16 SUPERLAWYERS.COM AT TORNEYS SELECTED TO SUPER LAWYERS WERE CHOSEN IN ACCORDANCE WI TH THE PROCESS ON PAGE 19.
Q: You’re like Harvey Keitel in Pulp Fiction.
You come in and fix things.
A: I fix them and people are happy. A lot
of times, if you do dom rel work, no one’s
happy. Even if you win, then they paid you
too much, or they paid you and they wish
they hadn’t. But in this work, most people
are happy with you.
Q: Can you give an example of repair work?
A: I’ll give you an example on appeal. So
somebody wrote a brief, responding to
somebody else’s brief, and then started to
write a cross-appeal, because their client
had been harmed as well, and in doing so
realized, “Oh, I missed the time to file my
cross-appeal. What do I do?”
They called the PLF, Professional
Liability Fund, their malpractice carrier. The
malpractice carrier hires me to see if there’s
anything we could do to save it.
In the case of this person’s appeal, I was
able to drive down to the town where the
case was and find out that the judgment
in question that was appealed wasn’t an
appropriate final judgment. Therefore, the
whole appeal was flawed. I was able to get
the appeal dismissed, and my client started
In trial, I recently had one where a case
was dismissed for not being timely filed.
My client refiled it in accordance with a
certain set of rules that said you can refile
cases under certain circumstances. The
judge denied that, and entered a judgment
against his client. [The lawyer] complained
to the legal-malpractice carrier, they
hired me, and I got the judge to set aside
his dismissal and reinstate the case. It’s
moving forward right now.
Q: How did you get the judge to reinstate
A: I did a motion for a new trial. I said the
court erred because there is a statute that
allows you to refile a case under certain
circumstances. My client had cited it. The
judge just told him, “No. I don’t believe that.
There’s no way there would be such a rule.”
[With me], the judge said, “Hey. I was wrong.
Should have read it. Didn’t read it. Never
heard of it. I get it now. I’m reversing myself,
and case reinstated.”
Q: How long do repair cases generally take?
A: That’s one of the lovely things about it.
When you have an appellate practice, there
are months, if not years, between events.
Repair things, you could get a decision in
days or a couple of weeks. In appellate, you
hardly ever talk to anybody. You occasionally
go talk to three judges sitting on a panel
somewhere, wearing robes. Whereas repair
work, you have to kind of bob and weave,
evaluate things, go to trial courts, then go
to the trial court and argue and meet the
clients. Two completely different things, but
fun, and they balance out for me.
Q: How often are you able to fix what’s
Q: Meaning 75 percent or more?
A: Yes, 75 percent or more. And a little
trick there: I am asked to evaluate cases for
repair, and before it’s agreed that we do
one, there has to be a reasonable shot at
winning. So they don’t just say, “Well, this is
broken. Here you go.” They’ll not agree to do
it unless there’s a reasonable shot at it.
Q: Do you often work with trial lawyers
early in your appellate cases?
A: I do. Sometimes [with] trial lawyers outside
of my firm, but most often the trial lawyers
within my firm. We have a busy trial practice. I
wouldn’t say every case here has an appellate
lawyer involved from the beginning, but yes,
many of the cases here I start that way.
Q: Anticipating that it’s going to be appealed
and you need X, Y and Z on the record.
A: Right. And even if we didn’t from the very
start, almost always when they get toward
trial, we advise relating to the verdict form,
the jury instructions, the pretrial motions.
Many times I’ll get a call about something
that’s happening in the trial and, “What
should I say? How do I preserve the error
that’s going on here for later?” So one way or
another, we are often involved in the cases.
Q: You argue a lot before the 9th Circuit,
the Oregon Supreme Court and the Oregon
Court of Appeals. Do you have a preference?
A: No. What I find remarkable is—given
the volume that those courts carry and
the volume of paper we present them in
any given case, and the fact they’re sitting
on any given day on many more than one
case—they are all remarkably prepared for
argument. I hear some judges aren’t; but
in all the courts where I’ve appeared, the
appellate judges have been very prepared
Your client likes to know they’ve been
heard. Even when you lose, they know that
the court heard you because they asked
intelligent questions at argument, and read
your briefs and understood your position.
That’s a good thing.
Q: So if a young lawyer or law student was
interested in appellate work—as opposed
to regular trial work—what qualities would
A: Analysis, writing and organization of
thought. A person can be brilliant and have
really interesting thoughts, but they have to
be able to write it down in a way that’s pithy
Q: How did you get involved in appellate
A: I started out in a large firm [Schwabe,
Williamson & Wyatt] that had a large appellate
practice and I enjoyed doing it. I ended up
running the appellate department for a while
when the senior people weren’t there anymore.
Then in 1992 we started our own firm [Hart
Wagner], and I was the appellate department.
I did every appeal until I was able to hire some
other folks to help me as we expanded.
Q: Did you have a particular mentor that
A: Trial side, Jerry Banks was my supervisor.
He was very good to me, and shared a lot.
John Hart was somebody I tried cases with as
well, and he’s over here now. On appellate
stuff, Dick Foley ran the department for a
long time. Jack Faust was also a member of
that appellate department, who has always
been very good to me.
Q: What did you learn from them?
A: One thing I learned, particularly in the
appellate arena, is be thorough and start at the
bottom and don’t assume anything. Come into
an appeal with an open mind, and you’ll find
things that other people didn’t find.
When I go to the Court of Appeals, I have
everything. I have the transcripts, I have the
rules, I have the pleadings. It’s not easy to
bring all this stuff down in the really big cases,
but I almost always use them in preparing
and in argument. Something always comes
up. You have to know everything about
everything in the case. Because you win some
that you otherwise wouldn’t have won.
Q: Any of your appellate cases stand out