Many times when taking on a new client, I am asked “How much can you get for me?”. Naturally, I can never ethically provide a number, because I don’t want to create expectation that is not met, or imply that I am guaranteeing a result.
However, I can discuss the factor that go into determining the value of a claim.
In order to obtain a recovery for a client with an injury claim, there must always be three factors present, which we refer to as
Each of these items may be thought of as the legs of a stool. If any one leg fails, then the stool with fall and the claim cannot be supported.
Liability in most personbal injury cases is predicated upon non-contractual legal respobsibility, known as a “tort” law. Unlike a claim based upon a contract, like a mortgage default, where a person is sued for failing to live up to a prior agreement, a tort claim is based upon the alleged wrongdoer’s general responsibility to society.
Most injury claims are based upon a tort called “negligence”. Briefly explained, negligence arises which someone has a duty to act reasonably and fails to do so, and that failure is the legal cause of damage to someone else. For example, there is a duty to pay attention when driving. If, due to inattention, someone slams their car into the back of your car and hurts you, that is negligence.
Sometimes, determining if a duty exists, or that the duty was breached, and whether that breach was the cause of injury is quite complicated and hotly contested.
Damages is normally the biggest point of contention in a personal injury claim.
Under the law, the damges when a plaintiff or injuried person may recover are divided into two categoriesEconomic Damages and Non-Economic Damages.
Economic Damages may be thought of as every item that can have a dollar value assigned to it, whether in the past or the future. Natually this includes past and future hospital and medical expenses as well as lost earnings, past and future. It can also include the cost of in home care and medical monitoring. It may even include the value of household services that the injuried person is unable to provide. The future expenses are always contested by the defense. The plantiff cannot recover if the future expenses are speculative. They must be reasonable certain to occur. Even the past expenses are subject to attack, as they must be reasonable and necessary.
Non-economic Damages are items that you cannot assign a dollar value to. Often, these damges are referred to as “pain and suffering”, but non-economic loss is much more than that. It includes past and future pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, grief, anxiety, humliation, emotional distress and any other non-monetary loss directly attributable to the occurence.
Gaining sufficient compensation for non-economic damages is increasingly challenging. But the concept remains valid. If you lose your arm, the medical bills may not be so high, but there is no question that the non-ecomic loss is tremendous.
Collectibility refers to a source of funds to pay for the damages. Unfortunately, an injury or death that was caused by another may often result in little or no compensation. The most heart-wrenching aspect of my profession is having to tell a catistrophically injured person or their family that there is little or no fund to pay compensation. California only requires motorists to carry bodily injury liability insurance in the amount of $15,000 per person/$30,000 per occurance. Such “minimum” policies are woefully inadequate in countless cases. This is not to say that a negligent driver’s responsiblity is limited to the amount of insurance carried, but in almost every case, the chances of recovering more that the limit fromthe assets of the defendant do not justify the costs of obtaing a judgment and trying to collect it.
The best protection against this unfortunate result is to purchased Uninsured/Underinsured motorist coverage with as high a limit as you can afford. The available limit will normally be the same as the limit of liability insurance purchased.
So what does this mean a case is worth? Naturally, the defendant (usually the defendant’s libility insurance carrier) wants to get away with paying as little as possible, while or injured person expects fair compensation for his or her injuries. I often counsel my clients that “fair” is not the standard. In stead, the decision to accept a settlement must be based up a careful analysis of risk versus reward. Every case is different. Please fell free to call me for a consultation.