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Q & A With Jon Friedman
Jon Friedman: I’ve been here in this very suite since September 14, 1984 practicing law. It’ll be thirty years this year.
Christina Penza: What kind of cases do you handle?
Jon Friedman: I primarily focus on car crashes – and professional negligence, which means that either a lawyer or a physician has made an error in treating their patient or client.
Christina Penza: When does a case become personal injury?
Jon Friedman: Every case is dependent on a variety of variables. First, you must prove liability, which means that the other person was the one who is responsible for the accident having happened. You’ve got to prove that the accident resulted in injury, and that the accident caused those injuries. And then, one has to determine what the damages are associated with those injuries. You need liability, causation, and damages to have a viable lawsuit.
If you get creamed and your car is totaled, but you walk away without a scratch, you have a property damage claim for the fair market value of the car that has just been destroyed. You don’t have a personal injury claim because you sustained no personal injury.
In terms of when does a lawyer get involved, that depends on your facts. After you get into a car wreck, you may go to an emergency room and see a doctor for one or two visits and be back to 100 percent inside 30 days. In that instance, I can guide you through the process and give you some direction. I will give you that over the telephone as a courtesy. It is not a case that warrants a lawyer getting involved. It is something that should be resolved with the injured person simply communicating with the bad drivers’ insurance carrier, and I can tell you what to say.
The more involved the injury, the more involved the treatment, which is one way of showing how significant the injury is. A whole bunch of doctor appointments, physical therapy appointments, X-rays, support a more significant injury. The more involved the case becomes, the more likely you need a lawyer to help you with your case.
Christina Penza: How injured does a person have to be to have a claim?
Jon Friedman: It’s, in part, a question of how much treatment one requires. If somebody resolves without any treatment, even though they honestly report hurting for a week or two, the claim is worth very little because the person has sustained very little injury. The scale can go from what I just described to all kinds of horrific things. So, when does it make sense for a lawyer to get involved? If you’re treating for several months and you’re not seeing any resolution of your injuries or if you know early on, “Oh, dear I’m going to have a long-term road of recovery and I have a lot of doctor appointments, a lot of interactions with medical providers,” then likely the claim is big enough to get a lawyer involved to assist you.
Christina Penza: How important is it for someone in an accident to get medical attention?
Jon Friedman: A lot of people find themselves involved in a motor vehicle accident through no fault of their own. A lot of people, because we as a society promote the notion when asked “How are you doing?” you say, “I’m fine.” Sometimes, folks get themselves in trouble for saying that. Sometimes, they get hurt and they feel like, “Well my neck and back is killing me, but it will go away in a day or two or maybe it will go away if I give it a little more time,” and sometimes people go four, six or eight weeks before they seek medical attention. That becomes a problem. That gives the insurance defense lawyer the argument, “Gee, buddy! If you hurt so bad why didn’t you go see a doctor?” and your answer is a legitimate one which is, “I was hopeful that I wasn’t very seriously injured and so I thought with the passage of time things would get better. Things didn’t get better, so I saw a doctor.”
That’s part of the reason it’s good to talk to a lawyer early on, even if the lawyer doesn’t formally come on to represent you. The idea is that a lawyer can at least say, “Look, you need to get yourself checked out.” You need to talk to a doctor and you need to fully and honestly report everything that’s bothering you. Again, it goes back to this notion that a doctor walks in the examination room says, “Hey, how you doing?” And you go, “Hey, I’m doing good.” Instead, you need to report honestly and accurately everything that has been effected by this wreck from head to toe, and you don’t want to exaggerate or maximize or turn this into something that it’s not. You speak in proportion and you report what’s hurting, and then how it hurts and how that limits you, but you make sure that you cover everything because if it’s not in the doctor’s chart note, it’s going to give the insurance defense folks something to hang their hat on.
Christina Penza: What criteria does an attorney use to determine if a client has a case?
Jon Friedman: There are three issues in every personal injury claim. The first is was somebody negligent. And negligence is just a legal way of saying, “Did somebody do something they shouldn’t have done, that no reasonable person would have done, or failed to do something any reasonable person would have done?” If you have negligence, then the question becomes did that negligence, did that bad act cause injury? That is “causation”. If your answer to that is yes, then the question is: “What are the injuries?”
You need negligence, causation and injuries, and in terms of saying, “Yeah, let’s collaborate and be a partnership and I’ll come work with you,” all three issues drive a decision as to whether or not you hire a lawyer. If you have fantastic liability, clear causation, but virtually no injury, I’m happy to walk you through the process on the telephone and tell you what works, what will have the greatest impact on an insurance adjuster.
If, however, you have the injuries that are substantial, then it is likely that you’re going to need help. You’re going to need help because insurance carriers are not in the business of paying out fair compensation. They are in the business of maximizing profit, which is not evil, and it’s what capitalism is about. Insurance companies are looking to cost effectively resolve the claim and close the file as cheaply as possible.
