The number one question on most of my clients’ minds is how much is their case worth. I get that question all the time. And, it makes sense. My clients have been seriously harmed and usually are out of work. That means they are making no money. They are suffering physically, emotionally and, perhaps most importantly, financially. As such, they want to know the value of their case. They want to have an idea of where they are going to be financially once the case is resolved. Will they be destitute or will they be at a place that is somewhere near where they were the day before the accident occurred.
As such, the following presents a general construct as to how an attorney evaluates a case. Certain terms become important, such as liability, injuries, damages and comparative negligence.
Liability And Damages – The Most Important Aspects Of A Case
Liability and damages are the essential elements of any evaluation of the value of your case. Together, these elements provide pretty much all the information you need to get a good estimate of what you can expect to receive at the conclusion of the case. Let’s discuss each of the terms one by one.
First, liability is the lawyer’s way of saying how did the accident happen and relatedly who is responsible. Because, before you can sue somebody, you must ensure that there is a party that is at fault for the happening of the accident.
Generally, when somebody rear-ends another car stopped at a red light, that’s a slam dunk liability in the plaintiff’s favor. In other words, because of that driver’s carelessness (or, as we say in the law, because of that driver’s negligence), the accident never would have happened. But, some cases are not easy. For instance, sometimes a car may make a left in front of you, but maybe you were driving too fast and thus you prevented the other driver from accurately gauging the reasonable amount of time he or she had to complete the turn.
In cases like this latter scenario, the courts will allow the jury to apportion fault between the parties. As such, in the first scenario, where there was a hit from behind at the light, the other driver will be held 100% responsible. In the second scenario, however, where the other driver makes the left in front of you, maybe that driver is 75% responsible for the accident, but because you were driving too fast, you are held 25% responsible.
Comparative Negligence – Where The Plaintiff Is At Fault
When the plaintiff is responsible, even just partly, for the happening of the accident, it is said that the plaintiff is comparatively negligent for the accident. As you will see in a moment, this concept – of apportioning liability between the parties – will become a critical factor in helping one understand the value of one’s case.
Pain And Suffering – Loss Of Enjoyment Of Life
Damages is a pretty straightforward concept. Damages is the amount of losses one suffered because of the other party’s carelessness or negligence. Damages can mean different things. It can mean the pain and suffering that one occurred immediately after the accident. For instance, if there is a car accident, and one suffers a fractured leg, that is a lot of pain, at least temporarily, and that will be one aspect of the damages claim. Sometimes, pain lasts longer than just that which is associated with a fractured leg. Sometimes, people have accidents and their injuries become chronic. In other words, they will have pain for the rest of their lives. For example, persons who suffer severe injuries to their neck or back often do not reach pre-accident status. Sometimes, these persons require surgery where their spine is rebuilt using plates and rods. These persons end up suffering pain for the rest of their lives.
Damages also includes claims regarding how the injuries have impacted their right to enjoy their lives. For instance, if, because of the accident and subsequent injuries, one can no longer enjoy their favorite hobbies or activities, such as jogging or working out or even taking walks without pain, this would be part of your damages claims. These claims are often very expansive and yet unique to each person’s case. Sometimes, our clients complain that they can no longer pick up their children or grandchildren without incurring pain. Some complain that they struggle carrying groceries from the supermarket. Some complain that they have trouble sitting at their desk to look at a computer because it causes pain. Some complain that the pain prevents them from getting comfortable in a chair or falling asleep at night. Some say that the pain prevents them from turning their neck, which makes it problematic when driving. Others complain that they can no longer do simple things such as house or yard work. All of these losses would be included in one’s claim of damages.
Pecuniary Or Economic Losses – The Damages Associated With Being Unable To Work Or Pay Medical Bills
Another aspect of a damages claim would be a pecuniary or economical claim. This claim stems from one’s lost earnings. It would include a recovery for lost earnings that happened right after the accident such as where one misses a few weeks or months of work following the accident. Here, you sue for the amount of earnings you did not make because you were hurt and missed work. On the other hand, there are also victims of accidents who no longer are able to work because of the accident. They have become permanently disabled. In this case, one would be pursuing a loss of future earnings claim. Basically, here, you figure out what you would have made for the rest of your life if you were able to work and then you sue for that number.
Also included in this claim would be any medical bills incurred. Not only are past medical bills covered, but one is also entitled to make a future medical claim. For instance, one can sue for the cost of a future surgery if one would be needed.
Putting It All Together – What Is The Full Value Of Your Case?
Once you have determined liability and the extent of damages, you need to then place a value on the case. Because we cannot go back in time and prevent the accident from occurring, the law instead states that one can recover from another the dollar value equal to the amount of damages caused by the other’s carelessness.
One way attorneys do this is by looking at similar cases that have occurred in the past and using the numbers those cases settled for so that they can determine the value of your case. For example, if you suffered a shoulder injury when another driver hit you while riding your bike, your attorney may look to prior cases where the injured party also suffered a shoulder injury in a bike knockdown case. This will help to determine the value of the pain and suffering aspect of your claim.
