Oregon Wrongful Death Guide

Download Oregon Wrongful Death Guide

Post on 17-Oct-2014




3 download

Embed Size (px)




<p>Microsoft Word - WD Report Lena's Edits.docx</p> <p>Oregon Wrongful Death Laws</p> <p>A Family Guide to the Civil Justice System After the Death of a Loved One</p> <p>By Joshua Shulman and Sean DuBois, Attorneys at Law </p> <p>Shulman DuBois LLC PDXinjurylaw.com </p> <p> 1 </p> <p> Oregon Wrongful Death Laws Introduction Chapter 1: What is a Wrongful Death? . Page 2 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 </p> <p>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. Whats 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. </p> <p>Shulman DuBois LLC PDXinjurylaw.com </p> <p> 2 </p> <p>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 hadnt run the red light, if only that truck driver hadnt 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 elses 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 lawyers 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 youre ready. The legal term for fatal accident claims is wrongful death. Its a curious term because, as far as we know, theres no such thing as a rightful death. But we need some way to distinguish a death that was nobodys fault from a death that was caused by another persons 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 elses 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 someones 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 dont unwittingly jeopardize your case by waiting too long. </p> <p>Shulman DuBois LLC PDXinjurylaw.com </p> <p> 3 </p> <p>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: </p> <p> Auto Collisions Workplace Accidents Airplane/Boating Accidents Medical Malpractice Dangerous or Faulty Products </p> <p> 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 its quite possible the person being sued may end up in prison if criminal charges are brought as well, the cases are separate. </p> <p>Shulman DuBois LLC PDXinjurylaw.com </p> <p> 4 </p> <p>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. Dont 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 decedents child. If that child is a minor (and therefore cannot be P.R.), than preference </p> <p>Shulman DuBois LLC PDXinjurylaw.com </p> <p> 5 </p> <p>will be given to that childs 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 wont 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 judges 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: </p> <p> 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 </p> <p>Shulman DuBois LLC PDXinjurylaw.com </p> <p> 6 </p> <p>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: </p> <p> 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 dont, 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 h...</p>