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PI Appeals

Appeals in Personal Injury Cases

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.


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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.

Personal Injury

Will the Insurance Policy Limits be Enough Money to Pay My Damages?

Is there enough insurance to pay all of your damages for personal injury after a wreck? Fairness requires that you be given an honest answer about how much insurance there is to pay for your injuries. But insurance companies are not required by law to tell you how much the responsible party has in insurance coverage. And for all you know there may be a million dollars of coverage as part of a comprehensive Auto/Personal Liability Umbrella policy package, or as little as $25,000 which is the Oregon minimum bodily injury insurance limit that is required by law. But $25,000 barely pays for an overnight stay in the hospital. If you ask an insurance adjuster for the policy limit available to pay your damages the usual answer you will receive is a vague reference to whether it is a small limit policy or something like “The policy limit should be adequate to pay your damages.” Well what does this mean? If you press for an answer you are usually told that this information may only be released with the consent of the insured party. If you say to ask the insured to release the limit information in the majority of cases the information is still not released. In our office we tell the claims adjuster that when this happens we cannot advise our client to settle without knowing what sums are available to pay damages. We always succeed in forcing the insurance company to release policy limits information because we tell the insurance company to tell their insured that if the policy limit is not voluntarily disclosed we will file a lawsuit, likely for an amount above the policy limit, and force disclosure because the Oregon Rules Of Civil Procedure (ORCP 36(B)(2) requires disclosure of insurance limits available to pay the damages claimed in a filed lawsuit. We tell the insurance company that by failing to persuade the insured to voluntarily disclose the policy limits they exposed their insured to a possible “excess verdict” above the limits of their insurance. After hearing this analysis it has never been our experience that the policy limits were held back. Knowing the policy limits in advance of negotiation gives us the information we need to properly evaluate the amount of “skin in the game” this insurance company has, and to give us advance warning that insurance limits may be insufficient to cover the full damages and that we need to conduct an asset investigation of the at fault party to find out if they have the financial ability to contribute funds or assets to any settlement

Should I give a statement to an insurance company after I was hurt in a collision?

Whenever someone is hurt in a collision with an at fault insured driver there is a standard protocol automobile insurance companies follow in having a claim adjuster contact the parties and witnesses to find out what happened, usually just a few days after the collision. The purpose of the investigation is to attempt to determine fault and set the “reserves” on a personal injury case. What most folks are not told when they get one of these calls is what information from witnesses, other parties, or the police the insurance company has already collected. Further, before the call is made for an interview the insurance adjuster will usually examine the applicable legal requirements from the state traffic law. Thus, the “interview” is not an informed interview or one that is a fair and complete exchange of information. Instead it is a chance for the insurance company to subject the victim of a collision to a cross examination without the benefits of a full briefing of the applicable laws and legal issues in advance. While a person has a right to decline one of these interviews, most folks try to be cooperative and provide their side of the story.

It is our advice to follow the same applicable considerations experienced witnesses or participants in traumatic events are usually advised to obtain and consider before an interview:

Applicable Considerations Before An Interview

1. obtain a briefing on the applicable law before the interview

2. find out what other witnesses have said

3. review the police reports

4. do not give an interview when you are still in pain or upset from the wreck, and not when you are under the effects of any pain medication

5. find out whether you can delay the interview until after you have adequately prepared yourself

6. find out what happens if you decline to give an interview

In our experience after we find out about the applicable considerations we often decide that an interview of our client will not have an effect on the insurance company’s decision on liability as they have already concluded our client was mostly at fault. In that instance the interview only gives the insurance company another point of attack in a case they are not intending to settle any way. Other times, after reviewing the applicable considerations, we decide that our client can contribute to a favorable liability determination and we help to set up the interview. Even where we see a likely valid situation for an interview we usually agree to participate only on the condition that the interview not be recorded. Most insurance company interviewers do not tell the witness that the interview does not have to be recorded. Instead the insurance company interviewer can take notes and use those notes to summarize what the party says in a report to the company. This way the interview recording will not be later used against the witness in court.

And the interview process exists for the benefit of the insurance companies, not the injured parties. If it were otherwise then the insurance would not refuse to share their interviews of other witnesses and other parties with the person making an insurance claim. Our requests for witness interviews of others are almost always met with a “Work Product” based refusal to share. We are able to obtain any interviews of our own clients, but not other witnesses or other parties, even when we are not able to have access to the folks the insurance company has already interviewed.

The one exception is when the collision victim’s own insurance company conducts interviews of the injured person. Not only will the injured person’s company release their interview, but usually the insurance company for the hurt person will also release the interviews they conducted of others.

At the very least every person should have the benefit of a briefing of their rights and the applicable facts and laws before an insurance company interview.


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PI Appeals

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    My name is Jeff; an electrician by trade. What I thought to be just another ordinary work day changed in a split second. While working near the top portion of my eight foot ladder, a careless forklift driver backed through my ladder. The impact threw me onto the roof portion of the fork lift, then onto the cement floor dislocating my shoulder. While at the hospital, x-rays showed the seriousness of my injuries. It would take shoulder surgery along with extensive therapy to discover a partial permanent injury to my shoulder, one that would take my career as an electrician away. At fifty-five years old I was permanently injured, scared, frustrated, and out of work. What now? What was I going to do?

    By the grace of God my path crossed with Cynthia Newton an attorney with Swanson, Thomas, Coon & Newton, Attorneys at Law. Cynthia became my voice in a very difficult and vulnerable time in my life. Cynthia’s knowledge of the law along with her calm demeanor helped me and my wife through the frustration and mental fatigue of a lawsuit such as this. The attorneys that helped me with this accident were the reason I was able to win a fair settlement. Chris Frost handled the Worker’s Compensation portion of this lawsuit. Chris has knowledge of law that would impress anyone; her attention to detail while keeping me up to date with any changes made a difference with this case and made both my wife and I feel as comfortable as anyone can feel that is going through something like this. Kristin Kidd and Rosemary Anderson are two of the best paralegals a law office could have. Both helped me with questions and details again giving me peace of mind. Ray Thomas’s legal savvy and presence was an enormous influence with settling this case. My wife and I were very happy with the agreed settlement that we were able to receive. We would have never been able to receive what we did without the help from this fabulous legal team. When a person chooses the law firm of Swanson, Thomas, Coon & Newton they receive a complete team of professionals that are dedicated to their clients. I hope I never need to hire another attorney, but if the need should arise, I will use Swanson, Thomas, Coon & Newton again simply because my belief is that they are the best of the best.
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