Generally speaking, damages for pain and suffering can be placed on a broad spectrum. On the lower category of claims, a broken arm or leg may be worth in excess of $100,000 and even more if a surgery is involved or where the fracture did not heal properly. In the middle category are claims involving substantial surgeries like neck or back surgeries. Such claims can have values in excess of a million dollars ($1,000,000). Then, on the other end of the spectrum, are the claims where a person has become paralyzed or is in a coma or something of that nature. Those claims would be worth many millions of dollars.
From that number, you then add any pecuniary losses. Again, this would be the amount of lost earnings, both past and, if applicable, future. So, if you were making $100,000 a year and now you cannot work, you would be entitled to the value equal to your average earning salary ($100,000), times the number of years you would have been working had the accident not occurred (take the age you were when you were injured and subtract from 65, which is the average age of retirement), and that’s a rough estimate for your lost earnings claim. An economist can help with this claim as the future value of a dollar needs to be figured out, along with what would be typical raises and adjustments for inflation. It is not uncommon for this value to be in excess of one million dollars ($1,000,000). Then add medical costs, both past and future. The number you come up with would be the “full value” of your case.
Taking Into Account Your Responsibility For The Happening Of The Accident
Now, once you have the full value of your case, you need to take the liability element into account. As discussed above, if the defendant is 100% liable, then the value of your case should be equal to the full value of your case. But, if the injured party is perhaps 50% responsible (or comparatively negligent for the accident), then the case is worth roughly 50% of the full value of the case.
Of course, determining the value of a case is more an art than a science. It is for this reason that we call it the “practice” of law. We do our best, but there is not always the right answer; instead, we are looking for the best of many possible answers.
If you have any questions regarding the value of your case, please feel free to call our office at 800-494-0889 and ask for Howard Stolzenberg or Terrence Cortelli and we will be happy to discuss any issues you may have. Also, feel free to email us As always, we are here to help.
You should provide a lawyer with any documents that might be relevant to your case. Police reports, for example, contain eyewitness information and details about the conditions surrounding auto accidents, fires and assaults. Copies of medical reports and bills from doctors and hospitals will help demonstrate the extent and nature of your injuries. Information about the insurer of the person who caused your injury is extremely helpful, as are any photographs you have of the accident scene, your property damage and your injury. The more information you are able to give your lawyer, the easier it will be for him or her to determine if your claim will be successful. If you haven’t collected any documents at the time of your first meeting, however, don’t worry; your lawyer will be able to obtain them in his investigation of your claim.
The critical issue in many personal injury cases is just how a “reasonable person” was expected to act in the particular situation that caused the injury. A person is negligent when he or she fails to act like an “ordinary reasonable person” would have acted. The determination of whether a given person has met the “ordinary reasonable person” standard is often a matter that is resolved by a jury after presentation of evidence and argument at trial.
Comparative negligence is the rule under which negligence is measured by percentage, and damages are diminished in proportion to the amount of negligence attributable to the person seeking recovery.
Arbitration is the hearing of a dispute by an impartial third party or parties (the arbitrator) whose award both parties agree to accept. The arbitrator(s) listen to evidence concerning the dispute and make an award based on the evidence.
Don’t worry. Most states have laws that require car insurance carriers to provide medical coverage to anyone involved in a car accident, no matter who was at fault for the accident. So, if you were injured in a car accident, your car insurance carrier will pay your medical bills. If you were in a friend’s car, your friend’s car insurance carrier will pay your bills. In New York, one is entitled to $50,000 worth of insurance coverage. Speak to an attorney for more information on this subject.
Every state has certain time limits, called “statutes of limitations,” which govern the amount of time you have to file a personal injury lawsuit. In some states, you may have as little as one year to file a lawsuit arising out of an automobile accident. If you miss the deadline for filing your case, you may lose your legal right to damages for your injury. Consequently, it is important to talk with a lawyer as soon as you suffer or discover an injury.
A recent Appellate Division case raises the prospect that a release – alone – may not foreclose your malpractice action if you believe your attorney may have made an error. However, generally speaking, it would appear that signing a release and settling a case pretty much would put an end to your malpractice case, notwithstanding this case. After all, how can you make a claim after you effectively stated in writing that you are ok with the money settlement? It’s almost like saying you are not happy with a written contract after you signed it. I would imagine that one would need to show some kind of fraud – which is almost impossible to do – in order to be successful in this type of situation.
A deposition is a statement given under oath, to answer questions posed by an attorney. It is usually done in a lawyer’s office before a court reporter or in the office of a court reporter, not in the courtroom. The information gathered during this time can be used at a trial.
The deposition, also known as the examination before trial (EBT), allows the opposing lawyer to collect testimony from a witness that assists in the preparation of a case.
Stolzenberg Cortelli LLP