Damage
What losses and damages are you entitled to recover if someone else is at fault? Probably the most difficult aspect of any personal injury case is determining the value of the case in the settlement. When you are injured as a result of someone else’s negligence, such as a car accident or fall or a defective product, you may be entitled to compensation. Under California law, compensation is based on loss and damage suffered as a result of the negligence of another person or company.
Determining how much your case is worth is a critical aspect of any accident case, both for you and your attorney. It drives many decisions, including when to settle versus go to trial and how much money your lawyer should spend preparing your case. This article will teach you all the different issues that your lawyer is considering when determining the value of your case.
What damages are you entitled to receive?
There are three different types of damages that are available to you in a personal injury case. They are special damages, general damages and punitive damages.
Special Damages:
The first category of damages are special damages, these are those that can be proven with an exact amount, generally with the help of invoices and/or receipts. Special damages typically consist of medical bills, over-the-counter medications and medical equipment such as heating pads, bandages, etc. Special damages also include lost wages, missed vacation, sick leave, and travel expenses, such as traveling to medical appointments. You are usually entitled to lose wages for time lost from work or treatment, even if your employer tells paid sick leave at the time.
General damage:
The second category of damages is general damages, these are incapable of exact proof and are usually the “pain and suffering” suffered by the accident. This includes emotional damage such as stress, anxiety, and depression. It also includes missed social and family events, like missing a loved one’s birthday or a high school graduation, for example. Finally, general damages also include any permanent physical disability or disfigurement. There is no formula to determine these types of damages. Many attorneys and insurance companies will use a multiple number of your special damages to get this number.
Punitive Damages:
The third category of damages is punitive damages. Punitive damages are intended to punish wrongdoers and are not available in all types of cases. Punitive damages are additional damages that a jury awards to the other two types of damages. There are tremendous strategic advantages to pursuing these types of damages in your case. For example, lawyers are not normally allowed to show the jury the other prior wrongdoing of the defendant. But if your attorney is seeking punitive damages, your attorney should be able to obtain this evidence. Your lawyer should look for every possible reason to obtain punitive damages, as it puts a lot of pressure on the defendant both at discovery and at trial.
Factors that increase or decrease the damages you can get from your case
There are many, many factors that affect the value of your case, and each case is different. You should always have a frank discussion with your attorney about what is affecting the value of your case, both before attempting pre-suit settlement negotiations and before going to trial.
The following issues will affect the value of your case:
Your age:
The younger or older you are, the better your case. Children from 1 to 12 years of age generally have excellent settlement results. So do people over 60 years of age due to the sympathy that the elderly create from the jury. That leaves people ages 13 to 59. These people do not receive the same sympathy from the very young and the old.
Type of injury:
Obviously, the more serious your injuries, the more your case will be worth. Serious injuries also affect overall damages because more serious injuries are generally assumed to have more serious overall damages associated with them. Compare this to lower impact soft tissue cases.
Objective signs of injury:
When a doctor examines you, there are subjective and objective findings. Subjective findings are those things that cannot be measured or reproduced on paper. These are usually the things that you tell your doctor that you are experiencing. Objective findings, on the other hand, are measurable. This includes things like MRIs, range-of-motion measurement, and lab reports. The more objective findings your case has to back it up, the more valuable your case will become because your injuries not only say what they are, but are supported by evidence and measurements.
His lawyer:
This is probably the single most important factor in changing the value of your case that you can control. Think about it, every other item on this list is set in stone. The facts are what they are. But your lawyer is different. Insurance companies track which attorneys file lawsuits and which go for quick settlements. This changes the value of your case. Also, an aggressive plaintiff’s attorney will be constantly lobbying the other side. This can add tremendous value to a case because you are putting pressure on the defense attorneys as well as your clients.
What kind of witness are you?
This is always an important factor in the defense that assesses your case. In fact, one of the main reasons for taking the deposition is to see what kind of witness is going to appear before a jury. That is why preparing your deposition is so critical. It will affect the value of your case.
What kind of witness is the other driver?
Juries tend to focus on emotional decisions and bad behavior. If the other driver or other defendants show misconduct or bad decisions, the jury will answer. For example, the other driver was DUI, he was impassive, he called his girlfriend instead of asking for medical help? Did the trucking company bring investigators to the scene instead of asking for help, try to destroy evidence, apologize?
