Jury duty in Oregon is really where the rubber meets the road in our representative democracy. Jurors have been keeping the powers of the Western world in check for millennia. It’s the one place where a citizen’s vote can have the most impact on government and on justice – even more so than the “ballot box” (also known in Oregon as “your dining room table.”).
If you end up serving on a jury, 90% of the time you will be hearing criminal case. Civil cases rarely get tried due to the great expense for the parties. Most civil trials are personal injury cases. Occasionally, you may be reporting to jury duty on the day that a new grand jury is being selected.
Criminal Jury Trials in Oregon, USA
Jury duty is perhaps the most sacred of all citizen responsibilities. The government with all its power and resources has accused a fellow citizen of a crime and is attempting to strip him of his liberty. In America, a person is innocent unless proven guilty beyond a reasonable doubt. This keeps the government in check. If the government only proves that it’s more likely than not that a person is guilty but does not convince the jury beyond a reasonable doubt, the only possible verdict is a verdict of not guilty. Perhaps, proof lesser than proof beyond a reasonable doubt might cut it in Afghanistan or communist China. But here in American and the State of Oregon, our jurors are duty bound to hold the prosecution to the highest of standards, and assume that the defendant is innocent.
What do Oregonians do when they have a dispute that cannot be resolved? If you listened to talk radio or the propaganda of the insurance industry, they would have you believe that ordinary citizens shouldn’t have access to the civil justice system. What’s the alternative? Harmful, irresponsible actions would be left unchecked and the injured parties would be left uncompensated.
The jury system is the best of all possible systems. One possible system is that when you are wronged by someone else, you go and take what you think is fair compensation by force. Of course, we live in a civilized society, and the jury system is the fairest way for parties to access justice. Often people ask, “Why should we be giving money for pain or loss of life?” I always remind them that pain or a loss is the worst harm in any civil case. If the jury had a magic wand, we’d ask them to wave it and make the plaintiff whole again. Instead, the only form of compensation that we have is monetary compensation. That’s fair and it’s the law.
Tort “Deform” and Debunking the “Frivolous Lawsuits” Myth
Our civil justice system has been under attack by the insurance industry, corporate lobbyists, and their mouthpieces in recent year erroneously calling it “tort reform.” Do not be fooled into thinking that their puppet organizations have your interests and insurance rates in heart. They are trying to increase profit for their organizations.
Remember the last time we trusted the unregulated insurance industry? AIG started the first wave of corporate bailouts due to their poor investment practices – not because of jury verdicts. For years, the insurance industry has been claiming that lawsuits have been increasing insurance rates. Low and behold it was greedy, failed investment practices left unchecked by government regulators that increased insurance rates from your automobile insurance to your doctor’s malpractice insurance.
The tort deformers make several false claims to anger or enflame the public:
Falsehood #1: Frivolous lawsuits by attorneys are a problem.
The Truth: Attorneys don’t file them and the court rejects them.
Frivolous lawsuits are only a meaningful problem in our state regarding improper DHS juvenile filings and frivolous stalking orders – neither of which result in jury trials. Follow the statistics and not the anecdotes regarding the civil justice system.
Attorneys don’t file frivolous lawsuits, because they would lose them at trial. If it’s a personal injury case, such as a motor vehicle accident, the attorney is working on a contingent fee — they don’t earn any money unless there’s a recovery. If the case has no merit, there is no financial incentive to file the lawsuit and our capitalist free market works itself out without the need for government regulation.
Also, it is extremely expensive to litigate a personal injury lawsuit. The attorney is most of the time fronting costs for medical records, doctor witnesses, deposition transcripts, etc. By the time the average motor vehicle accident gets to trial, the attorney has already spent $2,000 to $4,000 out of pocket, 90% of which is not even recoverable as damages if they win the trial! There is no upside to a frivolous lawsuit unless it is filed purely for harassment purposes and then there are consequence to that.
There is already substantial “quality control” in the civil justice system. The availability of motions to strike, motions to dismiss, motions to make more definite and certain, motions for summary judgment, and settlement conferences coupled with the expense and risk to the attorney, make the chances of a frivolous personal injury lawsuit proceeding to trial nearly impossible. Sure, anyone with a piece of paper, pen, and check can file a lawsuit. We live in a free country where we can address our disagreements in court. However, frivolous lawsuits are rarely filed and virtually never make it to trial.
The Truth: Attorney fees are reasonable and free market driven.
Contingent fees are designed to allow injured, ordinary people to afford an attorney. If you were injured by another, even if you were still able to work, could you afford paying a trial lawyer $200/hour and as much as $5,000 to settle your case or $10,000 to 30,000 to take it to trial? Most people can’t or don’t want to. That’s why 90% of personal injury plaintiff’s hire attorneys who accept incredible risks to represent them without upfront payment and no guarantee of payment.
