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Oregon State Bar seminar will take on bicycle law

Posted by Jonathan Maus (Publisher/Editor) on June 10th, 2008 at 11:52 am

"Everything riders do to be safe makes it easier for attorneys to protect their rights against insurance companies and in court."
--Lawyer Scott Kocher

As part of their Continuing Legal Education (CLE) program, the Oregon State Bar is offering a seminar titled, Bicycle Law and Injury Prevention for Advocates and Riders.

The seminar will be offered at their Tigard headquarters tomorrow and will be presented by lawyers Richard Vangelisti, Scott Kocher and Mark Ginsberg. According to Kocher, Oregon attorneys are required to complete a certain number of hours of CLE programs to maintain their bar licenses.

Kocher says he expects about 30 lawyers to attend, among them will be lawyers who represent injured bicyclists, insurance lawyers who defend claims by injured bicyclists, and lawyers involved in municipal risk management and transportation design and construction.

I asked Kocher for a preview of what some of the topics they'll be discussing. He said they'll focus heavily on safety and that,

"When it comes to safety, the legal and practical considerations overlap more than most people realize. Everything riders do to be safe makes it easier for attorneys to protect their rights against insurance companies and in court."

Kocher says for riders, the number one message he'd like to send is the importance of visibility;

"There's no law that says you have to wear hi-vis yellow or white, but the color a rider was wearing goes on the police report and it can make a big difference with insurance companies and juries."

And what can cities can do to better protect people who ride? Kocher says,

"If I had to send one message to the municipal folks, it would be to stop contractors from putting unmarked bags of wood chips around catch basins. Unmarked bags are increasingly common, and are a significant hazard to cyclists. In most situations they need to be marked with a reflective sawhorse at the very least."

For more information on the seminar, or to register for the webcast, visit OSBarCLE.org.

    Bicycle Law and Injury Prevention for Advocates and Riders
    OSB Center (16037 S.W. Upper Boones Ferry Rd.)
    June 11, 2008 1:00-4:00 p.m.

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  • a.O June 10, 2008 at 12:07 pm

    I did this one last year, and it was great - pretty valuable for my hobby/pro bono bike & pedestrian law practice.

    I\'m really glad they made Ginsberg a presenter this year, as he was basically doing it from his chair last year!

    Kocher\'s quote cannot be emphasized enough:

    \"Everything riders do to be safe makes it easier for attorneys to protect their rights against insurance companies and in court.\"

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  • Schrauf June 10, 2008 at 12:08 pm

    Interesting on the visibility issue. I understand how that helps make a case for the cyclist victim in court, but it would be nice if we as a society could get past blaming the victim first, and also get past the idea that cycling can become a major mode of transportation while at the same time expect people to dress special - in bright yellow for example - for every trip.

    Obviously at some level, lack of visibility can fairly be used against the cyclist - no lights or reflectors at dusk, for example. There is only so much we can expect from human drivers.

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  • Bjorn June 10, 2008 at 12:29 pm

    I\'m curious if the lawyers talking about visibility see the same thing with cars, ie does driving a yellow car make it easier to claim damages in court after a car vs car wreck?

    bjorn

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  • toddistic June 10, 2008 at 12:40 pm

    screw looking like a banana. victim blaming, plain and simple.

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  • encephalopath June 10, 2008 at 12:49 pm

    @ bjorn

    \"...does driving a yellow car make it easier to claim damages in court after a car vs car wreck?\"

    I was wondering exactly the same thing. Or if now color, is there some other analagous, not legally required hurdle, that is applied to car on car accidents.

    Your car didn\'t have ABS or side curtain airbags so the jury won\'t give you injury damages.

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  • Snowflake Seven June 10, 2008 at 12:49 pm

    I\'m in agreement with Schrauf.

    Sure, bright yellow reflective garments would make attorney\'s jobs easier. But while we are doing that, how about those attorneys that are waiting for us to get struck by a car, go to Salem and get some laws passed so that we can dress like normal people and receive equal treatment under the law.

    In the meantime, I recommend that for the next Naked Ride, we all bath in hi-liter ink so that our skin glows neon yellow.

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  • BURR June 10, 2008 at 1:13 pm

    If the cops are going to note the color of the clothes the rider was wearing, they should also be providing a detailed inventory of all lights and reflective gear on the bike itself.

