Frequently Asked Questions

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Personal Injury Claims

You’ve been injured and are seeking legal action. Now what? In this guide we answer common questions about  how to hire a lawyer, how insurance may affect your situation, the costs and fees you will encounter, what to expect in a settlement, how to determine negligence and what your recovery process will look like.

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Hiring a Lawyer

When should I talk with a lawyer?

It is best to involve a lawyer in your claim as soon as possible so that problems are dealt with and resolved immediately. Problems may crop up in your claim that are not apparent to you but would be readily apparent to a lawyer. It is easier to deal with problems promptly when they arise, rather than to go back and correct old problems. A lawyer can see that your case is developed thoroughly from the start, including investigating your case and communicating with the insurance companies. A lawyer can also work with your doctor or doctors to make sure that the medical records support your claim.

Most importantly, when you are recovering from an injury, it can be very frustrating to tend to all the details in a legal claim. When you know a competent lawyer is handling your claim properly, and that you are being relieved of that responsibility, it makes it easier to focus on feeling better and getting back into normal life. The benefits of a good and caring lawyer are much more than just the final result in your case.

How do I know which lawyer to hire?

There are many good lawyers. Shop around. You want a lawyer with substantial experience. Consider not only the lawyer’s credentials, but how the lawyer answers your questions. Be wary of the lawyer who promises you the moon, because injury claims are always risky and there is no way of knowing in advance how much money will be received in any particular claim.

The ultimate factor in choosing a lawyer is trust. The best lawyers will take the time to talk with you in detail about your claim and answer your questions directly. If a lawyer tries to pressure you into signing up, be cautious. If a lawyer spends more time marketing his or her skills than answering your questions, you probably want to look elsewhere. But when you feel confident about a lawyer, and the lawyer is the type of person you would feel comfortable working with, you have probably found the right one. Trust your instincts.

Will I be given individual attention, or will I be just another file?

Without exception, you and your case will be given individual attention. We understand what it is like to be injured and have to make a claim in order to be compensated. Our job is to take care of your claim completely so that you don’t have to worry about it. Your job is to let go of your claim and let us do our job so that you can focus on healing from your injuries and getting on with your life.

We believe that if we can help give our clients peace of mind, we can help them get over their injuries better. There is typically a psychological element to a physical injury. Whether you yell in frustration when you hit your thumb with a hammer, or go into a deep depression with a seriously disabling injury, an injury is more than just the changes in the body’s tissues. Frustration over being treated improperly or ignored by those you depend on can aggravate the emotional side of your injury and actually interfere with your healing and recovery. You can become more sensitive, not just in how you feel, but in how your body responds to your injury. Having to fight for your rights in your claim can encourage you to “defend” your injury by bringing every symptom to the surface for the world to see. The physical and emotional components can play on each other, sending you into a downhill spiral.

Our mission is to carry the weight of your claim so that you don’t need to focus on it. We are not doctors and we cannot give you medical advice. Nor are we a lending institution that can help you pay your bills. But we are legal experts who can be your strong advocates. We want to work with you as a worthy person, not as a file or a claim number. Our clients are not numbers. Our clients are people.

Insurance

Should I talk with an insurance adjuster?

Generally, no. An insurance adjuster’s duty is not only to pay legitimate claims, but to save the insurance company money. Most insurance adjusters are nice, honest people, but the nature of their business can easily make them your adversary. Anything you say to an adjuster can be used against you down the line. It is easy to say things we don’t intend to say and to misinterpret what people tell us. A harmless and truthful statement now can emerge in a harmful or untruthful form later.

Communicating with an insurance company for the other side is always risky. Be cautious about making a demand for a specific amount of money. If you tell the adjuster you want a lot of money for a minor injury, the adjuster will not treat you seriously. If you come up with a figure that seems to reasonable to you, the adjuster will use it as a ceiling and try to negotiate down from that. If you later retain an attorney and find out that the case is worth more than you thought, it will be very difficult for your attorney to be able to negotiate a fair settlement for you because the adjuster will not want to pay more than the amount you originally suggested.

