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Federal Tort Claim – How Much to Ask For

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Your personal injury lawyer will submit the Standard Form 95 to start the Federal Tort Claim process. One of the issues in preparing the form is to decide what amount to ask for. The video below describes two mistakes to avoid.

To win the best tort claim settlement, every part of the Federal Tort Claim process should be calculated to persuade.

The first person to persuade is the lawyer assigned to your case by the local United States Attorney’s office. Most cases settle, but if your case does not settle, then your case will go to trial.

Remember that any tort claim that is caused by the negligence of a Federal employee will not be decided by a jury, it will instead be decided by a Federal Judge sitting without a jury. Therefore, your presentation must be organized in a way that will help the Judge to decide in your favor. Making the best presentation of your case is the reason why you want to choose an experienced Federal Tort Claim attorney.

If you have a serious personal injury that was caused by the negligence of a Federal employee, you can contact the office of E. J. Simmons for a consultation.

Personal injury damages – Lost Earning Capacity

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Evidence of Lost Earning Capacity

This post is from the perspective of a Portland personal injury lawyer who has to establish in every serious injury case the future economic effect of disabling injuries. Proof of impairment of earning capacity is made by giving evidence of the difference between the earnings of the injured person before the injury, and after the injury. Since this requires prediction of the future as to earnings, the evidence does not have to be an exact monetary computation. The evidence will set out the injured person’s capacity to earn money in his usual way of making a living.

Conachan v. Williams, 266 Or 45 (1973), stated the rule for proving lost earning capacity:

It is obvious that plaintiff’s loss both before and after trial can be approximated only and that the calculation of the loss must rest upon factors which can be employed only in terms of probabilities, including the probable period of impairment, the plaintiff’s capacity to earn over that period, i.e., what his services would have brought in the labor market taking into account not only plaintiff’s capacity at the time of injury but also his probable chances for promotion (or demotion), the probability that the plaintiff would have employed his skill or talent, taking advantage of available opportunities to work, and other pertinent factors.

The jury may hear about other jobs for which the plaintiff could be qualified and the income paid for that employment. To introduce evidence of the earnings of other people, the injured person’s attorney must show that the circumstances of other employees are similar to the circumstances of the injured person.

For a self-employed person, the claim for lost income or lost earnings must be proven with reasonable certainty. The injured person must introduce specific evidence of past earnings.

Life expectancy

Mortality tables are used to help determine future damages, including for pain and suffering and for loss of earning capacity. Even if the case is not for wrongful death, a permanent injury will hurt the injured person for the rest of his or her life. Once a permanent injury is proven, mortality tables are admissible in evidence. If there is no evidence of permanent injury you may not introduce mortality tables. In a wrongful death case, the mortality table will help the jury estimate how long the deceased person would have lived, and how long he or she would have earned income to provide for the family.

Present value discount and inflation

A dollar today is worth more than a dollar in 10 years when you consider interest it will earn in the meantime. Monetary damages for loss of future wages or for impairment of future earning capacity can be discounted to present value.

Present value is the amount of money that, if invested today at a reasonable rate of interest, allowing for inflation factor, will give the injured person over time the amount that he or she would have earned without the injury. This calculation may also be applied to the injured person’s need for future medical expenses. The jury will decide present value.

Evidence for a present value calculation is not required, but is allowed. Sometimes an economist or accountant will testify about what is a reasonable interest rate to discount future payments to the present, and then do the arithmetic for the calculation. The calculation should also include a prediction of future inflation.

A high interest rate will decrease what will be a fair award. Inflation will increase what will be a fair award. Different witnesses can give different interest and inflation rates, and if so the jury decides which expert to believe.

Expert testimony on future rates can be confusing. Wrongful death cases will usually have an economist to testify. On the other hand, in many personal injury cases the injury will not be permanent and there will be a recovery. Such cases can be unnecessarily complicated by expert evidence on reduction to present value.

