WASHINGTON AND OREGON LAW AND AUTOMOBILE ACCIDENT LITIGATION: TWO STATES – WORLDS APART
The Hoover Law Group has been practicing law in the Pacific Northwest, specifically, Washington and Oregon, for over 16 years now. And, if there is anything that stands true over that time, it is that the legal systems in Oregon and Washington, are worlds apart. They might as well be two different countries, that both speak English but have completely different legal systems. This stems from their history before they came into the union of the United States.
The territory that now comprises the two states of Washington and Oregon, was all one territory in the beginning – the Territory of Oregon. The Territory of Oregon was an organized incorporated territory of the United States that existed from August 14, 1848, until February 14, 1859, when the southwestern portion of the territory was admitted to the Union as the State of Oregon. Howard M. Corning, ed. (1989). Dictionary of Oregon History. Binfords & Mort Publishing. p. 110. Also, http://en.wikipedia.org/wiki/Oregon_Territory. Most of the area that is now the state was occupied by British settlers which is why the area is now more closely resembling, in lots of ways, a more traditional British legal system.
The area north of Oregon began to become the Washington territory. The area was first settled by the landing on the Washington coast in 1774 by Spaniard Juan Pérez. One year later, Spanish Captain Don Bruno de Heceta on board the Santiago, part of a two-ship flotilla with the Sonora, landed near the mouth of the Quinault River and claimed the coastal lands up to the Russian possessions in the north. American interests in the region grew as part of the concept of manifest destiny. Spain ceded their rights north of the 42nd Parallel to the United States by the 1819 Adams-Onís Treaty, (but not possession, which was disallowed by the terms of the Nootka Conventions). This area then became largely settled by Spanish and other non-British settlers. The area later developed a larger sense of individual liberty and freedom from the territory in the South. It started due to agitation in favor of self-government developed in the regions of the Oregon Territory north of the Columbia River in 1851–1852 – this area is now the State of Washington. At that time in the mid – 19th century, a group of prominent settlers from the Cowlitz and Puget Sound regions met on November 25, 1852, at the “Monticello Convention”, to draft a petition to the United States Congress calling for a separate territory north of the Columbia River. After gaining approval from the Oregon territorial government, the proposal was sent to the federal government. Howard M. Corning, ed. (1989). Dictionary of Oregon History. Binfords & Mort Publishing. p. 110. Also, http://en.wikipedia.org/wiki/Oregon_Territory. Since most of the territory that is now the state of Washington was settled by Spanish settlers, the system in Washington has its historical roots to Spain, as well as the jury system of the British settlers.
So basically, Washington state has its roots to Spain, and Oregon has its roots to England and Britain. This is why Washington has the community property legal system, and Oregon does not. Many nuances of these two neighboring states related to their history will be pointed out as this article continues on.
So, how does this relate to automobile accident litigation today? Simple example to work from. Two cars involved in a rear end collision. The plaintiff (the car in front) is suing the defendant (the car in the rear). The plaintiff suffered $5000 in damage to his car, $10,000 in medical bill damages, and is seeking $35,000 in non-economic general pain and suffering damages.
Now, let’s say the accident happened in Oregon. Today, Oregon is a state that is largely run and controlled by the insurance industry. It is also a state that has its roots to the British style of jury trial system. In this system, it is allowed to have what is called, trial by surprise. When a civil case is filed, there is no set schedule of disclosure of witnesses, like expert witnesses, printed for the parties. The defense can disclose their expert witness, within a week or so, sometimes depending on the county, within a day of trial. The same goes for the plaintiff’s experts. However, since the plaintiff’s experts are usually the providers writing the reports, the medical records obtained by the defense (usually by subpoena, sometimes by agreement by the parties) show the names, addresses, phone numbers, and opinions of the plaintiff’s experts. Hence, the defense attorneys have an unfair advantage, where the plaintiff’s attorneys have to cross examine a new expert in a trial by surprise.
Oregon is a fact pleading state. Numerous details are required to be pled in the pleadings in civil cases in Oregon.
Also, in Oregon, even in the most populated counties, there are no interrogatories. Interrogatories are allowed by Oregon statute only after a judgment is entered. ORS 18.270. Oregon Rules of Civil Procedure do allow for a Request for Production of Documents ORCP 43 A(1). So, basically when the attorney deposes a party, they better ask a lot of questions as the usual method of written questions, does not exist in Oregon. After the documents are obtained, then the attorneys conduct their depositions of parties and witnesses, and then they go to trial. But the defendant’s expert witnesses, if not discovered by plaintiff’s counsel in the depositions, are allowed to testify and then cross examined when the plaintiff’s attorney could not have prepared to do so.
So, how does our example play out? Another nuance in Oregon is how they settle subrogation, or double benefit, disputes. So, the $10,000 in medical bills. Let’s say the plaintiff and the defendant settle. $30,000 total. With the $10,000 in medical bills, this would have been inclusive of the $30,000. How do the insurance companies in Oregon settle this? They skip, the plaintiff (who is entitled to it), and send a check for $10,000 to the plaintiff’s insurance company that paid it, and only give the plaintiff $20,000. This is due to the requirements on the insured to do whatever is proper to secure those (subrogation) rights of the insured. ORS 742.538. We will see later how this differs in the state of Washington.
