One question we hear frequently is: How much is my case worth?
When asked at the outset of a case, it is a question that is almost impossible for any attorney to accurately answer.
THREE BASIC ISSUES
Every case has three main issues that need to be addressed in order to get a value range on what a case may be worth. How much a case is actually worth is something that years of experience have honed for many personal injury attorneys.
The first issue – Liability
The first area of concern is who is at fault for causing the injury. This is the first area of inquiry because unless the other party is at least 51% at fault the inquiry stops here.
Another way to consider this is through the one sentence method – ask:
What did the other person do wrong?
He ran the red light, he was drunk when he was driving, he failed to yield the right-of-way, the product was dangerous, or I was hit by a truck driver -things of that nature.
While liability is the first area of inquiry, it is important to note that there are other factors regarding liability that are taken into consideration in coming up with the value of the case.
If the driver was drunk at the time of the accident, potentially punitive damages may enter into the equation. If facts or inactions were of such a nature that they were outrageous, or calculated to be very unpalatable to a jury the liability factor can increase the value of the case.
Alternatively, if the case is extremely difficult to prove liability, that must be considered when addressing the value of a personal injury case.
Additionally, if a case is extremely expensive to develop that should also be taken into account.
The second issue – Damages
The next area that personal injury attorneys used to value a case is that of damages. Damages referred to legally recoverable elements recognized under Texas law.
For personal injury the basic questions asked of the jury are as follows:
* Physical pain and mental anguish.
* Loss of earning capacity.
* Physical impairment.
* Medical care expenses.
We will address these areas one at a time:
A. Pain and Suffering
This is the element of damages that is probably the single most important and also the most misunderstood. These are “human damages” and can vary greatly from jury to jury.
If the medical evidence is such that the victim suffered greatly and have a very difficult time with a recovery, then the pain and suffering should be very significant element of that the case. On the other hand, if the evidence shows that the victim sustained a “whiplash” type injury and recovered quickly the damages would be valued accordingly.
A good way to look at valuing pain-and-suffering is to assume you are on a jury, did not want to be there, and did not know the parties.
How much would you award a stranger?
This is something that requires objectivity, separate from the personal injury victim standing in their own shoes and realizing that there are always two sides to every story!
B. Lost Wages
This is fairly straightforward in that the amount of lost wages sometimes can be very easily calculated such as when a doctor orders the patient not to work for certain period of time. Even then, if the amounts add up to significant lost wages expect a counter argument from the insurance defense attorney.
In Texas, the lost wages are supposed to be calculated on a net income tax basis, which in effect does not ever make the personal injury victim completely whole.
C. Physical Scars
Disfigurement claims are those damages, which relate to a condition or a physical scar that resulted from the accident. Loss of a limb, finger or permanent scar would be valued under this damage element.
D. Medical Expenses
The law in Texas was changed recently under “tort reform”, which had a substantial impact on all personal injury damage cases in the state. One of the most significant changes to the law was that of “paid or incurred” medical expenses.
Juries can consider the amount of “paid or incurred” medical expenses but not gross billing expenses. In effect, what this means is that your out-of-pocket expenses plus that which your health insurance company actually paid would be appropriate for reimbursement. If you did not have health insurance, then it would be the amount of the gross billing of the medical expenses that were necessary to treat the injury, less any write-offs.
Unfortunately for Texas families, tort reform left them holding the bag because they are never compensated for being responsible and carrying health insurance.
If a drunk driver in Texas hits you, and your medical bills are reduced because you were responsible and caring health insurance, you pay for the insurance and the drunk driver gets the benefit of your responsibility.
It is important to note that the burden is on the plaintiff to prove their damages. In most cases, the most important damage testimony will be that of a treating physician. What your doctors have to say about your recovery and your future prognosis can be very powerful evidence for a personal injury claim.
Some doctors are more credible than others and in the more serious cases, defense attorneys usually hire doctors who are routinely paid for by the insurance industry.
Those insurance defense doctors are rarely objective and almost always testify that the injured victim is either exaggerating or is not hurt as bad as suggested and that most of the medical treatment was unnecessary.
The third issue – Ability To Pay
Unfortunately there are many instances where liability is crystal clear and the damages are excessive but there is inadequate insurance to cover the tab.
Collecting money outside of an insurance policy is extremely difficult in Texas and the ability to pay, realistically means how much insurance coverage is available for the case.
Collecting a judgment from an individual when there is no insurance coverage is extremely difficult in Texas and in many cases, a person may be able to file bankruptcy and wipe out any judgment that may have been obtained.
Large corporations may be self-insured and in which case, the ability to pay not be an issue for the majority of personal injury verdicts.
There are many other factors that it personal-injury attorneys take into consideration in value in a claim. How well the plaintiff’s may relate to a jury is one factor. Another factor might be the defendant’s demeanor or even age or other facts.
To some extent, a jury trial may be something of a popularity contest and the credibility of any person whether as plaintiff or defendant can cause a scale to tip one way or the other.
Additionally, whom the plaintiff retains as counsel as well as the defense attorney handling the case can have an impact on the value of the case.
In short, it is very difficult to give an accurate assessment of the value of the case before all the facts are known. Certainly a careful review of the medical records is necessary in order to understand the extent and nature of the injuries when a personal injury claim is being valued.
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