I have heard this question thousands of times. And there is no easy answer. That’s because so many factors affect the “value” of a case. What do we mean by “value” anyway?
The settlement value of a case is based on a prediction of whether a jury will find you have a valid case, and if so, what the jury will award you for your injury. Since juries vary widely, and it is impossible to predict what any particular jury will do, we consider what an average jury would do.
Why are juries different? Because they are made up of people , and people are all different. The chemistry of the jury, with their individual biases, will impact the deliberation and thus the result. Also, juries in some geographical areas, such as New York City and Buffalo, are generally more generous with their verdicts than juries in rural areas. Thus, the venue of your case matters in determining “value”.
But not only do juries vary widely, so too do the facts of each case. Although I have been practicing law for decades, I have never had the “same case” twice. Each one is different. That’s because the factors discussed below, which affect value, are infinitely variable.
Here are the main variables:
(1) the “liability” component. How solid is our case for holding the defendant legally liable for your injuries? If the defendant is clearly liable, your case is worth more. The settlement value of your case goes up proportionally with the likelihood of a jury finding defendant liable.
(2) The “causation” component. Sometimes it might be very clear that the defendant was liable, and that you were injured, but not at all clear the two things are linked. We call that a problem with “causation”. We are legally required to prove the defendant’s negligence caused your injuries. This problem comes up a lot when the client has pre-existing injuries. For example, if you had pre-existing neck pain and are claiming that it got a lot worse after the accident, the defendant will often argue that none or very little of the injury was caused by the accident. If this argument appears strong, your case is worth less.
(3) The injury component. The more significant your injury, the more horrible your suffering, the longer you have to endure it, the more it limits your activities, the more your case is worth. So, for example, the case of a 10-year old who lost a leg is worth more than the case of an 80-year old with the same injury because the 10-year old has about 70 years left to soldier on with that injury, while the 80-year old only has a few left. And the missing leg case is worth more than the missing finger case and both are worth more than the fractured-but-well-healed knee case.
Other factors also help us determine settlement “value”. For example, one thing we consider is how well you will present to a jury. Some folks come across as more attractive, more sympathetic, better at explaining without whining. Others are just not as likeable. Likewise, if the defendant is unlikeable, or what he did is likely to anger the jury, that increases the value of your case. Other factors include the economic damages (lost wages and medical bills) and the amount of available insurance.
Who decides whether to settle the case? You do! Our attorneys just tell you what they believe your chances of success are, and what we believe a fair settlement that reflects these chances is. The insurance company on their end does the same thing. Sometimes we agree with them, sometimes we don’t. The insurance company might present us with a settlement offer that we believe is unfair in that it is too low to accurately reflect what an average jury would give you. But ultimately you decide whether to take the offer or go to trial. And by the way, once an insurance company has offered you its top dollar, those are your only two choices: take the money or go to trial.
That being said, we often sue a case out when the insurance offer is too low (with your consent of course) and then during the course of litigation the offer goes up considerably. This is so because (1) the insurance carrier sees we “mean business” and (2) often the depositions and other evidence that come out during litigation sharpen the case and show the insurance company that it is risky to go to trial.
In my many years of talking with clients about the “value” of their case, I find that clients often think that some things matter, when in fact they don’t. The most common things that don’t matter, but that clients believe do matter, are:
(1) “I could have died in the accident”. This is generally not relevant. The fact is you did not die. “Could have” is generally irrelevant in determining value.
(2) “I got behind on my bills because of this”. This is generally not relevant. Yes, you have a right to recover your lost wages and your medical bills, but the law generally does not allow you to recover for the anxiety of getting behind on your bills or even for loss of your good credit rating.
(3) “My doctor says I could develop other medical problems because of this injury”. The fact that you “might” develop other conditions because of the accident does not generally increase value. On the other hand, if your doctor says it is “likely” you will develop those conditions, this will increase your settlement value.
Email me at: email@example.com I’d love to hear from you!
Michael G. Bersani, Esq.
michaels-smolak.com Central NY Personal Injury Lawyers
Michaels & Smolak, P.C.