In an hourly fee case, the client is taking the risk. If things don’t work out, the attorney still gets paid, such as in the case of an insurance defense lawyer. In a contingent fee arrangement, if things don’t work out, the attorney doesn’t get paid and probably doesn’t get reimbursed for the hundreds or thousands of dollars in costs that he has fronted.
If an attorney is working on a frivolous case that is destined to lose at trial, who do you think would be paying the $10,000 to $30,000 a month in overhead that it takes to pay legal assistants, rent, and other office expenses? It just doesn’t happen.
However, there is an upside for an attorney who is willing to take the huge financial risk of representing injured people on a contingent fee. Instead of earning his normal hourly fee, he has the potential to earn several times that. Nothing ventured nothing gained. The client benefits from risking nothing with their attorney fees and the attorney benefits by possibly earning more than his normal hourly rate.
However, fees in one given case is never representative of extraordinary attorney fees. Personal injury lawyers spend countless unpaid hours speaking to hundreds of potential clients who they do not agree to represent. Also, they often earn much, much less than their hourly rate on countless other personal injury cases that didn’t work out so well. That’s why you can only look at average attorney fees over time.
Falsehood #3: Plaintiff’s lawyers are greedy, ambulance chasers.
The Truth: Plaintiff’s lawyers are ethical and compassionate about their clients.
Sure, there may be some bad apples, but Oregon plaintiff’s lawyers are overwhelmingly hard workers who care about their clients and about helping people injured by the negligence of others. In fact, literal “ambulance chasing” is unethical in Oregon. An attorney is not permitted to make unsolicited personal contact with a potential client (that they don’t know) unless it is in writing through the mail with “Advertisement” clearly displayed on the front. That image was created by the media and the entertainment industry and perpetuated by those who profit off of other people’s injuries.
The Truth: Bad investments and poor management by greedy insurance executives increased your and your doctor’s rates.
When premiums came in from their insured drivers, they invested the money in the markets. At one point, returns were good and they priced premiums below expected claims and we were thus paying premiums much below the fair market value.1 When those reserve funds ran out, the insurance companies increased our rates and blamed frivolous lawsuits. When investment income decreased form 1998 to 2001, they raised our rates and blamed frivolous lawsuits.
Falsehood # 5: We live in a “sue happy” litigious society.
The Truth: Lawsuits are rare and when filed, involve a genuine and appropriate dispute.
Completely false. While the media and television writers are obsessed with lawsuits, the public is not. Only 10% of people who are accidentally injured ever use the tort system to seek compensation and only 19% even consider pursuing a liability claim. That’s because the people who are pursing claims are only pursing legitimate claims. Less than 1% of accident claims make it to trial.
Clearly we live in a society where we frequently hear people threaten to sue each other. These are idle threats of frustrated people who hardly ever follow through. If they did, there case would quickly be dismissed (see “quality control” above).
Falsehood #6: Plaintiff’s lawyers do nothing to benefit society.
The Truth: Plaintiff’s lawyers help make injured people whole and keep society safe from dangerous conduct.
They help hold people accountable for wrongful or dangerous conduct. For many people and corporations, their behavior is governed by what is right and wrong. For others, it is governed by what they can get away with. Plaintiff’s lawyers can’t hold everyone accountable, but they do enough that corporations and people will often modify bad behavior on their own.
Shopkeepers protect their patrons form dangerous conditions. Drivers pay more attention. Corporations go the extra mile to ensure product safety. The world without plaintiff’s lawyers leaves society protected only by the goodwill of our fellow man and government regulators.
Falsehood #7: Runaway juries and huge verdicts are the norm.
The Truth: Juries award reasonable amounts.
Juries tend to be skeptical of damage claims and tend to award plaintiff’s much less than the media wants us to think. By the media only reporting the huge verdicts in those rare extraordinary cases (e.g., the McDonald’s case where the 79-year-old woman’s groin suffered third-degree burns by coffee served to her in her car at 190 Â°F) the average plaintiff never is fully compensated.
The Truth: A small verdict is a loss to the client.
Cracked elbow case example: Imagine a jury hearing the case of a person who had a hairline fracture in his elbow with $3,000 in medical expenses. What would you charge to live with daily pain for a period of time? What is your trouble worth to you?
Assume in our example that the defendant admitted liability and the only issue is damages. The only question for the jury is how much a hairline fracture to the elbow is worth. You can virtually always assume that the defendant made some sort of low ball offer to the plaintiff but that is not admissible and not proper to consider.
