AREAS OF PRACTICE

Where can I find the law that applies to my case?

Because the United States is one nation with many sovereign states, the federal law controls in some cases, while state law applies in other cases. Some laws are passed by "executive" powers (U.S. Presidents and state governors); other laws are passed by "legislative" powers (the U.S. Senate and Congress, and state legislators); and some laws are created by "judicial" powers (judges who interpret executive and legislative law). Still other laws arise from custom and practice over hundreds of years (the "common law"). In many cases we will already know the laws that apply to your case. In some instances we will have to research various state and federal laws to see the precise legal principles that govern your case.

Smaller local governments, such as counties and cities, can pass their own laws too. If two laws conflict established legal principles determine which law controls. In a few cases no law has been developed in Oregon, or Oregon's law is unclear. In that case we will research how that area of law has developed in other states and we will urge the Oregon court to adopt the out-of-state law that is most favorable to you.

Constitutions, statutes, and administrative regulations are all part of our law. We live in a common law country, which also means that when a court decides a case, it must determine how the applicable law is interpreted. Because some laws are poorly written, or have unforeseen problems of interpretation, the court’s interpretation of that law is then binding on that court and on lower courts in the same way as if it had been part of the original law. If a trial court decides what a law means, it must consistently apply that interpretation in future cases. But only that trial court is bound to follow it own decision. (Attorneys may cite one trial court's decision to other trial courts but only for persuasive value; a second trial court is not required to follow an earlier decision of another trial court.) But if the Court of Appeals decides what a law means, all the trial courts must interpret the law the same way. Only the Supreme Court is exempt. If the Supreme Court decides what a law means, everyone must follow that interpretation.

There are two separate court systems in the United States, federal and state. Federal courts interpret federal law, and state courts interpret state law. Thus, if the Oregon Supreme Court decides what an Oregon law means, no other state court can change that meaning, unless the legislature changes the law. However, if the US Supreme Court says that the Oregon law conflicts with the US Constitution, then the Oregon law becomes invalid, and unenforceable. In such a case the US Supreme Court has not changed the Oregon Supreme Court’s interpretation of the law, it has only said that the interpretation conflicts with the U.S. Constitution, which is a higher law. This means that just looking up and reading a statute is not enough. Legal research also requires finding cases interpreting the statute and later cases that may have changed or refined the meaning of the first case.

Because of the different spheres and sources that overlap and sometimes conflict, correctly understanding which laws apply in a given case can take enormous effort and diligence. The whole matter can be very complex and confusing. In your free first interview we can let you know if the law that applies to your case is common or unique.

How much proof do I need?

You have to prove a personal injury claim “by a preponderance of the evidence.” You have to have more than 50% of the evidence on your side, which means that you must prove that you are more likely right than not. You must tip the scales of justice at least a featherweight in your favor. If you don’t, you will lose.

As the person making the claim, you also carry the “burden of proof.” This means that you must provide evidence to support your claims. This may include medical records, doctors’ reports, photographs, and oral testimony of fact witnesses and of experts, all to show that the other side is at fault and that you have been harmed. You must produce enough evidence to show that you are right. Our duty is to explain to you the proof needed and to help you assemble it.

The other side is not required to prove anything unless they make claims of their own, such as claiming you were at fault. They will try to discredit your evidence by producing contrary evidence (if they can). In some cases the other side will deny everything; in other cases they will admit they are at fault but will deny you were harmed; and in some cases they will admit they were at fault and that you were harmed, but will disagree about what the case is worth.

If you claim punitive damages, or damages relating to how alcohol was served to a drunk driver, you must prove that part of your case by “clear and convincing evidence.” This is higher than the "preponderance of evidence" standard used in nearly all other cases. Clear and convincing evidence means that the facts you claim are "highly probable."

You probably have heard the expression of "proof beyond a reasonable doubt.” This is the standard used in criminal cases where those accused may spend years or even a lifetime confined in prison. Because the penalties are so severe, those accused are constitutionally entitled to proof beyond a reasonable doubt. But in civil cases, where only money is at issue, the proof required is the same proof we ask of ourselves in our own personal decisions – as between two options, which is the better way? As between two causes, which is more likely than not? This is the standard because in life it is very difficult to prove anything with absolute certainty. Some questions and even doubts exist, and yet in life we have to decide and move on. The law simply recognizes that a "preponderance of evidence" is how we actually live our daily lives.

