Author: Eli Stutsman

I want to appeal – How long will it take?

Good question. Appeals are a slow process, with flurries of activity followed by periods of inactivity.

The typical progression of an appeal in the Oregon Court of Appeals

If you are the appellant taking an appeal to the Oregon Court of Appeals, the flurries of activity include the following:

  • preparation and filing of the notice of appeal
  • preparation and filing of a cost bond (or cash deposit) into the trial court
  • preparation and filing of a supersedeas bond, or “stay bond,” to stop execution of the trial court’s judgment
  • preparation and filing of the trial court’s transcript of proceedings
  • correction of the transcript, if necessary
  • preparation and filing of the opening brief on appeal
  • preparation and filing of the reply brief on appeal
  • preparation and attendance at oral argument.

The work itemized above is necessary for basic appeals, and it will take about a year for both parties complete all that is to be done.

Occasionally, other work may be necessary. For example, there may be a cross-appeal, requiring another round of briefing. Or there may be two appeals, that the parties will want to consolidate, by filing a motion to consolidate, and then waiting for a ruling from the Court of Appeals. Or it may be discovered that the trial court is missing part of the record, making it necessary for the Court of Appeals to “remand” (return) the case to trial court so that the parties and the trial court may correct the record. Or there may be a jurisdictional issue that will interrupt the flow of work while parties brief the issue and the Court of Appeals decides the issue. Or it may be necessary to file part of the record under seal, in order to protect the privacy of minors or patients. All of this will take additional time. One of these issues may take two-to-three months to resolve. If two or more of these issues are present, an appeal may take an additional six months to conclude. In the end, an appeal having moderate complexity may consume 1-1/2 years before the briefing is complete and the case is waiting to be argued to the Court of Appeals.

How long to oral argument?

After so much work, the next question often asked is, how long before oral argument? I checked my last three cases and found that oral argument was heard, on average, six months after the briefing was complete. One case took five months from the completion of the briefing to oral argument, the second case took nine months, and the third case took four months. The delay in getting to oral argument is a function of the Court of Appeals’ backlog of cases. As you can see, an appeal having moderate complexity may consume 1-1/2 years to complete the briefing, and take another six months to get to oral argument, two years total.

How long before the Court of Appeals decides my appeal?

The next question is often, how long before the Court of Appeals will decide my case? The answer may surprise you. If you are the appellant, you do not want a quick decision, because cases on appeal can be lost quickly – in one to two months – while winning takes time. If you are the appellant, winning takes time because the Court of Appeals must write and publish a decision reversing the lower trial court, a time-consuming process. For this reason, when I represent the appellant, I am always pleased when two or more months have passed and nothing is heard from the Court of Appeals. I am even more pleased when the Court of Appeals’ decision has been pending four months or longer. The court may still deny your appeal, but at least the time-to-decision suggests that the denial was not easily decided. In my experience, the longer the Court of Appeals takes to reach a decision, the better the odds of a favorable result.

How long overall?

As you can now see, appeals are a slow process, comprised of flurries of activity followed by periods of inactivity. The numerous periods of activity are spent waiting on the other side, or waiting on the Court. A basic appeal might take 1-1/2 years from start to finish, before the case is argued and decided, while a more complicated appeal, requiring “motion practice” to resolve one or more issues, may take 2-1/2 years from start to finish, before the case is argued and decided.

In my next post, I will discuss the several opportunities a lawyer can exploit to expedite an appeal, saving much time, and some expense.

 

The VA’s transition-to-practice program for new Registered Nurses

If you are a new Registered Nurse hired by the Veteran’s Hospital Administration (or “VA”), you are entitled to be trained under the VA’s Transition-to-Practice Program. If you are not familiar with this program, I direct your attention to VHA Directive 2011-039, also known as the “VHA Registered Nurses (RN) Transition-to-Practice Program.”

