When deciding whether or not to pursue a case, an experienced personal injury attorney will evaluate the claim in extensive detail so that the client has a realistic picture of what their claim is worth. This evaluation includes determining who has responsibility for causing the accident and how much money will need to be paid to fairly compensate the victim. This is the same process that an insurance claims adjuster goes through when deciding whether to pay a claim, and how much compensation to offer to settle the matter. When evaluating a case, attorneys and claim adjusters look at two basic criteria to estimate the overall value of a claim. This consists of an assessment of liability and damages.
LIABILITY
Simply stated, liability is a determination that a person or company either did something wrong, or failed to do something that they should have, that caused an accident to occur. This is also known as negligence, which is defined as doing something that a reasonable person would not have done under the same or similar circumstances, or the failure to do something that a reasonable person would have done under the same or similar circumstances. If liability or negligence on behalf of a person or company does exist to some degree, an attorney will then assesses the strength or weakness of liability using the facts of the specific claim.
For example, imagine a situation where a commercial strip mall has a large crack in their sidewalk and one side has bulged several inches above the other. A person then comes along and trips over that edge, falling and breaking their hip or arm. Is this a strong or a weak liability case? The answer is – it depends.
It may be a strong case of liability if the crack has been present for several months and tenants and guests have reported it to the property owner before the fall. It may be even stronger if the fall occurred in the evening and the area was not properly lit, or if other people had fallen over this crack previously. Conversely, the liability case is weaker if the victim was aware of the crack and had seen it numerous times; or if the mall had posted a warning near the crack. The strength of the liability claim might also diminish further if the crack had just occurred and the property management had no notice of it.
In contrast, a case where the victim is waiting in their car at a red traffic light when they are rear-ended by a drunk driver is one where liability or negligence on behalf of the drunk driver is obvious and often is never disputed by the wayward driver’s insurance company.
DAMAGES
The second important criteria in evaluating a personal injury case is a consideration of what damages were caused by the accident in question. “Damages” is a legal term for categories of losses that an injured party is entitled to recover under Indiana law for their injury. These are often divided into two categories.
“Special Damages” include things that are subject to being calculated to a specific number, such as medical expenses, lost wages, and damaged property. Conversely, the term “general damages” is used to describe those items of loss that are more abstract or intangible in nature, such as compensation for items such as pain and suffering, loss of function, inconvenience, and any permanency that may be involved with the specific injury. In claims involving serious injuries, general damages typically have a far higher value than special damages.
For example, in a recent case in which a client was required to undergo an extensive surgical fusion of their neck after being rear-ended by a truck with defective brakes, the client’s medical bills and lost income were approximately $250,000. However, the case settled shortly before trial for $1,625,000. Thus, the majority of the settlement was for general damages such as pain and suffering that the client had and was going to experience over their remaining lifetime because of their injury.
Both general and special damages can vary greatly depending upon who is evaluating the claim. Insurance adjusters typically attempt to minimize compensation for pain and suffering, and instead prefer to add up medical expenses, lost income, and then allow only a small amount for the pain and inconvenience that a victim has experienced. Most claims adjustors are rewarded by their employer based upon how little they can pay to settle a claim, rather than whether the victim was fairly compensated. Like most corporations, insurers attempt to minimize costs, and they view what is paid on claims as just another cost that should be minimized as much as possible.
In contrast, an experienced personal injury attorney attempts to ensure that all losses are fairly considered and compensated, including items such as pain and suffering and any possible long term complications from an injury.
A RANGE OF VALUE
After considering both the strength and weakness of the liability case and the nature and extent of damages, an experienced attorney will then consider a range of what a jury is likely to award if the case was actually tried. For example, if the liability portion of a claim is weak, an injured person’s risk in going to trial is higher because of a possibility of a low verdict, and thus the claim’s value is less. On the other hand, if the liability case is strong, the claim is likely worth more because who was responsible for causing the accident is not an issue. Thus, the facts of every case are very important in determining the total value of the claim.
GETTING AN EVALUATION OF YOUR CLAIM
If you or someone you know has been injured through the negligence of another person and would like to have the claim evaluated by our experienced injury attorneys, call toll free at 1-877-897-9466 or submit the simple form on the Contact Us page. The consultation is free, and having a full understanding of your legal rights is always wise.