If you do intend to handle your own claim with an insurance adjuster, you should talk with a lawyer first in order to find out the best way to go about it. If you have received a minor injury and you have a full recovery without a lot of medical treatment, you might be better off dealing directly with the adjuster rather than retaining an attorney. If it seems to you that your case is too small to involve an attorney, there is a good chance the attorney would agree with you. Our policy is to try to help all potential clients even if we can’t afford to represent them. In our office, when it appears that there will be no real benefit to the client from retaining us, we are always pleased to give the client our best guidance on how to get the job done without us.

What if the person who caused the collision did not have insurance?

Car insurance in Oregon includes “uninsured motorist” (UM) coverage. If a motor vehicle collision is caused by someone who does not have insurance, your UM coverage will step in and cover your losses from your injury, including pain and suffering, just as if your company insured that person. (UM coverage applies only to claims for injuries. It does not apply to claims for damage to your car or other property.) Your claim would then be against your own insurance company.

Don’t worry about the “fairness” of making a claim against your insurance company for damage caused by someone else. With your auto insurance you pay a premium for UM coverage. Most people pay these premiums for their entire lives and never have to make a UM claim. But insurance companies know they will have to cover UM claims, and they set their premiums to cover the costs of those claims and still make a profit. It’s their business, and they are very successful at it, so you don’t need to feel intimidated if you should have to hold your company accountable for what you have been paying for all along.

Costs & Fees

How much will the attorney fees be?

Typically, clients want an attorney who will work on a “contingency” basis under which the attorney receives a percentage of the award if you win but nothing if you lose. Typically, contingency fees range from 25% to 50% of the recovery, depending on whether the case is settled, whether it goes to trial or whether there is an appeal. In our office, our typical contingency fee is 1/3 of all amounts received if the case is settled without trial or 40% if the case goes to trial.

In most injury cases, the law does not allow the recovery of attorney fees. This is why the contingency fee is typically a portion of the recovery. However, there are limited circumstances where an injured party who prevails is entitled to an award of attorney fees. In some of those cases, the lawyer will agree to accept the attorney fees awarded by the court so that the client can keep the entire amount of damages awarded to the client. In other cases, there may be a hybrid arrangement under which the lawyer recovers a percentage of the award, but the attorney fees awarded by the court would apply as credit to that amount.

Will there be costs in addition to what my attorney charges?

Yes, there are always out-of-pocket expenses associated with injury claims. These can include the cost of getting medical records, investigator fees, court filing fees, deposition expenses, fees charged by doctors to confer with your lawyer, witness fees and other expenses.

We usually assess a one-time charge of $150 for all expenses within the confines of our office. We have found over the years that the total of all such expenses comes to $150 or more in most cases. Rather than having to itemize every postage stamp, photocopy, long distance call and car mileage, we find it much more workable simply to have a set fee and not worry about whether the end amount is a few dollars high or low. (In most cases, the $150 assessment is lower than our actual cost.)

Any expenses outside the office, such as charges for medical records, private investigators and police reports, will be charged dollar for dollar. These are all expenses you would end up incurring if you were to handle your own claim without an attorney.

In most cases we advance all these expenses (including the $150 charge for in-office expenses) and wait for the cases to settle before being reimbursed.

Will my medical bills be paid?

Your medical expenses will be part of your claim. In most cases your medical expenses will be paid through your own insurance and your insurance company will be reimbursed when your claim is over. We want to enforce as much insurance coverage for you as possible, because you are personally responsible for your medical bills, and the more your insurance will pay, the less you have to pay out of your pocket. If insurance pays everything, you pay nothing.

Your car insurance policy will provide “personal injury protection” (PIP) benefits. PIP benefits include your medical expenses, regardless of who caused the collision. Most car insurance policies provide for PIP medical benefits up to a total $10,000 and up to one year after the collision. Some people purchase insurance with PIP coverage for higher amounts and for a longer period than one year.

If your medical treatment does not last more than the time covered in your PIP policy (usually a year), and if your expenses don’t exceed the maximum amount (usually $10,000), your medical expenses will be covered. If you have health insurance, it will usually kick in after your PIP benefits have been exhausted. So if you have $12,000 in medical expenses, but only $10,000 is paid under your PIP coverage, your health insurance policy will usually cover the remaining $2,000.

