The decision to file a lawsuit can be fraught with concern for the person who has been injured due to someone else’s carelessness. One of the biggest worries we lawyers hear about is whether or not the case will actually proceed to trial. For a variety of reasons, many people just don’t want to end up in front of a judge and jury.
The truth of the matter is that very few cases actually proceed to trial. Experience has shown that somewhere in the neighborhood of 90% of cases that are filed end up being settled, either through old-fashioned negotiation between the parties, or through settlement mediation ordered by the court. In either case, the injured party has to sit down with his or her attorneys and reach a decision about the value of the case. Unfortunately, there is no specific formula we can use, where numbers and other factors are plugged in, and an answer pops out that tells us what a particular case is worth. Instead, your attorneys will analyze multiple different factors that all play into the ultimate decision as to case value. The purpose of this article and the ones that will follow is to give the reader some insight into some of those factors.
In determining the overall value of your case, your attorney is essentially trying to predict what a jury is likely to do with your case if it goes to trial. We are trying to gaze into a crystal ball and look into the future. It’s a difficult task to accomplish, not only because crystal balls don’t seem to work, but also because no two juries are the same. In a civil case in West Virginia, your case will be decided by a jury of six people you have likely never met. I like to tell my clients that I can video my presentation of their case and play the video to two different juries. Jury #1 may award $25,000 while jury #2 would award $100,000, and both juries will think they have done a great job. This is because jury #1 is made up of people who are fiscally conservative, while jury #2 is made up of folks who are more progressive in their financial views. The make-up of the jury is probably the single most significant factor in your ultimate recovery, yet you have almost no control over the folks who are chosen to serve. Taking a case to a jury really is, to a significant degree, a roll of the dice.
So, what factors do we consider in determining the settlement value of your case?
Factor #1 is liability. Is this a case where the defendant ran a red light in front of four witnesses and plowed into your car? Or is it a case of a crash where the stories of the respective drivers are completely different, and it’s going to be up to a jury to decide who was at fault? It’s easy to see why in the former case your settlement position is going to be a lot stronger than in the latter. In most states, a jury is required to allocate fault between the parties, with the total percentage being equal to 100%. Thus, it’s possible that in the typical car wreck case, the jury would conclude that the defendant was 70% at fault, and the plaintiff was 30% at fault. In such a case, the amount of damages awarded to the plaintiff would be reduced by his share of fault. In the example case, if the plaintiff were to be awarded $50,000 in damages, the verdict would be reduced by $15,000 (30%), so his ultimate recovery would be $35,000. You can see why liability is such an important factor in determining the settlement value of your case.
Factor #2 is medical bills. What is the total amount of expenses you have incurred in undergoing treatment for your injuries? Assuming that we are in good shape on the liability argument, it’s likely that a jury is going to at least award you an amount equal to the bills you have already incurred. However, in some cases the defense will argue that a portion of the medical expenses you claim to have incurred were not related to the accident which gave rise to your claim. That kind of argument typically comes up where the plaintiff has a pre-existing injury which was made worse by the accident. The defense always wants to argue that the medical expenses were due to the pre-existing condition, when in fact the plaintiff’s condition was made substantially worse by the crash.
These are only a few of the many factors that are considered in determining the overall settlement value of your case.
Part 2 of this topic will follow shortly, so keep watching the Bordas & Bordas blog for more information.