Sherertz v. Brownstein Rask

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Civil Procedure
  • Date Filed: 11-08-2017
  • Case #: A158820
  • Judge(s)/Court Below: James, J., vice Sercombe, S.J. for the Court; DeHoog, P.J.; & Hadlock, C.J., vice Flynn, J. pro tempore.
  • Full Text Opinion

When considering the provision of a particular jury instruction, "[e]verything which is reasonably capable of confusing or misleading the jury should be avoided." Williams et al. v. Portland Gen. Elec., 195 Or 597, 610 (1952). A jury instruction will not be reversed if there is “little likelihood” that the jury was affected by the error; but if there is “some” or “significant” likelihood, then the jury instruction must be reversed. Purdy v. Deere and Company, 355 Or 204, 226 (2014).

Plaintiffs appealed a general judgment and a supplemental judgment that were rendered in an action for legal malpractice in the preparation of an estate plan. Plaintiffs assigned error to the trial court's provision of a special jury instruction that was based upon an alteration of the Uniform Civil Jury Instruction (UCJI) 44.03, which is occasionally used in medical malpractice suits.  On appeal, Plaintiff argued that the change in the jury instruction "was reasonably likely to confuse or mislead the jury." In response, Defendant argued that the estate plan was created "in accord with the decedent’s wishes." When considering the provision of a particular jury instruction, "[e]verything which is reasonably capable of confusing or misleading the jury should be avoided." Williams et al. v. Portland Gen. Elec., 195 Or 597, 610 (1952). A jury instruction will not be reversed if there is “little likelihood” that the jury was affected by the error; but if there is “some” or “significant” likelihood, then the jury instruction must be reversed. Purdy v. Deere and Company, 355 Or 204, 226 (2014). The Court of Appeals concluded that, based on the requirements for Plaintiffs to establish a right of action, the language of the jury instruction "hopelessly confuse[d] what [was] at issue." Therefore, the Court held that the trial court erred in providing the jury instruction, and that there existed "'some likelihood' that the error affected the verdict." Reversed and remanded.

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