This is the most common question plaintiffs have and one of the most difficult to answer. There is no exact formula to use, but there are several factors your attorney will consider in arriving at a fair value for either settlement or trial.
At one point, a garden variety car accident case would settle for 3x the medical bills. That time is long gone. Case factors include liability, comparative fault, related medical bills, prior/future treatment, lost income, provable pain & suffering, and potential insurance coverage.
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 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 crash, 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, there will be an issue as to whether or not the danger was “open and obvious” or whether the dangerous condition existed for ample 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 your case against the store. A common saying in the legal profession is that “a property owner is not automatically the insurer of their guests,” meaning that you don’t have a lawsuit just because you got hurt on someone else’s property.
Retaking the grocery store example, if the substance on the floor can be proven to have been there for an extended time or if an employee spilled it, 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?”
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 were speeding during the accident.
In some states, you cannot recover anything if you are even 1% at fault. In others, such as Oklahoma, 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 few 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 case’s value as much as one significant surgery.
This type of damage is fairly self-explanatory but not nearly as simple to calculate as you might think. You are entitled to recover lost earnings for the time you missed from work in the past and the time you will miss from work in the future. If your injuries make your job impossible, you are entitled to the difference between what you would have made in your current job and what you can now do. If you are injured, you are entitled to the difference between what you can now make in a job for which you are capable.
This gets complicated because the parties invariably disagree on whether you can no longer perform your job and the types of jobs you may now be suitable for. Does your lower back injury prevent you from performing your desk job because it is painful for you to sit? You can be sure that medical experts will disagree on this subject. Please 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 that comes into play in determining lost wages. Because self-employed people don’t have a weekly paycheck to reference, an in-depth review of your business must 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 habitually report 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, suffering, and emotional distress damages are commonly referred to as “non-economic” damages. Unlike “economic” damages, like medical bills and lost wages, you can’t produce documentation to prove their exact value. These types of damages are left to the jury’s mercy 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 impossible to say without knowing the specific nature of your injuries.
An especially traumatic injury may justify ignoring the economic damages 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, but if she has significant visible scarring, her non-economic damages and her dog bite claim 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 that 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 produce a much lower amount for your case.
It may be surprising to some, but the amount of money you can recover will often be limited by the defendant’s insurance. For example, suppose you are involved in an automobile accident and suffer major injuries, but the defendant only has $25k in bodily injury insurance. In that case, you may recover just $25k (less than that — maybe zero — once you take out medical bills). Sure, you may think you can get the rest directly from the defendant, but do you think a person with the Oklahoma minimum for insurance coverage has any real cash or assets from which you can satisfy a judgment?
Regarding car insurance, you can protect yourself by purchasing Uninsured/Underinsured (UM) coverage. Still, 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 that are expected or intended to cause harm. In these cases, you can recover only from the defendant personally, and most defendants don’t have the net worth to justify the cost of a lawsuit.
So, how much money is your lawsuit worth?
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 or her which part (or parts) of your claim are problematic. Most attorneys don’t just pull numbers out of a hat when evaluating a claim.