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What is a "tort"? What is "personal injury?"
Personal injury law is concerned with compensating injured persons for losses they have suffered because of the carelessness, fault, negligence or intentional wrongdoing of others. Such wrongful acts are called torts. Being compensated for personal injuries goes back centuries, and is embodied in the United States Constitution, the Oregon State Constitution, and in the common law.
Fault-caused physical and financial injuries may occur in almost any area of life. Motor vehicle collisions are usually the result of someone’s inattention or fault. Some manufactured products are dangerous and can cause serious injuries. Mistakes made by professionals, including lawyers, accountants, doctors, architects and others, may result in serious personal or financial injuries. Fault-caused injuries may occur in many settings, and may result in many harms.
Some people who have never experienced a devastating physical or financial injury caused by the carelessness of others may be critical of those who take legal action to be compensated for such losses. This judgmental perspective is sometimes played upon by politicians seeking to inflame passion on a subject they know very little about, and concerning wounds and harms they themselves have never felt. Some politicians would even deny injured persons the right to a jury trial – a right guaranteed by both the United States Constitution and the Oregon State Constitution. Some voters might subscribe to such a violation of constitutional rights because they have not personally had to deal with the devastating consequences of a serious injury, nor have they even seen those consequences up close. These same individuals usually view matters in an entirely different light when they themselves or their family members are the victims. To be compensated for losses caused by negligently inflicted injuries is not to make the victim rich, but to make him whole – to restore what has been taken away. The law of just compensation is intended to fix what has been broken, and get the injured person back to where he would be had he not been harmed. Money cannot restore the former health, but it can help compensate for what has been lost and can help the victim overcome or deal with the many obstacles and setbacks now faced.
Timeline of a personal injury case
The greatest delay in the timeline of your case is the time it takes for you to heal; or if you have suffered a permanent injury, the time it takes for you to become "medically stationary." After you have either healed or become medically stationary, concluding your case may take either a few months (if an out of court settlement is achieved) or as much a year or more (if a jury trial is needed). Of course, regardless of how soon you heal or become medically stable, there are deadlines that must be met (called the "statutes of limitations"). If these deadlines are not met, your case will become time-barred and worthless.
Individuals injured in automobile collisions should immediately report the matter to their own insurance company. As long as a motor vehicle was involved, the law requires your own automobile insurance company to provide Personal Injury Protection (PIP) benefits. PIP coverage will pay for reasonable and necessary accident-related medical bills, lost wages, and sometimes additional losses, such as child care and “essential substitute services,” PIP will even pay funeral expenses in the case of a fatality. PIP coverage has some time and dollar limits. We can advise you of your specific rights and benefits. We generally do not charge our clients for helping them get PIP benefits.
If you are injured because of someone else's carelessness or neglect, the first thing we will do is help you evaluate whether making a claim against the wrongdoer is worth it. If the injury is very slight or only temporary, you may choose to deal directly with the other side's insurance company or to just move on with life. But when the harm is severe, life-altering, and permanent, doing nothing may not be a realistic option. In such cases, you need an attorney for your injury case, just as much as you need a doctor to repair a damaged heart or a broken bone. This is because making a claim against the wrongdoer's insurance company can be more complex than you’d think. We will educate you on your legal rights, advise you of important deadlines, and answer your many questions. We will be your shield to protect you from the other side's insurance company and an advocate to advance your cause.
When you retain us, we contact the other side's insurance company to let them know that all further communications must be through us. This relieves you of the anxiety of saying or doing the wrong thing and of the many other frequent frustrations of trying to personally deal with the other side's insurance company. As we sort through the facts and deal with the adverse insurance company, you can focus on getting well. Your treatment may take a shorter or a longer time, depending on how badly you have been hurt. We will not attempt to settle your case until you have healed or become medically stationary. But regardless of how slow or fast you heal, we will always mark the legal deadlines for your case. Waiting to settle until after you have healed allows us to more fully understand the full extent of your losses before you consider any settlement offer. You only get to settle once. If the full extent of your injuries aren’t covered in that settlement, you cannot come back at a later time and ask for more.