    The need for high vis clothing is far from clear to me; and it\'s certainly not required by law.

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  • Patrick June 10, 2008 at 1:15 pm

    A few years ago I was given a reflective safety vest at work and decided to wear it biking. Wearing the vest has changed the dynamic and relationships I have with drivers. I think it is a mixture of them seeing me earlier (and I surprise them less) or they assume anyone in a safety vest must be obeying the law (even though sometimes I am obviously not). The vest has reduced significantly my unpleasant conflicts with drivers. The vest is easy to carry and don and it makes my riding more pleasurable.

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  • encephalopath June 10, 2008 at 1:21 pm

    The insurance adjuster for an accident I was in last December (doored), wanted to take pictures of the jacket I was wearing at the time of the accident.

    It was at night and raining, so I was wearing my bright orange rain jacket.

    A 12 year old opened the passesnger side door into the bike lane.

    In fact in another accident I was in 2 years ago, they wanted to know what I was wearing too. That was a day time accident.

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  • Keith June 10, 2008 at 1:22 pm

    I agree those wood chip bags are problematic.

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  • mac June 10, 2008 at 1:23 pm

    does the use of his-vis yellow actually encourage unsafe behavior given the enhanced perception of safety on the part of the rider? thinking this in part based on the \"helmet wearing encourages unsafe behavior\" argument and that I\'ve seen some really egregious law breaking by high vis riders lately. all in all its good to see this being offered to our local bar members...just in case needed.

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  • a.O June 10, 2008 at 1:35 pm

    \"I\'m curious if the lawyers talking about visibility see the same thing with cars...\"

    Those of you who are complaining about victim blame (and I am sympathetic) are engaging in something very similar: messenger blame.

    The lawyers aren\'t talking about visibility because they are making a decision as to what you should wear. They are talking about it because they have to convince jurors who will have an opinion about visibility. And if your lawyer doesn\'t bring up your visibility, guess who will?

    \"how about those attorneys ... go to Salem and get some laws passed...

    Lawyers who represent cyclists are not your representatives in the Oregon Legislative Assembly. You want \"some laws passed,\" you write your Reps and Senators, vote, run for office, join the BTA, advocate!

    Yes, please take responsibility for yourself!

    And, by the way, virtually all the attorneys who practice in this area already do significant advocacy for vulnerable roadway users.

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  • rixtir June 10, 2008 at 1:43 pm

    Those of you who are arguing against hi-viz don\'t understand what defense attorneys (i.e., insurance company attorneys) do to create doubt. You can say it\'s unfair all you want, but it\'s still a reality that people who are being sued are entitled to mount a defense, and everything you do or fail to do on the road will be scrutinized for it\'s potential use to the defense.

    Don\'t want to help your attorney win? Fine, don\'t. Want to make it difficult for your attorney to win? Fine, go ahead. But don\'t be surprised by the entirely predictable results, either.

    Hi-viz is not required, and you can\'t be held liable for failure to wear hi-viz. But that doesn\'t mean that the driver can\'t claim with a convincing degree of credibility that s/he didn\'t see you, and is therefore not negligent.

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  • Chilly Willy June 10, 2008 at 1:50 pm

    I\'m as frustrated as anyone with the constant victim blaming as anyone, but you have to understand that the law has nothing to do with (current standards of) right and wrong. It just so happens that not getting hit in the first place also dovetails nicely with legal remedies.

    Literally covering your tail (with visibility enhancements) is the smart thing to do- the name of the game is avoid harm, not who is right and who is wrong. Keep your eyes on the prize- getting there and back in one piece.

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  • Bjorn June 10, 2008 at 2:15 pm

    I wasn\'t trying to blame you A.O., I really wanted to know if the color of a car involved in an accident was some sort of a mitigating factor when money starts getting divided up. Like say when a car turns out in front of a dark grey car on a rainy day because they didn\'t see it coming if a lawyer would probably make a big deal out of the car being grey instead of some more visible color.

    Bjorn

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  • encephalopath June 10, 2008 at 2:30 pm

    What the lawyers are doing isn\'t the issue. Of course they are to do anything ethical and legal that helps them win for their client.

    Standards of proof and liability are different for civil suits too.

