oregon wrongful death guide

Oregon Wrongful Death Laws

A Family Guide to the Civil Justice System After the Death of a Loved One

By Joshua Shulman and Sean DuBois, Attorneys at Law

Shulman DuBois LLC PDXinjurylaw.com

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Oregon Wrongful Death Laws Introduction

Chapter 1: What is a “Wrongful Death”? …. Chapter 2: Who Can Bring a Wrongful Death Claim? ….Page 3 Chapter 3: What Should I Do First to Protect My Rights? ….Page 5 Chapter 4: How Long Do I Have to File a Wrongful Death Claim? ….Page 8 Chapter 5: What Losses Can I Receive Compensation For? ….Page 10 Chapter 6: What is the Value of My Wrongful Death Claim? ….Page 12 Chapter 7: Who are the Beneficiaries in a Wrongful Death Case? ….Page 14 Chapter 8: How Do I Hire a Wrongful Death Attorney? ….Page 15

Conclusion

Legal Disclaimer

We are putting this up front because it is so important that you understand what this white paper can and cannot do for you and your claim.

This report is not legal advice. We are not your lawyers.

“Legal advice” means advice that is given specifically to you, tailored to your situation, taking into account unique details of your particular claim. Every case is different. This report will give you useful information, but it is general information. There is no way we can give you legal advice without knowing the details of your case.

If you want legal advice, or if you want to create an attorney-‐client relationship, you must contact a lawyer and form a direct relationship with that lawyer. This is almost always done by signing a contract with that lawyer, in which you agree to hire the lawyer, and the lawyer agrees to represent you. Usually for this sort of case, no payment is required.

You cannot create an attorney-‐client relationship by reading a report. If, after reading this paper, and doing all of your research, you decide to hire a lawyer, you can call a personal injury law office to make an appointment and sign an agreement, after which you will have an attorney-‐client relationship.

What’s more, this paper is incomplete, as any such report would have to be. We have done our best to include the common information that most people will need, but every case has a twist or a turn that is unique and unusual, and there will be crucial information that is not included. There always is. This is meant to be a guide to help you with general information. But crucial items will be missing, and so please do not take this to be a complete guide to your case. It simply cannot be that.

Finally, though we have done our best to make sure that all laws contained here are up-‐to-‐date, laws change often. Before counting on any law cited in this report, check it yourself or get a lawyer to check it for you. Oregon laws are available at www.leg.state.or.us/ors/home.html.


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Introduction

Nothing is worse than a loved one dying unnecessarily. When death comes in the natural order of things, of old age, it still causes feelings of loss and grief. But when a death was the result of someone being careless – when a loved one would still be alive if only that person hadn’t run the red light, if only that truck driver hadn’t driven 15 straight hours and fallen asleep at the wheel, if only that company had performed the proper safety inspection – then the loss can become clouded with a host of other issues, questions, and doubts.

If you are reading this because a loved one has died through someone else’s fault, we wrote this for you. We consider it our duty to inform you of your legal rights. We know that in the wake of this loss, emotions run deep, and the last thing people want to do is call a lawyer, make an appointment, drive to the lawyer’s office, etc. We hope that by putting this important information into written form, we can pass the information on in a way that will allow you to read it in your own time, at your own pace, without having to make an appointment, drive to an office, or talk to anyone before you’re ready.

The legal term for fatal accident claims is “wrongful death.” It’s a curious term because, as far as we know, there’s no such thing as a “rightful death.” But we need some way to distinguish a death that was nobody’s fault from a death that was caused by another person’s carelessness, recklessness, or intentional act. So we use the term “wrongful death” to describe the civil cases that can be brought when a death was, from a legal perspective, someone else’s fault.

The personal devastation in the wake of such a tragedy is so profound that legal counsel can seem completely beside the point. But as lawyers, we know that when a death is caused by someone’s carelessness, there are legal steps that should be taken before it is too late to file a claim – so if you are even considering a wrongful death suit, read this report to make sure you don’t unwittingly jeopardize your case by waiting too long.


