.

An executor is the person named by the individual writing the will (the testator) to execute her wishes regarding the disbursement of her property. Any given executor’s duties will differ, depending on the needs of the estate. Generally, the executor will be responsible for offering the will for probate, and will be responsible for the disbursement of the property to the various persons named in the will. They are also responsible for identifying other potential heirs (for instance, if part of the estate passes by intestacy), collecting and paying any debts owed to or by the estate, and finally for calculating and paying the estate tax. Typically, the executor is also the legal representative of the estate, and therefore can sue or be sued on the estate’s behalf.

As you might imagine, being named executor in a will can be a whole lot of work. Fortunately, most estates are not terribly complex, so the executor’s duties aren’t too burdensome. In the event it is too much, though, a person named as executor can refuse the position, in which case there will typically be an administrator appointed by the probate court.

Written by: Steve Glista
Researched by: Matt Schroettnig
Edited by: Lauren E. Trent

When Michael Righi heard someone running up behind him, he thought he knew what would come next. He expected a difficult conversation, maybe even some shouting or threats. He certainly didn’t expect to get handcuffed — but that’s exactly what happened after Righi walked out of a Circuit City in Cleveland, Ohio without showing his receipt to the security guard at the exit. He’s not the only shopper in recent months who has experienced frustration or met with open hostility after refusing to show a receipt on the way out of a store. Customers like Righi claim that the Fourth Amendment protects them from unreasonable searches, that it’s wrong for stores to treat all customers as suspected criminals, and that stores have no right to demand a receipt or anything else from every customer. Since so many stores are checking receipts, it can’t be illegal…can it?

The American system of law values few things more highly than the freedom for people to come and go as they please. The idea that retailers may deny that freedom to paying customers over a simple matter such as refusing to show a receipt offends privacy advocates in a fundamental way. One of the beautiful things about the law is that it seldom identifies an offense without creating a corresponding legal remedy. When a person is wrongly held prisoner, the victim can seek redress against his captor in a civil suit for false imprisonment. Read the rest of this entry »

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or in Latin. This week’s word is the latter.

Written by: Jay D. Hall 

Pro se is a term used to describe a person who represents themselves in a legal action. The Latin term pro se literally means “for self.”

In a criminal action, a person may represent himself if they are deemed competent to do so. The competency level is not a high bar; a defendant need only be competent to stand trial in order to represent himself. When competency is in question, most courts rely on expert testimony from psychiatrists for a complete determination of competency. However, critics point out that, in reality, it takes a higher order of mental function than a court requires to adequately represent yourself in trial. The only thing a court can do is impose co-counsel on a defendant representing themselves to assist the defendant with the trial. Of course, if a defendant chooses self-representation, he cannot later appeal on the grounds of ineffective counsel.

Some courts have used the language “waiver of counsel” when describing a person’s choice to self represent. This phrase is misleading, suggesting there is no right to self-represent. In fact, the right to self-representation is not a waiver of the right to counsel.  Instead, it is a separate freedom - the Supreme Court has recognized that one’s right to self-representation can be naturally read into the Sixth Amendment.

One final note: in a civil action there is no analogous fundamental right to self-representation. Most courts allow at least some minor civil appearances to be done pro se, though which proceedings are permitted vary by jurisdiction.

Written by: Jay D. Hall
Researched by: Amy Seely
Edited by: Kimberly Brandt and Stefanie Herrington

There’s a common saying in the legal community: a lawyer who represents himself has a fool for a client. If this old adage is true, it applies with equal vigor to those who decide to represent themselves without any legal training. Last December, a state court judge allowed 81-year-old Marc Benayer to represent himself, pro se, in his murder trial. This decision came after Benayer had already fired three defense attorneys and allegedly sought the services of a hit man to have one of his previous lawyers killed. Benayer was tried, found guilty of murder, and sentenced to life in prison. In a surprise twist, the judge who previously ruled that Benayer was competent to stand trial agreed to have psychiatrists re-evaluate his mental condition.

It all began October 4, 2005, while Benayer attended synagogue in Boca Raton, Florida. During the service, Benayer approached Jonathan Samuels, with whom Benayer had an ongoing dispute over an ex-girlfriend, and asked him to step outside. Once outside, witnesses claim Benayer fired two shots into Samuels’ back, then wildly fired a shot at the synagogue itself. While a friend of Benayer forcibly disarmed him, the injured Samuels ran back inside the building, where he collapsed. As police took Benayer into custody, he exclaimed that Samuels was “the mastermind, the engineer of my destruction!” Although Samuels was rushed to the hospital and underwent surgery, he died of his injuries nine months later.

At trial for first-degree murder, a judge allowed Benayer to represent himself with the assistance of an attorney. It may seem odd that a man facing a life sentence would make such a decision. Regardless of its wisdom, it is a decision that Benayer had every right to make. Everyone enjoys the right to choose self-representation, or to be represented by counsel in a criminal action. However, the right to self-representation comes with one caveat - an individual must be competent in the eyes of the court. Read the rest of this entry »

Each week we select a legal term or phrase that’s commonly misunderstood, interesting, or may save you from living under a leaky roof. This week’s word is the latter.

Written by: J. Aaron Landau

Imagine you’re signing a lease on an apartment. A provision in the contract makes an assurance: so long as you keep up the rent payments and maintain certain responsibilities as a renter, you’re entitled to “quiet enjoyment” of the property. What has your landlord just promised? Will he have broken that promise if the downstairs neighbor’s copy of Power Ballads of 1984 gets a little too…powerful? If not, what does it take for a landlord to break that assurance?

A tenant in property (such as an apartment renter) has certain rights related to that property. Among those rights is the widely recognized but commonly misunderstood right to “quiet enjoyment.” Fundamentally, the right to quiet enjoyment is the right of a tenant to use his or her property without interference. That “interference,” however, doesn’t refer to noise or disturbance - it refers to interference with the tenant’s possession of the property. In other words, “quiet” in this sense doesn’t mean “hushed” or “peaceful,” but instead means “free of encroachment.” What the covenant says, then, is that a landlord can’t interfere with a tenant’s right to occupy the property.

There are two ways that interference can happen. The first is actual eviction — for example, a lockout. Since a tenant has the right to exclusive possession of the property during a lease, a lockout would physically deprive the tenant of that right, and would constitute a breach of the covenant of quiet enjoyment. (Unless, of course, the landlord has been given the right to evict you…be sure to pay your rent!)

The second way in which a landlord can interfere with a tenant’s right to possess property is a bit more complex: if a landlord’s action falls short of actually excluding a tenant, but is still substantial enough that a tenant would vacate the property, it may be considered constructive eviction. For example, if a landlord neglects to make repairs to a flooded apartment, the apartment may be rendered useless, causing an interference with the tenant’s right to occupy the property.

So does it really take a flood or a lockout to constitute a breach of the covenant of quiet enjoyment? As is often the answer in legal definitions, it depends. Just what constitutes a “substantial interference” by the landlord will vary from state to state, though the standard is consistently high. For lesser headaches (such as your neighbor’s affinity for 80’s soft rock) there are several other causes of action under which a landlord might be liable, such as the doctrine of habitability. Ideally, though, such trouble never rises to the level of legal action - often, a simple knock on the door is all the remedy one needs.