What is My Personal Injury Case Worth?
“What is my case worth” is a burning question all injured people have and most lawyers struggle to answer. The reason is because the answer depends on many different facts and variables, many of which are outside your and the lawyer’s control. Furthermore, what your case is worth depends on how badly you are hurt, what your medical bills are, how much time you missed from work, etc. Most of these facts are not known for months sometimes years after the event causing injury. What your case is worth may also be depend on how much insurance coverage there is and what assets (if any) the person or entity who caused you harm has. It can be very arbitrary.
There is a saying my grandmother used to say, “Ain’t no blood in that turnip.” In other words, if the person who caused you harm has little or no insurance and you do not have insurance of your own that may step in that person’s shoes, the value of your or a loved one’s case may not be in any way proportionate to the harm caused.
In any initial conversation with a lawyer, a lawyer is going to need to gather information before even being able to guess at a particular value. And we lawyers (typically a cautions bunch) hate speculating on a number. That said, hiring an experienced, respected lawyer who takes time to understand your case and impact your injuries have had can make an enormous difference in the value of your case.
Assuming the person who caused you harm has insurance coverage (often called the “At-Fault Insurer”), that insurer is under no legal requirement to pay you any money just because you are hurt. Instead, the At-Fault Insurer has a contractual obligation with its insured (i.e. the person/company who hurt you) to pay a monetary judgement entered against that person or company. The At-Fault Insurer also has a legal requirement to defend its insured in any lawsuit. The At-Fault insurer also has a legal obligation to protect its insured from a monetary judgment greater than limits of the policy so the insured does not lose his house, is forced into bankruptcy, etc. as a result of the harm caused by his/her negligence. In light of these contractual duties, the At-Fault Insurer may settle your personal injury claim well in advance of trial or even a lawsuit to save it money on having to pay more later. Of course, the At-Fault insurer has a self-interest to pay as little as humanly possible on your injury claim. On the flip side, the At-fault insurer must set aside money for an injury claim so that the insurance company has sufficient moneys to pay claims. This is called a “reserve.”
Since there is no legal requirement that the insurer pay you anything until a court enters a judgment, the insurance company is going to base its offer to you on what a likely outcome would be in court. This means that the overarching consideration regarding the value of the case is, were your case to go to trial, what would twelve (12) strangers likely allow you in damages? These strangers do not know you, do not want to serve on a jury and come in with a ton of biases. Some may think there a lot of people who are not hurt trying to pocket money from their injury and lawyers who bring frivolous claims to get rich. This perception IS OVERWHELMNGLY NOT reality, but it is one that has to be dealt with and considered. Even for MAJORITY of jurors who ultimately want to do the right thing, it is impossible for them to actually feel the pain your felt, and it is difficult to convey the true impact the injuries had on your life. This one of the reasons why it is important to hire an experienced trial lawyer to handle your serious injury case and one who will spend enough time with you to understand the impact it has had on your life.
So what would a jury do in your case? First, you need to prove that the other party is legally at fault. Even if you are badly hurt, if there is not sufficient evidence that the other party is legally at fault for your harm, then your case has no or very little value. In Georgia, the other side must be more than 50% at fault in order for you to recover. If a jury determines you and the other person are equally responsible, you lose, no matter how hurt you are. If a jury determines that you are partially at fault, but the other side is more at fault, damages are reduced by a percentage of your fault. For instance, if the jury awards you $100,000.00 for your injuries in a car wreck, but finds you 25% responsible for the wreck, the money judgment will be $75,000.00. Even if situations of seemingly clear liability cases (where the other party should be determined 100% responsible), insurance companies love to argue “comparative fault” as a reason to drive down settlement offers. Insurance defense lawyers’ arguments which often boil down to “it takes two to cause an accident” must be addressed. Regardless, the possibility that a jury will find the other party not legally responsible or you partially responsible is a factor that must be considered in assessing the value of your case. You need to have experienced legal counsel to aggressively investigate, gather, develop and preserve evidence and facts that prove the other party is at fault. I have had several cases that began with offers of $0.00 offers from the at-fault insurer turn into high six and seven figure settlements after gathering evidence that a jury would likely decide showed the other side was at fault.