Another distinction between criminal and civil cases is that in a criminal case the prosecutor must prove that the accused intended to inflict the harm or was so grossly irresponsible as to not even care whether the victim was injured. By contrast, in a civil case an unintended accidental injury is enough. Proof of bad intent is not required. In fact, in most civil cases the wrongdoer did not mean to hurt anyone, but his negligence nevertheless caused serious damage. Under civil law the wrongdoer (almost always his insurance carrier) is legally required to compensate for the harm done.

What is the difference between mediation, arbitration, trial, and settlement?

In the process of resolving your claim, you will probably hear the terms "mediation," "arbitration," "trial," and "settlement." Each is a very different way of resolving a legal dispute.

Mediation

In mediation an outside party (often a retired judge or a professional mediator) comes in to help the two sides negotiate. The mediator helps the parties resolve their differences by getting each side to move from their position toward the other side’s. Mediation is usually voluntary (though a few courts require it in all cases where a lawsuit has been filed). Unless both sides agree to an acceptable amount, the mediation fails and you will continue with other options.

One of mediation’s key distinctions is that there is no outside decision maker. The choice of whether to accept a specific offer is yours and yours alone. We can help you decide, but it is always your choice. Mediation is private and confidential.

Arbitration

Arbitration happens when both sides agree to submit the dispute to a neutral arbitrator (often a retired judge or an experienced attorney trusted by both sides). Sometimes arbitration will happen before a panel of arbitrators (usually three). The arbitrator or the arbitration panel will make a decision on the case after both sides present their evidence and argue their case. It is like a jury trial, except it usually occurs in a private office rather than in the courthouse. Unless the parties agree to "binding" arbitration, either side can appeal an arbitration decision.

If you have filed a lawsuit for under $50,000 in total damages, most counties in Oregon require the case to first go to mandatory arbitration. This mandatory arbitration is not binding, and the arbitration award can be appealed by either side. However, if the side appealing the arbitration decision does not improve its positions on appeal, it will be responsible for a portion of the opposing side’s attorney fees and costs.

Arbitration is substantially less expensive than a jury trial, and it is a much faster process. Also, arbitrator's decisions are a little more predictable than jury verdicts, since arbitrators tend to base their decisions on similar cases.

In uninsured and under-insured cases, many insurance policies contain arbitration clauses that require that the claim be decided by mandatory, binding arbitration. However, because of your constitutional right to a jury trial you may forego arbitration and take your case directly to a jury. We will help you decide which option is best for you.

Trial

A trial occurs when both sides present their case before a judge, or a judge and jury. In trials all the formal rules of evidence and civil procedure apply. (These rules are relaxed somewhat in arbitration hearings.) In a trial the judge's decision or the jury's verdict is binding on both parties. Any appeals from judge or jury verdicts can generally only be made on legal grounds, not factual issues.

Settlement

A settlement happens when the other side makes an offer that you accept. Care must be taken to be sure that both sides clearly understand the terms of the settlement. Does it include reimbursement for your medical bills, lost wages, and other “hard” costs? Or is it compensation just for your pain and suffering and your loss of activities and other non-economic damages, with the other side agreeing to pay back your own insurance company for the "hard" costs? It is critical to be clear on the terms and conditions of settlement. A settlement can occur at any point following your injury right up to and even during a jury trial. You should not settle your case until you have completely healed or at least know the extent of your ongoing or permanent injuries. You can only settle your case once, even if you discover additional injuries later. This is why it is essential that you do not settle too soon. Do not let the insurance company pressure you into settling your case before you are ready. However, always keep in mind that certain deadlines apply.

Why does the law allow damages for pain and suffering?

The largest part of most cases is the injured person's pain and suffering and loss of activities. Jury awards for medical bills and lost wages simply go to those who have provided services (doctors) or make up for money that had been taken away (lost wages). Those funds are not intended for the injury victim.

Recovering money for lost wages and medical bills does not even begin to touch the "human losses" of pain, disability, suffering, loss of independence, loss of dignity, and loss of former activities. To compensate the injured person for these losses, the jury determines the full and fair human value of what has been taken away. In serious injury cases the pain and disability will permanently alter the victim's life. Such an interruption of life cannot be measured with receipts and W-2s. A permanently mangled body takes away far more than just the cost of the medical care or the lost wages. Injuries that diminish a man's ability to support his family create stress and heartache far beyond just the cost of doctor visits. Even a new injury that aggravates a prior condition brings back more than the old pain, now more intense than before—it also defeats and overwhelms the already fragile person who had worked so hard and for so long to get better, only to have all past gains taken away in a moment of carelessness.

These are among the reasons that the law allows compensation for pain and suffering. The value of life is more than the numbers that can be crunched on a calculator. To take away those parts of life that make us who we are is a profound loss, far beyond the medical bills and lost wages.