If your medical care is not all covered under your insurance policy (or policies), your unpaid medical bills will be part of your claim against the person at fault in the collision. Sometimes, your PIP insurer will file a lien on your claim, requiring you to include your PIP benefits as part of your claim. Typically, health insurers are also given liens on injury claims. Doctors are often willing to carry accounts with patients who have injury claims, and to wait for payment until the claim resolves. Your lawyer will be able to sort all this out for you.

Settlements

Will my case settle, or will I have to go to trial?

Most cases settle without having to file a lawsuit. Even when a lawsuit is filed, most cases are settled before trial. Probably more than 95 percent of cases settle without going to trial.

Our practice is to prepare every case as though it is going to trial. Invariably, the more we prepare for trial in a case, the more likely the case will settle. The more we learn about the strengths and the weaknesses of your case, the more realistically we can evaluate your claim. We anticipate the issues that would be raised at trial and the evidence that both sides would use to address those issues. We use our experience to form our best judgment of what a jury would think of your case. We calculate what it would cost to take your case to trial, including court fees, witness fees, and the charges of doctors and other experts who we would need to use to support your case. We then compare the “bottom line” of the likely verdict – how much money you are likely to end up with in your pocket after all is said and done – in order to determine a settlement amount that would result in the same “bottom line.”

How do we determine what a fair settlement is?

A fair settlement is an amount that you and the insurance company agree on. It is not our goal to take advantage of insurance companies or to reach settlements that are unfair to anyone. (Nor would the insurance company let that happen.) Rather, we work with you to arrive at an amount that is reasonable.

In considering settlement options we also take into consideration your hopes and fears. For clients who are anxious to take their cases to trial, we will push settlement negotiations to the limit, knowing that we are prepared for trial if we can’t reach a settlement. For clients who do not want to go to trial, we approach settlement negotiations in the same way, except that we will be hesitant to reject the insurance company’s highest offer if it means we will end up in trial.

Here are some important factors on which cases are evaluated:

  1. Fault. You can’t recover your losses from another person unless that person was negligent. Juries (and, consequently, insurance companies) tend to be more willing to award higher damages for cases where the nature of the fault is extreme than where the fault is an honest mistake. It will be easier to recover damages in a claim against a drunk driver than in a claim against a mother who makes an unintended mistake while driving her children to daycare.
  2. Property damage. When the event that caused your injury includes extensive physical damage, it will be easier for a jury (and, consequently, the insurance company) to appreciate that you were injured. It is easier to accept an injury from an explosion than an injury from someone bumping into you. In a motor vehicle collision, it can be very difficult to recover damages when there is little or no vehicle damage. Many people have been seriously injured in low speed vehicle collisions, whether the vehicles are damaged or not. (After World War II, General Patton was killed in a low speed vehicle collision in which there was only minor damage to the car and everyone else in the car walked away without injury.) But the nature of the general public is to accept the notion that such injuries cannot occur from events that we generally perceive as “minor.” The harsh reality is that insurance companies will be hesitant to offer more than nominal amounts to settle motor vehicle injury claims when there is minor car damage, because they know that juries are usually reluctant to award more than nominal damages.
  3. Preexisting medical conditions. If you have never been injured before, the insurance company will probably have a higher evaluation of your claim. If you have had prior injuries or adverse medical conditions, the insurance company will probably discount your claim. It is easy for defense attorneys to argue to a jury that a person’s claimed injuries are a result of his or her prior medical condition. The insurance company will take that into consideration in deciding how much money it will offer in order to settle your claim.
  4. Nature of your injury. Obviously, serious injuries have a higher claim value than minor injuries. If you see a doctor or therapist briefly and your injury resolves so that you have no further problems from it, your claim will have a low value. If you receive permanent injuries, your claim will generally have a higher value. The more obvious your injury, the greater its value. For example, a broken bone that is visible on x-ray will generally result in a higher award than a muscle injury that cannot be detected by any form of medical imaging. This is ironic, since most bone fractures heal as good as new, but some injuries to “soft tissue” (including muscles, tendons, and ligaments) never fully heal and cause lifelong problems.
  5. Consistency. From start to finish, the evaluation of your case will depend on whether it presents a consistent picture. Inconsistencies in your evidence will hurt your case. If you give different accountings of how the accident happened, or the injuries you received, or how your injuries have affected your daily life, you will have a hard time getting a recovery for your loss. If you fail to tell your doctor of prior injuries or medical conditions, the record in your case will be forever flawed and it will lower the value of your claim.
  6. Integrity. You are the single most important ingredient in your claim. This is a different way of emphasizing the need for consistency (section 5, above), but it is so vital that it warrants repeating. The highest claim evaluations are given for people who are honest, candid, motivated, and likeable. The lowest claim evaluations are given for people who are perceived as less than honest, tricky, lazy, or unfriendly. In negligence claims, juries (and, consequently, insurance companies) distrust claimants who appear “out to get” the other person. If the defense has evidence it can use to argue that you are trying to “get rich off the system,” your case runs the risk of losing entirely. Your claim will be seriously damaged by anything – no matter how small it may seem – that indicates you might be trying to hide something. If claims adjusters, attorneys, and juries see you as the kind of person they would like to have as a friend or neighbor, your claim will have its maximum value.
  7. Your attorney. It should be no mystery that insurance companies are influenced by the attributes of your attorney. Attorneys who are honest, aggressive, fair-minded, and skilled will be able to negotiate higher settlements and win higher jury awards than attorneys who are inexperienced or who are perceived as untrustworthy. Integrity is a vital element for your attorney, just as it is for you. Your attorney’s medical knowledge is essential in working with your doctors and presenting your case to the insurance company and at trial. You attorney’s ability to stand up to courtroom battles will weigh heavily in the insurance company’s evaluation of your claim, and in the trial itself.
Negligence

