- It is your personal injury lawyer’s job to discover what your case may be worth, explain it to you, and make a recommendation whether to accept an offer that is in the range of that value or to take your case to a jury trial.
- If the case is tried to a jury, the fair value will be determined by “the enlightened jury.”
- Once the jury has listened to the facts of the case, the judge will instruct them on how they may come to a conclusion about the settlement amount. It is their duty as jurors to establish a fair settlement using the facts of the case, common sense and life experience.
When you are injured, you may wonder how does a lawyer, law firm or insurance company decide what the value of a case is? Likewise, when it comes to a Jury Trial, 12 strangers will have the ultimate power to assign a value to the pain and loss you have suffered in a personal injury or wrongful death claim. How does a person you’ve never even met know about your loss? We want to put your mind at rest.
It is the job of your personal injury lawyer to “discover” what your case may be worth, explain it to you and make a recommendation whether to accept an offer that is in the range of that value, or to take your case to a Jury Trial. If the case is to be tried, the attorney will paint a picture for the jury about what you’ve lost and how that loss has impacted your life.
In this article we hope to help you understand how settlements happen and what you can expect going forward.
- Who is the decision-maker in personal injury cases?
- What evidence do you use to prove a personal injury claim?
- Can the judge influence the settlement and what do Jurors do?
- How do we determine the cost of present and future medical care?
- What factors are part of the pain and suffering award?
- How can anybody assign a value to a human life in a wrongful death claim?
Who is the decision-maker in personal injury cases?
You are. A personal injury lawyer will investigate and evaluate your case to arrive at a range for settlement. This range is determined based on the lawyer’s experience, but also on data gathered from thousands or prior cases involving similar injuries and facts. Databases are available which tell lawyers and insurance companies what has happened at Trial in similar cases. Although every case is different, we use this data to make our recommendation to you. Ultimately, however, you decide.
Additionally, we usually try to resolve the case with the insurance company without filing suit, through a process of settlement talks. The goal is to save you time and money because lawsuits are expensive and time consuming. Nevertheless, we work on your case with the attitude that we will file suit and go to court, because this is the best way to present your case to the insurance company. If they do not believe we will go to Trial, you will never get their best offer.
What evidence do you use to prove a personal injury claim?
No lawyer should settle your case for less than you deserve. As soon as you retain an attorney, he or she should gather the evidence necessary to prove your case, which may include:
- Police reports
- Medical records
- Surveillance or security film footage
- Witness testimony
- Relevant other testimonies – statements from others who have had similar experiences or who might have complained previously about the lack of security in your apartment complex, as an example.
- Expert testimony – this might include medical experts and accident reconstruction professionals
- Work records
- For the plaintiff to establish monetary loss
For the defendant if he/she was working at the time of the accident. Truck drivers logs and driving records, for example are very important to making your case.
Can the judge influence the settlement and what do Jurors do?
Judges rule on questions of law and also on the admissibility of evidence. Ultimately, some rulings from the Judge in a case may influence the relative negotiating strength of either party before the case is decided by a Jury. However, if the case is tried to a Jury, the value decided upon is based upon the value given to it by “the enlightened jury.”
We occasionally forget the importance of having ‘a jury of our peers.’ Our country’s Founding Fathers recognized that the collective wisdom of a group of ordinary people can keep justice from falling apart amid differing perspectives. The facts sometimes don’t paint a clear enough picture, but the heart of a jury can usually sort it all out. (This is especially important when highly paid insurance company lawyers attempt to muddy the waters or misdirect the attention of the jury away from the plaintiff’s very real pain.)
Once the jury has listened to the facts of the case, the judge will instruct them as to how they may come to a conclusion about the settlement amount. Usually the judge’s instructions come at the end of the trial, just before the jury retires to deliberate, but they can come earlier if the judge wishes. Whenever this happens, he will usually instruct them that it is their duty as a jury of your peers to establish a fair settlement using their common sense and life experience.
The judge’s job is to keep the deliberations on a firm, legal pathway. He means to discourage the jury from being conflicted by their human tendency to let emotion take over their decision-making ability. Ultimately, the judge may or may not take the step of approving the jury’s decision again, depending upon the law and the evidence. He must keep it fair and legal. That’s the court’s job.
How do we determine the cost of present and future medical care?
Attorneys usually have many resources available to establish and estimate future medical costs. Some of the bills associated with your injury will have already been given to you. Depending on the level of your injury, you may need additional care. If this is the case, doctors can provide testimony about the future costs or attorneys can bring in expert witnesses to estimate what treatments will be necessary and for what period of time.
If future surgeries will be necessary, these costs will also be estimated and added to the total. The recovery time will also be factored in so that missed-work/income can be accounted for. Your pain while recovering is also a valid concern which will be addressed.
Pain and Suffering Awards – An Example
Milo is a four-year-old boy. He enjoys play dates, trips to the mall, pizza, and the family’s cocker spaniel Taffy.
On this particular morning, he is in an approved car seat, buckled into the rear seat of his mother’s SUV when they are hit by a tanker truck carrying gasoline that runs a red-light. The truck bursts into flames and Milo is killed while Jennifer survives but is severely burned and hospitalized for weeks. Jennifer and her husband are devastated by the loss of their precious son, and Jennifer’s mental and physical scars are forever devastating.
How can anybody assign a value to a human life in a wrongful death claim?
After a few weeks, Milo’s father Julio makes a call to a personal injury lawyer a friend has recommended. Together they determine that they will file a wrongful death claim against the truck driver and the petroleum company who owned the truck. They will also file a personal injury claim for Jennifer’s physical and mental suffering.
There will be multiple claims to prove in terms of pain and suffering. In the wrongful death claim, there will need to be a claim for the loss of Milo’s young life and his pain and suffering. There will also need to be compensation for the trauma suffered by Jennifer for the loss of her child in her presence, and she will be entitled to damages for her own injuries, including burns and scars.
Initially, it will be up to Julio and Jennifer’s attorney to determine the best way to arrive at a settlement value for the case. Of course, nothing will ever bring their son back or erase Jennifer’s trauma.
In this case their law firm chooses a lawyer to handle the preliminary negotiations with the insurance company. They also plan what to do in the event that a fair settlement cannot be reached, and put into place a plan for Trial and how best to present the case to a Jury. Prior verdicts and settlements may be reviewed to set a target value for the settlement of this case. Additional factors may drive the value higher or lower, such as the prior safety record of the driver or the company (which may drive the value higher) or whether Jennifer was contributorily negligent in any way (which may lower the settlement value).
Not all law firms are created equal
At The Millar Law Firm, we only handle personal injury cases. This allows us to stay abreast of changes in the law, research and keep up with values and trends in settlements, and to know how to use evidence to your advantage. We are totally focused on personal injury. We believe that gives us the winning edge.
If you or someone you know has been injured by the careless behavior of someone else, we urge you to take advantage of our free case evaluation service. We’ll review the facts in your case by telephone or in person and advise you how to proceed. Call now for a free consultation.