Articles
January 31, 2019

Should I Sue for Personal Injury, Part 4

What is my case worth?

In practicing personal injury law in Vermont for more than three decades, the questions I hear most frequently are:

Here are my insights on the fourth question, offered with the intent of empowering an injured person to better understand and successfully navigate his or her legal options.

What is my personal injury case worth?

This is the ultimate question for both sides in a lawsuit. It drives almost every important decision:

  • whether to sue,
  • how much to invest in the lawsuit,
  • what to accept in settlement, and
  • whether to take the case to trial.

It is also the most difficult question to answer since it involves predicting an outcome driven by countless variables.

How is the value of a case determined?

When someone suffers a permanent injury, no amount of money will make them whole. Most people would gladly give up any monetary recovery if they could turn the clock back to before their injury. The value of a case then is not based on some inherent sense of “worth” but on a prediction of the end game. What would a jury, a group of average people living in the area where the case is pending, likely award in damages after hearing all the evidence and the judge’s instructions on the law?

Determining value is where experience matters the most. An experienced personal injury lawyer will be able to draw on years of litigating similar cases in order to gauge the approximate value of your case. Of course, there is no exact science for valuing a case. But, if you ask three of the most experienced lawyers in a state what a case is worth, after providing a thorough explanation of the facts and introducing them to the witnesses, their responses will likely fall within a fairly narrow range.

Keep in mind that estimates of “value” of a case may vary as the case unfolds and a more precise picture of what the jury will hear emerges. If there is a risk that the case may never get to a jury, or that the jury may never get to losses and will find against the plaintiff on the negligence issue, then the value of the case should be “discounted” to take account of this risk.

What kinds of compensation does the jury consider?

A jury will typically be asked to compensate for losses in the following categories:

  • medical expenses
  • lost earnings and financial losses
  • “pain and suffering”
  • “loss of enjoyment of life” and
  • any permanent disability

Evidence of past medical bills and lost earnings is usually fairly concrete through documented costs, while evidence of future medical expenses and lost earnings can be established through competing doctors and economists making projections.

Factors influencing the "value" of a personal injury case

Determining fair compensation for “pain and suffering” and “loss of enjoyment of life” is very subjective. It often depends on whether the jury finds the plaintiff sympathetic, or the defendant unsympathetic, and how the jury feel about the basic idea of compensating someone for such subjective losses. If the defense is able to convince the jury that the plaintiff has lied about or exaggerated his or her injuries, the “value” of the case may go down considerably. Most juries find it difficult to award damages, particularly in these more subjective categories, to a plaintiff they don’t believe or that they find unsympathetic. For all these reasons, two plaintiffs with identical claims may have cases with very different “values.”

For example, I had two cases in the same county involving similar neck injuries from high-speed rear-end collisions. In the first case, the defendant was intoxicated and had a history of driving while intoxicated. In the second case, the defendant was a mother distracted by kids that were fighting in the backseat. When predicting how a jury would likely respond to these claims, both sides concluded that the case involving the drunk driver was “worth” twice as much, even though the losses were virtually identical. Both sides recognized that a jury would probably give the plaintiff in the drunk driving case the benefit of any doubt and therefore award more damages in the subjective categories.

Predicting what a jury is likely to award after hearing all of the evidence, i.e. determining “value,” is more an art than a science. This is why experience counts for so much. Lawyers with more experience, and experienced partners to consult, have more “data” about how jurors (and insurers) have responded to similar facts in the past and therefore have a better sense for estimating value. Sadly, some less experienced lawyers may take on complex cases outside their area of knowledge, like brain injury and medical malpractice cases, and either sell the case short or overlook issues that diminish value.

Almost all cases in Vermont go through mediation before they get to trial, and most cases settle at mediation. Fortunately, we have very experienced mediators practicing in this state who are able to bridge the gap in estimating value, whether that gap is caused by inexperience or misplaced confidence on one side or the other.

Finally, because there is always an element of uncertainty in each individual case, “value” is best described as a range of probabilities on a bell curve, rather than a precise number. Some plaintiffs want their day in court and will elect to try their case to a jury even when they are offered an amount at the high end of the likely range of possible outcomes. Other plaintiffs may elect to settle for an amount on the low end of the range to eliminate uncertainty and get on with their life. Never forget—the decision to settle is the client’s, not the lawyer’s.

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