One of the most frequent questions that personal injury attorneys gets asked by prospective clients is “What is my case worth?” after an individual has been injured in an accident. Unfortunately, this is a very difficult question to answer because the answer depends on a myriad of factors, many of which are outside the control of both the injured person and his or her attorney. In fact, it may be a bit reckless for an attorney to provide a clear-cut answer to that question because attorneys cannot predict the future, and again, personal injury cases depend on many factors which may affect the potential outcome. Despite the inability of attorneys to accurately predict what a monetary recovery might be, there are several factors and ideas that may help you identify the potential result of your personal injury case, and this blog outlines some of those factors.
Liability: Liability is a concept that usually needs to be addressed before one can begin thinking about recovery in a personal injury case. In its simplest connotation, the question of liability is: “Did someone do something ‘wrong’ that caused you to be injured?” Sometimes, the question of liability is one that is strongly contested in a personal injury case. And then, sometimes the liability analysis that a fact finder (i.e. a judge or jury, usually a jury) engages in may mean the difference between a large recovery and no recovery. Evidence on this crucial point may be the most important aspect of your case, as Indiana’s Comparative Fault Act reduces the amount of an amount by the proportion at which the plaintiff may be at fault. If a plaintiff’s fault is greater than the defendant’s or defendants’, then the plaintiff is barred from recovery.1 It may be helpful to use an example to illustrate how the Indiana Comparative Fault Act works in practice:
Assume that you are seriously injured in a car accident, and we arbitrarily say that your case is worth $1,000,000. The question in the case is whether you or the other driver entered an intersection when you were or he/she was not supposed to. If a jury finds that you were forty-nine (49) percent at fault and the other driver was fifty-one (51) percent at fault, you would likely get an award of $510,000. If a jury finds that the other driver was forty-nine (49) percent at fault and you were fifty-one (51) percent at fault, you will get nothing.
Additionally, if there is a liability dispute, it is more unlikely that a case can get easily resolved before suit is filed or after suit is filed through informal negotiations or mediation. This usually means more time and expense will have to be put into the case.2 Depending on the fee arrangement with an attorney, more expenses means less money coming to you at the end of the case.
Damages: The second critical concept in determining how much a personal injury lawsuit may net either via settlement or trial is damages. This, in its simplest terms, is the amount that is fair to compensate you for your injuries. The damages aspect of a case is usually the largest driving factor in determining an award in a personal injury case, so several sub-topics are covered below.
What Damages Are: It is important to reiterate what civil litigation damages are designed to do: fairly compensate you for your injuries. Damages are not designed to give you a windfall (i.e., make you rich) or to punish the person who may have been at fault. The latter category is what are called “punitive damages” which are only available under certain circumstances. It usually is of no consequence that the person who injured you was rude to you, has had numerous other car accidents or cases brought against, was texting while they were driving, or anything of that nature.
The Connection Between the Accident and your Injuries: A common challenge in a personal injury case is when a defendant argues that an injury was “pre-existing.” For example, if you are one whose job requires physical labor and have sought treatment for a herniated disc in the past, it is very likely that a defendant in a lawsuit may argue that the injuries about which you are complaining were present before the accident. Another example that often comes into play if when plaintiffs are involved in an accident but do not seek treatment for several months. This allows a defendant to argue that a personal injury plaintiff “must not have been hurt” because it was not severe enough to seek medical treatment. All of these situations give a defendant the chance to either bargain in a negotiation/mediation or present such information to a fact-finder who may reduce an award based on this information.
The Severity of the Injuries: Rationally, the more severe your injuries, the greater the potential of an award. While no one wants to be injured and ideally does not want to suffer any major setbacks because of an accident, it stands to reason that if you have high medical expenses, are unable to work, are temporarily or permanently impaired, or die (in which case your estate is the plaintiff), the stakes of a personal injury action are much higher, and a larger damages award may be necessary to compensate you for what has been lost.
The Type of Injury: Injuries can take many shapes and sizes, and some injuries can take be much simpler to understand than others. For example, if you slip and fall, it is easy for one to accept that you sustained a broken arm – it is an injury that happens sometimes when people fall, you can see it on an x-ray, and most people, including those who may be on your jury, have broken a bone in their life. They may know what it’s like to experience that pain, treatment, and recovery. Other injuries, such as “soft-tissue” injuries or neuro-muscular injuries, may be more difficult to understand. Sometimes there may not be a clear answer as to why you are experiencing certain symptoms, medical providers may have a difficult time diagnosing you, and treating the condition may not be straightforward and may involve some trial-and-error. If an injury falls under this latter category, coming to a consensus in a negotiation or presenting evidence to a jury to help them understand your injury may be more difficult, and this may affect an outcome.
Other Considerations: The above categories are only some of the things that may influence the value of a personal injury case. Another factor is sometimes the subjective nature of the damages that you may have incurred. Let’s say that because of an injury, you can no longer play sports with your children, you can no longer do your favorite hobby, or you cannot do basic chores around the house – what is the inability to do these things worth? The last factor is simply the subjectivity of a jury. Simply put, different juries may award very different awards based on their make-up. Each juror brings their background and their own life experiences to the courtroom if a case goes to a jury trial, and they may vary greatly. If you want an interesting exercise, the next time you are at a grocery store, take note of the people in line around you – these may well be the people who would decide your award should you get injured in an accident.
We hope you find this blog post useful in providing information about personal injury cases and some of the issues that arise in these matters. Ciyou & Dixon, P.C. attorneys handle personal injury matters throughout Indiana. This blog post is written as general information and is not legal advice or a solicitation for services. It is an advertisement.
- IND. CODE §§ 34-51-2-5-5 through 8 (generally speaking, if a plaintiff is greater than fifty (50) percent at fault, he or she cannot recover).
- It is important to note that usually, in a personal injury case, attorneys get compensated by what is called a contingency fee, meaning that the attorney, via a contract with the client, gets a percentage of the award as allowed by the Indiana Rules of Professional Conduct. You may hear of attorneys describe this as a “no fee” case or a “no payment unless you win” case. However, sometimes the client is still responsible for “expenses” incurred – this may include filing fees, copying and administrative fees, fees for court reporters and deposition transcripts, fees to obtain medical records, fees for mediators, and fees for experts.