Personal injury damages – Lost Income

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Personal injury damages amounts

Liability to the injured person for an accident injury includes the obligation to pay for all the provable damages. A personal injury attorney must present all the types of damages to get a fair recovery. This series of posts will discuss some of the specific amounts that are included.

payroll-record

Payroll Record is Proof of Lost Wages

If the injured party misses work because of the accident, then the injured party is entitled to recover the full amount lost. Note that the amount of income lost in the past is different from the additional amount of income to be lost in the future because of the injury. Plourd v. Southern Pacific Trans. Co., 266 Or 666 (1973) comments on the difference.

Under Oregon Revised Statutes 31.710, both the amount lost and the amount that will be lost are labelled “economic damages”.

Oregon Revised Statutes 31.710 …“economic damages” and “noneconomic damages” defined. …

(2) As used in this section:

(a) “Economic damages” means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

(b) “Noneconomic damages” means subjective, nonmonetary losses, including but not limited to pain, mental suffering, emotional distress, humiliation, injury to reputation, loss of care, comfort, companionship and society, loss of consortium, inconvenience and interference with normal and usual activities apart from gainful employment.

How to prove lost income

Proof of lost income in a typical injury case is straightforward, especially if the injured person is an employee and the payroll department of the employer will provide a calculation. The payroll calculation must include any sick days or vacation days used up because of the injury. If overtime was regularly earned, then the payroll history will show this and the lost income should include the expected loss of overtime wages.

When your attorney receives a letter with the payroll calculation from the employer, then the letter can be sent to the defendant. The payroll calculation letter will be sent with a formal request for admissions, to ask the defendant to admit that the injured person had an income loss in the specific dollar amount set out in the letter. If the defendant admits the specific wage loss, then it is not necessary to subpoena a payroll person to come to Court to testify about how much income was lost.

If the injured person was self-employed or on commission, the proof will be more difficult. Any presentation of self-employment losses must be straightforward because the defense is motivated to show the claim is false or exaggerated.

An unemployed person will not ordinarily get an award for lost earnings, but will be entitled to an award for the lost earning capacity during the period of recovery from the injury. This includes money for impairment of earning capacity for the time before the trial plus for the time after the trial.

Allegations in personal injury complaint

The complaint filed by the personal injury attorney should have a statement that the injured party has suffered and will continue to suffer lost earnings (if this can be proven) plus loss of earning capacity. The complaint can state the specific amount already lost, and that the income losses will continue to accrue if the injured person has not returned to a full work schedule. The full amount of past lost income is determined at the trial.

Uninsured Motorist Claim Time Limit

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could-be-uninsured-motorist

Dangerous looking car – Could this be an Uninsured Motorist? – Image by Christian Ferrari

Often a personal injury lawyer will handle a car accident when the at-fault other driver was uninsured. This is called an uninsured motorist claim. The defendant is your own insurance company.

The general statute of limitations for an uninsured motorist claim in Oregon is 2 years.

Oregon Revised Statutes 742.504(12)(a) provides:

The parties to this coverage agree that no cause of action shall
accrue to the insured under this coverage unless within two years from the
date of the accident:
(A) Agreement as to the amount due under the policy has been
concluded;
(B) The insured or the insurer has formally instituted arbitration
proceedings;
(C) The insured has filed an action against the insurer; or
(D) Suit for bodily injury has been filed against the uninsured
motorist and, within two years from the date of settlement or final judgment
against the uninsured motorist, the insured has formally instituted
arbitration proceedings or filed an action against the insurer.

Uninsured motorist cases can be decided in a civil trial before a Judge and jury in the courthouse, but are often decided in arbitration before one or more arbitrators in a lawyer’s office. Arbitration of a UM claim is faster and sometimes advantageous.

Given the two year limit, a civil case filed in court is commenced when the complaint is filed with the Clerk of the Court, subject to it being served on the defendant within 60 days thereafter (This is the Oregon state court rule).

For an arbitration, a complaint is not filed in court. The question is what is enough to be formally institute arbitration proceedings.