After you have healed or stabilized, or if you are up against the filing deadline, we will either make a formal demand on the insurance company to settle your claim, or we will file a lawsuit (with your permission) to protect your claim from the statute of limitations. If we do the first, we will negotiate with the insurance company (with your approval) over the amount it must pay you to make up for your losses. If we file a lawsuit (either because the insurance company won't pay enough or because you’re still treating with doctors and the legal deadline is approaching) we will still negotiate with the other side's insurance company to settle the case. Such negotiations will continue, even up to a jury trial, as long as the insurance company shows a good faith interest in trying to resolve the case.
After we have supported your claim with relevant medical records, billings, proof of lost wages, and any other materials necessary to prove the full extent of your injuries, and have demanded that the insurance company pay a specific amount of money, the insurance company will exhaustively examine the materials we have provided. If you're claiming past lost wages or the inability to work in the future, the insurance company will study your history of earnings, including tax returns. Sometimes the insurance company will ask for additional information, even information it is not entitled to have. We will help protect your privacy from such unnecessary invasion, while still giving the insurance company all the information it is legally entitled to have. After the insurance company has reviewed the evidence, it will typically make a "counter offer" to the amount we have asked. We will discuss any such counter-offers with you and then respond to the insurance company's counter-offer with a counter-offer of your own. Such negotiations may go back and forth many times, as each side considers the strengths and weaknesses of the case. Sometimes we may need additional evidence to refute a specific claim made by the other side.
If your case does not settle for an amount that you agree to in informal negotiations, then (with your permission) your case will be filed in court, where more formal methods of resolution will be available, including "mediation," "arbitration," "bench trial," or "jury trial." Your case may even go through more than one of these processes. We consider many factors before deciding (with your permission) how best to advance your case. Nearly all clients have the same general goals: they want their losses to be fully and fairly paid; they want to save unnecessary expenses and attorney fees; they want their case to be settled out of court if possible; and they want their case to be resolved sooner rather than later. We strive continually to meet these common goals.
While no attorney can guarantee the outcome of a case, a lawyer who regularly handles injury cases will have some keen insights based upon background information and experience. You should carefully consider such insights as you decide whether or not you want to settle, and for what amount. We can predict probable outcomes and guide you throughout the negotiation process, but only you can decide whether you want to settle or go to trial. And only a jury or an arbitration panel has the power to ultimately decide the value of any case.
What do I need to prove to win my case (the difference between liability and damages)?
There are two basic parts to any legal claim – Liability and Damages. You must prove both.
"Liability" means you have to prove that the other side is liable – responsible – for your harm. You do not have to prove they intended to hurt you. You only have to prove that they failed to follow established rules or failed to exercise ordinary care. The specific proof required depends on the type of claim you’re making.
Many cases are brought as “negligence” cases. In such a case, you must prove that the other side had a "duty" to do something (or not do something). Then you must show that they "breached" that duty, meaning that they did not fulfill their responsibility. Failing to fulfill a responsibility could include the careless driver, the doctor who leaves a sponge in a surgery patient, the company that sells a dangerous product, or a person who owns a vicious dog. If such failure harms you, then the other side is legally responsible for those harms. If the other side is not at fault in some legal way, it will not have to pay anything, no matter how terrible the harm is.
“Damages” is the legal term that describes the losses suffered as a result of the misconduct of the person or business. Establishing that the other side did something wrong is not enough. You still must also show that you have been harmed, and that the harm is one that the law recognizes. If there was no harm done, or if the harm is not one recognized by Oregon or federal law, then the guilty party is not required to pay damages. Almost being hurt is not enough.
In a traditional physical injury case, damages can be divided into at least four main categories:
- The medical bills you have incurred from the date of injury to the present, and any additional medical bills that you may incur in the future;
- The wages or earnings you have lost from the date of injury to the present, as well as those likely to be lost in the future;
- The physical and mental suffering and pain you have endured from the date of injury to the present, and into the future; and
- The loss of your normal and usual activities from the date of injury to the present, and into the future.
In addition to personal injuries, some cases also involve property damage, such as the loss of a car or home. Some cases involve no physical injury, but have very serious financial injuries.
Some cases are litigated on the question of liability (the other side denied doing anything wrong), while other cases are fought over the nature and extent of the losses—i.e. how bad the harm really is. We can help you prove all elements of your case.
Oregon law categorizes recognized damages into three groups: economic, non-economic, and punitive.