If a jury was to award the plaintiff $12,000 in noneconomic damages for pain, suffering, and loss of enjoyment of life and $3,000 for medical expenses, what is that in real dollars to the plaintiff? This would be the likely breakdown:
$15,000 total jury award
– $5,000 in attorney fees (which means the attorney made approximately $43/hour and didn’t even cover overhead, much less profit)
– $4,000 in costs (reimbursing the attorney for medical records, doctor testimony, deposition transcripts, etc.)
– $3,000 in medical expenses (reimbursing the payor or paying the unpaid bills)
$3,000 – That’s all the plaintiff sees of a small verdict, which often doesn’t even compensate for lost wages.
Who wins in a case like this? The insurance company and the insurance defense attorney. Defense counsel gets paid his hourly rate regardless of the result. Although the insurance company has paid its attorney and the plaintiff, the result will continue to encourage future plaintiff’s to settle for much less than their case is worth for fear of getting to trial and having the jury award an unreasonably small amount.
Insurance in Personal Injury Cases
Typically, the issue of insurance is inadmissible in a personal injury case and the jury is not permitted to consider it. Since insurance is never mentioned, jurors often make the opposite inference: that the defendant would have to pay for a judgment out of his own pocket. It is equally inappropriate for a jury to consider the defendant’s ability or inability to pay. A case should rise or fall on its own merits. Although you can rest assured that 99.99% of the time, the defendant in a civil personal injury case is being defended by an insurance defense lawyer and any judgment will cost him nothing.
The most common question we get from plaintiffs when filing a lawsuit is, “Why am I suing the driver and not his insurance?” It’s because the insurance company didn’t hit you with its car. The insurance company owes a duty to the driver to indemnify the driver; so everything they do is behind the scenes without the jury knowing. If you think it is fairer for the jury to know about insurance or at least to be instructed that they aren’t to consider insurance one way of the other, contact your Oregon state legislator.
Grand Jury Service: Can a prosecutor indict a ham sandwich?
Under the Oregon constitution and state law, a felony prosecution cannot proceed to trial unless an indictment has been issued by the grand jury. The grand jury is where the prosecutor, without the defendant or his attorney present, submit witness to the grand jury to determine whether or not to indict, or charge, the defendant.
The grand jury may indict when all the evidence before it, taken together, is such as in its judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury. A conviction is only warranted by the trial jury if there is proof beyond a reasonable doubt, which requires proof to a moral certainty.
The purpose of the grand jury system is for the people to stand in between the government (personified by the prosecutor) and the individual (the accused). Traditionally, grand jurors have taken that very seriously as a check against government power to empower our God-given individual rights.
A major criticism of the grand jury system is encompassed in the following popular statement: “A prosecutor could indict a ham sandwich.” This is to imply that modern grand juries do not test the government’s case and are charmed by the prosecutor and police officers and enjoy becoming law enforcement insiders. They don’t hold the state’s evidence to the fire and they rarely employ any of the traditional powers of the grand jury, such as issuing grand jury subpoenas at their own request.
In the rare occasions when an indictment is not issued is when the prosecutor recommends to the grand jury not to issue an indictment. In effect, the prosecutor will submit to the grand jury something that they do not think should be charged in order to hide behind the grand jury when facing alleged victims or the public. They can say, “The grand jury didn’t indict,” instead of doing the courageous thing and saying, “There is insufficient evidence to prosecute and I have a duty to “no file.”
If you are on a grand jury, be independent. Ask questions. Be the devil’s advocate. Ask the officer questions. Think about what sort of evidence you think a trial jury would need to see in order to make a guilty finding. Figure out what they didn’t do to investigate the charge. Then, request that they do additional investigation before making a decision to indict. Ask yourself why so many cases result in not guilty verdicts or wrongfully charged people who turn out to be innocent upon further investigation. It’s the grand jury’s job to serve as the gatekeeper to prevent these things from happening in the first place.
Thank you for servicing and thank you for protecting our rights!
Even if you sit down in the jury room all day and never even see a courtroom, your mere appearance did a great service. Thank you!
Arnold Law represents clients along the Oregon Coast and throughout Western Oregon, including in Portland, Eugene, Springfield, Salem, Corvallis, Cottage Grove, Albany, Newport, Oregon City, Beaverton, Clackamas, Wilsonville, Tigard, Hillsboro, Lake Oswego, Coburg, Creswell, Florence, Junction City, Lowell, Veneta, Oakridge, Roseburg, Brownsville, Halsey, Harrisburg Klamath Falls, Medford, Ashland, Grants Pass, Glendale, and Bend, and in the following counties: Lane County, Multnomah County, Washington County, Clackamas County, Linn County, Douglas County, Marion County, Coos County, Lincoln County, Benton County, Deschutes County, Josephine County, Klamath County, and Jackson County.