For an arbitration in areas other than UM car accident claims, to formally institute arbitration proceedings, a party has to institute arbitration in the manner required by the Uniform Arbitration Act, specifically Oregon Revised Statutes 36.635(1). That statute, about arbitrations in general, provides:

A person initiates an arbitration proceeding by giving notice in a
record to the other parties to the agreement to arbitrate in the agreed manner
between the parties or, in the absence of agreement, by certified mail, return
receipt requested and obtained, or by service as authorized for summons
under ORCP 7 D. The notice must describe the nature of the controversy
and the remedy sought.

The Oregon Supreme Court gave guidance about the formality requirements for commencing a UM arbitration in Bonds v. Farmers Ins. Co., 349 Or 152, 240 P3d 1086 (2010). A July 2011 opinion from the Oregon Court of Appeals, Luka v. Tri-Met, revisited this subject. The Oregon Court of Appeals commented:

In Bonds, the [Oregon] Supreme Court held that, “to ‘formally institute’ arbitration proceedings, an insured or an insurer must expressly communicate to the other party that the initiating party offers to arbitrate or otherwise commits to the arbitration process.” Bonds, 349 Or at 162. Applying that holding, we conclude that plaintiff formally instituted arbitration proceedings by sending defendant a written request that her uninsured motorist claim be submitted to binding arbitration. Accordingly, we reverse the trial court’s order, which denied plaintiff’s petition to compel arbitration, and remand.
…

Thus, we held [in an earlier case that was overruled by the Oregon Supreme Court] that a party had to send–either in an agreed-upon manner or by certified mail or service akin to a summons–a notice to the other party that described the nature of the controversy and the remedy sought. … On review, the Supreme Court held otherwise…
…
[I]n this case, plaintiff sent a fax to Tri-Met, and the fax cover sheet stated, “[P]lease let this correspondence serve as written notice of our request to have this matter submitted to binding arbitration in accordance with ORS 742.061.” That statement is an express communication of plaintiff’s willingness to commit to the arbitration process. Thus, under the Supreme Court’s decision in Bonds, plaintiff formally instituted arbitration proceedings. Plaintiff sent the fax on May 12, 2008, which was within two years of the May 13, 2006, accident. Therefore, plaintiff’s uninsured motorist claim was not time barred by ORS 742.504(12)(a)(B).

Therefore a fax or other written offer to arbitrate is sufficient to meet the UM deadline; no certified letter is necessary. Later in the process, when you get to the uninsured motorist arbitration, your personal injury attorney will present the facts that support liability, and will present the facts that support a high damages award.

This post written by E. J. Simmons, a Portland personal injury lawyer.

You may not need a lawyer for your claim

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This web site provides information about accident cases. If your accident case has

Dented Car

  • an insured defendant who is clearly at fault,
  • a reasonable insurance adjuster for the defendant,
  • a specific amount of damages that will satisfy you, and
  • the amount of money damages is not a large number,

then you may want to handle your claim by yourself without hiring an attorney. This can save you the money that would go for the attorney fee, usually about one-third of the amount recovered.

For example, a car accident may result in the other driver (but not you) being given a traffic citation for breaking a traffic law. This implies that the other driver was negligent. If the other driver who broke the law caused the accident, then the other driver’s insurance company may be prepared to go ahead and pay what you show is a fair amount.

Recommended book

Nolo Press publishes a book about the do-it-yourself approach to a claim. The title is How to Win Your Personal Injury Claim by Joseph Matthews. This book is available on Amazon.com, and has good reviews, or directly from Nolo Press.

Chapter 1 of the book gives some considerations about when you can go ahead by yourself, and when you should get an attorney.

“With basic information about how the accident claims process works, a bit of organization, and a little patience, you can handle your own injury claim without a lawyer – and without the insurance company unfairly denying or reducing your compensation.” From Chapter 1, under the topic “Why You Often Can Handle Your Own Claim”.

If you want to try to handle your claim by yourself, then I recommend that you get the book and read it to help you understand the process.

