This is one of the most common questions asked of lawyers by clients (or potential clients) who are seeking recovery for injuries sustained in an accident. The obvious answer is that every case is unique, but here are some general guidelines that may help you understand what to expect when you talk to a lawyer.
There are basically six separate things lawyers like me look at to determine the potential "value" of a case. The ultimate objective is to try to predict what a jury will do if your case goes to trial, because that is all that matters in the end. Six common considerations used by lawyers are:
1. What are the economic losses caused to the client by the accident? Economic losses are those losses that can be objectively measured in dollars and cents. They include: medical and physical rehabilitation expenses (past and anticipated in the future); wage losses (past and anticipated in the future, including loss of income potential due to physical or mental injuries); vehicle damage or loss; the cost of medical equipment if needed; and similar items. Basically, all of the actual expenses or economic losses suffered as a result of the accident.
2. What are the non-economic losses? In Florida, an injured individual can generally recover "pain and suffering" damages, as well as other intangible damages such as mental anguish caused by an injury. This includes pain and suffering that has been endured in the past, and that is likely to endured in the future. This category of damages is the most difficult to measure because the effect of an injury is very subjective to the person. The more severe the injury, and the more it impacts your life, the more a jury may award you for these types of damages. Insurance companies often try to measure these figures by taking a multiple of the economic losses, for example they may measure the "value" of the pain and suffering by multiplying the economic losses by a factor or 2 or 3, or some other number. But this is a very generic guideline and should only be used to give you a general idea of how an insurance company may try to measure these losses in your case. If your life has completely changed as a result of your injuries and you are in constant, extreme pain, a jury could award you almost any figure they want within reason. The amount a jury may award is almost impossible to predict. It can be affected by all sorts of intangibles such as whether the jury subjectively "likes" you as a person, whether the jury believes you are honestly relating the extent of your pain and suffering, whether the jury is conservative or more liberal-minded (more on that below), whether the jury likes or dislikes the person you sued, the extent of wrongdoing of the person you sued (was it an innocent accident caused by simple negligence, or was the person acting recklessly), and all of the other things that may cause six different people to give you six different answers about what they may award you in your lawsuit. Even members of the same jury may have vastly different ideas of what your case is worth, and they may decide to "compromise" when they announce a verdict.
3. What is the liability picture? By this I mean -- is the accident clearly the fault of another person, or is there an argument that you were also at fault, or that the defendant was not at fault at all? In many cases, there is a dispute on this point. Let's say for example that you were rear-ended after you stopped very suddenly to avoid an animal that darted across the road. The driver who rear-ended you may argue that he could not stop in time because you suddenly slammed on your brakes, that you were speeding, and that he hit you only because you suddenly slammed on your brakes. He may deny that there was anything in the road. It's your word against his. In Florida, a jury can assign fault to you, the Plaintiff, and to the Defendant you've sued. In such a case, the jury is basically saying that both sides were partly at fault. Any damages awarded by the jury for your accident will be reduced by that same percentage. So let's say the jury awards you $60,000 in damages, but believes you were 50% at fault for causing the accident. Your net verdict will be $30,000. So even if your damages are "worth" $60,000, the value of your case is really only $30,000. If there is a risk that the jury may find against you entirely, which is true in almost all cases, then you must factor in that possibility, further reducing the settlement value of your case.
4. What is the jurisdiction where your case will be filed if a lawsuit is filed? This is very important consideration. Some venues such as Miami are considered more Plaintiff friendly, and we lawyers often see larger verdicts from the Miami area than in some other cities, where juries tend to be less generous. Valuing a case is all about trying to predict what six random people are going to do if the case gets tried. And unfortunately, you are generally stuck with filing your case where the accident happened (there are exceptions to this of course). So your case may have more or less value simply because of where the accident happened. Again, the value of your case can only be determined pre-judgment based on an educated guess of what your jury, in your jurisdiction, will award you if you go to trial.
5. How much insurance is available from the at-fault party? In many situations, especially auto accidents, the driver who struck you may have low insurance limits, and have no real assets of their own to pay any court judgment. It will not do you any good to sue the driver and get a judgment against him that he can never pay. So in some situations, the value of your case is effectively maxed out at whatever the insurance policy limit is.
6. How much will it cost to take your case to trial? Taking a lawsuit through trial isn't cheap. Although lawyers generally front case expenses in personal injury cases, the costs of litigation will ultimately come out of any recovery you may obtain. Taking a case to trial can cost thousands of dollars on the low end (filing fees, medical witness fees, etc), to hundreds of thousands of dollars in complex product defect cases involving engineering and other experts. If you win your case, some of the costs may be payable by the other side, but there is no guarantee of this even with a successful outcome. Therefore, the value of your case is dependent in part on how much it will cost to obtain you a recovery. It will do you no good to "win" a case and receive a $10,000 verdict, if it costs you $20,000 in expert witness fees and other costs to achieve that result. You will end up with nothing in the end. Thus, the cost of litigation must be considered in determining a fair pre-suit or pre-judgment case value.
The discussion above is incredibly generic, and there are important exceptions to almost every point. For example, some cases may involve an element of punitive damages. Some cases may involve the existence of prior lawsuits by the Plaintiff, which can make a jury skeptical of your "new" case, and thus reduce its potential value. A judge may be assigned to your case who tends to rule adversely to one side or the other on important evidence issues because of his own view of the law. You may draw a particularly friendly jury even in a jurisdiction where verdicts tends to be lower on average. And on and on and on. Only a lawyer who examines your individual case and all of the unique factors that make it up, can give you his or her professional advice as to the potential value of your claim. And even then you must understand that the lawyer is just making his best educated guess. Nonetheless, the above will give you some insight into how lawyers and insurance companies try to value personal injury claims.
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Chris Roberts is a lawyer with 25 years of experience handling personal injury, product defect, and complex commercial litigation. He is available for a free consultation. You can contact Chris and schedule a free consultation by emailing him at this link: freeconsult@chrisrobertsfirm.com, or call his office at 727.286.3537.
