Personal Injury Attorney Ben Schwartz gives ten tips on valuing personal injury claims for settlement.
Hi, I am Attorney Ben Schwartz,
Today we are going to talk a little bit more about valuing personal injury cases. You know there is a video blog on our https://www.SchwartzandSchwartz.com website and the blog post was done back in 2016 by yours truly, your favorite legal blogger. But basically, the video post was about how much is my personal injury case worth. And in the last couple of years, I have had a number of folks contact me. Other attorneys, I have had people that have actually been injured in a car accident contact me and I have had insurance claim representatives contact me and also one defense attorney. We had a conversation about this, about valuing personal injury claims for settlement. And a lot of people have asked me like okay we understand it is hard to gauge the settlement value of a personal injury claims from a motor vehicle accident or from a slip-and-fall. But what are you looking at to determine what the value is? You know really there are ten things that you look at to determine the value of a personal injury claim and I just sat down and jotted them down on a piece of paper Here is what those ten things are.
First off: What are the medical expenses in the case, not that were incurred, but that you can show to the jury? In another word, let us say that I live in Delaware, and I am driving my car that I bought, and insured in Delaware. So, I have gotten Delaware auto insurance. Let us say that I get injured in a car accident and I have a bunch of medical bills. Well, my car insurance is going to pay those medical bills and then I sue the at-fault driver or make a claim against the at-fault driver’s insurance company. Those medical bills are not part of the case, because that is how it works. That is the statutory scheme in Delaware.
So, I am not talking about medical bills that can not be boarded, and that can not be shown to the jury. I am talking about what medical bills are going to be for the jury to take into consideration. If you file a lawsuit and go to trial, you know I may have a broken arm from a car accident and maybe none of those medical expenses are going to be shown to the jury. But if it was a slip-and-fall case or a car accident in another jurisdiction, maybe all those medical expenses would be shown to the jury. I think it makes a heck of a difference. So, number one is. What are the medical expenses that are boardable that are going to be shown to the jury?
The second thing is. What lost wages are going to be shown to the jury or other expenses will be shown to the jury?
Number three is: Are there independent or objective indicators of injury? I think if I am injured in a car accident, and I go to trial and I am explaining to the jury what I have been through. It is one thing for me to say, ooh I have neck pain. I have shoulder pain. It is an entirely different situation when my doctor says, I have examined Ben’s neck and on palpation, which means when I am physically touching when I am examining the neck, If the doctor says I felt muscle spasm, you know when I put my fingers on the muscle of Ben’s neck after this car accident, I feel the muscle spasm in that is an indication that there is damage to those muscle fibers or connective tissues and that is not something that can be faked. You know maybe I have a broken arm from a car accident and maybe none of those medical expenses are going to be shown to the jury but if it was a slip-and-fall case or was a car accident in another jurisdiction may be all those medical expenses would be shown to the jury. I think that it makes a heck of a lot of difference. So, I think it is very important to distinguish between cases where there is some objective independent indication. That there is a physical injury as compared to those cases where you really have to rely on the claimant or rely on the plaintiff to testify truthfully.
Another item that I look at to determine case value, Is whether the jurisdiction going to be conservative, or is it going to be liberal? If you are you know we have offices you know from essentially from Philadelphia, Pennsylvania. Havertown, Pennsylvania down to Salisbury, Maryland and we have offices in Delaware in Wilmington and Dover. There is a big difference if you are trying a case in Sussex County Delaware versus if you are trying a case in New Castle County Delaware. You know one jurisdiction tends to be pretty conservative, another jurisdiction tends to be a little more central centrist or a little more liberal and I think that significantly affects the case value. So, are you talking about an accident that happened or a lawsuit that is going to get filed in a politically conservative area or something in between?
