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PaperclipPerfector  9mo ago (text post)   28989 thread views

Culture War Roundup for the week of August 7, 2023

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Either The Post Millennial is providing a skewed version of events, or a defense attorney just defeated Andy Ngo's civil case against two of his attackers through blatant juror intimidation. I tend to assume the media takes things out of context, especially openly partisan media, but it's hard for me to believe that a lawyer wearing an "I am Antifa" t-shirt every day in court, rather than formal attire, is anything other than a breach of protocol. Maybe the "I will remember all your faces" line was taken out of context, and she was just talking about her photographic memory. Maybe the Post Millennial was exaggerating when they said that the arguments were all ad hominem attacks. Or maybe this really is as bad as it seems.

Regardless, I'm surprised that the Motte isn't talking about the case.

Either The Post Millennial is providing a skewed version of events, or a defense attorney just defeated Andy Ngo's civil case against two of his attackers through blatant juror intimidation.

Probably both.

There's not much available through the public court records system in Portland, but this and this, while very overtly anti-Ngo, suggest that Ngo's trial theory depended a lot on attaching personal connection to direct injury that could be difficult in this sort of gang attack. The photos here suggest that Burrows was in (semi)-formal attire rather than actually wearing the shirt.

On the other hand, it's... very hard to have seen even those oregonlive summaries as anything but an attempt to win a civil suit by using the defendants as character witnesses against the plaintiff, in a 'but he deserved it' sense. And I'm not sure Ngo should have even had to prove directly bloody hands, especially in a civil trial; the various tests in the context of mob violence are a mess, but I'm pretty sure they're wider than but-for. That doesn't necessarily mean intimidation, given that we're still talking Portland -- Hacker previously escaped a criminal charge for theft robbery on a different occasion in a bench trial.

But that option's kinda worse.

I dunno. @FCfromSSC had a post on the broader tactical ramifications from this class of problem, from the context of the Stephen Ray Baca trial from New Mexico. And I don't think any of these are even local nadirs: the end result of the crushing of Christopher Green would have been comedically on-the-nose were Green's injuries more looney tunes and less severe brain damage.

And I'm not sure Ngo should have even had to prove directly bloody hands, especially in a civil trial; the various tests in the context of mob violence are a mess, but I'm pretty sure they're wider than but-for.

Apparently, there are two standard jury instructions re causation in civil cases in Oregon: Oregon Uniform Civil Jury Instructions (UCJI) UCJI 23.01 (but-for causation) and UCJI 23.02 (substantial factor causation). "[T]he uniform substantial-factor instruction applies only when there are multiple causes of a plaintiff's injury that act together or independently to cause an injury. In other negligence cases—the majority of cases, according to Joshi—the but-for instruction is appropriate. 342 Or. at 162, 149 P.3d 1164." Haas v. Est. of Carter, 316 Or App 75, 87–88, 502 P3d 1144, 1151 (2021).

This case would seem to be one of multiple causation, so the substantial factor instruction should have been given. I don’t know if it was.

Yeah, unfortunately the trial records (and maybe the full text of the current Oregon UCJI?) are pretty heavily paywalled. It's not a negligence case, and very nearly the prototype for a situation where substantial-factor would normally be considered appropriate, but it's hard to find more specific data.

Oh, if he did not include a negligence cause of action, then the causation question probably was not at issue in the first place. If it was just a cause of action for battery, then the operative law seems to be:

For a person to be liable for the intentional tort of another, two legal requirements must be satisfied. First, the defendant must have participated in or aided and assisted in the assault in some way. Paur v. Rose City Dodge, 249 Or. 385, 389, 438 P.2d 994 (1968). Second, the defendant's participation in the assault must have been with the requisite mental state, i.e., defendant must have intended the harmful or offensive contact or least understood that the assault was going to be committed against Olsen at the time defendant aided G.

Olsen v. Deschutes County, 127 P. 3d 655 (OR: Court of Appeals 2006).

Again, I have no idea what evidence was presented to the jury on this.

At least by the web record search, the specific torts were "Assault, Battery, Emotional Distress", and as far as I can find allegations that they were directly involved in the attack, but there's not much more (freely accessible) information available.

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