Author: Anthony Baratta
It’s really only about the money. When I first meet the client seriously injured, or the family whose loved one has been killed, I often hear, “it’s not about the money, I just want to make sure it does not happen to someone else.” But, by the end of what often turns into a several year grind of litigation, it’s really only about the money for every client. Since the only remedy I can fight to give someone is to force an insurance company to pay money, that is the one thing that should matter.
So let’s have a frank talk about how that money gets paid, and how the decisions are made as to how much money should be paid.
First, it is almost impossible to talk about money, other than generally, in the first meeting with a client, because so much is unknown then, and so much has to be developed, investigated, discovered and finally presented in an understandable argument. Let’s talk about a simple rear end car crash, for example. Your car is stopped at a red light. You are struck in the back by another driver. You suffered back pain. Seems simple enough, right? The other driver is at fault. You suffered an injury. You should win. But it is never that simple, even in the most simple of cases. Maybe it looks like this:
The complicated part is determining what is “fair value.” This blog is intended to provide a simple guide to you in that process, using the simple rear end car crash described above.
1. Insurance. What kind of auto insurance did you pay for? What kind of insurance did the person who caused the injuries buy? There is no more significant factor in the valuation of a car crash injury than this. I have written extensively about insurance in other blogs. The most important coverage you can buy is underinsured motorist protection, which protects you should the person who caused the injuries not carry enough liability coverage.
2. Negligence. How bad was the conduct that produced the injury? How the crash occurred is important to fair value. The more egregious the conduct of the person who caused the crash is, the more valuable the case is. If the crash was caused by a drunk driver, it has more value than a crash caused by a stressed mom who had a momentary lapse in attention
3. Venue. Where did the crash occur? A crash that occurs in Philadelphia County means that the lawsuit can be brought in Philadelphia County. It is perceived that jurors in Philadelphia are more willing to consider money damages for pain and suffering than in Chester County. So, even if the lawsuit is not necessary, the potential settlement value of a claim for injuries is dependent in part upon where the lawsuit, if it must be filed, can be filed. This is called venue.
4. Causation. Can the injuries that followed the crash be proven to have been caused by the crash? Many people have pre-existing medical issues. The injuries may interfere with work, hobbies or social activities. Injuries will likely produce pain. It is not sufficient proof that problems followed the crash, but the problems have to be proven to have been caused by the crash. This proof can only come through a medical expert.
5. Did the injured person contribute to his or her injuries? If the stopped car struck in the rear suddenly came to a stop in the middle of the road for no good reason, then even if struck in the rear, the injured person may be partially responsible for their own injuries, which reduces the value of the case.
6. Damages. Is there objective evidence of injury? An x-ray that shows a fracture is an example of objective evidence. Pain is subjective, there is no test that effectively allows anyone else to see that it exists. Is there financial losses? Are there past medical costs that have not been paid or have to be paid back if a recovery is made (this is called a lien). Is there lost wages or future lost earning capacity? Will there be a need for future medical care and at what cost?
7. Your medical expert and other experts hired. Does the doctor/expert have a good reputation and will he or she provide convincing testimony?
8. You, the client. Are you a good witness? Are you likeable? Are you believable?
9. Your lawyer. This is the second most important factor after how much insurance coverage is available to pay the claim. Every point, 2-8 above, can be impacted by how prepared and creative your lawyer is. Your lawyer can influence the proof of the bad conduct of the person causing the injuries. A creative lawyer must file the lawsuit in the best possible legally available venue for a recovery. Your lawyer chooses the experts to help explain what the defendant did wrong and what damages you’ve suffered, and prepares those experts to best tell your story. Your lawyer must prepare you to become a good witness. Your lawyer conducts the discovery in the case in a manner that focuses on the bad conduct of the defendant while preparing others to tell your story.
10. Insurance. I started by explaining that what insurance you choose to buy to protect yourself and your family (in the car accident scenario) is the most important factor. The amount of insurance coverage the wrongdoer has is even more important in every scenario. No lawyer can change what insurance coverage exists. No matter how good your lawyer is, the insurance available to recover for injuries caused by a car crash (or any other injury) remains the most important factor in any valuation of personal injuries.
The above analysis works whether the case is a car crash, an injury caused by a defective product, a medical malpractice case, or a fall down case, or any type of case where personal injury is suffered.
We hope that this explanation helps you understand that the valuation of a personal injury case is unique in every case. There is literally no one case that is exactly the same as any other. The skill, preparation, diligence and creativity of your lawyer can greatly affect the value of a case.
