The Big Question – What is my personal injury case worth?
Why does every potential client ask this question? Because most people who come to me are worried about how they are going to pay their bills after suffering a serious and debilitating injury. Unfortunately, the answer is not a simple. It does not appear in the bottom line of a spreadsheet after we plug in numbers during your initial interview.
But there are some elements we consider when we evaluate the case with you on the front end and try to provide you a range of recovery. These elements include (1) the strength of the liability case; (2) the cost of past medical treatment; (3) the cost of future medical treatment (if any); (3) the extent of physical disfigurement (if any); (4) the potential loss of enjoyment of life after the injury; and (4) any aggravating circumstances, such as intentional/willful conduct by the defendant or gross negligence (i.e. really bad facts applicable to the defendant). AND the defendant must have the means to pay for all this, meaning there must be an adequate insurance policy covering the conduct complained of, or the defendant must have adequate assets – typically cash – to pay the amount of any potential judgment or settlement.
Let’s start with the strength of the liability case using an example of a motor vehicle accident involving Paul Plaintiff and Defendant Truck Driver (“TD”). Paul has a strong liability case if he proceeded through a green light at an intersection and TD ran his red light and T-boned him. This liability case will be stronger if the police investigate the scene and write and accurate report based on witness testimony. This liability case will be even stronger yet if Paul has the names and contact information for the witnesses, and those witnesses are willing to testify.
Many factors can negatively affect the strength of Paul’s liability case, thus negatively impacting the value of the case overall. Such factors might include conflicting witness testimony (e.g. once witness saying TD’s light was green) or an inaccurate police report. The inaccurate police report is always a challenge because it is difficult to get a police officer to admit she got the facts wrong while performing the job she was trained to do. The more negative liability facts that are present, the greater the negative impact this has on the value of the case.
Why? Because your lawyers must think in terms of risk. We must weigh the likelihood that twelve jurors will believe these negative facts and hold them again you, meaning you lose the case altogether or are not awarded a full recovery. There are almost always negative liability facts present in each case, and your lawyers will know how to deal with them. But the less negative facts, the better, of course.
The sad truth in personal injury law is this – the more catastrophic your injury is, the more valuable your case is. The simple reason is that serious injuries that required substantial and costly past medical care, or even future medical care, are larger damage cases. Despite tort reformers’ cynical views, the system is not set up to grant an injured plaintiff windfalls for her troubles, however. At risk of overgeneralizing, the law says a plaintiff’s damages must be based on some actual hard numbers.
That is, the “soft damages” or pain and suffering, in reality, must springboard off the cost of the medical treament. Thus, a verdict finding $500 in medical treatment and $10,000,000 will almost certainly not stand in the appeal process or post-trial motions argued by the defendant.
Back to the example we started above, if Paul broke his leg when TD’s truck collided with his vehicle in the intersection, he might need a visit to the ER, follow up medical care, or even surgery. Paul’s damages under this scenario amount to past medical care, maybe some future medical care, and pain and suffering. This is likely a low-value case because Paul’s life will return to normal at some point. But, let’s suppose Paul suffered a broken back and is unable to walk for the rest of his life. This is an extremely high-damage case because Paul’s medical care (past and future) and loss of enjoyment of life are huge. As a further example, if Paul is burned or scarred in the accident, the physical disfigurement and pain and suffering damages are substantial.
These are the, so called, bad facts that help a plaintiff’s case because both sides anticipate a jury will punish the defendant for unacceptable social behavior. Back to Paul Plaintiff’s case. Let’s assume TD drank a few vodka orange juices before work or stayed up all night drinking with his friends. TD’s BAC is far above the legal limit when he runs the stop sign and collides with Paul Plaintiff, who is innocently driving to work. Of course, if Paul Plaintiff suffers serious injuries, the aggravating factor of TD’s intoxication places significant risk on TD and his insurance company if the case goes to trial. However, even if Paul Plaintiff suffers a broken leg and no life-altering injuries, this case is more valuable than it would be because of the aggravating factor of TD’s intoxication.
ABILITY TO PAY
Regardless of the nature of the injury, the defendant must be able to pay for the plaintiff’s damages for the case to be worth pursuing. Thus, the defendant must either have adequate insurance coverage or assets sufficient to satisfy a judgment or reasonable settlement. Back to our example – if Paul Plaintiff has $150,000 in medical bills to treat his serious injury, and TD has a $5,000,000 commercial vehicle insurance policy, there is likely enough coverage here to take care of Paul’s past medical and future needs. Paul should pursue this case. But, assume TD was driving his personal vehicle off the clock. TD has no meaningful assets and his insurance expired a month before the accident. This makes Paul Plaintiff’s lawsuit against TD a loser. Paul Plaintiff is likely on his own unless Paul Plaintiff carries a significant Underinsured Motorist Policy.