What is “negligence”

Negligence refers to whether an action, or failure to act, is reasonable. Obvious examples of negligent acts could be when a motorist runs a red light, a business leaves a dangerous hole exposed where customers can fall into it, or a surgeon leaves a sponge inside a patient. Examples of negligent failure to act would be failure to wear a seatbelt, failure of a store to warn customers of a condition known by the store to be dangerous, or failure of a doctor to review x-rays before a surgery.

The law considers negligence according to what the “reasonable person” would or would not do under the circumstances. Sometimes the law specifies what a person may or may not do. Therefore, there are cases where the violation of the law can be negligence. For example, people may have differing opinions on whether it is reasonable to wear seatbelts while in a car or a helmet while on a motorcycle; but the law requires seatbelts and motorcycle helmets, and the failure to comply with those laws would generally be regarded as negligence.

Another word for “negligence” is “fault.” You can only make a claim against someone for your injuries if that person was at fault.

If you are partially at fault for your loss, you will still be entitled to recover part of your losses. This is called the law of “comparative fault.” Your damages will be reduced by the amount of your negligence. For example, if the other party is 75 percent at fault and you are 25 percent at fault, the other party will be responsible for 75 percent of your damages. In Oregon, you will not be entitled to recover your losses if your fault is greater than the other person’s fault. If you’re each 50 percent at fault, you can recover 50 percent of your damages. But if you are over 50 percent at fault, you will not be entitled to recover anything from the other person. That limitation does not apply in Washington. Washington has the law of “pure comparative negligence” in which the party at fault must pay his or her portion of your damages. If the other person’s negligence is 5 percent, you are entitled to receive 5 percent of your damages from that person.

How do I know if something that injured me was “negligence”?

Sometimes it’s easy to determine that you are injured as a result of negligence. Other times it takes intense investigation to determine whether there was negligence. Lawyers with substantial experience in negligence law will be best able to advise you whether a certain action or inaction was negligence. Consider the following areas where people can be injured.

