Hiring a Lawyer After Injury or Death in Oregon
by Peter Glazer, Portland-area attorney and 14-year Chair of the Governor’s Advisory Committee on DUII under four governors.
(Edited and updated from a 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, it can be very important for your attorney if you allow him 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.
- Is the lawyer experienced in personal injury and 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.
- Is the lawyer willing, from the beginning of the case, to advise you regarding 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 the defendant, deterring others from committing this kind of crime, and hopefully 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. Your 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 help them to prepare and participate in the criminal hearings.
- 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 taking a case to trial when the other side’s settlement offer is inadequate.
- Does the lawyer or his firm defend drunk drivers?
You may feel that it is important to know whether or not the lawyer or others in the law firm you are hiring also defend drunk drivers. Some lawyers seek to represent DUII crash victims but also defend drunk driving cases. Other lawyers and law firms, like mine, have policies against representing drunk drivers at all.
- 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.
- Can the lawyer give you examples of how he or she has settled some previous DUII crash cases?
Over my career I’ve settled millions of dollars of personal injury and wrongful death cases, many the result of DUII crashes.
- 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 jury verdict. 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 among lawyers. They commonly 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, 33.3% 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 the contingent fee percentage is not necessarily an indicator of any attorney’s skills. An attorney charging the lowest percentage may not be the best bargain. Paying a lawyer 33.3% 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.
- What about litigation costs?
In Oregon, all lawyers are required by law to handle litigation costs in the same manner. Such items as filing fees, court reporter deposition expenses, doctors’ fees for writing reports and appearing at trial, and trial fees charged by the court are traditionally the responsibility of the client, although there are now some exceptions allowed.
Some attorneys pay all litigation costs in advance, particularly when the client does not have the resources to pay all of the litigation expenses as they are incurred (we usually do this). Lawyers are then repaid these expenses out of settlement proceeds. The net effect is that the lawyer has acted much like a bank. Some lawyers ask the client to pay all expenses as the case moves forward (I do not do this). And reportedly some lawyers charge interest or other fees for advancing costs (I have never done this). 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 whose office is 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 until he stepped down 17 years later; for 14 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 website.