This is by far the most common question plaintiffs have, and also one of the most difficult to answer. There is no formula one can use, but there are several factors your attorney will consider in arriving at a fair value for either settlement or trial.
The first factor, liability, is fairly simple to understand. Did the defendant, through action (or sometimes inaction) that was either negligent or intentional cause you harm? An easy example of negligent conduct would be a driver running a red light and hitting your car. Intentional conduct would include things like battery — some drunk jerk punches you in the face.
Many times, the liability of the defendant will not be clear-cut. If you are involved in a car accident and the result is a swearing match between you and the other driver as to what happened, there is always the chance that the jury will believe the other driver. In slip and fall accidents, often there will be an issue as to whether the danger was “open and obvious” or whether the dangerous condition existed for an ample amount of time for the property owner to notice it. A prime example of the latter is a slip in a grocery store on a wet substance on the floor. If a customer spilled something seconds before you fell, you will likely lose. A common saying in the legal profession is that a property owner is not automatically the insurer of his guests, meaning that you don’t have a lawsuit just because you got hurt on someone else’s property. Taking the grocery store example again, if the substance on the floor can be proven to have been there for a long period of time, or if it was spilled by an employee, you have a much better case.
The ultimate question on liability is “What are the odds I can prove that the other person is at fault?”
However, the question of liability doesn’t end once you’ve established that the defendant caused you harm through actionable conduct. There is also the question of comparative or contributory negligence — did your actions contribute to your injuries? For example, maybe you failed to wear your seat belt or you were speeding at the time of the accident.
In some states, you cannot recover anything if you were even 1% at fault. In others, your damages will be reduced by your percentage of negligence, so that if you suffered $100,000.00 in damages, but were 25% at fault, you would only be awarded $75,000.00.
This factor considers the odds that the defendant will be able to prove that you are at least partially at fault.
Your Lawsuit-Related Medical Expenses
One of the only ways to objectively measure how badly you are hurt is to calculate your past and expected future medical expenses. Generally speaking, the greater these expenses, the more your case is worth. Be warned, however, that if you run up unnecessary medical bills you will not increase the value of your case. Also, the nature of the treatment will affect the value. Chiropractic or pain management treatment alone will not increase the value of the case as much as one significant surgery.
This type of damages is fairly self-explanatory, but not nearly as simple to calculate as you might think. Basically, you are entitled to recover lost earnings for the time you missed from work in the past and time you will miss from work in the future. If your injuries make you no longer capable of performing your job, you are entitled to the difference between what you would have made in your current job and what you can now make in a job for which you are capable.
This gets complicated because the parties invariably disagree as to whether you are no longer capable of performing your job, and the types of jobs for which you may now be suitable. Does your low back injury prevent you from performing your desk job because it is painful for you to sit? You can be sure that experts will disagree on this subject. Do not take it as a given that you will be found fully disabled. There will be plenty of negotiating room as to a fair amount for your lost wages.
Self-employment is the most frustrating factor which comes into play in determining lost wages (on a side note, I was astounded at the large percentage of my clients who were self-employed). Because self-employed people don’t have a weekly paycheck to reference, an in-depth review of your business is required to determine lost profits (note I said profits, not revenue). The effect on the business going forward is even more difficult to predict — can you hire someone to replace you and still be profitable? Finally, the self-employed also have a habit of reporting as little income as possible to the IRS (yes, you will have to produce your tax records). While maximizing your deductions to pay as little tax as possible may be good business, it makes for lousy wage loss damages in a lawsuit. Your tax returns will be the primary records by which the jury will determine how much money your business made.
Wage loss is simply the difference between how much you would have made were you not injured and how much you can make now. Figuring that out requires an honest evaluation of your current capabilities and how long your injuries will impair you.
Pain and Suffering and Emotional Distress
Pain and suffering and emotional distress damages are commonly referred to as “non-economic” damages, because unlike “economic” damages like medical bills and lost wages, you can’t produce documentation to prove their value. These types of damages are left to the mercy of the jury to decide. Often, the jury will use some multiple of your economic damages to come up with your non-economic damages. This could be 1x, 1.5x or 2x (or 0x or 20x) your economic damages. It is really impossible to say without knowing the specific nature of your injuries.
An injury that is especially traumatic may justify ignoring the economic damages entirely when determining the non-economics. For example, a young girl who is bitten on the leg by the neighbor’s dog may only have $2,000.00 in medical bills (I have seen this personally), but if she has scarring on her leg which will make her ashamed of wearing clothes that would reveal the scars for years, her non-economic damages would be worth a lot more than $2,000.00-4,000.00. The same is true if she is now terrified every time she gets near a dog. On the other hand, a person can have an injury that costs a great deal to repair, but leaves no residual pain or disability.
Bottom line: non-economic damages are the most fertile ground for disagreement between the parties, and provide the most risk for both sides should they decide to submit the matter to a jury. While attorneys have jury verdict reporters available to them which summarize a sampling of recent verdicts in their state, no two juries will award the same amount of non-economic damages. Do not get overconfident if a case similar to yours recovered a large verdict. You will have a different jury which could reasonably come up with a much lower amount for your case.
It may be surprising to some, but often times the amount of money you can recover will be limited by the amount of insurance the defendant has. For example, if you are involved in an automobile accident and suffer major injuries, but the defendant only has $10,000.00 in bodily injury insurance, you may be stuck recovering just $10,000.00 (less than that — maybe zero — once you take out medical bills). Sure, you may think that you can get the rest directly from the defendant, but do you really think that a person with only $10,000.00 in insurance coverage has any real cash or assets from which you can satisfy a judgment?
In the case of car insurance, you can protect yourself by purchasing uninsured/underinsured (UM) coverage, but for most other types of accidents there is no insurance you can buy that will pay for someone else causing you injury. The amount of the defendant’s insurance is a major factor to consider when determining how much your lawsuit is worth.
If you are unlucky enough to be the victim of an intentional act, such as a battery, there is a good chance that the defendant will not have any insurance to cover your injuries. Most liability insurance policies have exclusions for criminal acts and acts which are expected or intended to cause harm. In these cases, you can recover only from the defendant personally, and most defendants just don’t have the net worth to justify the cost of a lawsuit.
So how much money is your lawsuit worth? Usually this comes down not to an exact number, but a broad range. The factors above (in addition to his or her experience with local juries and how generous they are) will be what your lawyer considers when evaluating your case. You can use the same factors to judge for yourself. If your attorney tells you that your case is worth less than you thought, it may give you some peace of mind to discuss with him which part (or parts) of your claim are problematic. The vast majority of attorneys don’t just pull numbers out of a hat when evaluating your claim. He should be able to justify his numbers based on the factors in this article.