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.