Some insurance carriers are known to try and attempt to resolve a claim within a week of a wreck, where it’s clear that their insured was at fault. If the other driver is clearly the one at fault, you might get a call inside three, four, or five days saying “We’ll pay for all your medical bills and we’ll pay you $5,000.” That’s probably a little high in today’s market. Maybe they’ll say $1,500 or $2,000. And they’ll say, “We’ll also pay for your medical bills up to $15,000 incurred within one year of the wreck.”
A lot of people rightfully think a couple of thousand dollars is a lot of money, and so some accept the offer. What they’ve done in accepting $1,500 or $2,000 offer is guaranteed that’s the most money they will ever see out of it, even though they may discover a week or two after they signed the release that they have a far more serious problem than they knew about at the time they signed the release. When that happens, people can be in a lot of trouble because typically a release is going to be upheld by a court unless you can show it was signed under duress.
So, a lawyer considers negligence, causation, and what injury was caused by the wreck. You need to consider all three issues to determine the value of a claim and whether to hire a lawyer.
Christina Penza: What are pretrial motions?
Jon Friedman: Pretrial motions can consist of things called motions in limine, which may, for example, contend that the defense can’t bring in stuff that’s got nothing to do with the issue at hand. If you pulled a little girl’s hair in the third grade and put it into an inkwell, that’s got nothing to do with anything. That does not get discussed even if the defense lawyer might like to suggest that you are a bad person as a third grader. You use these limiting motions to insure that your opponent doesn’t try to introduce improper and irrelevant evidence in to the case.
Christina Penza: What is the next step after establishing grounds for a case?
Jon Friedman: Once I am retained to help somebody out on the claim, I send out letters of representation to both my client’s insurance carrier and the bad driver’s insurance carrier stating I represent my client, and all contacts with regard to this matter now come through me.
I’m going to help to insure that my client is doing the appropriate thing, which basically means going to see your doctor and doing what your doctor tells you to do. Some folks are really reticent to seek the medical care they need and that slows their healing and the legal process.
We sometimes do an investigation. It depends on the case. I’ve got a private investigator I work with on a regular basis, so if liability is going to be contested, I gather all the witnesses’ and people’s statements. If they are saying that my client caused the wreck or is more than 50% at fault in causing the wreck, I need to fix that, and I want to do that as quickly as possible, which is another reason why somebody involved in a wreck should call a lawyer sooner rather than later. The idea is that I have my investigator talk to the witnesses while it is still fresh in their minds. If liability is taken care of, we can solely concern ourselves in getting you well.
Thereafter, I gather medical records and I keep in contact with my client. I like to have my clients check in with me every few weeks just to let me know what’s going on. I get to know my clients better, I get to understand what impact this had on their lives, and that’s useful to me because ultimately the client gets better or they get as good as they’re going to get, and when that time comes, we know the range of value of the case. It’s impossible to say what a case is worth until the client fully recovers, or is determined to be as good as they will get and we can know what problems they will face in the future.
So, once all better or medically stationary, I typically send out a demand letter and many times we can resolve claims without having to file a lawsuit. If we are unable to settle it, I file a lawsuit to preserve the claim.
Christina Penza: What are the different types of damages?
Jon Friedman: In Oregon, there are two kinds of damages. There are economic damages, which consist of your past, present and future medical bills and wage loss. If it’s a future wage loss, it’s called an impairment of future earning capacity, but simply means you’re going to lose income in the future because your injuries have impaired your ability to work in the future. In other words, in the future you’re going to have a problem making the same money you made before the accident.
The other component of damage is non-economic damages, which basically means past, present and future, pain and suffering, but as importantly, interference with your ability to lead your day-to-day life. Basically, every which way the accident has impacted you in leading a normal life is compensable, and ultimately it’s the jury who decides what a fair value is for the harms that have been caused you.
Christina Penza: Why do people need a lawyer?
Jon Friedman: I think the real reason, now that I’ve been doing this for almost 30 years, that people need a lawyer is because there are a lot of nuances that folks who have never been involved in a car wreck simply don’t know. People sometimes try to make it sound better than it is. Sometimes, people will say to their physical therapist, “I feel great today,” because they want to be upbeat and not feel like they are whining or complaining. In doing so, when it’s not true, they actually harm their legal claim. People need to be completely honest with medical providers, but many sugar coat things and it is not helpful. For example, a lot of times people won’t seek the medical attention that is appropriate. Also, people don’t have a good sense of value in a claim. They’ve never done this before. They don’t know what to do at each step of the proceeding to insure they get the best recovery.
A lawyer is going to seek fair compensation to adequately compensate the person for the harms he/she suffers as a consequence of somebody else’s negligence.
Christina Penza: What will a lawyer do for you?
Jon Friedman: What I do as a lawyer is interact with the insurance companies to insure that my client has nothing to do but work on getting well. I’m going to take care of all of the bills. I’m going to take care of the personal injury protection benefits. I’m going to do an investigation to insure that liability is clarified and locked down as quickly as possible. I’m going to check in on a regular basis with my client to insure that they’re doing what they ought to be doing, getting proper medical attention, not trying to push themselves too hard or too fast, but doing what they should be doing.
