Will There Be Any Charge For My Initial Consultation?
No. There is no charge for your initial consultation with us. Because we handle cases on a contingency fee basis, there is never a charge to you for talking with us.
What Is a Contingency Fee?
We handle almost all of our cases on a contingency fee basis. Our fee is a percentage of your recovery. You don’t pay us any fee unless we make a financial recovery for you. In typical personal injury cases, our contingency fee is one-third. In a professional malpractice case, such as medical malpractice and dental malpractice cases, our fee is usually 40%.
Do I Pay Any Costs or Expenses of My Case Before I Make a Recovery?
You will be responsible for claim and litigation expenses, such as the costs of obtaining records, hiring investigators, consultations with your healthcare providers and other experts, deposition fees, and the costs of preparing trial exhibits. We typically advance such litigation expenses while the case is pending, so that they are paid out of your recovery at the conclusion of the case. But you are responsible for paying these fees even if we are not successful in making a recovery for you.
How Long Do I Have to Bring a Personal Injury Claim?
Statutes of limitation set the time within which you must file suit on a claim. If you do not file suit within the time period set out in the statute you are barred from legally pursuing the claim. The time period generally starts running on the date you are injured, but there are some exceptions. In Washington, the statute of limitations on a personal injury claim is three years. RCW 4.16.080(2). In Oregon, the statute of limitations on a personal injury claim is two years. ORS 12.110(1).
How Long Will It Take to Make a Recovery on My Claim?
There are many circumstances that influence how long it takes to resolve a personal injury claim. Settlement is final; you cannot reopen your claim after you have settled with and released the responsible party. So you generally should not settle your claim until you have either recovered from your injuries or you have reached a plateau in your recovery and your doctor has released you from treatment.
After you reach that point, your attorney will need to obtain all of your accident related records to provide to the insurance company in a settlement demand package. The time it takes for the insurance adjuster to evaluate your claim and settlement negotiations after that can depend on whether there are any issues concerning liability, the nature and severity of your injuries, the length of time your recovery takes, your medical history, and how much you are claiming. The insurance adjuster may not offer an amount that is reasonable and acceptable to you, so trial may be necessary to resolve your claim.
A less complex case where liability is clear and involving two to four months of treatment may be resolved within six months. A more complex case involving issues with respect to liability or damages that requires trial to resolve can take several years.
Other Than the Attorney Fee and Costs, Will I Have to Pay Anything Else Out of My Recovery?
If you live in Washington and have personal injury protection (PIP) coverage, when you recover from the responsible party you have to pay your own insurance company back for any medical bills it paid as a result of the accident. But you are entitled to have the amount you pay your auto insurer back reduced by its share of the attorney fees and costs you incurred in obtaining that reimbursement for it. If you pay an attorney a one-third contingency fee, the amount you have to pay your PIP auto insurer back will be reduced by approximately one-third. If you live in Oregon, your PIP insurer will usually recover the amount it paid directly from the other driver’s insurance company.
If some of your health care is paid by workers’ compensation insurance, Medicare, Medicaid, or health insurance, they will also be entitled to repayment. We will work with these insurers on your behalf to reach an agreement as to how much they will be repaid. Any unpaid medical bills are also usually paid out of your recovery.
What Happens When I Make a Recovery on My Claim?
A settlement of a personal injury claim is usually made in a lump sum. The responsible party’s insurance company will issue a single check. This payment covers all of the elements of your claim, such as your medical expenses, lost wages, and pain and suffering. Your authority is required before we settle your claim. We will provide you with an itemization of everything to be paid out of the settlement funds, including our attorney fee, the costs we have advanced on your claim, and any amounts to be paid to your PIP insurer, your health insurer, and for any outstanding medical bills. So you will know how much you will actually put in your pocket from a settlement.
What Do I Have to Prove to Recover in a Personal Injury Claim?