Economic damages compensate you for the money losses you have incurred because of the harm. Oregon law describes economic damages as “objectively verifiable monetary losses” (ORS 31.710). This includes medical bills, lost wages, and various other out of pocket expenses. These harms are usually supported by various documents and can be determined by using a calculator to total the receipts or bills or other money losses.
Non-economic damages compensate for “subjective, nonmonetary losses” (ORS 31.710). Non-economic damages include pain, mental suffering, emotional distress, humiliation, and inconvenience and interference with life caused by the injuries. Because these damages are more personal and cause greater total pain than mere financial losses, non-economic damages are sometimes referred to as "human losses." These losses will usually be the greatest harm in the case.
Punitive damages are meant to punish the bad conduct of a person or company that has done something very seriously wrong. (The word punitive means “to punish.”) Economic and non-economic damages compensate for what has been taken away, but they do not punish the wrongdoer. They only just restore you to the place you would have been had you not been harmed. Because punitive damages are intended to punish bad conduct, they are only available if you can prove that the other side either meant to harm you or knew you probably would get hurt and didn’t care (ORS 31.730). Punitive damages must be proved by “clear and convincing evidence”. By contrast, in most cases economic and non-economic damages must only be proved by a "preponderance of the evidence," which simply means "more likely than not." If you picture the scales of justice, a feather-weight of greater proof on one side is a preponderance of the evidence.
If a jury awards punitive damages, 60% of the punitive amount goes to the Criminal Injury Compensation Fund to help people who have been injured by criminal activities within Oregon (ORS 31.375).
Do I have to file a lawsuit to make a claim?
A personal injury claim can be settled before or after a lawsuit is filed and at any time before trial and even during a trial. As the injured person, you always control how far your case will go (by the amount of money you demand or are willing to accept). About 60% of our injury cases will settle directly with the other side's insurance company without ever filing a lawsuit. A carefully written "demand letter" with documents supporting all claims of physical and financial injuries, coupled with skillful negotiations and a reputation that if necessary the attorney will take the matter to a jury will often do the job – without ever filing a lawsuit.
In the remaining 40% of our cases, we will file a lawsuit (with your permission), but most of these cases will still settle before they reach a jury trial. Some of these cases will settle shortly after we file the lawsuit; others will settle after the insurance company hires an attorney to review the medical records and take your deposition; some of these cases will settle after the insurance company sends you (at its expense) to be examined by a doctor of its choosing. Only about 2% of all our injury cases go all the way to jury trial. But we prepare each case as though it will be in that 2%.
In cases where dangerous products or careless professionals have caused the injuries, the chances are higher that we will have to file a lawsuit (always with your permission), and that the case will go to jury trial. And yet a surprising number of these cases still settle out of court if they are properly prepared and carefully screened before any claim is made.
Who pays a personal injury claim (is the defendant going to lose her house to pay my bills)?
Personal injury case settlement and verdicts are almost always paid by insurance companies. Although in the courtroom it will just be the other side and their attorneys, insurance companies have hired and are paying those attorneys. And insurance companies will pay the jury verdict. The at-fault party may be insured under an automobile policy, a commercial business policy, a home owner’s policy, a renter’s policy, and/or an "umbrella policy." We are not permitted to tell juries that the other side has insurance coverage, but in virtually every case we handle the person or corporation being sued is insured for the loss, and the insurance company pays.
This means is that your losses will almost always be covered by an insurance policy. You can be compensated for your losses without financially hurting the other person. You are not going be taking away their house or garnishing their wages. (One notable exception is when the defendant is a sexual predator who was not working for a business or organization at the time of the sexual abuse.)
Your lawsuit will not hurt the insurance company either. When selling policies, insurance companies take in money in exchange for accepting the risk that someone might get hurt and need to be properly compensated. Insurance companies are "for profit" businesses. This means they make money selling insurance. Paying legitimate claims is part of their business. That is, insurance companies make more money in premiums and investments than they pay out in claims. The difference between what they take in and what they pay out builds their elaborate and expensive office complexes and pays for their clever and catchy commercials that we hear almost constantly on television and see in magazines. When an insurance company gets away with not paying the full value of a claim it unjustly keeps the money it agreed to provide when it accepted the premium. You wouldn’t let your mechanic, accountant, lawyer, or anyone else keep the money you paid, and yet not provide the service they agreed to provide. Insurance companies shouldn’t be allowed to do that either.