Without the Transition-to-Practice program, new nurses experience a high failure rate

According to this VHA Directive, the Transition-to-Practice program is applicable to “all levels of RNs with 1 year or less of experience.” See VHA Directive, 1. The Transition-to-Practice program was developed to address industry-wide turnover rates as high a 60%. See VHA Directive, 1. The VHA Directive describes the high turnover within the VHA, as follows:

“c. Among the total RN population within VHA, new graduate RNs have the highest turnover rates. In Fiscal Year 2007, the 12-month turnover costs for a cohort of 291 new RNs totaled $2.52 million. From analysis of those initial figures, ONS determined that the turnover rate for new RNs was a significant issue for VHA. This prompted ONS to develop a program to address these critical issues.”

See VHA Directive, 1.

The Transition-to-Practice Program works; new nurse failure rates reduced to zero

The VHA Transition-to-Practice pilot program was immediately successful; it “resulted in a 100 percent RN retention rate (zero regrettable losses) and all findings indicate the program was successful and ultimately proved beneficial to every facility in the pilot.” See VHA Directive, 2.

What you need to know

If you are a new Registered Nurse, with a year or less experience as an RN (prior nursing experience with a lower level of licensure doesn’t count), be sure this program is fully in place at the start of your employment. Otherwise, you risk a failure rate as high as 60 percent. Be aware that not all VA hospitals have the program, which is likely if you are the first new RN hired since 2011, the year the transition program was mandated. And be on the lookout for a transition program that may exist in name, but be deficient in substance. Whatever the circumstances, don’t miss out. The program is mandatory as of November 28, 2011, the date of the VHA Directive :

“[i]t is VHA policy that VHA facilities establish a structured development transition program for all levels of entry RNs utilizing the flexible VHA 12-month RN Transition-to-Practice Program.”

See VHA Directive, 2.

Relevant conduct under the federal sentencing guidelines is criminal conduct

U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008)

I was the appellate lawyer lawyer for Drs. David and Randall Chube on appeal to the Seventh Circuit Court of Appeals in the case of US v. Chube II, 538 F3d 693 (7th Cir. 2008). At the time of sentencing in that case, both the DEA attorney (the federal prosecutor) and the “PSR writer” (the author of the Pre-sentence Investigation Report) seemingly counted every prescription for controlled substances, whether it was criminal or not, as relevant conduct when applying the federal sentencing guidelines, and the District Court (trial court) sentenced accordingly, which greatly increased the length of sentence for each physician – five years for Dr. Randall Chube, and fifteen years for Dr. David Chube.

On appeal, the Seventh Circuit Court of Appeals found that the District Court relied upon insufficient evidence to prove the relevant conduct was criminal conduct. Both physicians sentences were vacated and the case was remanded back down to the District Court for re-sentencing. A short while later, the trial court released both physicians from prison pending re-sentencing, and both physicians served substantially shorter sentences when relevant conduct was determined correctly. That was seven years ago.

Not much has changed

I was recently retained to assist defense counsel with the sentencing of a physician in a state located within the Fifth Circuit Court of Appeals, and it seems not much has changed. Like in the Chube case, both the DEA attorney and the PSR writer make the mistake of seemingly counting every prescription for a controlled substance as relevant conduct, without first establishing that the relevant conduct was criminal conduct, when applying the sentencing guidelines. If the District Court adopts these computations by the PSR writer and the DEA attorney at the time of sentencing, the District Court will commit reversible legal error just as the District Court did in US v. Chube II, 538 F3d 693 (7th Cir. 2008).

Prescribing without a legitimate medical purpose

The civil standard of care and the criminal conviction standard are two distinct legal standards, yet these two legal standards are often substituted, confused, and/or conflated, by the DEA’s drug diversion investigators, the DEA’s attorneys, the federal prosecutors, the prosecution’s medical experts, and the PSR writer, during the investigation, the trial and at sentencing. Most often, the civil and criminal standards are conflated through the misapplication of the rule against prescribing without a legitimate medical purpose, discussed on the criminal violations page and elsewhere on this website. Unfortunately for physicians, when the criminal conviction standard is conflated with the civil standard of care, the criminal conviction standard is lowered, making numerous criminal convictions easier to win, and the relevant conduct necessary to further lengthen a sentence, easier to find. The burden is upon defense counsel and the courts to keep these two distinct legal standards separate.