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Chapter 1: What is a Wrongful Death? Wrongful death is when a negligent, reckless, or intentional act by a person or company causes the death of another. Murder would certainly qualify, but so would a car crash, even if the bad driver who caused the death did not mean to hurt anyone, but was merely careless. Common Circumstances of Wrongful Death Include:

• Auto Collisions • Workplace Accidents • Airplane/Boating Accidents • Medical Malpractice • Dangerous or Faulty Products

One premise behind a wrongful death lawsuit is that, as well as killing a person, the family members who have been left behind have also been injured – emotionally, psychologically, and sometimes financially. The Oregon law that allows family members to make a wrongful death claim against the negligent people or companies that caused the death is Oregon Revised Statutes (abbreviated “ORS”) 30.010-‐30.100. Wrongful death claims are complicated, but the point of this report is to help you learn enough about the process to decide whether pursuing a case is in the best interest of you and your family, and if so, to help you understand the steps. Because it is complicated, many questions arise in a wrongful death case. The most basic thing to understand is that a wrongful death claim is a civil lawsuit -‐ as opposed to a murder case, which is a criminal lawsuit. A criminal case is separate and independent from a civil case. Some deaths result in only a criminal case (murder or manslaughter), but no civil case. Others may result in a civil case but no criminal case. Still others may result in both. For example, in the famous O.J. Simpson case, a criminal case was brought, and then afterwards a civil case was brought. Simpson was found not guilty in the murder trial, but was held liable in the civil, wrongful death case. One of the reasons this was possible is because a criminal murder charge must be proven “beyond a reasonable doubt,” whereas a wrongful death action only needs to show by a “preponderance of the evidence” that it is “more likely than not” that the defendant caused the death -‐ either intentionally, recklessly, or simply by being careless or negligent. Wrongful death claims are easier to prove in a court of law because they do not seek to put someone behind bars; they only seek money. Though it’s quite possible the person being sued may end up in prison if criminal charges are brought as well, the cases are separate.


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Chapter 2: Who Can Bring a Wrongful Death Claim? When a person dies, and leaves behind anything that is worth money, the law creates an “estate.” If John Doe dies, then it will be called “The Estate of John Doe.” For example, you may sometimes see “Estate Sales,” where the possessions of someone who has passed away are being sold. What has happened, legally, is that the person died, an “estate” was created, the “estate” now owns all of the stuff, and the person in charge of the estate decided to sell the items.

An estate is a purely legal creation. Don’t think of it as something real; think of it as just a word that the law uses to describe everything the deceased has left behind. Specifically, ORS Chapter 113 explains Oregon Estate Law in detail. “Estate” simply means everything of monetary value that belonged to the person. If a person was wronged in a way that could give rise to a lawsuit, then that lawsuit has value, and so it belongs to the “estate.”

Because the person who was wronged is no longer alive, that person cannot bring a lawsuit. Their Estate, however, is legally allowed to collect any money that is owed to the person who has passed away, including money that may be “owed” due to a wrongful death lawsuit. A person who represents the estate may bring the lawsuit. The person who represents the Estate is called the personal representative of the estate. “Personal representative” is often abbreviated as “P.R.”

How the Personal Representative is Chosen

The personal representative has to be approved by a judge. Usually, all of the beneficiaries will agree upon one of them to be the personal representative. There is a specific order that the law states (ORS 113.085) is the preferred way to choose a P.R.

Here is the order:

1. Executor named in a will 2. Spouse or nominee of the spouse 3. Next of kin or nominee of next of kin

In reality, the surviving family members often agree on who would be the best P.R., ideally with the advice of their lawyers. And if they all agree, the judge will usually accept that person and appoint him or her as the personal representative. The best P.R. for the family will be the person who has the time, attention, and ability to work with the wrongful death attorney throughout the case. This person should also be trusted by all the beneficiaries to make decisions that will be good for everyone.

If the beneficiaries cannot agree, then they can all make their arguments to the judge about who each of them thinks should be the personal representative, and then the judge will make a decision. In that case, the order given in ORS 113.085 will matter a lot, but it is not the only consideration; it just states a preference. If there is no spouse, and the judge is deciding which “next of kin” would be best, preference is usually (but not always) given to the decedent’s child. If that child is a minor (and therefore cannot be P.R.), than preference


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will be given to that child’s parent or guardian. Alternatively, one person can simply petition the court to be appointed P.R., and then wait for anyone who disagrees to make their objections to the court. Normally, the other potential/aspiring personal representatives have four months to file a formal objection with the court. This is the most contentious way, as it would require that official notice be given to other possible P.R. candidates, and should be avoided if possible. But if there is one person who objects and won’t discuss it outside of court, it can sometimes be the only way to proceed.

