There are several elements of damages that courts allow plaintiffs to recover when they are the victim of a personal injury. Pain and suffering and mental anguish are in a category called general damages. Lost wages and medical expenses are called special damages.
The value of general damages in most personal injury cases are determined by a combination of the lawyer’s past experience with the same type of cases and by reviewing the case law (jurisprudence) on similar types of injuries. Virtually every conceivable type of personal injury has been previously decided by juries and courts prior to the time you filed your case.
Thus, a range between high awards and low awards exists which establish the value of the case. Ultimately, if a jury or judge awards an amount which is significantly higher or lower than the prior cases awarded, the court of appeals can increase or decrease award. In fact, for most injuries the courts of appeal have established a minimum to be awarded for pain and suffering damages when that injury occurs.
The courts also establish rules for recovery of special damages like lost wages. Many states allow the plaintiff to recover the gross amount of the wages they would have received before taxes would be taken out. However, future lost wage awards are usually required to be reduced to the present value. Otherwise, an award of future wages could be invested to make more than a person would make in the future.
Courts may also allow the plaintiff to recover medical expenses from the person who injures them even if the plaintiff’s own medical insurance paid for those medical expenses and the plaintiff did not have “out of pocket” expenses. In those instances, the plaintiff’s medical insurer may have a lien or right of recovery against the proceeds the plaintiff receives from the party who injures him.
Once the range for the gross value is determined, other factors should then be considered to determine the value at which the case can settle, if the parties are willing to settle. For instance, what are the chances of proving liability? If the chances of recovery are only 50%, then the range of value should be reduced by a number close to 50% for purposes of considering a settlement. The fault of the plaintiff or the fault of a third party should also be considered in evaluating the case.
Most jurisdictions require that the recovery of the plaintiff be reduced by the fault of the plaintiff or the fault of third parties. Thus, for purposes of evaluating the case for settlement, this “other” fault must be considered.
If the case proceeds to trial and the plaintiff prevails, legal interest is also usually awarded to the plaintiff. This can be a significant amount if the case is a few years old. Legal interest is not awarded if the case is settled. In some states and under certain circumstances, attorney’s fees and court costs can also be awarded to the plaintiff who prevails at trial. These sums should be made part of any valuation made by your attorney.
All of these factors should be discussed with your attorney to make an intelligent and reliable decision regarding the prospect of settlement or trial.
Remember, when you begin a legal claim, the other party will be working with their own legal team in order to avoid giving you the payment you deserve. Give us call now 216-333-3333.
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