Assuming that you and your lawyer have gathered evidence showing the other party is legally responsible, you still must prove that the negligence caused your damages. Causation is often a HUGE issue in dispute. For example, that your back hurt after a car wreck is rarely sufficient legal proof on its own to allow the two back surgeries and $200,000.00 in medical bills incurred as part of your case value. The medical records of your treating providers must support that treatment for your back was related to injuries suffered in the car wreck. Insurance companies will often hire experts they call “independent medical examiners” to testify that injuries you are experiencing are unrelated. Often, I will take films such as X-rays and MRIs to another radiologist for him to review and see if they show that trauma from a recent wreck, slip and fall, etc. was the cause of deformities seen on film. Thus, having a lawyer who understands how to present medical evidence to prove causation can have a tremendous impact on your case value.
Once you overcome liability and causation, then the jury assesses the amount of the harm. In doing this, the law allows the jury to award you special damages and general damages. Special damages are things that can be calculated such as (1) medical bills, (2) lost wages and (3) rental car expenses, etc. This is why attorneys frequently want to know what your medical bills are as amount of medical bills is typically the largest item of special damages.
General damages are intangible losses that the law allows a monetary recovery but do not have an exact dollar amount. This is commonly referred to as “pain and suffering” but includes many other damages such as loss of use of a body part, disfigurement (such as a scar), loss of enjoyment of life (you loved to play basketball and can no longer play), mental anguish from stress of how you’re are going to pay bills, permanent impairment, loss of companionship. The only standard we have for general damages is “the enlightened consciousness of the jury.” The law allows juries a ton of leeway, which makes it VERY difficult to predict the value of the case, because no one really knows what a jury will ultimately allow in damages.
That said, juries root for and want to help in terms of bigger verdict those that are doing everything to help themselves get better and move passed this injury. Thus, if evidence shows you were out of work at the same time you are missing doctors’ appointments without valid excuses, then that will likely lower the value of your case.
Furthermore, many insurance companies are pushing back hard on reasonableness of medical bills. Georgia law says that the injured person may recover “reasonable value of medical expenses that were reasonably necessary.” Insurers may say that the amount of medical bills are not reasonable or amount of treatment was excessive for injury sustained. For instance, an emergency room may conduct a number of tests to make sure you are not suffering a life-threatening injury and you may incur a bill of $20,000.00. Regardless of whether or not you have insurance to help pay the hospital bill, the law allows you to present a bill of $20,000.00 as a necessary medical expense. However, insurers may say that $20,000.00 is unreasonable. That the reasonable amount of the bill should only be $5,000.00 based on amounts the hospital would receive from the government or health insurer for reasonable treatment. The insurer may then base an offer on $5,000.00 in medical bills as opposed to $20,000.00 which is patently unfair. It is not your fault you had to go to the Emergency Room, and it is not like you had a chance to price shop or had a choice with respect to the tests the ER conducted. But, a valuation based on an insurer’s flawed calculation may make a case impossible to settle and force you to take the case to court.
Each case is unique, and each case must be assessed on its own set of facts. To properly value a case, the lawyer you hire must work hard to develop, learn, and then prove the facts of your unique case. Only after the insurer is aware that your case will be proven in a court of law will that insurer offer an amount that is in line with the actual case value. Developing, learning and proving the facts of our clients’ injury cases is what we do day in and day out at The Baer Law Firm. If you have questions regarding the value of your case, please call our Atlanta personal injury lawyers today. We will give you honest feedback and lay out our game plan for maximizing case value.
Attorney Bryan Baer has twenty (20) years of legal experience representing clients in serious and catastrophic personal injury and medical malpractice cases. He has been first chair in more than a dozen twelve-person jury trials on both the plaintiff and defense sides. Recognized as a leader in his legal community, he is frequently asked to speak at legal seminars on trial topics ranging from “Best Practices in Voire Dire” to “Maximizing Damages at Trial” as well as insurance issues such as “Navigating the Insurance Landscape” and “Injury Demands & Negotiations.” Learn more here.