Role of the Personal Representative

The personal representative is the person who is in charge of the sorts of decision-‐making that a client does in a lawsuit. The most important decision is whether to accept a settlement offer. That decision must be approved by a judge, but approval is usually given, so this is a very important power.

The personal representative is also responsible for much of the paperwork that goes along with a lawsuit. If a family member who has been left behind by the death is too grief-‐stricken to be an efficient administrator, it may make sense to hire a professional to take over the administrative tasks as much as possible.

The personal representative is required by law to act “reasonably for the benefit of interested persons.” So legally, if an interested person believes that a personal representative is not doing this, they can bring this to the judge’s attention. Practically speaking, however, a personal representative has a lot of leeway. The term “reasonable” does not stretch forever, but it does stretch pretty far. There are a wide variety of actions a person can take and still be “reasonable.”

If you do end up being the personal representative, your duties would include:

• Choosing a lawyer • Meeting with the lawyer • Discussing both the life and the death of your loved one with your lawyer • Sometimes being involved (to your level of comfort) in strategic discussions with

your lawyer • Probably having your deposition (statement) taken • Responding to requests for production by the opposing attorney • Discussing settlement amounts with your lawyer • Making the final decision of whether or not to accept a settlement offer • Possibly going to trial


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Chapter 3: What Should I Do First to Protect My Rights? The good news is that, for most of the legal issues surrounding a wrongful death, there is no rush. While there are time limits for filing a case, called “statutes of limitations,” in most cases you will have time to grieve before worrying about losing your right to file.

Unfortunately, there are several exceptions. Here are the most common ones:

• Alcohol was involved • One of the defendants (at-‐fault parties) may be a city, county, or state agency or

employee • A faulty or unreasonably dangerous product was involved

Now, this is a point at which we have to remind you again of a disclaimer that applies to this report. Every case is different. It is possible that your case is not one of the common ones, and that there is some sort of rush beyond this. But for most cases, if one of the above does not apply, the only rush will be to secure evidence, and other than that you can take your time. Note also that “take your time” does not mean procrastinate for a really long time. It means you can feel secure in taking two or three months to consider your options.

Immediately after the death of a loved one, you are likely in no condition to be talking with lawyers, thinking about legalities, or, certainly, securing evidence. But we can promise you, the insurance company and lawyers for the person or company responsible for the death will not hesitate. They will rush out and gather whatever evidence they can as soon as they can. Will they destroy evidence? Probably not – it is illegal and carries real penalties, though it does happen occasionally. But even assuming they don’t, it can still be very important for any possible lawsuit that may happen in the future that you gather evidence before it is destroyed, altered, or lost, whether on purpose, by accident, or even just by the passage of time.

For example, in a car crash, all vehicles involved should be preserved exactly as they are, taken to a safe and dry place, and kept there until engineering experts can examine them. Skid marks should be photographed, measured, and recorded. Witnesses should be interviewed quickly, before they forget what happened.

So that’s the bad news: there is this one item that you should rush on. But we can temper it with some good news: Any wrongful death lawyer worth his or her salt will do an investigation for you, and usually at no charge. Most lawyers are willing to pay out of their own pocket for an investigation intended to determine whether there is a viable case. If it turns out that there is not a good case, most lawyers will simply absorb that investigation cost; it’s just a cost of doing business for most of us.

This brings us to an important question that you should ask any lawyer you are considering hiring: “If I later decide to go with another lawyer, are you going to charge me, or refuse to turn over my file, or charge me to turn over my file?” This is a particularly important question if you are still raw from your loss, and are hiring a lawyer very quickly to get that investigation done and preserve the evidence.


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Remember, even if you have not officially been appointed as the Personal Representative for the estate, you can still hire an attorney to begin the investigation. You do NOT need to wait until you have been appointed P.R., and in fact, there are a couple of reasons why you should NOT wait.

First, a lawyer is usually necessary to get someone appointed as P.R., so you cannot become P.R. until after you've hired a lawyer. Second, if there is any dispute over who will serve as P.R., evidence could be lost while you are waiting. And there really is no downside, because if you are appointed as P.R. you can use the results of the investigation, and if you are not appointed P.R., you can turn over the results to the chosen P.R. and their attorney.


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Chapter 4: How Long Do I Have to File a Wrongful Death Claim? In addition to the practical time limit of trying to gather information while it’s fresh, there are also legal time limits. These legal time limits are called statutes of limitations and you will hear this term a lot.