Never forget that relevant conduct is criminal conduct

A violation of the civil standard of care (which may amount to professional negligence or medical malpractice) is not, without more, a drug crime. In other words, a physician may commit malpractice when prescribing controlled substances, but that does not mean the physician committed a crime. Never forget that relevant conduct is criminal conduct. Because a violation of the civil standard of care when writing a prescription for a controlled substance is not, without more, criminal conduct, it is not properly considered relevant conduct for purposes of sentencing. More is required. See U.S. v. Chube II, 538 F3d 693 (7th Cir. 2008). By using an incorrect legal standard to determine which prescriptions are criminal, and therefore relevant conduct when applying the federal sentencing guidelines, a District Court will commit reversible legal error at the time of sentencing. It is incumbent upon defense counsel to preserve this legal error for appeal.

 

How to obtain good results in tough licensure cases: Four examples

When facing a Board investigation, it is common among practitioners to fear the loss of their license, or the imposition of substantial restrictions upon their practice. Today I will discuss four such cases, involving two physicians, a pharmacist, and a nurse. In one of the cases, the practitioner went so far as to surrender his license, hoping to make it all go away. In all four cases, however, the practitioner prevailed, with the board imposing no discipline whatsoever.

The physician practicing under an evolving standard of care

In the first example, a physician was getting good results for all his patients, and he had no bad outcomes. The standard of care, however, was both disputed and evolving, and the physician had provided his patients with what appeared to be a lot of treatment, and it was the amount of treatment that prompted a complaint to the Medical Board. The case was resolved successfully after the Medical Board came to understand the perspective of several experts, the evolving standard of care, and the above average results that this physician obtained for his patients. In sum, the physician’s knowledge and thoughtful presentation, supported by expert opinion, literature, and good patient outcomes, carried the day. This case was closed without any discipline.

The physician treating chronic pain with narcotics

In the second example, a physician was treating chronic pain with narcotics in a small practice setting. This is a difficult medical practice in the best of settings, given the nature of the patient population, and the scrutiny imposed by state and federal regulators, including the Board of Medicine and the Drug Enforcement Administration (DEA). The physician’s charting was good, however, and, with the assistance of an expert to provide an objective assessment, the physician’s charting was organized into a comprehensive and detailed written report. Small discrepancies were spotted, self-corrected immediately, and disclosed to the Board of Medicine, leaving nothing for the Board to do. The physician’s presentation was persuasive, and the case was closed without any discipline.

The pharmacist-in-charge discovering and reporting a substantial drug loss

In the third example, the pharmacist-in-charge (PIC) discovered a large drug loss in his pharmacy. Security and protocol had been breached. The pharmacist-in-charge was very proactive, however, quick to discover the problem, quick to verify a pattern of theft, and quick to report the drug loss to the Board of Pharmacy and the DEA. The pharmacist-in-charge also confronted the person responsible for the drug theft and further implemented corrective measures. Although the pharmacist-in-charge worked closely with the Board of Pharmacy, it was the pharmacist-in-charge that lead the effort, an effort that was much appreciated by the Board of Pharmacy. And although the drug theft occurred under his watch, the pharmacist-in-charge promptly fulfilled his role in the state and federal regulatory scheme intended to secure the inventory of controlled substances. The case was closed without any discipline.

The nurse alleged to have exceeded his scope of practice

In the final example, a highly skilled nurse was alleged to have exceeded his scope of practice. The nurse’s advanced education and experience carried the day, however. The Board of Nursing concluded that the nurse in fact had the education, training and experience necessary to refute the allegation that the nurse had exceeded his scope of practice. The Board of Nursing reasoned that whatever dispute there was between the hospital and the nurse, it was an employment matter, not a licensure matter. The case was also closed without any discipline.

