The ultimate question is: how strong is your case that the defendant was negligent? It doesn’t matter whether the case is an auto case, slip-and-fall, or products liability case. The bottom line depends on the strength of your case against the defendant with respect to the primary issue of negligence. If the defendant’s liability is absolutely crystal clear, the value of your settlement is correspondingly increased. If the liability is on the weak side and your chance of winning approaches 50/50 or less, the value of your case has been significantly reduced. In short, a 90% chance or better of winning is excellent, a 60% chance is fair, and a 50% chance or less approaches the not-so good to bad range.
2. Comparative negligence
Comparative negligence refers to the role your own negligence played in causing your injuries. Your comparative negligence will reduce your recovery. Some jurors believe if you were negligent at all, you should not recover.
Even worse, some jurors attribute comparative negligence to plaintiffs who just happened to be part of the accident because they were there. There have been cases involving head on collisions where the defendant crossed the centerline and rear-end collisions where the plaintiff was simply waiting for a red light where the jury found some comparative negligence.
If your negligence approaches 50% of that of the defendant, you are in an unfortunate predicament and you can lose the case completely at trial. If the comparative negligence is minimal, do not worry too much about it.
In some cases, the insurance adjuster will raise comparative negligence just on the defendant’s version of the incident, especially in motorcycle cases. Slip-and-fall cases almost always raise the issue of comparative negligence.
3. Medical bills
Medical bills to insurance companies are the best indication of your injuries. Insurance companies evaluate the amount of such medical bills as the primary factor in settlement. Insurance claims supervisors and adjusters place a tremendous value on the quality of documented medical bills. It is important to consider the source of such medical bills.
Do the bills reflect a hospital stay, physical therapy, medical and osteopathic treatment, chiropractic treatment, diagnostic tests, orthopedic devices, prescriptions or over-the-counter medicine? A two-week hospital stay and three months of physical therapy is much stronger evidence of an injury than a few thousand dollars worth of negative diagnostic tests such as MRI tests, X-rays, CAT scans, etc. If your medical bills are well documented and relate to actual injuries, you are obviously on the plus side. On the other hand, if the medical bills are for a series of tests that failed to document any injuries, you are leaning to the weak side. Even worse, if the bills are inflated or relate to treatment for injuries unrelated to your case, you will unfortunately find yourself in the minus column.
4. Medical information
The quality of your medical information including medical reports, emergency records, physical therapy records and diagnostic interpretation are the next most important items when evaluating settlement. Narrative reports from well respected doctors explaining the nature of your injuries are preferable to unreadable hen-scratched office notes that fail to document much of anything. Reports that are descriptive and factual are obviously the best. On the other hand, reports that use terms such as “slightly possible,” “maybe,” “dubious,” etc. can hurt the value of your case. Detailed typed office notes are good in most cases as are physical therapy records. Hospital records with detailed nurses notes are also excellent sources of information on your injuries. Forms that are prepared for insurance companies are not very good. The bottom line is-how well documented are your injuries? How complete are the records? How strong are the doctors’ opinions?
By their very nature, some injuries are worth more to insurance companies than others. Broken limbs, permanent scarring, rupture of internal organs and other well documented objective injuries are worth more to insurance companies than soft tissue, musculo-skeletal injuries, emotional suffering and other injuries where the symptoms are completely subjective. Even though most broken legs heal faster than many so-called “whiplash” injuries, insurance companies will almost always pay more for broken legs than they will for strained backs. If you had a compound fracture, for example, the jury can see and almost experience your injury. It is far more difficult for a jury to identify with a low back injury or neck injury that has no supporting objective evidence. Such evaluations may be unfair, but they are a fact of life.
6. Loss of income
Lost wages or lost profits are another primary consideration of insurance companies because they can be evaluated in dollars and cents. The best records are those pertaining to an employee who has lost a specific amount of hours multiplied by a certain rate of pay per hour. A letter from a reputable employer with supporting personnel records which provides for a specific dollar amount of lost income is the best type of documentation. A self-employed worker who keeps sketchy records and who paid little or no income tax presents a much more difficult case. Workers who receive money “under the table” can virtually forget about filing a lost wage claim.
7. Permanency, permanent impairment and permanent disfigurement
The word “permanent” is an important word in the settlement of any personal injury case. If you doctor has indicated any amount of permanent impairment or element of permanency, this factor will increase the value of any settlement by a fairly substantial amount. Most states allow a special jury instruction on the issue of permanent impairment. If you have any injury with any permanent aspect, even if it is minimal, the value of the case is moderately increased.
The element of permanent disfigurement always lends some value to any small personal injury case. Your medical bills can be low, your loss of income can be low and your injuries may be fairly minimal. However, if you have some permanent scarring or disfigurement, the settlement value will increase. Scars (especially on the face and especially on women), burns, dog bite marks and other permanent disfiguring aspects are constant reminders of the injury. Jurors can see such injuries and are more likely to award damages higher than damages for “mere” pain and suffering. If the scar or disfigurement is likely to be permanent, have it evaluated by a plastic surgeon or specialist for the purpose of having the element of permanency thrown into the equation. Also, photographs, preferably from a professional, of the scar or mark should be obtained. Pictures are not only worth a thousand words, but when it comes to permanent disfigurement, they can be worth thousands of dollars.
8. Collision damage
In many automobile cases, the actual damage to the automobile may be minimal. Bumpers can take more impact in the 1990′s than they could in the 1960′s, 1970′s and 1980′s. Unfortunately, jurors are impressed by evidence, or lack thereof, of substantial collision damage.
