Legal Terms

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Who is a plaintiff?

A plaintiff is any person who brings a civil claim against another for harms suffered. If you have been harmed and you bring your claim to court to be compensated for your injuries, you are the plaintiff.

 

What is discovery?

Once a lawsuit has been filed, court proceedings kick in, and each side is entitled to discover information about the other side. The word “discovery” means that each side is trying to get as much useful information from the other side or other witnesses as they can. One way to discover the other side’s case is to request that the other side produce specific documents such as photographs, safety inspection records, billing statements, and tax returns. Each side can also conduct ,a href=”legal-terms#depo”>”depositions.” In a deposition each side is required to answers questions under oath. Either side can also send court documents requiring the opponent to admit or deny certain facts. Your response to discovery requests is critically important, and we will help you respond appropriately.

 

What is a deposition?

A deposition is any witness statement under oath in the presence of attorneys and a court reporter who makes a word-for-word record. Used by lawyers to get information about a case, depositions are taken after a lawsuit is filed. Depositions are usually used to find out what the other side will say at trial. After a lawsuit is filed the insurance company attorney will probably take your deposition. (We will also take the other side’s deposition). The majority of cases will settle some time after depositions (only a very small percentage will go all the way to jury trial).

You must honestly answer all questions in a deposition, even if you believe that such honesty might hurt your case. Deposition testimony is under oath and is just as binding if you were in court before a judge and a jury. A court reporter will be present, and you will be under oath to tell the truth. Telling the truth makes a deposition easy since the truth never changes.

Sometimes depositions are also recorded by video. The video may later be played to a jury.

If you are asked to bring documents with you to the deposition, we will protect you from having to disclose sensitive information you have confided to us within the attorney-client “privilege.” These would include letters you have sent us, as well as documents you have prepared at our instructions.

Anything you say in a deposition can be used against you later in court. We know the rules the other side must follow, and we will object if you are asked inappropriate questions. We will also prevent the other side from harassing you, and we will protect against disclosure of privileged communications. We will help prepare you for your deposition by talking with you about the topics likely to be discussed and by reviewing the contents of documents with you that will help you to accurately remember what happened so that you can testify as accurately as possible. Before depositions, you will need to spend time thinking about your case so that you can remember details. Sharing those details helps us to help you be as prepared as possible. You need to dress appropriately for your deposition, and you need to be well groomed and generally presentable. Avoid any type of clothing or jewelry that calls attention to itself and thereby distracts from the message you will present.

We will help you refresh your memory before your deposition by going over your medical records and accident reports with you. Even then you are still likely to be asked some questions that you will not know the answer to. If you do not know the answer, it is perfectly okay to answer that you do not know. Do not guess! If you guess at the deposition and later try to correct yourself, the answer you gave in your deposition will be used against you, either to prove that you really don’t know, or that you are making things up. All these problems can be avoided by just telling the truth, including the truth that you do not know the answer to a particular question.

The other side’s attorney will want to take your deposition for several reasons: first to meet you so that he can form an opinion on how well a jury will like you; second, to learn what you will say about his client’s fault and about the nature and extent of your injuries; and third to get you to admit something that can later be used against you at trial.

Listen carefully to the other lawyer’s questions. Answer only the question asked. Do not volunteer additional information unless it is necessary to truthfully answer the question asked. If you do not understand the question, ask the other attorney to rephrase the question, or to explain what she meant. Do not get angry or react emotionally to the other attorney. Remain calm and polite at all times. If you need time to think before answering, take your time. If you do not remember, say so. Do not allow the other side to put answers in your mouth and do not accept their suggestions as true. Do not assume their “clarification” of your previous answer is correct. Hold firm to what you know is true.

You are allowed to take breaks during a deposition. If you need to use the bathroom, or get a drink of water, or just relax for a few minutes, ask for a break. Talk with us about how to arrange for breaks and when it is appropriate to do so.

Remain calm and courteous throughout the deposition, and be completely honest.

 

What is comparative fault?

To recover money from the other side, the injured person must not be more at fault than the person he is suing. (ORS 31.600(1)) The money to be paid to the injured person will be reduced by his own share of fault. The jury or arbitration panel will decide how much fault, if any, each side has.

Imagine a simple car accident. One driver runs a red light, but the other driver (the injured victim) is speeding. The jury decides that the driver who ran the red light was 75% at fault and that the injured person was 25% at fault. If the jury determines damages to be $100,000, then the judge presiding over the trial will later reduce the $100,000 jury verdict by 25% so that the insurance company of the driver who ran the red light pays only $75,000 (25% less than the jury award). (ORS 31.600) Cases of comparative fault can get very complicated if there are more than two parties involved, such as in a complex defective product case or a medical malpractice case.

Because any fault attributed to you will reduce the amount the insurance company must pay, the insurance company will try to make it appear that it’s all your fault. If the other side’s insurance company says you are at fault, or even partially at fault, and you feel this is wrong, then you need an attorney for this reason alone.

 

What is vicarious liability and why is it okay?
“Vicarious liability” means that one person is legally responsible for the actions of another person. (Vicarious means taking the place of another.) At first this may seem unfair—why make one person pay for the actions of another? The answer is that a just society has to work that way to fairly protect the interests of the community at large. Unless a corporation or a company is held responsible for the acts of its agents and employees, these employees and agents will be personally responsible for business liabilities, and many injured persons would have little or no remedy for harms inflicted upon them. The principle of vicarious liability protects real people on both sides of the issue.

 

What does it mean if someone is judgment proof?

When the person who causes the harm does not have insurance or assets to cover the loss, the wrongdoer is “judgment proof.” This means that even though you may win a judgment, you will not be able to collect it. We carefully consider this aspect of any case, not only because it makes sense and is practical, but also because most of our clients don’t want to hurt the other side financially – they only want to be fairly compensated for what they have lost.

Since virtually all the cases we accept are covered by insurance, you generally will not have to worry about the wrongdoer being judgment proof. There are some cases, however, where the wrongdoer does not have enough insurance. In these instances we look for all available insurance policies (even your own) to find any additional sources of payment. In very rare instances we even also collect your losses directly from the at fault party.