This is the third of a 3-part series on information for Oregon consumers about Oregon injury claims.  This might make a little more sense if you have reviewed the background in Part 1 (claims and the Oregon system) and Part 2 (case process and uncertainty) so that this makes better sense.

Like everything else in our complicated world, the practice of law has become more specialized over the years.  While some lawyers still manage to handle a wide range of cases, most limit themselves to one or a few areas. Personal injury tends to be one of those areas that requires a lot of special experience.  For that reason, you’re generally better served by someone with significant experience in the area.

There are several considerations in hiring a lawyer to handle an injury claim. Most Oregon injury lawyers are content to work on a contingent fee. Under a contingent fee system, the lawyer gets paid for his or her time based on a percentage of what the lawyer recovers for the client.  All of this should be in a written fee agreement that the lawyer explains to the client.

In addition to paying for the lawyer’s time, the client must also take responsibility for out-of-pocket expenses.  Oregon law requires that the client remain legally responsible for costs. The rule is based on the theory that that if the client must be take responsible for costs, there will be less lawsuits.

The client may choose instead to hire the attorney by the hour. While this is certainly an option, in my experience, most middle income clients can’t afford to pay a lawyer by the hour. That’s why the contingent fee/percentage  system works. Without it, access to the courts would be limited to corporations and wealthy people who can afford to pay legal fees by the hour.

The other advantage of the contingent fee is that it encourages your attorney to do whatever is necessary to get the good outcome. Contingent fee attorneys don’t have to worry about whether they’re over-billing or spending too much time on the case. That’s a good thing. As we say around this office, “Whatever it takes.”

Having said that, there are still times when you should consider hiring an attorney by the hour. When, for example, your case is simple and straightforward, an hourly arrangement may be appropriate.

Here is when the hourly arrangement is the better choice for consumers. In rare situations, your losses greatly exceed the amount of available insurance, and the attorney’s role is limited to confirming coverage and making sure the settlement agreement protects you. In that situation, the consumer comes out ahead by paying only for the time that the attorney spent on the matter.

As I said at the beginning of this series, this is advice I would rather that you not need.  Still, better to be informed so that you can make the best choices as you move forward.

This is the second part of a three-part series on what Oregon consumers need to know when dealing with injury claims. In case you missed it, here is  Part 1 . And should you need more information, here is Part 3.

So as I noted in the first post, if you need this information for yourself or a loved one, you’re in a tough spot. Here are a few more  things that consumers need to know about Oregon injury claims: 1. Most  cases settle; 2. The ability and willingness to go to trial matters; and 3. We have to learn to live with uncertainty.

1. Most cases settle.

The reality is that only a few cases go to trial. The cases that go to trial tend to fall into two different categories. The first group involves cases in which one side has mistakenly evaluated the case.  The second category include cases in which settlement is too costly.  Let’s look at both.

Examples of the mistake in evaluation often occurs because one side doesn’t understand the facts or–perhaps–one side is unable to accurately evaluate the strengths and weaknesses of their case.  When, for example, one side doesn’t know about a key witness or document, they may incorrectly evaluate the case and go to trial.

Some cases simply won’t settle because one of the parties won’t agree. Sometimes that’s because of emotion. Sometimes it’s rational, but in any event the exceptional cases go to trial. Examples of this type of case include situations in which a corporation knows that settling this case will open them up to many others. So they fight on.

2. The ability and willingness to go to trial matters

Some lawyers are afriad of trial, and many lack the experience and resources to successfully try cases. While it looks easy on TV, trial demands special skills. To succeed, a trial attorney must be able to succeed in very different areas all at once. The lawyer must be able to argue the law to the court. The attorney must be able to talk to juries. The lawyer must be able to question and cross-examine witnesses.  These are learned skills that take years of study and experience to master. This is espeically true when a case involves complicated technical questions, tough legal issues, or sad and soul-aching injuries.

The insurance industry tracks lawyers, and when they don’t know someone, they’ll ask questions of their sources. Does the consumer’s lawyer try cases? How well? When a lawyer won’t go trial, the insurance adjuster knows that the case can be settled for much less because there is little risk of a large verdict. All this means that the lawyer who is prepared for trial and capable of trying the case puts their client’s case in the best position.

The willingness and ability to go to trial is especially important when a case won’t settle. I used the example of the corporation that can’t settle a case because of all the others out there from the same misconduct. They know that some lawyers won’t go to trial. So if they delay and refuse to pay, perhaps the consumer will get tired or the attorney–who never really intended to try the case–will quit. Either way, the corporate defendant has outlasted the consumer. That’s why willingness and ability matter.

3. Living with uncertainty

It’s been years since I rode a roller coaster. But the thing is that every roller coaster has that thing toward the end. You think you’re at the end. Maybe you can even see the station up ahead, and then–wham!–out of nowhere you drop and curve and go again. Likea roller coaster, the case isn’t over until the car stops and the bar releases you.

Those of us who represent consumers can generally predict timelines for cases. But how quickly a case goes depends on a number of things that are outside anyone’s control.

Case value is also a challenge. At the beginning is impossible to accurately value a case because the attorney doesn’t have all of the information. Over time, information comes into focus and we narrow it down and refine the value as we learn more.  It all takes time. At least at the early stage, there is a lot of uncertainty. For some, that’s a difficult notion. But for my part, I would rather consumers know so that we can all keep reasonable expectations.

Okay, that’s enough for this post. In Part 3, I’ll talk about hiring a lawyer in Oregon, including payment and contracts.