Most personal injury claims involve five basic elements:
First, we must establish that the defendant owed you a legal duty. All motorists are under a duty to exercise reasonable care under the circumstances to avoid accidents that may cause injury to other motorists or pedestrians. Business owners are under a duty to exercise reasonable care to make sure their premises are safe for their customers. Medical professionals are under a duty to follow the accepted standards of care for practice in their profession.
Second, a personal injury claimant must show breach of the duty owed. In other words, that the defendant by either action or inaction failed to exercise the duty of care owed. Negligence is the combination of these first two elements: the breach of a duty of care owed by a defendant.
Third, the negligence of the defendant must be a proximate cause of an injury to the claimant. Most of us are negligent at some point in our lives. To recover on a personal injury claim, a claimant must show that the defendant’s negligence caused the claimant some injury. A personal injury claimant must establish all three of these elements in order to prove that the defendant is liable on his or her claim.
The fourth element the claimant must prove is the nature and extent of his or her injuries caused by the defendants’ negligence.
A claimant may also be comparatively negligent. Comparative negligence is negligence of the claimant that contributes to his or her injuries from an accident. The defendant has the burden of proving comparative negligence. Washington is a pure comparative negligence state, meaning claimants may recover even if they are 99% at fault for their own injuries. Oregon is a modified comparative negligence state. In Oregon, a claimant cannot recover on a personal injury claim if found to be more at fault than the defendant.
What Are the Steps Involved in a Personal Injury Claim?
While every case is unique, personal injury claims will generally follow the same road to trial. But the claim may resolve by settlement anywhere along this road.
The Accident or Injury
Nobody plans on being in an accident. When one does happen, we all hope any injuries from it will be minor and resolve quickly. But against the possibility they won’t, there are several steps you can take after an accident that will help later to prove your personal injury claim.
At the accident scene, check to see if anyone is injured and call 911 if anyone is. If the accident is a motor vehicle accident, call the police. Take photos of the scene and any vehicles involved, and get copies of driver’s licenses and insurance cards. Take down license plate information and make note of the makes and models of all vehicles involved. Get contact information from any witnesses, and note the location of the accident and any conditions that may have contributed to it. Get the name and badge number of any responding police officers. If the accident is at a business, notify store personnel. As soon as possible after the accident, call your own insurance company and tell them about it.
Because of endorphins, adrenaline and shock, you may not immediately experience any injury from the accident. But later that day, when you wake up the next morning, or sometimes even several days later, you may develop serious discomfort and pain. If you do start experiencing any symptoms from an accident, immediately get medical care. Then continue getting care until released by your health care provider.
Consultation With An Attorney
Insurance adjusters and claim representatives are professionals with extensive experience handling personal injury claims. You are likely not a professional in handling personal injury claims and, hopefully, have little or no experience with them. So if you are injured in an accident, it is important to consult with an experienced personal injury attorney.
In your initial consultation, the attorney will address several issues. These include who is at fault for the accident, your injuries from the accident, the treatment for your injuries since the accident, and the insurance companies involved.
Attorney’s Initial Investigation
After you retain an attorney to represent you, the lawyer will start an investigation into the circumstances of the incident giving rise to your claim.
The investigation may include viewing the accident scene, obtaining police reports, and photographs of the scene, the vehicles involved, and your injuries from the accident. Statements may be obtained from any witnesses. Medical records will also be ordered and reviewed.
The Demand Package
A settlement with the party responsible for your injuries is final. In exchange for paying you money, the party that injured you will require that you release all your claims against them. For this reason, it is best not to institute settlement negotiations until either you have recovered from your injuries or you and your healthcare providers have a pretty clear idea of what to expect for your recovery in the future.
Once you are fully recovered of have reached a plateau, your attorney opens settlement negotiations by preparing a settlement package to send to the responsible insurance company. The settlement package includes a demand letter providing information about you, the circumstances surrounding the accident, your injuries and treatment, your economic damages such as medical expenses and wage loss, and your non-economic damages such as the pain and suffering resulting from your injuries.
