Don't Fear Your Future

Bottom-Line-Up-Front: We gather factual information about the accident to build legal claims and protect legal rights. The Long Answer: Welcome back. To recap, we are discussing the theoretical scenario where my little sister Katherine was hit by a drunk driver in Salem, Oregon and I am walking my way through what I would do to help her navigate the legal aspects of this issue. We left off with identifying any and all potentially liable Dram Shop litigants and ensure that they are served with a Dram Shop notice in order to preserve any claims. 6. Let the Dust Settle and Gather What We Can The next thing I would expect to happen at this point is a little bit of dust settling. I will have the chance to really dive quite a bit more deeply into the facts of the case and the damages to Katherine. In doing this I would have a long conversation with Katherine about her physical condition and her memory of what happened. Simultaneously I would send an investigator to grab and footage we were able to identify that may have captured the crash. Notably, it is difficult to get this information as a civil attorney without a subpoena; but it is pretty early in the process to file a case so that we have the subpoena power. Thus, it is useful to allow the police to do their jobs in building out the criminal case. If we can identify a source of footage of the crash the police have the authority to seize that evidence or get a warrant for the seizure of that evidence because typically the criminal case moves faster than any civil case. 7. Leverage the Criminal Process The criminal process is not instantaneous, even though it is relatively quick. If the police did not hold the drunk driver in custody, but instead gave the person a citation with a court date that would likely be 30 days after the crash, depending on the court system the person was cited into. That first court date is simply an arraignment and while there is some opportunity to speak it is unlikely that prior to that arraignment actually happening that the prosecutor would be willing and able to produce criminal discovery to the drunk driver and to my office. That said, initial disclosure of discovery in criminal cases typically happens within days of the arraignment and many prosecutors offices complete this electronically which saves a little bit of time. The first set of discovery though likely will only include BAC (blood alcohol concentration) information (and other documents from the implied consent process) and police reports from the primary officers. Sometimes this includes dash cam or body cam footage; but regularly that information comes in a second tranche of information months or weeks down the road. Nevertheless, the police reports are a good source of information regarding other witnesses we may not have captured as well as a narrative from the drunk driver’s perspective about what happened. Further, it will almost certainly have additional information regarding what happened with the drunk driver after Katherine left the scene. I would scrutinize the narrative and cross reference it with knowledge of the area as well as google maps to be as comprehensive as possible in identifying potentially liable Dram Shop litigants. Most civil personal injury attorneys do not touch the criminal side of the case at all, and they miss out on all this information. At Hunking Law, our attorneys are knowledgeable about every component of a DUI case, including the criminal side and are able to leverage this knowledge to the benefit of our clients. 8. Treat Injuries to Reach Maximum Medical Improvement While this is going on Katherine is likely also treating for her injuries. This is an interesting time in a civil case because honestly the best thing to do in this time period is typically to allow the medical professionals to do their job and allow Katherine to heal from any injuries. This is true because in evaluating compensatory damages (economic and non-economic damages as defined in ORS 31.705 ) we are trying to put the person back to where they would have been if the crash had never happened. If the person is in the process of healing it is premature to determine what is required to get them back to where they were pre-crash. For example, if someone has a lingering shoulder issue post-crash it is possible that it heals in 3 months; or it may heal in 6 months; or it may require a surgery to heal; or potentially it never heals fully at all and the person simply has a lingering permanent injury in their shoulder. The goal is for the person to reach Maximum Medical Improvement, a point at which they are fully healed or have recovered as much as possible and are not expected to improve further. Until the dust fully settles on healing or getting to Maximum Medical Improvement you simply do not know the full scope of compensatory damages in a case. This doesn’t mean that nothing is happening though. We can still pull medical records. We will almost certainly get Explanations of Benefits (“EOB”) which are sent by the PIP (personal injury protection) carrier regarding what they paid, how much they paid and how much was denied. As those records come in (we get dozens of them every day in the mail for various clients) we sort and organize them into the file which helps us get to a comprehensive view of the case though ultimately EOBs are almost always insufficient on their own to give us a good idea of the scope of injuries. Until Next Time With that, it looks like I am going to need to get to at least a part 3 because as it sits we have just gathered and begun analyzing information. More to come! Need an Attorney? If you or someone you know was in a crash in Oregon caused by a driver who was under the influence of intoxicants or otherwise negligent, call 541-HUNKING (541-486-5464) or fill out our contact form to schedule a free consultation with one of our attorneys. We are here to help.