First, another statement of our disclaimer: statutes of limitations are notoriously difficult. There are many, many special limitations. Every interest group that exists seems to want to lobby the legislature for special statutes of limitations for their own special issue. So this information is general. It may not apply to your case. Many lawyers refuse to give this general information, fearing that if it’s wrong, they’ll get sued. We believe it’s better to give some information rather than none. But we can’t possibly give you all the information, because there’s just too much of it.

What we’re writing here will apply to 90% of cases. But that won’t help you if you’re in the other 10%. It’s general information only; you cannot count on it applying to your case. And finally, if the incident that caused the death happened outside of Oregon, then Oregon law probably won’t apply, because every state is different and this report was written specifically for Oregon cases.

The statute of limitations for a wrongful death case in Oregon is three years from the date of the incident that ultimately ended up causing death (ORS 30.020). Note that if a person is hospitalized for a time before dying, the statute of limitations begins on the date of the injury, not on the date of death.

If the injury was not discovered until later – and if that delay in discovery was “reasonable,” – then the clock starts when the injury “was or reasonably should have been discovered.” For example, if someone has a surgery that appeared to go well, but in fact caused internal injuries that were not discovered until six months later, and if that six month delay in discovering the injuries was “reasonable,” then the clock does not begin ticking until the injury is discovered. Or “reasonably should have been discovered.” What does “reasonably” mean here? Nobody knows. It’s different for every circumstance because people may disagree about what is reasonable. Ultimately, a judge or jury, or even the Supreme Court, may have to decide whether a certain delay was “reasonable.”

If Death Was Caused by a Public Agency or Employee If the death was caused by a public entity, or someone working for a public entity, then a “Tort Claim Notice” has to be received by the proper person or department within one year of the incident that caused the death (If it’s an injury that does not cause death, the time limit is only 180 days). The “tort claim notice” is basically the official notice to a public body that someone believes they have grounds for a lawsuit. This is not the lawsuit itself, which will later need to be proved, but just the first step in the process – and if this step is not taken properly, and within the time limit, then any lawsuit will later be thrown out. Tort claim notices can be tricky; it would not be good to wait until the last minute to send


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one, as it has to be actually received by the deadline, and it has to go to the correct person or entity. ORS 30.275 describes exactly what must be in the tort claim notice, and whom it must be mailed to. If you are suing a private business or individual, a tort claim notice is not necessary – but do not assume you don’t need one. If one is required and it is not received in time, you will forfeit your right to sue that public entity.

Note that the Tort Claim Notice must be received within the year. Not sent, not postmarked; but actually received. And again, the clock starts ticking on the day of the injury that ultimately caused the death; not on the day of death.

The details on how to send a Tort Claim Notice, what it must include, and who to send it to, are in ORS 30.275. Because all of these laws work together to make it difficult to sue public bodies, however, all of ORS 30.260 to ORS 30.300 should be read and understood.

If Alcohol Was a Factor in the Death If alcohol was involved in a death, and if the server of the alcohol was partly responsible for the death because they served an already visibly intoxicated person, or served a minor, or failed to perform their server duties correctly in other ways (which are defined by the Oregon Liquor Control Commission), you may be able to make a claim against the bar or person who served the alcohol. (Note: “Bar” is a generic term, and the establishment might actually be a restaurant, club, hotel, or even a private person.)

This is a difficult case to bring for many reasons, and generally speaking, the server must clearly have some responsibility for serving alcohol to someone who was already drunk, and who should not have been served even more alcohol. The Oregon Liquor Control Commission has strict guidelines, and professional bartenders are trained to see signs of intoxication – training that is intended to help prevent deaths from alcohol. When a bartender ignores these laws, the bar can sometimes be liable for the resulting death. In a case where a bar or bartender may be responsible, the establishment must be sent a “Dram Shop Notice”, which (like a Tort Claim Notice) is a special letter declaring the grounds to file a lawsuit later.

But a Dram Shop Notice must be delivered to the right person or entity, and there is also a one-‐year time limit to file a Dram Shop Notice. (ORS 471.565 and ORS 471.567). This is similar to the Tort Claim Notice that is required for public bodies. Just as with the Tort Claim Notice, it must be received within the year. Not sent, not postmarked –actually received.


