I get this question all the time. A client is hurt by someone else’s negligence and wants to know what to expect, and more specifically, HOW MUCH to expect in settlement for her personal injury.
First, you can usually only tell after the doctor has released you from further treatment. Only then can the doctor tell us whether you will have any permanent injuries, and if so, how bad.
But after the injury has healed as much as it can, the math itself is pretty simple. You take the average jury verdict you expect a jury to give (jury verdicts vary widely, so you simply take what the average jury would probably give), and then multiply it by the percentage chance you believe you have of winning at trial. For example, let’s say you have an injury an average jury would award $100,000 for. But there are some weaknesses in your case, so that about 1 out of 4 juries would rule against you. Doing the math, you have a 75% chance of winning on a $100,000 injury, and thus a fair settlement would be $75,000.
But it is really not that simple. The hard part is figuring out what an average jury would give you to compensate you for your pain and suffering. Pain and suffering is a pretty loosey-goosy concept. How do lawyers figure this out? Well, here at Michaels & Smolak we have a system. First, all our lawyers read religiously a publication called “The Jury Verdict Reporter”, which reports personal injury and medical malpractice verdicts all over New York State. This is like having our finger on the pulse of juries. It gives us a very good idea of what juries are generally giving for certain types of injuries. We also have taken many verdicts ourselves, so those too act as a point of reference. Next, we take into consideration the age of our client (younger clients get more because they have more years to suffer with their injuries), the place where we have to try the case (some counties produce juries that are traditionally more stingy, and others are more generous – see my previous blog on this), and how the injury has affected our client’s life (physically active clients who are rendered inactive because of an injury usually get bigger verdicts than couch potatoes). Insurance policy limits are also taken into consideration. Other factors count too, but I have listed the main ones.
Next, we have to figure out our chances of winning at trial. That’s also tricky. It is more of an art than a science. Some cases are clear slam dunks (drunk blows stop sign and crashes into client), but most cases have some “holes” in them. The lawyer just has to roughly measure the size of those holes! Before I enter into settlement talks, though, I have in my head what my “chances” at trial are (slam dunk, 50-50 chance, 30% chance, long shot, etc.). The Jury Verdict Reporter I mentioned earlier really helps; you see cases with your same fact pattern in there, and if the jury is consistently rejecting those cases, you know you are fighting an uphill battle.
And by the way, what I think would be a fair settlement really doesn’t matter — we always let the client decide whether to settle, and if so, for how much. All I can do is advise my client what I think would be fair.
And that’s pretty much the nuts and bolts of it. If you want to know more, email or call me