Unfortunately, there is no simple formula. If there were, then both sides would always agree on the value of a case, and no injured accident victim would ever need to hire a personal injury lawyer. But injury cases are too subjective and each case too unique to arrive at a formula. In fact, the same injury (although no two injuries are exactly alike), may affect one accident victim differently than it would affect another. For instance, a surgeon who loses a finger may have a substantial lost income claim if he or she can no longer perform surgery. The same may be true for an artist or musician. However, the same injury to a pediatrician, news reporter or college professor may produce very little or no lost income, because having one less finger, although a dramatic injury, is not crucial to his or her job performance.
In my opinion, any attorney who claims to know what your case is worth before thoroughly investigating all aspects of the claim is shooting in the dark and doing you a disservice. In fact, the bar association strictly prohibits an attorney from guaranteeing a certain result. Even after thorough investigation and preparation, valuing a claim is more an art than a science.
Ultimately, the value of your unique case is what a jury may feel is fair to award. But we never know that figure until the jury reaches a verdict. To make things more complicated, if your case were tried to two juries simultaneously, and each jury deliberated on the exact same evidence separately, they would likely arrive at different awards. Juries are made up of individual persons, each with different backgrounds, experiences and philosophies about awarding damages for injuries.
Generally speaking, the components of personal injury damages may include some or all of the following, depending upon the severity of the injury:
- Past and future medical bills;
- Past and future mental and physical pain and suffering;
- Past and future loss of enjoyment of life;
- Past and future loss of income or earning capacity;
It can be especially difficult for both sides to agree on the value of intangible elements of damage such as mental and physical pain and suffering, loss of enjoyment of life and disfigurement. One jury may value these elements very differently than another. One attorney may be much more effective at presenting and communicating the impact of such damages upon your life than another. Thus, results may vary greatly depending upon your attorney’s skill and experience in jury selection and trial presentation.
While the elements of damages are generally determined by the severity of a victim’s injuries and the resulting impact upon his or her life, other factors come into play as well. Here are some important ones:
- the injured accident victim’s credibility and likeability before a jury;
- whether or not the defendant’s conduct giving rise to the injury was a simple mistake versus egregious and reckless behavior;
- whether or not the injured accident victim bears any portion of fault;
- whether or not the victim had any pre-existing injuries to the same areas of the body;
- whether or not any aspect of the injuries or their effects are permanent; the victim’s age;
- whether or not the victim’s income has been affected at all, temporarily or permanently;
- the extent and cost of past medical treatment;
- the need and cost for future medical treatment;
- specific legal or evidentiary issues, such as whether a victim’s past criminal background, if any, will be admissible before the jury; and
- the parish where the case is filed (some parishes are considered more conservative, others more liberal).
With so many variables affecting the jury’s perception of a given case, you can see why no two cases are truly alike. Even if the injuries involved appear nearly identical, cases which may appear similar at first glance may actually give rise to very different valuations due to some of the other factors listed above. Properly evaluating a personal injury case requires the knowledge, experience, intuition and skill gained through years of involvement in handling them.
Except in cases of very minor injuries, an accident victim without an experienced personal injury attorney will be at a serious disadvantage when trying to determine case value and negotiating with an experienced insurance adjuster.
Following graduation from Loyola Law School in New Orleans in 1990, Price McNamara served as a Federal Judicial Law Clerk to the Honorable John M Shaw, Chief Judge, United States District Court Western District of Louisiana.
Mr. McNamara founded J. Price McNamara ERISA Insurance Claim Attorney, and began putting his past experience to work for the injured and disabled clients he now represents against the insurance companies in personal injury and long term disability and other insurance disputes in both federal and state courts