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Chapter 5: What Losses Can I Receive Compensation For? You will hear a lot of people talking about “damages” during a wrongful death case. “Damages” can refer to the amount of money you have lost and the suffering you have undergone as a result of the loss of your loved one, but “damages” also refers to the amount you ultimately settle for, or the amount a jury decides is the proper compensation for your losses. So the word “damages” refers to both your losses, and the money meant to compensate for those losses. In a wrongful death case, damages are available only pursuant to ORS 30.020, so the damages are specified precisely in the statute. They are:

• Charges for medical services; • Charges for burial and memorial services; • Compensation that the decedent would have been entitled to for disability, pain,

suffering and loss of income during the period between injury to the decedent and the decedent’s death;

• Compensation for “pecuniary loss” to the decedent’s estate; • Compensation for the loss of the decedent’s “society, companionship and services”

to the decedent’s spouse, children, stepchildren, stepparents, and parents; • Punitive damages that the decedent would have been entitled to had he/she lived.

Some notes about this list: Several of these terms are not clearly defined in Oregon law. Two of the big ones are “pecuniary loss” and “society, companionship and services.”

“Pecuniary loss” certainly includes all the money that a person would have earned during his or her lifetime, minus the money that would have been spent on his self or her self. “Pecuniary” simply means related to money. Figuring out that number requires hiring an economist who specializes in this type of calculation. The economist will look at the person’s education, history, tax returns, and so forth, and will determine that the person would have made a certain amount of money over the course of a normal lifetime. You do not need to worry about hiring experts like economists – these tasks will be taken care of by the law firm you hire to represent the estate.

Economic and Non-Economic Damages In personal injury cases, there are two basic forms of “damages” a client may recover: economic and non-‐economic damages. Some lawyers will refer to them as "general" and "special" damages, but the correct terms are economic and non-‐economic damages. While most wrongful death damages are determined by law using the criteria defined earlier (see the ORS 30.020 damages described above), these two types of damages must be understood as well. “Economic damages” is the compensation you can receive in place of any money you have lost due to the death of your loved one. Non-‐economic damages are more abstract, and are


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often referred to as "pain and suffering."

ORS 31.710 limits the amount that may be awarded for non-‐economic damages in any injury or death case in Oregon. The Oregon Supreme Court has found this law to be unconstitutional as it applies to injury cases, but has upheld it when applied to wrongful death cases. The absurd result of this is that non-‐economic damages are limited to $500,000 in a wrongful death case, even though there is no limit in an injury case that did not result in death.

“Non-‐economic” damages are subjective, nonmonetary losses, such as the pain and suffering endured after the injury but before death, the loss of care, comfort, and companionship, and so on. This $500,000 limit is one reason why your lawyer may recommend bringing the case in another state or under Federal law (instead of state law) – the change of venue may allow for a higher award. However, in most deaths that occurred in Oregon, neither of these will be possible, so the $500,000 limit on non-‐economic damages often applies. Punitive Damages

Punitive damages are difficult to prove. You are not allowed to even ask for them until after you show a judge that you have good reason to. Then you have to prove it at a very high level of proof called “clear and convincing” proof. And even if you win and the jury awards punitive damages, the insurance company will often appeal the punitive damages, and the U.S. Supreme Court has gotten more and more hostile to high punitive damages awards, so if the award is quite high, it will often be reduced on appeal.

As if that weren’t bad enough, in Oregon the State takes 70% of any punitive damages award. Your lawyer will then take 20% as a fee (less than the normal fee of 33% to 40%), leaving the beneficiaries with only 10%. That 10% is then taxable, so the final amount in the pocket of the beneficiary may be as little as 5% and will never be more than 10%.


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Chapter 6: What is the Value of My Wrongful Death Claim? What is a life worth? What is the value, in dollars, of the loss of a father, a wife, a grandparent, or a child? There is of course no answer to this question. The value of a life is not measured in dollars. But even though this is true – and obviously true at that – the law cannot accept this answer. Why? Because if we accept that the legal value of a life is not measurable in dollars, then the practical outcome becomes that the dollar value of the loss of that life is valued at $0.00. And even though a life should not be measured in dollars, we do know one thing for sure: it’s not worth zero. So what do we do? How can we put a dollar value on the lost life? If we accept that valuing the life in dollars, and then forcing that amount to be paid, is some justice (not full justice, of course, but some justice, and a whole lot better than zero justice) if we accept that, we still have to figure out what that dollar figure is. We know that the calculations we use to figure out the value will have to be flexible, because a lot of things can be included in an award that “justly, fairly, and reasonably” compensates family members for their loss. There is not going to be a mathematical formula, but there are several traits that can help us begin to form the basis for an evaluation. If you go back and look at the last chapter, and fill in the reality of your loved one’s life for each of these bullet points that the law says are used to determine the compensation, you will have a start. But there is still no clear guidance for what those figures should be. It will also matter what kind of a person the decedent was:

• How s/he treated people • What his/her relationships with others were like • Whether s/he donated to charity • Was s/he a good parent • Etc., etc., etc.