Bottom-Line-Up-Front: We gather factual information about the accident to build legal claims and protect legal rights. The Long Answer: Many times, as an attorney I am asked “Is it legal?” and the difficulty with answering that question is that because there is so much missing essential information, I am unable to answer beyond “It depends”. So the real answer to this question is it depends on what step in the process the person reaches out to a personal injury attorney. Stated another way, what I actually do changes depending on what has already been done and what remains to be done. Thus, in order to get the right information out there, I am going to use a hypothetical scenario where my little sister “Katherine” calls me as soon as a DUII crash happens. To set the scene; just after 5 pm on a Friday I get a call from Katherine who tells me that she was just rear-ended by a drunk driver near Salem, Oregon. 1. Safety First First, I would make sure she is physically ok and in a safe place. Just because something bad has happened doesn’t mean it cannot get worse and ensuring physical safety (like getting out of the road; stopping any bleeding) is secure is the priority. Next, I would want to know if the police have been called. If not I would call emergency dispatch (911) and let them know that there is an injury crash at the location provided by Katherine and that the driver of the other vehicle appears drunk. I would do that via a 3-way call so that both me and Katherine could talk with dispatch. Notably, I would be aware that because 911 calls are recorded in Oregon, that whatever we said to the 911 operator would likely be evidence in a future court hearing. 2. Document the Crash Next, once I was sure that physical safety was secure and that police were on the way I would advise Katherine to start taking pictures or video if she was physically able. I would be looking for pictures of the scene, the vehicles, as well as any physical injuries. Next, I would begin the process of capturing as much contact information as I could. Certainly, we would need the information of the drunk driver, but additionally we would be looking for the contact information of any other witness to the crash or its aftermath including passengers in Katherine’s vehicle or other people standing or driving by. Further, we would want to be sure to get the name, badge number and agency of any police officer on scene as well as any paramedics or other ambulance or fire personnel. Additionally, I would want the contact information and company name of the tow truck driver of any vehicle that was towed from the scene. Further, I would make note of any potential video cameras that may have captured the event to include: (1) personal dash camera, (2) built in cameras like Tesla has, (3) surveillance footage from local residents or local businesses (I have had decent luck over the years getting surveillance footage from OLCC (Oregon Liquor and Cannabis Commission) licensed outlets). I would not necessarily go and get that footage before getting Katherine and others on the scene necessary medical care; but I would be keenly focused on what potential camera footage is available so that it can be tracked down quickly. For example, if we know that there is a bar nearby that might have a camera pointed at the location of the incident then I can go and get the information in a few hours (or possibly the next day); but getting necessary medical care needs to happen much faster than that. Next, I would want Katherine to get to the ER (by ambulance if it is necessary, but if not by ambulance at least get there somehow if it is medically warranted). 3. File Claims Once all of these things are done I would begin to take a breath and start to be more focused on deliberate processing and less focused on reacting to the situation that thrust itself upon Katherine. That requires beginning to make contact with all the relevant parties. For example, we would need to open a claim with first party auto insurance (Katherine’s auto insurance carrier). Then we would need to open a claim with third party auto insurance (the at fault driver’s insurance carrier) as well as any other insurance carrier we are made aware of. 4. Leverage the Criminal Case Next, assuming a criminal case is filed, we would need to get copies of any citations that were issued and in particular we would want to know the date and time of the first court appearance and to make contact with the prosecuting attorney. We would send a discovery request under ORS 135.857 so that we could get from the prosecuting attorney all information made available to the drunk driver via the criminal discovery process. I would then work with Katherine to determine if she wanted to make a statement at arraignment (the first court appearance for the at fault driver in the criminal case) and if so, if she wanted to deliver that herself or if she wanted me or the prosecuting attorney to deliver that statement. 5. Look for Potential Dram Shop Parties Very quickly in this time period, I would be looking for all potentially liable Dram Shop parties. So, I would be looking for any bar that might have served the drunk driver while they were visibly intoxicated. Under ORS 471.565 we would need to at least get notice of the claim out to potentially liable OLCC outlets such that they have the chance to gather and preserve any evidence they may have about what happened inside the OLCC outlet prior to the person driving away and crashing. More to Come! Because this blog is on the long end I will call this part one and continue this in the future in what will likely become a few more parts. Continue to Part 2! Need an Attorney? If you or someone you know was in a crash in Oregon caused by an intoxicated or otherwise negligent driver, call 541-HUNKING to schedule a free consultation with one of our attorneys. We are here to help.