What you need to know

In difficult cases it is necessary to take the initiative, to perform the research and analysis necessary to take a lead role to get in front of the case, showing your licensing Board what you are doing, and further offering the conclusion the Board should accept without need of discipline. In the four examples offered above, none of the cases proceeded beyond an interview, and in two of the cases, investigators determined that an interview was not warranted. These examples illustrate the value of early action when defending your medical license.

If a DEA Drug Diversion Agent asks you to sign a waiver or release, just say “no.”

If you possess a DEA Registration to prescribe, possess, or dispense controlled substances, you may one day be approached by a DEA Drug Diversion Investigator requesting an interview and asking you to sign a release or waiver of your right to remain silent. Just say “no.”

As my late friend Glen Crick has written,

“if you are told, ‘You have the right to remain silent,’ then remain silent. This warning is only given to someone who is the subject of a criminal investigation. If an investigator tells you that you have the right to remain silent, there is no guesswork involved. You are the subject of a criminal investigation, and there is nothing to be gained, and much to be lost, by talking to an investigator without legal counsel present.”

Two examples of what can go wrong

In one case, a senior physician was duped into writing prescriptions to young, drug seeking “patients.” His clinical assessments and charting were both good, and the drugs prescribed were appropriate and in therapeutic doses. The trouble arose, however, not from his charting, but from the statements he made during his voluntary interview with the Drug Diversion Investigator – he made the big mistake of signing a written release of his rights, and he then sat for an interview. Unfortunately, the mistakes he made during that interview hurt him, and he later pled to one “small count” (small by drug diversion standards) resulting in a sentence of probation, the surrender of his DEA Registration, and the closure of his practice. It was my opinion, however, that without the statements he made during his voluntary interview, his case was entirely defensible.

In another case, a physician made the same mistake of signing a written release of her rights, and she then sat for an interview with two Drug Diversion Investigators without legal counsel present. Before that interview was over, she was further persuaded to surrender her DEA Registration. This physician never faced allegations of criminal wrong doing, but she incurred much legal expense and trouble in an attempt to restore her Registration and medical practice. Although this case was never fully developed, it was my opinion based upon what was known, and what has been learned since, that this physician would not have lost her DEA Registration and there was no reason to surrender it to the DEA investigators in the first place.

What you need to know

In both the of the examples above, the physicians released their rights and agreed to be interviewed by Drug Diversion Investigators. It was my opinion that both cases were fully defensible. The lesson to be learned is that if a DEA Drug Diversion Investigator wants to interview you and asks you to sign a release or waiver of your right to remain silent, don’t do it. Just say “no.” If you are told, “You have the right to remain silent,” then remain silent. Decline all interviews until you have consulted with a lawyer familiar with prescribing issues under state and federal law. Whatever you do, don’t go it alone.

This is important: Avoid making new license applications while you are under investigation

If your license to practice medicine, nursing, or pharmacy is under investigation and you know some form of discipline or sanction will soon be imposed, it is only human nature to consider your options. One common mistake, however, is to apply for a new license in a second state before the investigation in the first state closes. The rational may be that you need a fall back position, or that you are tired of the Oregon rain, or that it is time to move back home to be closer to family. These are all explanations I have heard.

What you need to know

What you need to know is that after you are disciplined by one state, that discipline will become public record, and it will become known to any other state in which you are licensed, and – this is important – the other states will open mirror image investigations, and may impose discipline. In effect, an investigation by one state will open an investigation in every other state in which you are licensed. Hopefully, these will be “small fires” to put out, but why risk it unless application for the new license is absolutely necessary.

There can be harsh consequences for making this mistake

As I write this post, I can think of two physicians who obtained new medical licenses in second states unaware of that the new state medical boards will open they own investigations. Yes, the problem can be managed, but it is painful to note that in each case, neither physician ever practiced or even applied for a position in the second state. It was simply a backup plan that was not given much thought, and was never implemented, but it cost the physician a second investigation.