Some people think that sort of thing shouldn’t matter, because a life simply has intrinsic value, but that’s not how the law has developed. The law has developed such that a person’s relationships and character matter a lot when it comes to the value of a claim. Here’s the way that our society figures out what a life is worth: we carefully choose twelve people to sit on a jury, and have them listen to many witnesses tell stories of the deceased’s life. Then those twelve deliberate until they’ve decided how much that life was worth. This is a system designed to be fair to all parties involved, and although the personalities of the twelve, individually and as a group, make predicting any specific outcome difficult, this system actually has a lot of merit. Because each trial will have a different jury, it is impossible to say with any absolutes how much a personal injury claim will be “worth.” It’s important to know, however, that something like 99% of cases never go to a jury trial. We, as lawyers, decide how much these cases are “worth” by trying to figure out what a


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jury would say. We look at other similar cases in the past, see what juries awarded in those, and make our best estimate based on every detail we know about the situation, the medical records, any laws that apply, the personalities and histories of the people involved, the evidence regarding whose fault the accident was, the policy limits, and so forth. In fact, so very many things matter, that it’s really not possible to figure out what a case is worth until an extensive investigation has been done. But of course, there are guidelines. Here’s one: the case is probably worth less than you think, but more than the insurance adjuster is willing to pay.

Unfortunately, there is not a more concrete guide. The plain truth is that every case is different, and no lawyer can value a case until they know all of the facts. At that point, good lawyers can use their experience, and the experience of other lawyers they trust and with whom they would discuss the case, to figure out as best they can what they believe the case is worth. In some situations, lawyers will even put together focus groups of unbiased individuals to serve on a mock jury, and use that to help determine what the case might be worth at trial. There is so much that goes into it, and there is never a simple answer. But we hope we have given you a taste of what is involved.


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Chapter 7: Who are the Beneficiaries in a Wrongful Death Case? A wrongful death claim is brought by a personal representative for the benefit of certain "beneficiaries." Exactly who qualifies as a "beneficiary" is defined by the law.

Note that the person who can "bring the lawsuit" is not the same as the people who can "benefit from the lawsuit." The “beneficiaries” are the people who are allowed to receive money from a wrongful death lawsuit after the claim has been brought by the personal representative.

Here's who the law says can be a beneficiary of a wrongful death lawsuit: "spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, and for the benefit of any stepchild or stepparent whether that stepchild or stepparent would be entitled to inherit the personal property of the decedent or not." In most cases, the legalese mouthful at the end of this sentence is irrelevant, and the beneficiaries will be the spouse, children, and parents.

How is the Money Divided Between Beneficiaries?

How is the money shared? If a man dies leaving behind a widow, two children, and his mother, how is any money split? Ideally, this is determined by agreement of all the beneficiaries and the personal representative, and if the decedent left a will, the terms of that can sometimes matter as well. If all the beneficiaries can agree (and if the children are 18 or over – more on this soon), then the split they agree upon will usually work just fine. A judge has to approve the split, but a judge will almost always go along with a split that is agreed upon by everyone with a legal right to the proceeds.

If any of the beneficiaries is under 18 years old, then a judge may appoint a lawyer as a conservator to represent each child in negotiating the apportionment. This is not always necessary; sometimes the minor’s parent can negotiate on behalf of the child, and so long as it is done fairly, the judge will allow it.

If all beneficiaries cannot agree on how to split the proceeds, then each person can argue his or her case to the judge. The standard that the judge will use is that the proceeds should be apportioned “in accordance with the beneficiary’s loss.” What exactly that means is left to the judge’s discretion, which not only can be frustrating, but also destructive, because it leaves the mourning survivors to fight about who was closer to the deceased person, and about who “lost” more when the person died.