    The question is jury perceptions. Do juries buy the same kind of argument when only cars are involved? Are liabity and damage awards figured differently on the basis of something a driver has no legal requirement to do? Equipment wise, not behaviors.

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  • BikeBillboards dot blogspot dot com June 10, 2008 at 2:50 pm

    Yep. Visibility is a HUGE issue. Spandex does NOT cut it. Try a Santa suit.

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  • a.O June 10, 2008 at 3:00 pm

    @ #15:

    Ha! I just sorta picked your quote as epitomizing the sentiment, but I think I\'ve gotten pretty defensive about the role of lawyers generally!

    Anyway, I don\'t know that I\'ve heard anyone bring up the issue of the car\'s color. But I don\'t have any trail experience in this area (yet). And likely the strength of car lights make it less of an issue. Of course, you could say the same thing about what someone a bike was wearing if they had strong lights...

    ...and all that\'s assuming the lights are on...

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  • Matthew Denton June 10, 2008 at 3:00 pm

    Back when I was 6, my parents had a darkish grey car that pretty much matched the color of pavement. Two serious accidents later, (neither of which were my parents fault,) they got a silver car. Did it hurt them in court? I don\'t know, (in both cases the other person\'s insurance payed,) but also in both cases the other person did say that they hadn\'t seen them, and that was certainly something my parents kept in mind when they bought the car that replaced it...

    In my mind it is more of a practical matter: Even if I\'d win in court, do I want to spend a week in the hospital because someone hit me? (Not that I enjoy looking like traffic cone, but it is something I\'m willing to put up with...)

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  • Pete June 10, 2008 at 3:12 pm

    In addition to assisting your lawyer in an accident case (should one occur), safe equipment such as lights, hi-viz clothes, helmets, mirrors, and sunglasses helps you avoid the accident in the first place and minimize your injury should it occur. BURR is right about the other factors being just as important as the color of the clothes. I wear black cycling tights in the winter that are designed to be highly reflective, but in the daylight they simply look black. I can just see some defense attorney saying \"my client couldn\'t see him because he was wearing black pants (and all the flashing lights blinded him).\" I shouldn\'t jest; I remember a few years ago a cyclist was killed in Hillsboro and the driver said she saw a bright light and didn\'t know what it was but turned in front of it anyway.

    Another subtlety of safe cycling practices is that news media tends to emphasize situations where cyclists aren\'t being safe (i.e. \"the bicyclist was not wearing a helmet\") and this is negative publicity in the \"cars-vs-bikes\" perception war. I don\'t like to fuel people\'s generalizations.

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  • BURR June 10, 2008 at 4:18 pm

    what we are talking about is bias against cyclists in the justice system and the media, and no amount of hi-viz anything on me or my bike is going to solve that particular problem.

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  • Cøyøte June 10, 2008 at 7:38 pm

    If a naked Carmen Electra in a lime green Hummer runs over a lawyer in the forest, does anyone hear?

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  • Schrauf June 10, 2008 at 9:45 pm

    There are several intermingled topics here.

    Safety - of course the brighter the better, both clothing and lights. It is up to each cyclist to do as they see fit based on their riding style, route and fears. I often wear all black, even at night, but my bike is lit up like a christmas tree night and day. I am visible.

    Cycling mode share - it will increase as cycling becomes more accessable to everyone. Neon vests and other special clothing make it less accessable in some ways, because noncyclists perceive so much special gear is required, and it turns them off.

    Blaming the victim - as has been said, this has nothing to do with lawyers, but the general bias in society. A lawyer\'s job is to convince a jury (supposedly representative of our society) any way they can. If a jury falls for such BS, blame society. One would think it would be easy for a victim cyclist to counter this argument in court with the car example. If a gray car gets in an accident because the other driver \"missed it\" in broad daylight, does the the at-fault motorist avoid liability? No. I am not talking about the legal responsibility to use lights at certain times - this is much more subtle than that.

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  • Scott Kocher October 29, 2009 at 10:36 am

    "Everything riders do to be safe makes it easier for attorneys to protect their rights against insurance companies and in court.”

    This 10/28/09 Oregonian Article is a nice example. The headline says it all: "Hit-and-run driver claimed he didn't see 6-foot-tall orange rabbit on the pedicab."

    Scott Kocher
    Bicycle Law

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