Other witnesses:
The more impartial witnesses you have on your behalf, the stronger your case will be. Your attorney wants, whenever possible, to make your case more than your word against the other driver. Your lawyer should also be looking for witnesses who can testify to your pain and suffering, but who are not family members who are biased in your favor.
Meeting place:
This simply means the court/county where your case would be filed. As a general rule, metropolitan counties are more favorable to claimants than rural counties, which are more conservative. But, and as an example of how subtle this all is, if you do genuine and sympathetic testimony for yourself, conservative and rural juries have been known to tie up and award more money.
Missing Percentage:
In some cases, a jury will divide the blame between you and the defendants. They can also distribute faults among several defendants.
Meeting place:
This simply means the court/county where your case would be filed. As a general rule, metropolitan counties are more favorable to claimants than rural counties, which are more conservative. But, and as an example of how subtle this all is, if you do genuine and sympathetic testimony for yourself, conservative and rural juries have been known to tie up and award more money.
Missing Percentage:
In some cases, a jury will divide the blame between you and the defendants. They can also distribute faults among several defendants.
Doctors comments:
His medical records will include notes the doctor commented on his condition and statements he made to you. Jurors listen to doctors. If you have a doctor who writes in your medical records that they are faking your injuries, then you have a problem. You can bet that the other party will take that doctor to court.
Hour:
The more patient and better prepared you and your attorney are, the more your case will grow over time. Typically, your case will increase in value at two different points. First, you will reach a value in pre-demand negotiations. Your case will then have an increase in value just before trial, when both parties try to settle the case just before trial. This is especially true if you and your lawyer have done extremely well during the litigation.
What is the value of my case?
Some of you are now scratching your head and thinking that there has to be some formula for putting a value on the case. Before you get the golden rule, you should know that there is no substitute for having an experienced attorney evaluate your case and all its nuances. That being said, your case can generally value your case somewhere between 1.5 and 4 times your special damages. For example, if your total medical bills and lost wages were $15,000. Your case can be worth between $22,500 and $60,000, which is a very wide range.
The above factors are what an attorney will evaluate to narrow down that range. If you make a horrible witness, the other driver is a saint, and the case will be filed in a very conservative county, your case will be on the low end. If you are an awesome witness, the other driver was DUI and unmoved and the lawsuit can be filed in a pro-plaintiff county, you are on the high side.
How do insurance companies value your case?
Insurance adjusters for most insurance companies handle hundreds of claims. If it weren’t for their computer journals in each case, they wouldn’t be able to keep the facts of each case in order. Because insurance companies handle so much volume, they created computer software to determine the value of your case. The most notorious of these is Colossus. This computer system was developed by a consulting firm called McKinsey & Co. Instead of having your case evaluated by humans, more and more cases are now removing this from adjusters and forcing them to enter data into Colossus.
The factors the software uses to determine the value of your case are well-guarded secrets. What is known is that your attorney should do everything possible to provide the adjuster with all the facts, including diagnostic codes, to help increase the valuation of Colossus. Your best bet against Colossus is to hire a lawyer who shows that they are willing to present their case to a jury. A computer can never know your pain and suffering. A jury will do it. Additionally, adjusters will sometimes set aside Colossus when faced with a lawsuit, so they can evaluate your case “one more time” before incurring trial time and expense.
Finally, there is evidence that Colossus takes into account in his valuation his attorney’s record of taking cases to trial rather than just settling cases.
Evaluate the damages of your car accident claim
Only after a thorough review of the facts and law that apply to each case, and an interview with all witnesses and a review of the injury and treatment, can an honest assessment be made. People who do on-site evaluations, including attorneys, are doing the person a disservice and are likely giving an inaccurate evaluation. It is important to have a thorough understanding of the law as it applies to each case, as well as knowledge of the insurance company that is involved on the other side, and to have a good idea of what a jury would do in the event that necessary to go to trial if a settlement is not possible.
Not all cases can or should go to trial, but each case must be prepared and evaluated as if it were going to trial. Only through hard work and experience can you get the best solution. All of the factors mentioned above and others must be taken into account and reviewed in detail to ensure the best possible outcome.