Filing a Lawsuit
If your attorney is unable to resolve your claim through settlement negotiations or the end of the statute of limitations period for bringing your claim is approaching, the attorney will file a personal injury lawsuit.
The lawsuit is started by filing a complaint. The complaint and a summons are served on all of the defendants. The defendants then file an answer and any counterclaims or cross-claims they may have.
Discovery in the Lawsuit
After the lawsuit is started, there is a period of time before trial during which the parties conduct discovery. In discovery the parties obtain information and evidence for use in evaluating a claim and defenses to it, and at trial. There are several methods of discovery. Interrogatories are written questions that must be answered under penalty of perjury. Requests for production are formal requests for the production of documents and other tangible evidence, such as medical records. In depositions, a witness is sworn in under oath by a court reporter before answering questions about the case which the court report records so the questions and answers may be typed up in a transcript for use in the court proceedings.
Pre-trial motions may be filed by either the plaintiff or the defendant. These motions may be addressed to procedural matters, such as pre-trial or trial deadlines. They may also be addressed to the substantive issues in the case, such as liability and damages. In motions for summary judgment a party argues that a particular issue should be decided by the judge, because there are no questions of fact for the jury to decide and the party is entitled to judgment on the issue as a matter of law.
Preparation for Trial
If your case does not settle your attorney will prepare for trial. This involves identifying and preparing the evidentiary exhibits that will be presented at trial, such as medical records, photographs, and summaries of medical expenses. Your attorney will meet with you and any family and friends who will be testifying at trial, your medical providers, and any experts who will be called at trial. Jury instructions, which are instructions to the jury on the law applicable to your claim, and a trial memo, which briefs the trial judge on the legal issues expected at trial, will be prepared, as well as motions in limine, which are motions to get pre-trial rulings on evidentiary and legal issues before trial.
What Happens at Trial?
As the plaintiff, the personal injury claimant goes first in each phase of the trial, because the plaintiff has the overall burden of proof at trial. In a jury trial, the judge presides over the proceedings and rules on evidentiary issues. At the conclusion of the trial, the Judge instructs the jury on the law that applies to the case. The jury determines any factual questions and applies the instructions it receives from the judge to decide which party should prevail and the amount of any damages to award to the plaintiff.
Trial starts with jury selection, called voir dire. In voir dire, the attorneys ask the jury questions about their backgrounds and potential biases that may impact their ability to decide the case impartially.
Once the jury is selected, the parties give opening statements. In opening statements, the parties’ attorneys tell the jury what they believe the evidence at trial will show.
After opening statements, the plaintiff puts on his or her case, which involves taking testimony of witnesses and offering exhibits. After the plaintiff rests, the defendant puts on his or her case. After the defendant rests, the plaintiff has the opportunity to present rebuttal evidence.
The judge will then instruct the jury on the law applicable to the case. Both parties then make closing arguments, in which they make their final summaries of their clients’ factual and legal positions. The jury then deliberates in private until it reaches a verdict.
What is Mediation?
If the parties are not able to reach an agreement between themselves, mediation is sometimes used in an attempt to resolve the case. Mediation is a process of “shuttle negotiation.” The mediator, usually a judge or an experienced personal injury attorney, works back and forth between the parties trying to bridge the gap between them. A mediation is voluntary. The parties do not have to settle at a mediation.
What is Arbitration?
Arbitration is used to help courts deal with their heavy caseloads. In Oregon, it is mandatory in all cases filed in circuit court in claims involving $50,000 or less. In Washington, arbitration is also mandatory in cases filed in superior court, but the cut off amount involved may be either $50,000 or $100,000, depending on the County in which the action is filed. In Clark County arbitration is mandatory in claims filed in superior court involving $100,000 or less.
In a mandatory arbitration, an arbitrator decides the issues of liability and damages. A party may appeal from a mandatory arbitration award, and then the case proceeds to trial as if the arbitration did not take place. But if the appealing party does not does not do better than the arbitration award at trial, the party may be responsible for the other side’s attorney fees after the arbitration.