The Oregon Litigation Process

Here are some highlights of what you can expect a Portland wrongful death lawyer to do in a typical case. This is only a selection; there is much more, but since every case is different, we have singled out some of the more common tasks so you can get a flavor.

1. Preserve all evidence: take photos of the scene, interview witnesses, take measurements, etc. Hire a private investigator if the case is complicated or there is a serious question of liability. If any product was involved (including a car), preserve it in its current state so experts from both sides can examine it.
2. Work with the family members to choose the best person to be the Personal Representative. Submit a Petition for Appointment of Personal Representative to the court for a judge to review, approve and sign.
3. Contact witnesses and get statements before memories fade, people move, or time otherwise erodes the value of eyewitness testimony.
4. If a vehicle was involved, check the PIP policy. Make sure PIP pays its full amount, which should be at least $15,000, but may be more. PIP should pay for medical treatment up to its limit, a portion of funeral expenses, etc.
5. Check the decedent’s health insurance policy. It should pay all medical bills that PIP doesn’t pay, though there will be deductibles, co-pays, etc. (Note: this is only needed if the deceased received medical attention before death, which is common).
6. Find out the liability insurance policy limits of the person whose fault it was, including any umbrella or other insurance policy.
7. If the policy limits are not enough to cover your compensation, perform an asset check on that person to find out if they can pay out of their own money above and beyond the insurance policy limits.
8. If the decedent was driving, read his/her UIM policy, and figure out whether a UIM claim can be made as well. Typically, this can only be done if the UIM limit is higher than the liability limit of the person who was at fault, though there can be exceptions, for example, if one of the policies is from a state other than Oregon.
9. Hire a forensic economist to determine the economic losses.
10. Figure out if the PIP or health insurer (or anyone else who has paid medical bills) will demand to be paid back out of your settlement. Will they have a lien?
11. Consider whether publicity (or the threat of it) may be helpful in this particular case. If you are suing a company, for example, they may find the threat of publicity dire enough to want to settle quickly so as to not hurt the business.
12. Get all of the medical records and original bills. Not the amounts actually paid, but the original bills. These must be kept organized in a binder or folder so they can be referenced later.
13. Create organized spreadsheets summarizing injuries, medical treatment, and other expenses, including funeral expenses.
14. Decide what evidence to give the insurer to convince them that the accident was the other person’s fault. It is often useful to save some evidence to tell them later on, to try to push up the negotiated settlement after they’ve offered what they claim is their top dollar. Decide now what evidence to include, and what evidence, if any, to save for later. If the defendant’s attorney later wants information, he can formally request it as well, in a process known as “discovery.”
15. Write a demand letter to the insurer. Include medical bills and records, economist’s report, eyewitness statements, reports on physical evidence. Include whatever evidence we’ve decided to give them up front. Give them a time limit in which to respond. Thirty days is usually enough, though it depends on the complexity of the accident. Make sure to take any liens into account.
16. Negotiate with the insurance companies and lien holder to maximize a settlement.
17. Negotiate with anyone who is claiming a lien on the case as well. Example: “I can settle this case for $450,000, but only if you’ll agree to reduce your lien from $310,000 to $160,000. The major lien-holders will typically be medical providers, lifeflight, etc. But general creditors may have claims as well, if the decedent owed them money.
18. If you are able to come to an agreement, then read the insurance company’s release very carefully before a client signs it. The release is binding.
19. Help decide how to distribute funds among beneficiaries. If necessary, each can get an attorney and argue in court about what proportion they believe they are entitled to. But usually, beneficiaries can agree among themselves. Remember that lien-holders will also be entitled to a portion.
20. Get court approval of the settlement.
21. Distribute funds.