How Do You Determine the Value of a Personal Injury Case?
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Here is a great piece by Florida injury attorney James Dodson. The editor’s commentary is added by myself, Utah injury attorney, Rex Bush, webmaster of this blog’s affiliated website: Utah-Personal-Injury-Attorney.com. Click here Utah Injury Attorney to visit our home page and access other relevant articles on Utah injury law.
There is no magic formula or process by which some one can predict with certainty the amount of money a personal injury case may be worth. If there were, society would not need personal injury lawyers. One could simply apply a formula to come up with the value of the value of a case. If this were so there would be no need for a trial. Yet we know the trials are necessary when the two sides cannot agree on the value of a case.
[ Editor's commentary: Valid point. In Utah worker's comp cases there is a statutory method for determining the value of a work injury. No such system exists for auto accident, slip and fall and other types of injury cases that do not happen on the job]
In discussing the value of an injury claim I will assume the injured party had no comparative fault. As I discussed previously, if the insurance company is able to prove the injured party was also at fault in the accident, their comparative fault would reduce any damage award by the percentage of their fault.
Additionally, consideration must be given to the probability holding the response will party liable for the accident. If there is a very low percentage of probability that they would be held liable for the accident, the settlement value of the case would be substantially reduced. If they were absolutely at fault, with no evidence to the contrary, the value the case becomes simply a matter of calculating the loss suffered by the injured victim.
[Editor's commentary: In Utah, if your fault is 50% or more you cannot recover against another person whose negligence was a cause of the accident. This is a type of "comparative fault" system.)
Bearing those factors in mind, the value of any injury case is a function of the injury and damages suffered by the victim. Those damages are generally broken down into two categories. First, special damages are those capable of being calculated with certainty. Special damages include past and future medical expenses, lost earnings, lost earning capacity (the ability to earn money) and property damage.
The second includes intangible damages. A person's intangible losses are more difficult to calculate and juries are instructed to use their own common sense and judgment in determining the value of those damages. Intangible damages include pain, suffering, mental anguish, inconvenience, scarring, disfigurement, and loss of the enjoyment of life. These intangible harms are purely subjective, difficult to determine and often vary among jurors who are deciding the case.
[Editor's commentary: This is also an accurate description of the classes of "damages" recognized by courts in Utah.]
Ultimately, the value of the case is what a jury would award on any given day. The injured party’s attorney and the insurance company are continually trying to evaluate how a jury might see the case and how much money a jury might award. Each side creates a range of their estimation of the value of a case. Settlement is possible when the money offered intersects with the range both sides feel the case should fall within. No settlement is possible if the plaintiff believes their case is worth $50,000 but the insurance company is offering only $25,000. Their settlement ranges have not intersected.
[Editor's commentary: What a jury would award is the gold standard. Both sides are considering their experience with and knowledge of local verdicts while negotiating a settlement. Let's face it 99.9% of injury cases are settled short of trial. But those few that go to trial have a huge effect on the settlement values of other cases.]
No value can be placed on a case until all of the damages are known. All medical treatment must be completed and any estimate of future medical treatment must be provided by the treating physician.
That means the injured party must reach what lawyers and doctors refer to as maximum medical improvement, meaning further medical treatment is not raising the injured party’s level of recovery. They have reached a plateau. Further medical care may be required, but it will only maintain their condition, not improve it.
[Editor's commentary: Lawyers and injured persons can no longer trust that the doctors will find all the injuries. The information explosion has created a need for specialization and doctors often don't spot injuries outside their narrow area of expertise.
If you are injured you have to take responsibility for making sure all your injuries are identified, diagnosed and treated. Don't assume your doctor will spot all your injuries.
If you are still having pain and think something got overlooked, tell your attorney about it. Give him a chance to help you find a doctor who can properly diagnose and treat your injury.]
Waiting for the injured party to reach maximum medical improvement is often the determining factor in any delay in resolving the injured party’s claim. A lawyer is not capable of predicting whether an injured person will need further treatment, such as a major surgery. That information is provided only by a physician.
[An orthopedic surgeon will sometimes wait two years before performing knee surgery. If your injuries are serious don't be in a big hurry to settle your case.}
The need for future surgery, for instance, may be a significant factor in the value of the case. Attempting to reach a settlement prior to reaching maximum medical improvement could result in significant future medical needs not being taken into consideration in determining the value the case.
Other important factors to consider regarding the value of an injury case include whether the person has had significant medical treatment in the past, [Editor's Note: past treatment can sometimes increase value if a preexisting condition is aggravated] their general health, their life expectancy, and their need for future medical treatment. Another intangible factor is whether the injured party is someone a jury would like and believe, which means are they seen as someone with credibility. This is definitely a factor insurance companies take into consideration in determining how much a case is worth for settlement purposes.
Other factors include the significance of the accident property damage and trauma, the extent and permanent nature of any injuries, whether the injured party was required to miss extensive time from work, the amount of the medical expenses, both past and future, the county where the case will be heard, the particular adjuster assigned to the case as well as the unique culture of the insurance company and any defense attorney they select to represent them.
All of these factors combine into a unique combination of circumstances which will greatly influence the value of any case.
Virtually no two cases are alike, even if the accident and injuries involved are nearly identical. This means the evaluation of two cases which appear to be similar on the surface may actually produce widely different evaluations due to other factors, including those listed above.
Evaluating personal injury cases takes knowledge, experience and hard earned intuition. Without these traits you may be at a serious disadvantage when negotiating with the insurance adjuster. Unless you’re in the business of evaluating and settling personal injury cases for a living, you should look to an experienced personal injury attorney for guidance.
[Valuation involves judgment and judgment takes time to develop. If you are handling your case yourself (rarely a good idea) invest in the opinion of an experienced injury attorney(pay her for an hour of her time) so you don't make a mistake on the critical issue of case value]
Attorney James W. Dodson is a Clearwater, Florida personal injury trial lawyer with over 20 years experience representing clients in all types of injury claims including vehicle accidents, fall cases and wrongful death. He is the author of three books offered FREE to consumers as a guide to dealing with accidents and insurance. Visit his website at JWDodsonLaw.com for FREE copies of these books, other articles, videos, news and commentary.
Article Source: http://EzineArticles.com/?expert=James_Dodson
Utah injury attorney Rex Bush thanks James Dodson and EzineArticles for allowing this article to be reproduced here.
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