My typical advice

In most cases, my typical advice is to not to apply for a new license in a second state unless and until the investigation in the first state is closed, or well under control, or the outcome is known, and the consequences of the second state’s investigation are understood. If there are extenuating circumstances, be sure to make your decision knowing all the possible legal consequences, and do not make this decision without first seeking competent legal advice.

Can my licensing Board really do that?

Licensing boards are administrative agencies acting pursuant to administrative law

In the past several years I have been approached by three physicians wanting to sue the Oregon Medical Board in a “real court,” usually meaning a state trial court. All three physicians were angry or frustrated, and all three were dismissive of the Oregon Medical Board’s authority and power. Earlier this year a pharmacist asked me if the Oregon Board of Pharmacy “can really do that?” The pharmacist seemed doubtful that the Board of Pharmacy had that kind of power over his license. All four licensees were frustrated by the strict sanctions threatened by their State licensing Boards.

The range of sanctions

In three of the four cases, the licensing Board was threatening substantial probation and/or revocation, which is at the “heavy end” on the sanction continuum. Sanctions include, for example, being reprimanded; being temporarily suspended, indefinitely suspended, or permanently suspended; or having your license revoked. Sanctions further include fines, continuing education, recurrent training, the imposition of a mentor and/or a monitor, and periods of probation (three to five years is not uncommon). One or more sanctions may be imposed in combination, as each individual case warrants, or the licensing Board sees fit.

The answer is “yes, for the most part, the Board really can do that”

The answer is “yes,” state licensing boards, whether it be the Oregon State Board of Nursing, Oregon Board of Pharmacy, or Oregon Medical Board, are all acting pursuant to State law and, when they are acting within the scope of their enabling legislation (legal authority), they really can do that. The scope of each Board’s legal authority is established by the Legislative Assembly in Salem, which passes statutes to create and empower each of the State licensing Boards. State law also includes the Oregon Administrative Rules (OARs) promulgated by each of the licensing Boards in the furtherance of their mission.

Exceptions

There are some exceptions. For example, if a State licensing Board is acting outside of its scope of its power (the agency’s enabling legislation), then the Board’s action may be challenged on that ground. Similarly, if you contest your case all the way to hearing and lose, you may appeal, seeking judicial review by the Oregon Court of Appeals, but you will not prevail unless you establish that your Board committed legal error, or took action that is not supported by “substantial evidence.” Neither type of challenge is a good bet, and it is not the place to start in any event.

Be smart – do not delay taking action

If you are prudent, you will not stake your case on state court legal challenges and appeals. Your first, best, and least expensive opportunity is to work directly with your State licensing Board. Get involved from the start. Unfortunately, too many licensees wait too long to obtain legal advice – until shortly before or after being interviewed by field investigators or licensing boards, or worse, after receiving written findings and proposed sanctions, i.e., a notice of proposed disciplinary action. At this point, your licensing Board has reached conclusions about your practice and your opportunity to participate and influence proposed findings and sanctions has been greatly lost. But even at this late date, there is still important work to do. For example, the next step may be to negotiate a settlement, or to proceed to an administrative hearing. No matter what you do, however, you will need legal counsel.

Eleven recommendations for oral argument

A trial lawyer I assisted with an appeal wanted to argue his case to the Oregon Court of Appeals and asked me for whatever advice I might provide to him. What follows is my answer – eleven recommendations for oral argument – intended for his use, in that case, that day, before the Oregon Court of Appeals. This list is not intended to the best list, or the most comprehensive list, or to apply to every appellate court. It is simply the advice I gave one trial lawyer on how to argue an appeal to the Oregon Court of Appeals. Here it is:

  1. Read Chapter 6 of the Oregon Rules of Appellate Procedure generally, paying close attention to Rule 6.15 specifically (Procedure at Oral Argument).
  2. Know your panel. The judges sitting for the Oregon Court of Appeals are organized into four panels, or “departments.” Check the argument calendar to learn the make up of the three judge panel that will hear your case. Determine whether any of the judges on your panel wrote or participated in one for the opinions upon which you rely? If so, study that opinion with the specific judge(s) in mind.
  3. Be timely. Arrive at the start of each session, and know what to expect. Check the argument calendar the day before argument, to verify when your case will be called. Caveat: Even if you are the last argument of the morning or afternoon session, show up on time for the first argument of the session. Some cases are dismissed, some arguments are waived, and if one party is late, the court may take cases out of order. This is why the court expects everyone to be present at the start of the morning or afternoon session.
  4. Check in with the clerk. When you arrive at the courtroom, check in with the clerk (seated to the left as you enter the courtroom) by handing the clerk your business card and advising him or her which party you represent. The clerk will note your arrival and usually hand your card back. If you are permitted to make a reply argument, reserve reply time with the clerk at the same time you check in. See Rule 6.15. It is my practice to reserve the maximum reply time allowed, because it is during the reply argument that I get to the answer the bulk of the court’s questions, plus whatever argument the respondent just made. Take a seat anywhere in the back, until your case is called, and then move up to counsel.
  5. Introduce yourself to the court properly. Because you are the appellant, you will argue first, and last, if you reserve time to reply. See Rule 6.15. Introduce yourself to the court first, by saying, “May it please the court, my name is so-and-so, appearing on behalf of . . . .” Do not tell a joke, and do not be folksy; it never works. Never read anything unless it is a highly specific quote from the record or a legal authority. If you read too much, the court will interrupt you, and it happens very quickly. When your time is up, quickly wrap up your argument and sit down.
  6. Remember, questions are a good thing. Questions from the bench are a good thing because whatever the court questions you about is what interests or troubles the court. I therefore believe the sooner a question comes, the better. And if there are few questions, or heaven forbid, no questions, it is because one side has already won or lost the case. When this happens, hopefully it is not a surprise, but it will not happen to you in this case. Don’t worry.
  7. Answer questions straight up. Appellate judges are focused on threshold questions that may dispose of a case quickly. You are not going to trick the court. Answer any question directly, and then explain the answer, but never go outside the record. If necessary, tell the court you could answer the question but it would be necessary to go outside the record. The court will say “thank you, no.”
  8. What to do if you do not know the answer. Occasionally the court will ask a question not anticipated by the parties in the briefing. If you don’t know the answer, say so, and offer to provide the court with a short, two-page supplemental memorandum, if it seems appropriate to do so. The court rarely accepts such offers.
  9. Concede points that are difficult but not necessary to your position, but don’t concede points that concede your case. Sometimes a judge will say something like, “If we find so-and-so, you lose, right?” The answer must be either, “Yes, but the court shouldn’t find so-and-so because . . . ,” or, “No, your honor, if you find so-and-so, we still win because . . . .”
  10. If it is your first time to the court of appeals, observe one or two arguments before your argument, even if you have to attend another day to do so. Although I have attended many oral arguments, I still prefer to be second on the argument calendar so that I may observe one argument to get “the tempo” of the panel that day.
  11. Parking. There is usually plenty of adequate parking right outside the main doors to the Supreme Court building and, as of November 2015, the coin-fed parking meetings have been replaced. You no longer need to bring a stash of quarters – you can now pay by debit or credit card!

Most physicians, many pharmacists, and some nurses have insurance that will cover fees incurred while defending board complaints

In my experience, most physicians, many pharmacists, and some nurses have insurance that will cover legal expenses incurred while defending a complaint to a professional licensing Board. Perhaps other licensed professional do too. Check your policy, and remember, time may be short to “tender” (file) a claim. Your insurance policy may contain a requirement that you notify the insurance carrier within so many days of the claim, often a short period of time. Although I have successfully tendered one claim many months late, by persuading the insurance carrier to provide a legal defense, late acceptance of an insurance claim should be considered the exception, not the rule, so do not count on it. Seek legal counsel and act swiftly to preserve your contractual rights to insurance coverage.

