Fault Lines

Let’s say you’ve been injured because of a broken sidewalk or a reckless driver or even a family doctor: What are the chances you can sue and recover money? 

If you listen to the culture at large, getting a settlement is as easy as spilling a cup of hot coffee in your lap. 

If you listen to personal injury-plaintiff attorneys, it’s not so simple.

“I turn down 90 percent of calls,” says Jan Baisch, a personal injury attorney with Plaintiffs Trial Lawyers in Portland, then he ticks off some of the reasons. “It’s been too long since the accident happened, there were no witnesses, there’s no liability, the injury’s not significant enough to go to court. You can go on and on.”

“Out of the vast number of wrongs that we do to each other as humans, there’s only a few that [lawyers] can do something about,” says Kate Stebbins, a former prosecutor who runs an eponymous personal injury firm in Gladstone. “Sometimes you just have to have a hard conversation: ‘Yep, you’re absolutely right. What you’re saying is the truth. And I still can’t do anything for you. I’m not going to take your case when I cannot improve your position.’”

Baisch breaks it down to two aspects: fault and damages. “You have to prove fault,” he says, “before you can get damages.” 

And how do you prove fault? The term that Tim Jones, a PI attorney with Jones Ammann in Portland, keeps returning to is reasonable care.

“We start from a basic idea that the law requires that everybody use reasonable care to avoid harming others,” he says. “We want to look at the reasonable care standard and we also want to look at the conduct [of the defendant]. Was it reckless conduct? It’s the difference between a driver who runs through a stop sign and a drunk driver who runs through a stop sign. One is an example of the reckless disregard for the safety of other people. 

“We also look and see if there’s intentional wrongdoing,” Jones adds. “And that goes for private individuals or corporate entities. That basic notion comes out of common law. Negligence is the term for failing to exercise reasonable care.”

Stebbins adds that even if fault can be proven, there’s the practical matter of payment. “If someone who is uninsured and does not have a dollar to their name causes you harm, are you going to take the time, money, expense and grief to try to go after him?” she asks. “If you’re not going to recover damages and I’m not going to get paid, it doesn’t help either of us to drive us through the muck.

“Being a plaintiff is not fun,” she adds. She says she often withdraws from a case when the plaintiff stops following through on the necessary steps in the process. She wants a good partner.

Finally, you have to keep in mind where you live. The state of Oregon limits all non-economic damages to $500,000. “No matter how much pain, no matter how much suffering, no matter how much of a lifestyle change that’s caused that person, nobody gets more than $500,000,” says Baisch. “We’re fighting right now to throw that out and let the juries decide how much to get.”

That said, Jones feels that if someone is convinced that wrongdoing was caused by the carelessness of another, it’s still worth discussing with an attorney. “What drew me to the profession was the ability to help people who need help under desperate situations … to achieve some justice for my clients. It’s an amazing feeling when you can do it.”