But some may ask, doesn't filing a lawsuit raise the price of all goods and services, since insurance premiums will rise and that cost will then be passed on to the general public? The answer to this question is that in a just society the injured, disadvantaged, and handicapped should not be required to bear an unjust burden. When their losses have been caused by the carelessness, neglect, or wrongdoing of others, the injury victims should not be required to go on welfare or other disability programs, which would raise the cost for all taxpayers. The burden for paying for negligently inflicted injury should rest upon the wrongdoers who caused the injury and the insurance companies who accepted that risk.
All jury verdicts are rendered after both sides have presented all of their evidence and all of their arguments, and these verdicts are made by ordinary members of the community who have heard and understood the facts of the individual case. The unbiased integrity of the juries who give their verdicts in civil cases is repeated thousands of times in courtrooms across the Unites States each year as independent jurors hear facts and law and render just verdicts in case after case. Insurance companies and multi-national corporations love to find one or two verdicts, out of the tens of thousands of verdicts rendered each year, to show the apparent injustice of that one verdict, implying that that single verdict represents a large scale problem. In some instances insurance companies and corporations have so distorted the "facts" of the case that the truth is buried beneath the deceptions. The United States Constitution guarantees the right to a jury trial and our judicial system is the envy of the whole world. The constitutional right to a jury trial should not be sacrificed to a few politicians seeking political donations by inflammatory rhetoric.
Can I get rich off my personal injury claim?
No. A personal injury claim will at best only restore to you the value of what has been taken away.
You’ve probably heard about a few lawsuits with huge verdicts. Frequently, such reports are exaggerated and inaccurate, and in some instances are made up ("urban legends"). Such verdicts are very rare (thus their notoriety), and in most instances the jury verdict is fully justified when all the facts are revealed. Some of these verdicts include lifetime medical costs and the permanent loss of the ability to earn wages at the pre-injury level (you never want to be that injury victim). If the verdict amount was for "punitive damages" Oregon law requires proof of malice or reckless indifference by clear and convincing evidence. Moreover, 60% of all punitive damages go to the State of Oregon to fund various worthwhile causes; only 40% of the net recovery goes to the injured person who brought the claim. Damages in personal injury claims are intended to compensate the victim for what was taken – to restore the victim, not to enrich him. Even though money can never give back what was taken, it is the only substitute. Rather than the ancient practice of "an eye for an eye," modern law says "fully pay the injured person what an eye is worth." Requiring the wrongdoer to pay for what he had broken also benefits society by requiring those who would cheat the rules of safety to pay for the harms they cause. Such accountability increases overall safety.
The law requires that injured persons minimize their losses. This means that you have to do everything you reasonably can do to make your loss as small as possible. This prevents people from allowing a small problem to become a big problem and then demand that someone else pay for it. This is why we tell our clients to do everything they can to get better as soon as possible. Not only is it good for society and good for them, it is also good for their case. The amount of compensation is determined by a jury, and jurors usually to know that our clients are doing all they can to get better. It would be foolish to attempt to make a claim better by making the problem worse.
Just ask anyone seriously injured—just having his old life back would be the best compensation of all.
Are some personal injury cases just made up or fraudulent?
People who are sued sometimes believe the claims made against them are fraudulent. This is a self-serving belief that mentally excuses the wrongdoer from any responsibility for the harms. Insurance companies will sometimes also assert that a claim is fraudulent for the same reasons – to excuse paying the claim. If the person being sued and his insurance company truly believe a claim is fraudulent, the insurance company should vigorously defend the claim and not pay one penny. A jury, hearing all the evidence from both sides, will decide if the claim has merit. It is therefore ironic that insurance companies and some politicians cite jury damage verdicts as evidence of fraudulent claims. Such insurance propaganda and political rhetoric is a slap in the face to the good people from our communities who answer the summons to serve as jurors.
We believe that each client we choose to represent is honest and that each claim we prosecute has merit. We will not lie for our clients (or knowingly allow a client to lie), and we will not exaggerate or overstate the related injuries and pain. But we will seek just compensation for our clients to fully make up for all they have lost.
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