Oregon law allows attorney fees for negligence cases up to $10,000

There is a major advantage to the injured person for a small case in Oregon. If you have an Oregon case that is worth $10,000 or less ($7,500 or less before January 1, 2012), there is a statute that gives to the injured party but not to the defendant’s insurance company, attorney fees if you win.

Below is the law effective January 1, 2012:

Oregon Revised Statutes section 20.080. (1) In any action for damages for an injury or wrong to the person or property, or both, of another where the amount pleaded is $10,000 or less, and the plaintiff prevails in the action, there shall be taxed and allowed to the plaintiff, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the action, if the court finds that written demand for the payment of such claim was made on the defendant, and on the defendant’s insurer, if known to the plaintiff, not less than 30 days before the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 30 days after the transfer of the action under ORS 46.461. However, no attorney fees shall be allowed to the plaintiff if the court finds that the defendant tendered to the plaintiff, prior to the commencement of the action or the filing of a formal complaint under ORS 46.465, or not more than 30 days after the transfer of the action under ORS 46.461, an amount not less than the damages awarded to the plaintiff.
(2) If the defendant pleads a counterclaim, not to exceed $10,000, and the defendant prevails in the action, there shall be taxed and allowed to the defendant, at trial and on appeal, a reasonable amount to be fixed by the court as attorney fees for the prosecution of the counterclaim.
(3) A written demand for the payment of damages under this section must include the following information, if the information is in the plaintiff’s possession or reasonably available to the plaintiff at the time the demand is made:
(a) In an action for an injury or wrong to a person, a copy of medical records and bills for medical treatment adequate to reasonably inform the person receiving the written demand of the nature and scope of the injury claimed; or
(b) In an action for damage to property, documentation of the repair of the property, a written estimate for the repair of the property or a written estimate of the difference in the value of the property before the damage and the value of the property after the damage.
(4) If after making a demand under this section, and before commencing an action, a plaintiff acquires any additional information described in subsection (3) of this section that was not provided with the demand, the plaintiff must provide that information to the defendant, and to the defendant’s insurer, if known to the plaintiff, as soon as possible after the information becomes available to the plaintiff.
(5) A plaintiff may not recover attorney fees under this section if the plaintiff does not comply with the requirements of subsections (3) and (4) of this section.
(6) The provisions of this section do not apply to any action based on contract.

As a result of this law, you can usually get an attorney to take a smaller case, even when a share of the recovery would not justify all the legal work required, especially if the case goes to trial.

Although I do not generally do these cases, I would be happy to refer you to another attorney who does.

Another consequence of the Oregon Revised Statutes section 20.080 law is that a rational defendant will probably settle, once the proper demand letter is sent by an attorney. Otherwise the defendant would be taking a chance on losing not only the small original amount, but also your lawyer’s big fee for all the work of preparing the case and presenting it at trial.

When you need an attorney

If your case is

  • complicated;
  • liability was denied by defendant’s insurance company; or
  • a fair damages award is a large amount of money

then the case will be agressively defended. As a result, you will need an agressive plaintiff’s lawyer, who is used to handling defense strategies and tactics. Examples of cases that require a  personal injury lawyer would include a case with major injuries (for example medical bills over $50,000), or death, or multiple parties.

What to do next

For a straightforward case, you can get organized and try to resolve the claim yourself. If so, I recommend that you get the book referred to above.

For a difficult case or a big case, you will want your case presented by an experienced personal injury attorney. If you like the information on this website, you can contact us and get more information by a telephone call or by an office conference.

Federal employee negligence – Federal tort claims

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Federal Employee Negligence Can Cause Personal Injury




Your personal injury attorney can deal with the procedural requirements for success in bringing a claim against the Federal government for injuries. The Federal claims are made for injury claims caused by Federal employees, acting in the course of their employment.

United States law sets out in the Federal Tort Claims Act the specific requirements for making a claim based on Federal employee negligence.

