Who is a plaintiff? What about a defendant?
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.
By contrast, a defendant is the person or company who caused the harms. Usually a defendant has an attorney paid for by his or her insurance company. The insurance company will pay for any judgment against a defendant. While the insurance company is almost never named, it is the actor behind the defendant in every auto case. Remember, every driver in Oregon is required to carry auto insurance, and if a plaintiff gets hit by someone who was uninsured, plaintiff’s own auto insurance will have Uninsured Motorist Coverage. If a person is a defendant in an auto case, 100% of the time, there is an insurance company behind the defendant.
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 training records. Each side can also conduct depositions. In a deposition each side is required to answer 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 that 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 as 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 may divert attention 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:
- To meet you so that he can form an opinion on how well a jury will like you.
- To learn what you will say about his client’s fault and about the nature and extent of your injuries.
- 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. Remain calm and courteous throughout the deposition, and be completely honest.
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.
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. 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). 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 does it make sense?
Vicarious liability means that a company or person is legally responsible for the actions of another person. (Vicarious means taking the place of another.) This happens when the actor is an agent or representative of the company, like an employee.
At first this idea may seem unfair—why make a company pay for the actions of one person? The answer is that a just society has to work in a 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 also collect your losses directly from the at fault party. For example, in a case involving sexual abuse of a child, we will sometimes collect assets directly from the abuser. Every auto case is covered by insurance.
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), by applying constitutional standards as well as customs and practices over hundreds of years. Still other laws come from case by case decisions 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.
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 party. 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 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 either side can appeal the arbitration award. 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 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.
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.
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 verdicts for medical bills and lost wages simply go to those who have provided services (doctors) or make up for money that had been lost (lost wages).
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.
What is “new money?”
When an insurance company offers to settle a case, it needs to be specific about what it is offering. “New money” usually means on top of what other auto insurance companies have already paid. This can include PIP benefits, property damage settlements. In the case of an uninsured motorist carrier, it is also on top of what the bad driver’s insurance company has already paid you.
Out of those funds, you will usually have to pay:
- Attorney fees and costs
- Health insurance liens or any other liens
- Medical bills
Your attorney can help you understand how much money you will receive from a “new money” offer after all of these things have been paid. The amount you receive in your pocket is sometimes called the “net.”
Let Us Help You
If you have been injured and you are not sure what steps to take next, call us. We can help.