If the car in which you were injured looks like an accordion, it is less difficult to convince a jury that you sustained fairly serious injuries. On the other hand, if there was only a bumper scratch or minor fender damage, the jury will question the extent of impact and, therefore, the extent of injury. It becomes all that more important to obtain pictures of all automobiles involved in the collision. Significant collision damage to the defendant’s vehicle can also be used to convince an insurance adjuster, or a jury, that you sustained more than minimal injuries.
9. Your jury appeal
What kind of person are you? Will the jury like you? Will your attorney feel positive sitting next to you in the court room of the settlement conference room? Some plaintiffs are obviously likable and some are unlikable. If a jury is likely to be unfavorable to you, then you may be better off taking any reasonable settlement offer from the insurer.
10. Quality of defendant
There are some “bad defendants.” Unfortunately, you do not get too many “bad defendants” in small cases. Usually it is an average defendant who was negligent for only a few seconds. Such defendants include next door neighbors who neglected to put enough sand on their sidewalk after a snow storm or the owners of a small variety store who did not repair one of the steps soon enough.
Bad defendants are usually very obvious-the drunk driver, the tire squealer, the bully or the bar owners who were too busy pushing drinks to notice who was getting drunk. If you have a bad defendant, your settlement range goes up. If you have a good defendant, such as the little old man who rear ends your client while he is looking for his doctor’s office, the settlement value is lower because the jury will sympathize with such a defendant.
11. Loss of consortium
Some cases have a greater value because of the element of loss of consortium. In other cases, the factor of loss of consortium has little or no value. If you have some good evidence that your spouse’s life was actually affected in a negative way by your injuries, then the loss of consortium value may be fairly high. Consider the following:
- Did your spouse have to perform extra services such as household duties, taking care of the children, etc.?
- Did your spouse have to attend to you because of disabling injuries such as a broken leg, open wounds, inability to go to the bathroom alone, etc.?
- Was your marital relationship affected? Did your spouse have to sleep separately for a period of time?
- Did you alter your relationship with your spouse and children? For example, did you become angry, upset or discouraged so often that it affected the entire family?
- Was leisure activity affected by your injuries? For example, some husbands and wives are golf partners, bowling league partners or travel together often. If such a relationship was altered for a period of time, there may be some value to the loss of consortium claim.
12. The insurance company
Let’s face it. Some insurance companies are far more conservative than others. Their practices will not change even if they lose 100 lawsuits. These companies do not mind litigating, especially small cases. The cost to defend such cases is usually under $10,000 which is sometimes close to the value of the case itself.
It doesn’t bother an insurance company to pay several thousand dollars to defend a $25,000 case even if they lose to a verdict of $35,000. It’s part of doing business. Therefore, knowledge of the type of carriers you are dealing with is very important in evaluating settlements. If the carrier is fair, and some of them are, you can count on a few more dollars in the settlement offer. If the carrier is conservative (perhaps we can even use the word “cheap”), you have to take this into consideration in evaluating the offer. With conservative companies, you definitely have to give up a few thousand dollars to achieve settlement.
13. Your expectations
Your expectations are important. Settlements for easy-to-deal-with-clients may be higher on the average than the ones for difficult clients. The accident attorney may try harder to get more money for a client who is appreciative. Nevertheless, your attorney will probably try to keep your expectations on the low side, because many things can affect the settlement including comparative negligence, quality of potential medical testimony, and quality of supporting witnesses.
14. Quality of potential witnesses
The quality of liability and damage witnesses, both lay and expert, has a significant impact on the value of your settlement. If your only witness to support liability is a relative or friend, your case is weaker than one which has several impartial witnesses. If the doctor involved has never testified, doesn’t want to testify or cannot testify well, this also weakens your case. In short, your case is only as good as your evidence, and usually your evidence is only as good as your witnesses.
In some states, some counties, and some municipalities, very low verdicts occur. Vermont, South Dakota, Wyoming, New Hampshire and Maine have had less than 10 one million dollar verdicts according to Jury Verdict Research, Inc. of Pennsylvania. On the other hand, states like New York, California and Florida have had in excess of 500 verdicts in excess of one million dollars. Jurors in some states are not readily moved by pain, suffering and emotional injury in small cases especially if the injury occurred three or four years before trial. Therefore, you must consider your particular county or jurisdiction when evaluating settlement offers.
If you have to pay medical bills, workers’ compensation liens or medical payments to insurance carriers from your settlement, then the amount payable to you is obviously less. However, if your medical bills have been taken care of by a health insurance carrier who doesn’t expect to be paid back, then the amount left for you will, of course, be higher.
There may be a statute, case, ordinance or legal standard that applies to your case, either for or against. If there is strong supporting law which your accident attorney can cite in your favor, the settlement value is enhanced.
18. Time from date of incident to trial
If it takes 3 or 4 years to get to trial in your jurisdiction and your case is already 2 to 3 years old, the jury will be hearing about things that happened 6 or 10 years before trial. In small personal injury cases, especially soft tissue injuries, it is difficult for a jury to empathize with a plaintiff who experienced pain that lasted 6 months or so several years before testimony.
The final settlement figure
The final settlement figure will be based on consideration of all of the factors raised above plus one or more that apply specifically to your case. Consider your case as you would a poker or bridge hand. How many pairs do you have? Are you holding any aces? Is the insurance company holding any aces or trump cards? Seldom will all factors line up in your favor. One factor can make or break the value of the ultimate settlement.