Federal Tort Claim Notice Form

What Must Be Filed

The tort claim is made by sending a Form 95 to the correct agency. Although you can file a tort claim notice without using the form, there is no advantage to not using the form. The form must be filled in with the basis of the claim, and the amount of the damages. Note that the amount of damages set out in the form is a limit on the amount to be recovered, unless there is newly discovered evidence that was not reasonbly discoverable. As a result, the amount stated should be high enough to allow for an adequate award.

Time limit to file claim

If a Federal employee was negligent and caused injury or death, then the Federal Tort Claims Act provides a two year period to file a tort claim notice.

Denial of Claim

If the claim is denied by the Federal agency, then the lawsuit must be filed within 6 months after the denial is mailed:

28 U.S. Code Section 2401. Time for commencing action against United States
…
(b) a tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

No lawsuit before tort claim procedure

The injured party cannot file the lawsuit without first filing the tort claim notice:

28 USC § 2675. Disposition by federal agency as prerequisite…

(a) An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. …
(b) Action under this section shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency, except where the increased amount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency, or upon allegation and proof of intervening facts, relating to the amount of the claim.
…

In the civil action to recover for negligence by a Federal employee, only the United States is named as a defendant. The employee who was negligent is not named as a defendant.

No jury trial

The case will be filed in the Federal District Court. The trial outcome is decided by a Judge and not by a jury.

Federal tort claims have positive and negative factors. The positive is that the defendant, i.e. the United States government, can pay any judgment. The negative is that extra procedures apply, including the specific requirements for the tort claim notice. Not all attorneys have Federal tort claim experience. The case will be in Federal court, so your attorney should be familiar with the Federal procedures and the differences from State court procedures. Since the trial is decided by the Judge and not by a jury, the trial moves along quickly.

What to do next

If you have a question or if you would like to speak with a personal injury attorney, visit the contact us page.

Car accident negligence claims

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Other driver’s duty of care

Car drivers and truck drivers have a fundamental duty under the law to use the utmost care, and the level of diligence of cautious persons. This is referred to as the common law duty of care. Acting below the common law duty of care and causing injury is called common law negligence. In addition to the general common-law duty of care, there are some specific standards of care set out in statutes.

Negligence can be driving careless or not looking

Actions below the standard of care

If another driver has acted below the common law duty or below a statutory duty, and caused injuries, then the other driver is a rule-breaker, and the other driver’s insurance company is liable for the injuries. The most common claim made by a personal injury lawyer in a car accident case is for negligence. When a specific law was broken, the negligence claim can be proven under a “negligence per se” analysis.

Forseeability standard

In an Oregon common law negligence case, liability for a motor vehicle accident depends on whether the other driver’s conduct “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari v. Portland School Dist., 303 Or 1 (1987).

Statutory liability

In addition to the common law negligence analysis, the defendant may be liable because an obligation under a statute was not met.

Intentional actions

It is possible but unusual for a defendant to have acted intentionally, but intentional actions can result in liability. For example, Cook v. Kinzua Pine Mills Co., 207 Or 34 (1956) involved the defendant either carelessly or intentionally driving a log truck into plaintiff’s car.

Reasonable prudent person

The standard is that of a reasonably prudent person. The reasonable and prudent person accepts the actual traffic hazards, and anticipates dangers.

Car accidents are a foreseeable risk of driving on a public highway. A driver should foresee the risk to third parties. This requires reasonable care on a public road. Negligence can happen by negligent action, or by not taking the action a reasonable person would have done.

Other driver's speeding causes accidents

Rule breaker defendant

The best way to win a car accident case is to show that the other driver violated a rule. Many of the rules are in the statutes. Violation of a rule results in negligence per se. Negligence per se is not a separate claim, but instead is an evidentiary rule that supports the negligence claim. Specifically, if the defendant violated the statute this is evidence of conduct below the standard of care, because we are all supposed to follow the law. Such evidence is given great weight by the jury.

When the law sets out the standard

When a particular law sets out the standard of care, the Judge will instruct that a violation of that law is evidence that the defendant was negligent. There are two requirements:

  1. the injured person is a member of the class intended by the legislature to be protected, and
  2. the injury is of a kind which the statute was intended to prevent.

