Appeals in Personal Injury Cases

State Court Appeals

Most personal injury cases that don't settle before trial are decided in the state trial courts. That means a jury verdict for an injured plaintiff that fairly compensates for injuries caused by the defendant, if all goes well. Sometimes, however, the defendant convinces the court to dismiss the injured plaintiff's case before a jury ever gets to see it. Maybe the plaintiff relies on a new legal theory, and the court dismisses the case for "failure to state a claim." Maybe the evidence for the plaintiff is thin on a particular point, and the court grants "summary judgment" for the defendant. Or maybe the case does go to a jury trial, but the trial judge refuses to allow some of the plaintiff's evidence to go to the jury, or the judge gives an unfavorable instruction to the jury about how to consider the evidence.

When the plaintiff loses a personal injury case in the trial court, s/he can appeal the case to the Oregon Court of Appeals. (Defendants have the same chance when we prevail.) The Court of Appeals considers all appeals that come before it. It does not have the option, as the Oregon Supreme Court does, to decide not to hear the case. The Oregon Court of Appeals is one of the busiest appellate courts in the United States, hearing and deciding about 4,000 cases a year. The court has 13 judges chosen by popular election for 6-year terms. That's an average of almost a case a day for each judge.

The parties usually agree on the evidence that goes to the Court of Appeals from the trial court, and once that's settled, the appealing party ("the appellant") has 49 days to file the opening brief; then the party who won in the trial court ("the respondent") has 49 days to file the answering brief; then the appellant has 21 days to file a reply, which is the final brief. The Court of Appeals then schedules oral argument, usually in Salem, within about six months after the last brief is filed. After oral argument, the court takes as long as it needs to make a decision. In most cases the court issues a decision upholding the trial result without writing an opinion ("affirmed without opinion" or "AWOP"). That usually happens within a couple of months of oral argument. If the court decides to write an opinion, it hopes to do so within six months, but--and in complex or controversial cases--it may take a year, or even two.

The losing party in the court of appeals can file a petition for review in the Oregon Supreme Court, which has seven Justices. The Oregon Supreme Court then decides whether to take the case or not. The court considers a number of factors in making this decision, including:

• Whether the question is legal as opposed to a question of fact (the supreme court doesn’t usually fix factual mistakes).
• The importance of the legal question, and whether it has been decided before.
• Whether the legal question is likely to arise often, or affect a large number of Oregonians.
• Whether court decisions on the legal question are inconsistent or need clarification.

If the supreme court allows review, the parties get to file further briefs, and the court hears oral argument. The court then issues its written decision. How long this takes depends on the complexity of the issue and whether there is disagreement on the court as to the result or the reasoning. Different Justices may decide to write concurring opinions, which agree with the result but differ as to the reasoning, or dissenting opinions, which disagree as to the result.

The losing party in the Oregon Supreme Court may seek review in the United States Supreme Court if there is a question of federal law. The filing is called a "petition for certiorari," and about one in a hundred is granted.

Federal Court Appeals

The most common reason for a personal injury case to go to federal court is “diversity,” which means that the plaintiff and the defendant are citizens of different states. For example, the case can go to federal court if plaintiff lives in Vancouver, Washington and is injured by the negligence of an Oregon corporation. The law that applies in federal court is state law, usually of the state where the injury happened.

An injured plaintiff who is not satisfied with the result of a trial in federal court can appeal within 30 days to the Ninth Circuit Court of Appeals. The notice of appeal is filed in the federal trial court. After the transcript of the trial is settled and the briefs are filed, a three judge panel of the court hears oral argument at the Pioneer Courthouse in Portland. There is no legally required time for the court to issue its decision. Depending on the complexity of the issues, a written decision can take months or, occasionally, more than a year. The only appeal from the Ninth Circuit is a petition for certiorari in the United States Supreme Court, which is very rarely granted.