Also, in Oregon, there are no lower District Courts of record. Although it was in their constitution and existed for a long time period in Oregon state history, on January 15, 1998, all lower County District Courts were abolished So all cases no matter that the value in a civil case, are tried in Circuit Court.
Finally, in Oregon, some counties do not have a mandatory arbitration system for cases worth less than $50,000. In their arbitration system, the parties have to pay the arbitrator $500 each. The state of Oregon tries to save money by placing the entire burden on the parties to settle their disputes. Again, a traditional British style intended to save the Crown’s funds. Also, in Oregon a jury is composed of 12 people (sometimes with an additional alternate). For cases worth $10,000 or less, only a jury of six people is empanelled. ORCP 56 B. When the trial is over, the jurors may not discuss the case with the attorneys or the parties.
So basically Oregon has a system of combined courts in one jurisdiction, with more detailed complaints, with jury trials for all valued cases with a limited amount of discovery compared to most jurisdictions and higher costs for the litigants.
In Washington state, just on the north side of the Columbia river, you enter an entirely different world that, luckily, speaks English and offers lower costs and more opportunities to parties on both sides.
First of all, Washington state is a community property state. Oregon is not. Also, Washington is a notice pleading state. Oregon is not. Washington state has numerous other discovery tools than those limited in the state of Oregon. Also, there is not a trial by surprise in Washington state.
Washington state is a state not run by the insurance industry, although they have a very large lobbying influence in the state legislature. The difference between these two systems, again stems from the beginning of those agitators up north. Those in favor of self-government were concentrated in the north of the territory. That idea of individual rights and liberties to the self, over the government, is largely what Washington state is all about. At the same time, in order to protect the one self, the system in Washington, influenced by Spain and the American jury system, has developed to what it is today.
Let’s see how this plays out in our example. Again, two cars involved in a rear end collision. The plaintiff (the car in front) is suing the defendant (the car in the rear). The plaintiff suffered $5000 in damage to his car, $10,000 in medical bill damages, and is seeking $35,000 in non-economic general pain and suffering damages. This time, the accident happened in King County, Washington.
First, the complaint in the lawsuit itself, only needs to provide notice of the action. A short and plain statement of the facts of the complaint is what is required in Washington state. Christensen v. Swedish Hospital 59 Wn. 2d. 545 (1962). Thus, much less investigation and information is required to file a valid complaint in Washington state.
As far as discovery goes, Washington state allows for interrogatories, request for admissions, request for production of documents, and depositions of parties and witnesses. Interrogatories are limited in District Court as opposed to Superior Court (but for automobile personal injury cases they are limited in scope in some counties). This allows for a much more borad sharing of information on both sides before mediation and / or trial.
For claims that the plaintiff feels are worth less than $50,000, arbitration is mandatory for most counties in Superior Court in Washington state. Unlike Oregon where the parties pay the arbitrator, in Washington state, the county pays for the arbitrators time if the arbitrator is chosen through the county court selection program.
However, with the District Courts in Washington state, they allow for civil claims of $75000 or less. Although interrogatories are limited there, this does allow for another venue for the plaintiff attorney to choose from. Trial dates are not fixed at the time of filing in District Court so if time is what the plaintiff needs, then they can choose the District Court venue. Also, if the case is small in value, and the experts do not charge for declarations (which are admissible in District Court), then this venue is an option that is available to the plaintiff to save on the investment costs on the case.
So as to the example above. Subrogation is very different in Washington state, than it is compared to Oregon. So, the $10,000 paid in medical bills by the plaintiff’s insurance. This is reduced by a mathematical formula equation based on a comparison to the attorneys fees and costs on the case. The case that determines this is MAHLER v. SZUCS June 1998 135 Wn.2d 398 [Nos. 64344-0; 65014-4. En Banc.]. The funds usually are distributed via the plaintiffs’ attorneys office, not directly from one insurance company to the other. This allows for a greater recovery for the plaintiff, than under the Oregon system.
In trials in Washington state, there are 12 jurors with one or two alternates. In Superior Court, the plaintiff can pay for a six person jury panel for a lower price. In District Court, it is a six person jury with one or two alternates. Again, this is a system that allows for attorneys to forum shop if they have a case worth $75000 or less.
So, as described above, the two civil legal systems of Washington state and Oregon, are strikingly different. They are like two different countries that both speak English. As it stems from their beginning, they are from two different countries and cultures that still have their roots in their legal systems today. Which one is better some may ask? I guess you would have to live there to find out.
Until next time, thanks for reading.
– Gregory Scott Hoover
Gregory Scott Hoover’s primary area of legal practice is in the form of civil and criminal litigation and assisting those involved in EB-5 transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.