People still have to make a living, even though they get involved in a car wreck. There are life’s events we still have to deal with and we do the best we can in guiding our clients through the system based on 30 years of having done this every day. We counteract the expertise of an insurance carrier to get you fair compensation for your injury.
Christina Penza: What should a person do if they are in a motor vehicle accident?
Jon Friedman: If you’re involved in a motor vehicle accident, you should exchange information. Get the other person’s driver license, copy down all of the information on it, get the license plate number, on the car that the other side is driving, the make and the model, note where the accident happened. If you have any witnesses, get their names, get their telephone numbers, and get their addresses. Get as much information as possible. In Portland, police are not going to respond to a 911 call unless there is a really serious injury, generally necessitating an ambulance ride and sometimes, even getting an ambulance ride to check out a neck or back will still not get the police to show up. It’s up to you to get every bit of information you can get about the other person while you are at the scene. It can often be recreated later, but the more information on the person who hit you, the better.
Christina Penza: When should a person who has been injured in an auto accident consult an attorney?
Jon Friedman: My preference would be that they contact the lawyer as soon as possible. I think if they have an injury the best thing to do is to go see their doctor. I think they should go see a medical doctor and they should go see their primary care physician with whom they have got a long established history. I recommend that people see their own medical doctors. Then, if I’m fortunate enough to get a call a few days into it, I should have enough information to tell you if you even need a lawyer or whether we should meet.
If we meet, my private investigator can go and get taped witness statements. I do not take witness statements myself because if I get a witness who tells me something happened and then we end up in a trial and that witness says something different happened, I become a witness and my client has lost a lawyer and gained me as a witness.
We’re going to keep the insurance carriers at bay and in line in terms of personal injury protection benefits. I keep the bad driver’s insurance carrier away completely. I tell them we have nothing to talk about, diary it for 60 or 90 days and give me a call then. In the interim, the client continues to treat and focus on getting better.
Clients sometimes get pretty upset by having to talk to insurance carriers. It’s a distraction and it’s a worry because they don’t really know what is going on and they’re trying their best in an uncertain world where all of the cards are stacked against them. The insurance carriers have been doing it forever and they have lawyers and they’ve got managers who are running the show. The client has a serious disadvantage if that person hasn’t at least spoken to a lawyer.
Christina Penza: Is it okay to be tape recorded by an insurance company?
Jon Friedman: Once I’m involved, the carrier cannot even contact the client. If somebody has not got a lawyer, you bet that the bad driver’s insurance carrier is going to call and ask to get a recorded statement. I discourage that. In fact, I would never allow my client to do that. Once I get involved it’s very rare where I would allow my client to give a statement. Typically, I will offer, if the carrier, in writing, waives the right to take any kind of statement thereafter to make my client available to give a statement. That always ends the dialogue.
Christina Penza: Isn’t my insurance provider on my side?
Jon Friedman: As a general proposition, the insurance carrier, regardless of whether it’s your own, or whether it’s the bad driver’s insurance carrier, their primary interest is their own bottom line.
Christina Penza: What should you do when contacted by an insurance provider after an accident?
Jon Friedman: If you get into a car wreck, you have a contractual responsibility to contact your own insurance company and report it. In Oregon you have what’s called personal injury protection, also known as PIP, and that pays for up to $15,000 in medical coverage necessarily caused by the accident so long as it is incurred within one year of the wreck. Moreover, personal injury protection benefits give wage loss of up to $3000 a month or 70%, whichever is less for up to one year.
So, when your own company calls, you certainly should talk to them because you have contractual responsibilities if you want your personal injury protection benefits. As to the bad driver’s insurance company, I advise people not to speak to them at all.
The bad driver’s carrier, has no responsibility to do anything for you until it’s time to totally resolve the case. It’s not time to totally resolve the case until one of two things happens. One, you are all better. You are back to where you were the day before the wreck. Or, you’ve gone through all of your medical treatment and your doctor says you’re medically stationary, which basically means you’re as good as you’re going to get, and is prepared to tell me what permanent residuals you’re going to experience in terms of future pain, future limitations and your ability to do your daily living activities.
When one of these two events occurs, then and only then can you assess the full extent of damages. Until then, an insurance carrier is going to try and push you to try and settle a case without any clue of the real value of the case. Nobody has got a crystal ball as to whether the injuries you sustained are permanent or not. The insurance carriers call us to get you to settle as quickly as possible because once you’ve settled it doesn’t matter to them what you later learn about the state of your health.
Christina Penza: Should I contact an attorney if contacted by an insurance provider?
Jon Friedman: I think it’s always a good idea to talk to an attorney. I talk to anybody who calls and I’m happy to give free advice. Typically, what they need is some guidance and a steer as to what they should do. The primary goal is getting well. So you want to focus on getting the medical attention they need to insure they get well as quickly as possible. The legal side of this is the tail end of the dog, but sometimes you need both a doctor and a lawyer to be trying to help you at the same time.
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