Personal Injury / Wrongful Death
General Case Outline
- Treatment, Recovery, and Claim Initiation
- Initial Claim Development, Valuation, and Presentation
- Negotiation
- Filing a Lawsuit
- Discovery
- Mediation/Settlement Conference
- Arbitration
- Jury Trials
When you are injured your highest priority should be obtaining a thorough diagnosis and appropriate medical treatment for your injuries. Early in this process you should also speak to a lawyer to help you understand the legal issues you face. Once your attorney is hired, the first thing he or she will do is send letters of representation to the appropriate insurance companies (usually the other driver's insurance company and your company), advising them that you are represented by an attorney. Sometimes the insurance claims have not been reported to the insurance company(ies) by this time, in which case the attorney should report and open the claim(s) for you. During the time you are treating, the attorney will be making sure the claim process is properly set up. The attorney also should be doing whatever factual investigation may be appropriate, such as obtaining photos and witness statements.
The personal injury claim should not be developed, valued, or presented to the at-fault driver's insurance company until the injured party has received all necessary and appropriate treatment. Of course, exceptions exist, such as if there is a statute of limitations approaching. Once the client has received the necessary and appropriate treatment, then the attorney will request all medical records from all medical providers that treated the client. Once all medical records have been received, the attorney will be able to evaluate the nature and extent of the injuries as well as the care provided. At this point, the attorney will evaluate the claim and determine a range of value. The attorney will then put together a settlement packet, which should include a demand letter, copies of all medical records and billings, wage loss verifications (if appropriate), narrative reports from providers (if appropriate), photographs (if taken), and any and all other documents which support the client's claim. Once the client has reviewed and approved of the demand packet, it will be sent to the insurance adjuster for the at-fault driver. Generally this is the at-fault driver's insurance company's first opportunity to review all the medical records and fully evaluate the claim.
Evaluation of the claim at the insurance company level is a multi-dimensional process. Generally, the insurance adjuster will make an initial evaluation of the claim. This evaluation is then presented to the adjuster's supervisor, and possibly a committee, to confirm the valuation, as well as to establish the authority to offer settlement the insurance adjuster will have. The insurance adjuster will then contact your attorney to make an initial offer. It is my experience that this initial offer is made in a phone call from the insurance adjuster to me, but sometimes the initial offer will come by letter. Generally, this initial offer is low and does not represent the full settlement authority the insurance adjuster has. Your attorney and the insurance adjuster will then go back and forth with multiple phone calls and/or letters in an effort to move one another toward a settlement number deemed reasonable by each side. In many cases, and particularly the smaller cases, the client's claim is resolved at this level. If it is, then a check is issued along with a release, and the matter is closed. If the parties are unable to resolve the claim through these informal negotiations, then it is necessary to file a lawsuit.
Most of the time it is appropriate to file the lawsuit in the state county courts. The lawsuit must be filed in the county where the accident occurred or where the defendant resides. Unless time constraints prevent it, the client should review and approve of the allegations of the lawsuit. Once the lawsuit is filed, it must be served on the defendant by a process server or the county sheriff. After the lawsuit is served on the defendant, it will be forwarded to the insurance company, which will retain an attorney to represent the defendant.
Once the suit is filed, both the injured party and the at-fault driver have an opportunity to conduct discovery. This means that each may take a recorded statement under oath (a "deposition") and may review many of the documents and other evidence which the other party has in his or her possession, such as documents containing the names of witnesses, photographs of the accident, medical records, and information regarding the cars. If a claim for lost wages or lost earning capacity is being asserted, then the discovery process may also require that the party bringing the claim produce tax returns and documents.
Mediation sessions and settlement conferencse have become popular and effective tools to try to achieve settlement prior to a trial. In this process, both the injured party and the at-fault driver, as well as their attorneys, appear before a neutral third party to see if the claim can be settled. If the parties choose mediation, then this neutral third party is an agreed-upon independent attorney or retired judge. If the parties choose to proceed to a settlement conference, this is usually a sitting judge in the county in which the case was filed. In either instance, it is an opportunity to have an independent set of eyes review the arguments for both sides and try to move them closer to settlement. This is a non-binding process. The case does not settle through this process unless both parties agree to the settlement. It is, however, an effective tool and many cases are settled through this process. If not, then it is likely the claim will have to be resolved through the litigation process. That usually takes the form of either arbitration and/or or a jury trial.
The court requires arbitration if the amount sought in the lawsuit by the injured party is $50,000.00 or less. [ORS 36.400 (3) (2011)]. If the case must go through arbitration, then it is assigned to an independent arbitrator who, like the mediator discussed above, is likely to be either a practicing attorney or a retired judge. Arbitration is much like a trial, but it is far less formal and far less expensive, in most cases. Each party presents witnesses and other evidence to the arbitrator at the hearing. The rules of evidence are more relaxed at arbitration than at a trial. It is my experience that the arbitrator will not make a ruling at the end of the hearing, but will issue a letter ruling within a very short period of time (usually less than a week). Either party may appeal the award of the arbitrator, but exposes himself for costs and/or attorney fees if he does not improve his outcome at trial.
Few cases proceed to this level. For those that do, it is an exciting but stressful and expensive process. Trials can be either to a judge or a jury. The length of time the trial will take depends upon the issues involved. A decision is made at the end of the trial. This decision is called the verdict. Either party has the right to appeal the verdict to the Court of Appeals, though very few cases are taken to that level. The appealing party's chances of prevailing on appeal are low.