These requirements are set out in the cases Miller v. City of Portland, 288 Or 271 (1980) and Beeman v. Gebler, 86 Or App 190 (1987).

If both requirements are met, then a violation of the law is negligence per se unless the defendant proves that his conduct was reasonable under the circumstances even given the violation of the law. Barnum v. Williams, 264 Or 71, 79, 504 P2d 122 (1972).

There are some situations where it is reasonable to not follow the law, and these few situations illustrate how the negligence per se analysis is carried out: it is a presumption, not an absolute rule of liability. Nevertheless, it is straightforward and effective to argue that the rule-breaker was negligent.

Another article will comment on examples of statutory liability.

This post written by E. J. Simmons, a car accident attorney who handles serious personal injury cases.

Personal injury deposition preparation

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Most cases handled by a personal injury attorney settle before trial. Some injury claims settle after a demand letter is sent from the personal injury attorney to the insurance adjuster for the defendant. However, to get a full value settlement for a personal injury, it is often necessary for the personal injury attorney to file a lawsuit and go through the discovery process. A personal injury attorney will take the necessary steps using the rules of procedure.

Personal injury attorney approach

In my office, we are always preparing to take personal injury cases to trial. This keeps the defendant offers reasonable, and sets up a potential trial victory.

Document discovery by your personal injury attorney

Discovery is the process of getting evidence before trial from the opponent or from other people or organizations. Document discovery is getting papers and photographs. The client is kept informed as this is done. In many cases the client gets a copy of everything. However, for a serious injury case this can be over 10,000 pages, more paper than some clients want to see.

Depositions are done in a conference room of the attorney's office

After document discovery, there are depositions. A deposition is when a person comes to a conference room and gives sworn testimony.

Client testifies

The client tells his or her personal injury lawyer the facts, cooperates as we go along, but only has two personal tasks in the presence of the opponent: to testify at deposition, and to testify at trial. This post is about testifying at deposition.

Much of the time and energy by defendant’s counsel is invested in the depositions, of the injured party and of other witnesses.

Deposition rules

The formal rules say

Federal Rules of Civil Procedure, Rule 30. Deposition by Oral Examination
(a) …
(1) … A party may, by oral questions, depose any person, including a party …

(b) Notice of the Deposition; Other Formal Requirements.
(1) Notice in General.
A party who wants to depose a person by oral questions must give reasonable written notice to every other party. …
…
(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.
(1) Examination and Cross-Examination.
The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence…

(d) Duration…
(1) Duration.
Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. The court must allow additional time … if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.
…
(3) Motion to Terminate or Limit.
(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. … If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.
…
(e) Review by the Witness; Changes.
(1) Review; Statement of Changes.
On request by the deponent or a party before the deposition is completed, the deponent must be allowed 30 days after being notified by the officer that the transcript or recording is available in which:
(A) to review the transcript or recording; and
(B) if there are changes in form or substance, to sign a statement listing the changes and the reasons for making them.

State Court deposition rules are generally similar.

Lawyers call their job of representing the person being deposed “defending a deposition”. Your personal injury lawyer is there at all times, ready to object and if necessary to call a halt to any abusive conduct.

Specific steps to prepare for deposition

The client’s job is to avoid losing ground. The personal injury attorney will help the client by preparation:

  1. You are not asked to memorize a bunch of stuff, instead you just need to get clear on the main points. Clarity about the main points, plus telling the truth, makes it go well.
  2. You will get a tour of what happens in a deposition, well before your deposition happens. You will review a program that explains the process. I often use a product called DepPrep. It is a slide show on a computer, with explanations, so you can go back if you did not understand. Then, you and I talk over any concerns, in private, before the deposition.
  3. Some time before the actual deposition, you are asked questions, to experience being questioned and giving answers. Sometimes I have another lawyer act as my co-counsel and assist me by questioning the client. A practice session is work, but it makes you, the client, much better prepared and less emotional.
  4. All clients eventually start babbling during their deposition. I have never in 30 years had a client that can continue to (a) just answer the question and (b) then shut up. Every client eventually starts talking and adding comments and explaining, as if the deposition were a social event. Perfection is not required, just do your best to answer the question and then stop talking.
  5. Only a few clients are self-destructive, but if so it is better to know sooner than later.
  6. Long questions can contain a shading of the truth, so you have to listen carefully to the entire question. If your attention wanders, for you are human, you can ask to have the question repeated.