  1. Vehicle collisions. Drunk driving and running red lights are obvious examples of negligence. But not every vehicle mishap is negligence of a driver. For example, if a collision is caused by a defect in the car that the driver did not know about and had no reason to expect, such as a stuck throttle or a sudden brake defect, the driver might not be negligent. Remember that negligence involves unreasonable action or inaction. The mere fact that a collision occurs does not necessarily mean that a driver was negligent. Most collisions involve fault on the part of someone, but sometimes there are collisions in which it cannot be shown that someone was negligent.
  2. Premises liability. Sometimes people are hurt in another person’s home or in a public place. Being injured on property does not necessarily mean that the property owner will be held responsible. If a store allows a floor to become wet and slippery and takes no action to wipe up the water or warn customers, the store can be negligent if a customer slips on it. But if the store did not have a reasonable opportunity to discover the slippery floor and do something about it, the store would probably not be negligent.
  3. Medical malpractice. Medical negligence is more subtle and not easily capable of detection. As a result, it is almost always very difficult to prove. A doctor may give an incorrect diagnosis, prescribe the wrong medication, or perform a surgery with bad results, without being “unreasonable.” Medicine is not an exact science, and doctors must use their best judgment in caring for their patients. Being “wrong” is not the same as being “negligent.” Doctors are only negligent if their care falls below the standard of “reasonable medical care.” It is easy for a doctor to find countless other doctors who will testify that what the doctor did (or failed to do) was an acceptable judgment call and not negligent. Because of this, medical negligence is almost always difficult and costly to prove. Insurance companies are usually slow to settle medical malpractice claims because there are so many lines of defense available to the doctor. They know that the patient will probably have to spend thousands of dollars to fully investigate the claim and find doctors willing and able to support the claim. And when the patient does invest the time and money to develop the case, the insurance company knows that juries are usually sympathetic to the doctors and that juries return verdicts against the patient and in favor of the doctor. (Statistically, patients lose 80 percent of the time. This is not a misprint – it’s a fact.) We give you this information to prepare you for the reality that medical negligence claims are expensive and risky. If you think you have been seriously injured by a doctor’s negligence, consult an attorney right away. It is frequently necessary to get opinions from medical experts in order to learn whether you have a case that should be pursued. And, depending on the lawyer’s willingness to take risks, be prepared to get second opinions from other lawyers.
  4. Product liability. Defective products can cause injury. Generally, the law provides that a product that causes injury is defective if it could have been made safer. Manufacturers and sellers are required to warn of dangerous products, and the failure to warn of the danger can impose liability on the manufacturer or seller. Product liability claims, then, do not necessarily require “negligence.” This, however, does not make product liability claims easy. On the contrary, they are usually very complex and require intense scientific investigation. Typically, your attorney will need to find numerous experts ready to help prove your case. Like medical negligence claims, product liability claims are usually very expensive. If you think you have been injured from a defective product, consult a lawyer as soon as possible. And be prepared for a long, hard, expensive fight if you choose to pursue your claim.
Treatment & Recovery

Will my attorney work with my doctor?

Absolutely. We will work closely with the doctors and therapists you see for you injuries. We will keep current on your medical records to make sure your condition is being adequately documented. Our years of experience have allowed us to acquire substantial medical knowledge that will allow us to understand your injury and your treatment and to work closely with your doctors in order to make the best possible record for settlement of your claim and to prepare your doctors for trial if your case should go that far.

We have particular knowledge of chiropractic and we have worked with many chiropractors over the years. We recognize that many insurance companies are suspicious of chiropractors, and we are able to intercede between insurance adjusters and chiropractors to make claims run more smoothly. Chiropractic offices continually tell us that they enjoy working with us because we make it easier for them to administer their claims, and, when cases have to go to trial, we prepare the doctors for their testimony so that it becomes an enjoyable and prestigious experience for them.

How can I help my recovery from my injuries?

First, let your doctor know about all the injuries and discomfort you have because of the collision.

Second, tell your doctor about any similar pain, discomfort or problems you have had in the past, even if you had a full recovery. The information you give your doctor will allow your doctor to better understand your injury and to establish the best treatment plan for you.

Don’t fall into the trap of thinking that informing your doctor of prior injuries or treatment might hurt your claim. The opposite is true: telling your doctor everything will actually help your claim. Honesty and candor are critical to a full recovery and a successful claim.

Third, make sure to follow your doctor’s advice, including instructions on home care. Keep your appointments.

Your goal is to restore your health. When you put your health first, you will also be helping your claim.

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