The fifth thing I would look at, Is the jurisdiction wealthy? Is the jurisdiction poor? If your average household income is $11,000 a year and your juror says I really like the plaintiff. I want to do a really solid favor and award them a year’s worth of income, you are talking about an $11,000 jury verdict. If you are in a place where the average, you know medium household income is $100,000 a year and they want to give you a decent award and award you a year’s worth of income for them, you are talking about a six-figure verdict. So, I think that the financial WHEREWITHAL of the jurors is going to make a big difference and I talk to my clients about this all the time. You know look at house values in the area where you are going to try that case. Are we talking about an area where a house costs $90,000 or are we talking about an area where a house cost $800,000? That sort of frame of reference for the jurors is going to make a big difference.
The sixth thing is: Are there liability defenses that are going to cut the value, the settlement value, or eliminate any value? You know if I am in a car accident in Delaware, I am driving a car and someone hits me and I have not done anything wrong to cause or contribute to the accident, that case then has full value. If I am in Delaware and I am ten percent at fault in causing my accident that case has ninety percent value. Because Delaware follows comparative modification, comparative negligence. If I am having the same accident across the line in Maryland, where the law is completely different. The law is straight contributory negligence. Well in Maryland if you are one percent at fault, you do not have a case. You know you can not get a verdict and so the law of the jurisdiction and the degree of fault of the claim or the plaintiff may have something to do with how the case is valued at settlement.
Number seven: Can I see the injury? I am sitting in the jury box. The plaintiff gets up and walks to the witness stand and testifies. If I do not see anything wrong with that person, it is hard for me to award them substantial compensation for their injury. If it is an injury that I can see, even if it is an internal injury, if I am looking at the x-ray or the CT scan, you know post-surgery showing the rod and screws at least now I can see there is an injury there or is it a case where it is just invisible. You are not going to be able to see it and you know you are relying on physicians to testify about the objectives. You know the signs and symptoms of the injury. You are relying on the plaintiff to testify about their pain and suffering. That really, I think affects the case value quite a bit.
Here is another one: Is the injury permanent? Is it going to be a lifelong injury? Is there a doctor who is getting on the witness stand and testifying that they have treated the plaintiff and that this injury is going to last for the entire lifetime of this person or is it temporary? All along those same lines. You can have an injury that may be permanent but that is not going to result in any future surgery, which is not going to result in any future care. And you can have a permanent injury that will give you continued pain into the future for care and treatment, palliative care for the rest of your life, and that produces a huge amount of money. You know that you are showing a jury that you are boarding, you are putting up on the board to show the jury the future cost of care. So that is one thing that I would look at. What is the future cost of care?
Finally, the tenth item is: Where does the injury fall on the spectrum of injuries from these types of accidents? In another word, Is it a sprain and strain or a little further down the continuum? It becomes a surgical case. Is it multiple surgeries? Is it a case involving paralysis or impaired functioning of an organ or impaired functioning of your known muscle group? Is it an injury that involves you know paralysis? Is it an injury that involves you know amputated or missing limbs? Is it an injury case that results in death? There is this continuum of how bad things can get and where you fall. Where the case falls on that continuum has a lot to do with the value of the case.
So, in any event, I am Ben Schwartz. These are the ten things that you look at to evaluate the value of a personal injury case. You know if you have been injured in an accident and you are going to an attorney and you have a discussion about settling your case or to have a discussion about what to expect if you go and try the case to a jury. These are the ten things. If I were you, I would make a list of these ten things and then make notes about your own injury and discuss it with your attorney. Because this gives you some objective criteria on how you come up with the number that you would accept to settle your case and it gives your attorney some objective criteria to look at to determine how she or he should be presenting your case.
You know a lot of the things that you talk about behind these criteria, you know a lot of the things that you have a conversation guided by these criteria, a lot of these things are not things that your attorney might be thinking about. So hopefully this will help you and your attorney get a better verdict. If you have questions about personal injury cases or personal injury litigation in general. My name is Ben Schwartz. I am an attorney, my email is firstname.lastname@example.org.
Thanks for watching!