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Hiring a Lawyer After Injury or Death in Oregon
by Peter Glazer, Portland attorney and long-time Chairman of the Governor's Advisory Committee on DUII
(Reprinted from a MADD brochure compiled by the MADD Oregon State Office.) |
How do you hire a lawyer if you have been injured or if someone close to you has been injured or killed by a drunk driver?
If your ability to search out an attorney is impaired by physical injury, shock, stress and grief, get referrals from friends, family, the Oregon State Bar Association, and other sources. Although it may be tempting to wait a few months until you feel better able to cope, an attorney will do a better job if allowed to begin the investigation as soon after the crash as possible. When you receive the name of an attorney, call and schedule an interview/appointment. A few of the questions that should be addressed during this interview are outlined in the following paragraphs.
1. Is the lawyer experienced in personal injury/wrongful death cases?
Lawyers who handle serious injury and wrongful death cases should possess significant experience and a strong commitment to this type of case.
2. Is the lawyer willing, from the beginning of the case, to participate in both the criminal and the civil proceedings?
It is important to recognize the distinctions between criminal and civil proceedings.
Criminal proceedings are brought by the District Attorney in the name of the state for purposes of punishing and rehabilitating the defendant.
Civil proceedings are brought by the victim, represented by a private attorney, against one or more defendants in order to recover monetary damages.
A drunk driving crash often leads to a criminal prosecution soon after the collision. The civil lawyer should be willing to attend some criminal proceedings with his or her clients, and keep them informed of plea bargaining, discussions and other proceedings in the criminal case. The attorney should be willing to help clients understand the criminal justice system as well as prepare and participate in the criminal hearings.
3. Is the lawyer willing to go to trial?
The best settlements usually are reached by attorneys who are not afraid to go to court, if necessary, to prove their clients' cases. From time to time, insurance companies and defense attorneys categorize plaintiffs' attorneys into those who will go to trial and those who tend to avoid trial. Hire an attorney with a reputation for going to trial when the other side's settlement offer is inadequate.
4. Does the lawyer defend drunk drivers?
You may feel it's important to know whether or not the lawyer or others in the law firm you are hiring also defend drunk drivers. Some lawyers and law firms have policies against representing drunk drivers at all.
5. Is the lawyer part of the solution?
Lawyers who are concerned about drunk driving tragedies should have made a commitment of money, time, or both, to fighting the drunk driving epidemic.
6. Can the lawyer show you how he or she has settled some previous cases?
Techniques and strategies for achieving fair settlements outside of court do exist. In large cases, some lawyers use "settlement brochures." A good settlement brochure combines photographs, written text, and documents to show the strength of the case. Ask the lawyer if he or she can show you a settlement brochure from a previous case.
7. What about attorney fees?
Attorney fees are usually handled on a contingent fee basis, which means the fee is contingent upon the final settlement or award. The lawyer is, therefore, not paid until the case is finished. However, if a client wants and can afford to pay attorney fees on an hourly basis, the lawyer should provide this alternative. Contingent fee percentages vary, but they usually reflect how far along a case has progressed at the time recovery is received. For example, the percentage may be higher if the case is not settled until right before or during trial. I am not aware of many lawyers whose percentage fee is greater than 40% for a case that goes to trial. For a settlement well before trial, 33% is common.
One may be tempted to choose an attorney on the basis of the percentages charged in the contingent fee agreement. However, it is worth remembering that while a contingent fee percentage is not necessarily an indicator of any attorney's skills, the attorney charging the lowest percentage may not be the best bargain. Paying a lawyer one-third of a $100,000 settlement leaves more money for the victim than paying 25% to an attorney who is only able to recover $85,000.
8. What about litigation costs?
In Oregon, all lawyers are required by law to handle litigation costs in the same manner. For example, such items as filing fees, deposition expenses, doctors' fees for writing reports and appearing at trial, and trial fees charged by the court are required to be the ultimate responsibility of the client.
Some attorneys pay all litigation costs in advance, particularly when the client does not have resources to pay all litigation costs as they are incurred. Lawyers are then repaid these expenses out of settlement. The net effect is that the lawyer has acted much like a bank. Ask your prospective lawyer how litigation costs are handled. In a major case, where litigation costs can total thousands of dollars, you will be glad you asked.
Peter Glazer is a trial attorney with his office in the Portland, Oregon suburb of Lake Oswego. He was a founding member of Clackamas County MADD and served on the Oregon Governor's Advisory Committee on DUII from its creation in 1982 until he stepped down in December 1999; for over 13 years, he was its chairman, appointed by four different governors from both major political parties.
For additional information about MADD, visit the Mothers Against Drunk Driving web site.
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