To summarize, proceeds will usually be split among the spouse, children, and parents of the decedent. “Children” includes stepchildren, and “parents” includes stepparents. If none of these people are still alive, then it will get complicated. If the person who passed away lived in a state other than Oregon, then that state’s law has to be consulted. If all the beneficiaries can agree on the amounts of the split, then the judge will usually approve the agreed-‐upon split.


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Chapter 8: How Do I Hire a Wrongful Death Attorney? How Much Will It Cost?

Guidelines for finding a good wrongful death attorney:

1. Ask around. Getting a referral from someone you trust can be an excellent place to start when you’re looking for a lawyer.

2. Find an expert. Specialists beat generalists, so you probably want a lawyer who specifically focuses on personal injury and wrongful death.

3. Meet with all potential lawyers. Don’t sign anything until you’ve met and discussed your case with several possible attorneys. A good attorney is someone you will trust and feel comfortable with.

4. Take a look at the Client Bill of Rights. Many attorneys will have this written down in some form or other. Those who don’t should be able to tell you verbally.

5. Make sure your lawyer is willing to go to trial if you do not get a reasonable offer. Of course, the lawyer and the deceased’s family may not always see eye-‐to-‐eye on what constitutes a good offer, but if the offer is objectively unreasonable, your lawyer must be willing to go to trial.

6. Have your attorney explain all fees and costs up front. You don’t want any surprises, especially unexpected fees.

7. Look for a lawyer who is a member of the Oregon Trial Lawyers Association (OTLA) and the American Association of Justice (AAJ, formerly ATLA). Membership in these organizations shows that your lawyer is proud of what he or she does, cares about justice, and is willing to put money and time towards the cause of justice in Oregon (OTLA) and the entire U.S.A. (AAJ).

8. Find out about a lawyer’s caseload. If the “personal touch” is important to you, ask lawyers about how many cases they handle at a time.

9. Make sure your lawyer is interested in educating you. Some attorneys just want to take your case and never talk to you, but for most people, an attorney who will guide you through each step of the process will be a better choice.

10. Make sure your lawyer has adequate malpractice insurance. Every lawyer in Oregon is required to carry at least $300,000 in malpractice insurance. A careful lawyer who takes wrongful death cases will carry much more than that.

Attorneys and Contingency Fees

To put it in the simplest terms possible, a contingency fee agreement means if the lawyer takes your case and doesn’t win, it costs you nothing in attorneys’ fees. The result must go in your favor, and only then does your lawyer receive a fee. This does not include the costs of the case, only attorneys’ fees, but you can discuss the possible costs with the attorney before hiring him or her. And, in most cases, when the case is successful all the costs will be paid out of the award so that having an attorney will not cost you anything at all out of pocket. The lawyers get paid when you get paid. The contingency fee agreement will stipulate an amount the lawyer is to be paid once your case has been won – usually a percentage of the final award. Your costs will also come out of the settlement if successful, so there should be


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no surprises in terms of payment. In addition, rules are in place which state that lawyers can only charge a “reasonable” fee. Those rules vary from place to place and are based on the “rules of professional conduct,” but in Oregon, any “clearly unreasonably fee” is illegal. Clients have very little to lose with a contingency fee agreement. People who could never normally afford to go forward with legal proceedings can have their day in court without fear of the expense involved. Once a fee agreement has been signed, the attorneys agree to front all costs of the case for the client. This means all expenses will be paid by the law firm, not the client, with the understanding that these expenses will later be reimbursed by the settlement. Wrongful death cases can be especially expensive, and going to trial can costs tens of thousands, so this allows a client to work with an attorney without any upfront payment.


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Conclusion

Thank you for taking the time to educate yourself. You’ve already taken a step to help your family. If you still feel overwhelmed, don’t worry – you are not alone. Many people have successfully navigated wrongful death suits before, and if you decide this is the best route for you and your family, we believe you can do the same. To that end, we are always available if you have questions. Our firm prides itself on educating our clients and the community about Oregon laws, so if you have questions, please do not hesitate to call us at 503-‐222-‐4411 or email us at [email protected]. No charge and no sales pitch, we promise. Or, if you want to know more about Oregon wrongful death laws, our website is www.pdxinjurylaw.com. We wish you and your family all the best, and we hope this report has been helpful as you continue to heal from the death of your loved one.

-‐ Joshua Shulman and Sean DuBois, Attorneys at Law

Portland, Oregon

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