Evaluating Your Case
The fair settlement value of each case is based upon a consideration of a variety of factors - some legal, some medical, some tangible and some intangible. The factors to consider are not the same in each
case. The elements of damage recognized varies case by case and state by state. Contrary to some beliefs, there is no mathematical formula to determine what is fair. The ultimate question is "what would a jury do in this case with these facts and these injuries and this Plaintiff?"
An experienced personal injury trial lawyer (and claims adjuster) can in most cases eventually agree on a range of a probable verdict if the issues were to be submitted to a jury in the county where the injury
took place or where the defendant resides. Getting to the place where an evaluation is possible requires first that the claimant has reached maximum medical improvement (MMI). It then requires a careful evaluation of liability, damages and causation issues. Oftentimes treating doctors are contacted for their opinions on issues of causation and permanency. All relevant information is then weighed to determine what would be fair. It is always best to carefully choose a lawyer as soon after the injury as is practicable. Steps can then be taken to preserve evidence and lay the groundwork for an eventual resolution. A sampling of issues that may be involved in the evaluation process include:
1. What was the legal duty of the alleged tortfeasor?
2. Was there clearly a breach of the duty and evidence thereof?
3. Did the actions of the injured party contribute legally (proximate cause) to their own injuries?
4. What are the probable percentages of applicable comparative fault, if any?
5. What are the causation issues?
a. Immediate or delayed onset of symptoms
b. Pre-existing conditions
c. Any gaps in treatment
d. Nature and consistency of treatment
e. Opinions of treating doctors
f. Any subsequent injury/trauma
6. Measure of applicable damages. For example:
a. Past medical bills (necessary and reasonable)
b. Future medical bills expected, if any
c. Past pain and suffering (including emotional distress)
d. Future pain and suffering (if permanent injury)
e. Past loss of function (bodily disability)
f. Future loss of function
g. Past lost income
h. Future loss of earning capacity
The evaluation by an experienced bodily injury trial lawyer will also factor in the age of the claimant and his or her background. The lawyer will know what evidence will likely be admitted and what will not
(should the case go to trial). The circumstances of the trauma and the testimonial strength of the parties and witnesses are also important. The amount of liability and underinsured coverage also affects the evaluation and how the insurance companies will view their risk at trial. This knowledge aids in the negotiations. Part of the process should involve efforts by the lawyer to reduce subrogation (reimbursement) claims to health carriers and others in order to minimize deductions from any potential settlement amount and maximize the net amount the client receives. Also to be considered is the availability of "structured settlements" which is highly recommended for minors and also available to adults. There are many advantages including tax free growth and payments made well after age eighteen to an injured minor. Care must be taken to assure the best investment is selected and the transfer is made properly (to assure the IRS benefit is not lost). Our firm has successfully handled hundreds of structured settlements.