What You Need To Know About Valuing Personal Injury Claims
Written by Greg on July 3, 2013
One of the questions that a personal injury attorney gets on a daily basis is “what is my case worth”. Unfortunately, at the start of the case, there is no way that an experienced personal injury attorney can put a value on the claim. The reason is simple, how much a case is valued depends upon numerous factors that usually are unknown early on after the accident. Here is a summary of how settlement ranges are determined by the best attorneys.
The Big Three
There are three factors that are part of each evaluation of value on a personal injury claim. They are liability, damages, and the ability to pay. Each of these factors is a consideration for determining a ballpark range of value in a personal injury case.
1. Liability-liability factors are the initial component of a personal injury evaluation. Without liability, the experienced personal injury attorney never gets to damages. In essence, the question is what did the other person or entity do wrong? Not only must someone have acted negligently, but they must also have a duty to act in the first place. Their actions or inactions must’ve caused injury to the personal injury victim.
A very easy example would be a truck driver following too close and rear-ending another vehicle. In this example, what did the person do wrong would be, following too close, failing to keep a proper lookout, failing to properly apply and timely apply the brakes and possibly some other factors regarding the condition of the tractor-trailer.
In essence, an injury even a very serious one does not rise to a personal injury claim unless there is a liability on the part of someone else. The “what did they do wrong?” test must be applied to each case to determine whether there is a case.
2. Damages-damage considerations are ones that deal with how the injury victim has been harmed. The law attempts to try to place the personal injury victim back in the same position they were pre-accident. It is a very difficult consideration and one that many times as determined by 12 disinterested persons called jurors who tend to value the case quite differently than the personal injury victim themselves.
It is very difficult for a personal injury lawyer to give a value or range of value on a personal injury claim without having looked at the medical records and documentation with a fine-tooth comb first. Personal injury damages include lost wages, medical bills, physical impairment, pain and suffering, mental anguish, and disability. Both past and future time periods are considered.
3. Ability to pay – the ability to pay is a big component in quite a few personal injury claims involving very very serious injuries. Most of the time ability to pay means how much insurance coverage is available for the accident. In some instances, a large company or a very large policy of insurance is involved and the ability to pay is not much of a factor. Unfortunately, the personal injury victim cannot pick who injured them.
On very serious accidents, if the insurance coverage is insufficient to fully compensate the personal injury victim collecting the excess is tough. In Texas, it is extremely difficult to pursue and actually collect a judgment above insurance proceeds against an individual who is not independently wealthy.
Values and Variables
Personal injury attorneys deal with injury claims every day. Many of the more experienced attorneys have been doing so for decades. Personal injury claims are not an exact science and are usually determined in ranges. Only after the above three factors have been considered can a reasonable range be determined.
Often, injury claimants make the mistake of hearing of another’s recovery and trying to extrapolate that into a number that they should receive for their injury or their accident. Each case is unique and has different factors as well as different people involved in the case.
One factor that is important and extremely hard to value is the parties. If the defendant is someone who is very likable to the jury, the odds of the jury punishing or holding that person fully accountable government down. Likewise, if the personal injury victim is extremely likable, the odds that the jury will go the extra mile to make sure they are fully compensated is increased. If a juror feels a person is exaggerating an injury, the verdict will usually reflect that. If a juror feels the defendant is not credible on how the accident happened, liability is usually found.
There are other factors such as where the case is filed, the attorneys involved, the judge of the court, and prior verdicts of similar cases in that County in the last year or two. However, the more experienced the attorney the more data they have to accurately estimate the settlement value. Attorneys cannot predict what a jury will do on any given day. Cases that may appear to some to be complete dogs may turn out to be a decent case. Alternatively, cases that seem like they cannot be lost may turn out differently than everyone expects.
In the news several years ago was a case in Texas where a woman who was in a rest home was literally killed by fire ant bites. The deceased had hundreds of fire ant stings which resulted in her death. The jury returned a verdict in favor of the nursing home and against the woman’s estate. Most injury lawyers believed that the case could not be lost. The other side is that there are cases that many experienced attorneys say could not be won that resulted in a verdict and a monetary recovery.
The best advice for someone who is interested in trying to determine a “value” their personal injury claim is to speak with the best personal injury lawyer you can find and let them go through the above factors.