When in doubt, tender the claim

I am not a “coverage attorney,” but I can review your policy with you, tender claims for you, and refer you to a coverage attorney, when and if that becomes necessary. The important thing to do, however, is to determine what insurance policy may cover your claim, and to then tender your claim to the insurance carrier(s) right away. When in doubt, tender the claim, and let the carrier explain why you do not have coverage for a particular claim. If there is a disagreement with your insurance carrier, I can refer you to a coverage attorney.

An old story finally told: How one party made one argument that won a reversal in the Ninth Circuit Court of Appeals

The Oregon Death with Dignity Act was passed by Oregon voters in November of 1994. Oregon’s novel law did not, however, take effect that year, but was instead immediately enjoined from operation by a federal District Court. Lee v. State, 869 F Supp 1491 (D. Or. 1994). I represented the sponsors of Oregon’s groundbreaking new law on appeal, and we won. In 1997 the Ninth Circuit Court of Appeals reversed the federal District Court and vacated its injunction, Lee v. State of Oregon, 107 F3d 1382 (9th Cir. 1997), allowing the Oregon Death with Dignity Act to go into effect, the first law of its kind.

Three parties appealed the federal District Court’s injunction

Three separate parties appealed the federal District Court’s injunction to the Ninth Circuit Court of Appeals. The three parties were:

  • the State of Oregon (defending the state’s new law);
  • a dying patient represented by American Civil Liberties Union (the ACLU); and
  • the public sponsors of the law (my clients).

Some might wonder why three parties appealed, and weren’t they all doing the same thing?

One party made the difference

At first glance, it would appear that all three parties – the State, the ACLU, and the law’s sponsors – were all doing the same thing. They were, after all, litigating in support of Oregon’s new law. What you may be surprised to learn is that on the key legal issue that won the appeal, the three appellants took very different legal positions.

The key legal issue that persuaded the Ninth Circuit Court of Appeals was “standing.” Standing is a concept rooted in Article III of the federal Constitution. To establish standing, the legal challengers of the Oregon Death with Dignity Act must have established that they suffered sufficient harm or injury to themselves. Mere hypothetical harm would not be enough to confer standing upon the plaintiffs. If the plaintiffs did not have standing, the federal courts would not have jurisdiction (power) to decide the case, and the plaintiffs’ case must be dismissed.

In this case, the State of Oregon decided not to argue that the plaintiffs lacked standing. The State explained that for reasons of judicial economy, it would prefer that the federal courts reach (decide) the legal merits of the case, rather than simply dismiss the case on a procedural basis. The State did not want to come back another day to litigate the same issues against new plaintiffs that may have standing.

Similarly, the ACLU decided not argue that the plaintiffs lacked standing because the ACLU works steadily to expand, not restrict, the application of standing. The ACLU prefers easy access to the federal courts in order to bring their many legal challenges, and standing is a barrier to easy access.

This left only us, the sponsors of the law, to argue that the plaintiffs lacked standing to litigate. Our goal was to win. We did not have other priorities. Standing became our key argument.

As history will tell, the Ninth Circuit Court of Appeals reversed the federal District Court on this ground alone, and, in the 17 years since, no federal court has ever reached the merits of the plaintiffs’ nonexistent, hypothetical injuries.

From a Constitutional perspective, the standing doctrine served its intended purpose by screening from the federal courts purely hypothetical claims of injury. Best of all, however, the standing doctrine provided us with the key legal argument to win a reversal and free the Oregon Death with Dignity Act from the federal District Court’s injunction.

The lesson: Seemingly like-minded appellants may have different legal interests

Although I could provide you with other examples from other appeals, this example make the all important point that seemingly like-minded appellants may have different legal interests and priorities that will influence, if not interfere with, important litigation decisions and tactics. With this example in mind, if you have a stake in a high profile piece of litigation, do not assume that seemingly like-minded litigants are necessarily implementing the best litigation decisions and tactics.