Preparation for your deposition is one of the steps that makes it possible for your personal injury attorney to get you a good settlement offer.

This post was written by E. J. Simmons, a personal injury attorney in Portland who represents injured clients in settlement negotiations, in depositions and in trial.

Motorcycle injury trial victory

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This case was to recover for motorcycle accident injuries. As usual, there were issues in the case that the defense hoped to exploit.

The offer by the corporate defendant was low, in spite of my presentation as the injured party’s personal injury attorney that argued for a higher offer.

Result in Court: The judgment obtained was for over 10 times the defense offer.

Why was the defense offer so low?

Most likely, because of an earlier inter-company arbitration. This was between the insurance company of the injured party and the insurance company for the defendant corporation. No attorney was present for the injured party. The injured party’s insurance company lost, probably because of unchallenged hearsay. My theory is that this arbitration victory encouraged the defendant adjuster to get tough. This defense victory in an arbitration, before a personal injury lawyer was involved, may have made the defendant adjuster too agressive.

Some personal injury trials are in Federal Court

What caused the trial victory?

Before the trial, appropriate motions in limine were filed. The order by the Judge prohibited some irrelevant and prejudicial testimony, and set up the trial presentation.

The injured person testified well about the events before the collision. He also testified about the effect of the injuries.

His good presentation was due in part to preparation. My practice is to go over the actual questions and expected answers with the client, before the trial, to avoid any need for the client to guess about the question’s specific topic. This avoids uncertainty, allows for variation if the client remembers something new but gets the testimony back on track, and makes clients more comfortable.

This technique is one I learned a number of years ago. It was recommended by a retired Judge who started practicing law again, and had noticed many times the confusion of witnesses trying to figure out what their own lawyer’s questions meant. Many attorneys only use outlines, but this is inferior to writing out the actual questions. Writing out the questions does require time and organization.

Our witnesses testified well. For example, the treating physician testified by video deposition. Just before his deposition, he and I briefly went over the list of questions I planned to ask, with the images (x-rays). He said what he would testify to in response to each planned question, I made notes to clarify my questions, and then his deposition went well. Take note: this is another example of the effect of writing out the questions in advance, even if discussed with the witness only a few minutes before the testimony.

A friend of the client came to testify. This witness, although friend of client, was under subpoena. The testimony went well and was consistent with the testimony of the client.

The adverse witnesses did not testify so well. In trial there are times for quick decisions. A couple of times, I decided on the spot that the adverse witness testimony was not harmful, so I used a favorite cross examination technique, and I said, “No questions.” This has an added benefit of cutting off any re-direct testimony. Moreover, I like for the last word to signal that no harm was done by the adverse witness.

Lessons learned: get an attorney involved early, to avoid getting the adjusters anchored to a low-ball case valuation. A trial has risk. If I get a fair offer we accept, otherwise we go to the courthouse and see who wins.

Disclaimer – as you know, a prior result does not guarantee similar result in any other case.

This post authored by E. J. Simmons and relates to his representation of an injured person as a motorcycle accident attorney.

Personal injury and fault of injured party

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This post authored by E. J. Simmons, who regularly deals with negligence issues in his practice as a personal injury attorney in Portland, Oregon.
Every injury case must deal with any negligent conduct by the injured person. Some clients feel responsible for the slightest mistake in the events leading up to the injuries, and wonder if their lack of perfection means no settlement will be recovered. The insurance adjuster and the defense attorney usually will try to show that the injured party did something that contributed to causing the injuries.

