What is a Fair Amount for my Settlement?

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Below is a transcript of the podcast

This is Ann Margaret Perkins, welcome to our podcast today. I’m going to be talking about the question: What’s a fair amount for my settlement? That’s the $600000 question. What you and I consider fair and what an insurer considers fair may be a long ways apart. Ultimately what a fair value on your claim is what the jury says the case is worth. So that’s how lawyers and insurance companies value claims. But I want to talk a little bit about this today and just give you an idea of what that might be and going over what the law provides you’re entitled to.

One is what the law calls your special damages. The other is what the law calls general damages. Special damages, and I have no idea where that term came from because there’s nothing more special about them than general damages. In fact I’d argue general damages are more significant. But, special damages are things you can add up: medical bills, lost wages, future medical bills, future lost wages. It’s things that have a monetary value already connected to them by society. General damages are the most personal damages. They are all the things that affect your ability to use your body and live your life. The term that kind of gets used with general damages more often is pain and suffering. And that’s certainly true. I mean if you’re hurt you do have pain. You do have suffering but it includes things like loss of ability to do things that you enjoy, which the law calls a loss of capacity to labor. So there are things that are beyond just that the idea of pain or suffering that are included in general damages.

Now, special damages are much easier to calculate because all you have to do is add them up and do some math. Occasionally an insurer will argue about whether a medical bill is reasonable and whether you’re future lost wages are certain enough that they should be recoverable. Typically the special damages are much easier to come to agreement on. With regard to medical bills, my experience is that jurors include the amount of the bills in the verdict unless it’s something that is just outrageous on its face. I did have a client that was seeing a doctor and having injections in his spine. When we got the doctor bill in, it was something like $30000 for an injection. I’ve seen a lot of bills for injections and I know they shouldn’t be anywhere near $30000 and I wouldn’t disagree in that circumstance that the bill was unreasonable. In fact I made an appointment, went and sat down with that doctor and said I can’t even submit this to the liability carrier because they’re going to immediately think that you aren’t credible because this bill is so outrageous. And he said he did adjust his bill. So unless you have a circumstance like that and that’s way outside the norm, then special damages are usually pretty easy to calculate. General damages are more difficult because they require evaluation of the specifics of the situation.

The guidance that the law gives on what a jury is to return in its verdict for general damages is a charge that says that the jury is to determine the plaintiff’s damages by looking to its enlightened conscience. Really what that means is that the jury is to stare at and consider from a human perspective what those losses are. But it sounds like something just purely theoretical. So there’s no real limit on what they can do. They’re supposed to look at this specific situation and determine based on their conscience what that loss means to the plaintiff. So you can see that with general damages especially, the value in cases is more of an art than a science. So when we’re trying to artfully determine what a jury is going to do in any given case, the questions that we have to ask are: what is the strength of liability or fault. Sometimes there are facts that make it not 100 percent somebody’s fault. What was the severity of the impact, especially in car wrecks? It matters a lot to jurors typically how much damage was done to a vehicle. That doesn’t mean that the case where there wasn’t a lot of damage we can’t do anything with that case but it may be a harder case and that may affect what a jury would return in its verdict for injuries. You have to look at where the case is going to be filed. That’s what lawyers call the venue because in different counties jurors tend to have differences in the verdicts that they return in cases. You have to look at the plaintiff: what kind of a witness are they going to make? The defendant: what kind of witness are they going to make? And then you have to look at the strength of the medical evidence: is this person being seen by credible doctors that were supportive? Did the person have a pre-existing condition that this wreck or fall has aggravated as opposed to you know a broken arm that’s very clearly caused in a wreck? So the strength of the medical evidence has to be looked at.

Then, what I do is take my experience trying cases, look at all those factors and determine what I think a jury is likely to do. Now the answer is not going to be $10.50, it’s probably going to be a range. I think a jury is likely to return a verdict somewhere between $7 and $12. And that’s what I give my clients is a range, what I think a jury is likely to do. It may take me after we have all the medical evidence, after we have all our investigation, it might take me a day or more sitting down evaluating things depending on how complicated the case is to come up with what I think that range is. It’s a very personal analysis and that’s why I don’t think you can rely on these online calculators. Getting ready for this today, I look back at them, I’ve looked at them before but I looked at one of those today. One of the things that immediately struck me was that they weren’t asked about injuries. It only list about half a dozen types of injuries. And one was back and neck. Well there is a huge difference in the type of back and neck injuries.

A whiplash injury, while those can be bad, I would never just say all whiplash injuries are worth X amount of dollars. A whiplash injury typically is very different from say an intervertebral disc injury which may require surgery or a vertebrae injury that may require surgery or nerve root compression on a disc is a back or neck injury but it can cause severe pain. Whereas you may have a whiplash injury that causes more of an aggravating pain. So just in the world of neck and back injuries there are a number of types of those that vary wildly in terms of what those are worth. In these calculators you go in, you pick your injury, you plug in your special damages and it gives you a multiplier and it kind of explains what the multiplier is about. Then it spits out an answer. In the one I did today I plugged in some numbers and put in the zip code for a venue that I’m very familiar with and it gave me a number that I didn’t think, as someone who does this all the time, was anywhere close to the value of that case. It significantly overvalued the case, in my opinion. And that can be as bad as undervaluing a case because if you use one of those and you go into negotiations with an insurance company and you’ve got a pie in the sky number you’re never going to get them to seriously negotiate. People aren’t products and I don’t think you can effectively value a case the way that it’s done on those online calculators.

If you want to talk with an attorney and get some information about your case, that is going to be much more effective than using one of these calculators. While I can’t value your case based on one phone conversation, I certainly can give you a better idea than you’re going to get from one of these online calculators about just generally the type of value that your case might have. So you know take the time, talk with a lawyer who does this day in and day out and get some hard information that may actually be helpful to you and help you make a decision. While this is a tough topic because the answer is: there is no one answer. Every case is different. I hope this has been helpful to you today and if I can help you in any way I’m certainly glad to do that. There’s a lot of information on our web site injuryispersonal.com and your welcome to call our office at 770-834-2083.