Contributory negligence

When the law of negligence developed, there was a complete defense of contributory negligence. This legal doctrine required that any negligent conduct by the injured party would prevent any recovery. For example, if the injured party was ten percent negligent and the defendant was 90 percent negligent, then the injured party received nothing. This was the outcome even if the greater negligence by the defendant caused death or devastating injury.

This unfair result has led the majority of states to abolish contributory negligence in favor of comparative fault.

Unfair old law in a few states

In a few states and the District of Columbia, the unfair old doctrine of contributory negligence is still in effect. These holdout jurisdictions are Virginia, North Carolina, Maryland, Alabama and the District of Columbia.

Comparative fault

All other states have one of the forms of comparative negligence.

In Oregon, the legislature abolished both contributory negligence and the related doctrine of implied assumption of the risk as defenses and has replaced them with comparative fault. See ORS 31.600 (formerly ORS 18.470) abolishing contributory negligence standard and replacing it with a comparative fault system:

Oregon Revised Statutes 31.600 Contributory negligence not bar to recovery; comparative negligence standard; third party complaints. (1) Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons specified in subsection (2) of this section, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant. This section is not intended to create or abolish any defense.
(2) The trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled. The failure of a claimant to make a direct claim against a third party defendant does not affect the requirement that the fault of the third party defendant be considered by the trier of fact under this subsection. Except for persons who have settled with the claimant, there shall be no comparison of fault with any person:
(a) Who is immune from liability to the claimant;
(b) Who is not subject to the jurisdiction of the court; or
(c) Who is not subject to action because the claim is barred by a statute of limitation or statute of ultimate repose.
(3) A defendant who files a third party complaint against a person alleged to be at fault in the matter, or who alleges that a person who has settled with the claimant is at fault in the matter, has the burden of proof in establishing:
(a) The fault of the third party defendant or the fault of the person who settled with the claimant; and
(b) That the fault of the third party defendant or the person who settled with the claimant was a contributing cause to the injury or death under the law applicable in the matter.
(4) Any party to an action may seek to establish that the fault of a person should not be considered by the trier of fact by reason that the person does not meet the criteria established by subsection (2) of this section for the consideration of fault by the trier of fact.
(5) This section does not prevent a party from alleging that the party was not at fault in the matter because the injury or death was the sole and exclusive fault of a person who is not a party in the matter.

In Oregon, the statute set out above means that an injured party who is for example 10 percent at fault will have the award reduced by 10 percent. In addition, if the injured person is over 50 percent at fault, the injured party will lose. This percentage is set by the jury.

ORS 31.620 (formerly ORS 18.475) abolished the doctrine of implied assumption of the risk. Implied assumption of the risk was an indirect way for defendants to argue contributory negligence. The doctrine of last clear chance was used by plaintiffs to avoid the harsh result of contributory negligence.

Oregon Revised Statutes 31.620 Doctrines of last clear chance and implied assumption of risk abolished. (1) The doctrine of last clear chance is abolished.
(2) The doctrine of implied assumption of the risk is abolished.

Comparative fault applies to most personal injury claims, including those brought by your car accident attorney or motorcycle accident attorney.

Comparative fault will not apply to a workers compensation claim but it will apply to construction job site accident claims beyond the workers compensation claim, such as an Employer Liability Law claim or a premises liability claim.

In a wrongful death claim, the comparative fault percentage allocated by the jury will be that of the person who was killed.

Juries try to be fair

In those states with the old contributory negligence standard, personal injury attorneys will use the last clear chance doctrine. The injured party made a lesser mistake, and the defendant then had the last clear chance to avoid causing the injuries. Juries try to be fair; in those jurisdictions with the unfair older law juries are very receptive to the last clear chance issue so that an injured person can have a recovery.

In the states with the majority doctrine, including Oregon, the jury can be fair to all parties by allocating fault percentages when the jury decides the verdict, and also deciding the amount of damages.

For questions please call or email.