What are damages in a personal injury case, how are cases valued and what
will I be awarded at the end of my case ? These are some of the issues
I discuss in today's blog post.
If you are injured and you file a personal injury claim against another
person, business, municipality or some other type of legal entity your
remedy at the end of a trial is financial damages. How do lawyers decide
what a case is worth ? What evidence do we look at to determine what is
a fair settlement ? These are some of the questions I thought i should
address in today's blog. In the New York jury instructions, it is
suggested to Judges that they charge a jury ("charge" is basically
an instruction to a jury) that they award damages that fairly and justly
compensate the plaintiff for all losses resulting from the injuries the
plaintiff sustained. Obviously, damages are not awarded to a plaintiff
unless the jury finds that the defendant caused the injuries and the jury
determines that the plaintiff is entitled to damages.
An award of damages is intended to restore the injured party to a position
that he or she held prior to the injury. Restoring a person to their position
prior to the injury is done by awarding compensation to the party for
actual damages sustained and future damages that will be incurred as well.
Unfortunately, there is no legal criteria aside from life experience to
translate pain and suffering into money. Juries are free to award damages
that have a reasonable basis for computation are are not merely speculative,
possible or imaginary. A jury has the right to resort to reasonable conjecture
and probable estimates to make the best approximation possible through
the exercise of good judgment and common sense to arrive at an award of damages.
So, with this information in mind, how do we attorneys and insurance industry
professionals place a value on a case ?
First, what is the severity of a plaintiff's injuries ? Fractures are
worth more than soft tissue injuries like sprains and sprains. If an injury
requires surgery, the value of the case will be affected as well. The
period of rehabilitation is considered as well as the period of continuing
medical treatment and the cost of the continuing medical treatment. Lost
time from work is also considered as well as out of pocket expenses for
medical services, medications, orthopedic devices, transportation to and
from medical appointments, ambulance care, or any other out of pocket
expense you can think of when considering the course of someone's
Second, attorneys consider where the cases is venued. What does that mean
? The venue is the Court where the case is located and each county in
New York is a separate venue. As a general rule of thumb, the more urban
a community is, the higher the verdicts and settlements. A case venued
in the Bronx or Brooklyn is going to be valued at a higher amount than
a case venued in Herkimer County which is in the middle of the Adirondack
Attorneys will also consider the circumstances of the accident. If there
was an incident that was particularly gruesome or shocking, that will
affect the value of a case. Likewise, a sympathetic client who is a plaintiff
will affect the value of a case as well. Children and the elderly are
normally very sympathetic while a litigation attorney probably is not
so sympathetic. People who are well dressed and articulate will make a
better impression on a jury as well.
Punitive damages may also be something that come into play in your case.
When do punitive damage issues arise ? When the defendant's conduct
show a high degree of immorality or wanton dishonesty. The purpose of
punitive damages is not to compensate the plaintiff but to punish the
defendant and discourage the defendant and others from engaging in similar
conduct. An act is consider malicious when it is done deliberately with
knowledge of the plaintiff's rights and with the intent to interfere
with those rights. An act is considered wanton and reckless when it demonstrates
conscious indifference and utter disregard of its effect upon the health
and safety of others. While many people like to discuss punitive damages,
the standard of proof on this issue, even though there is a difference
in the Appellate Courts in New York, is difficult to meet and is not frequently
asserted and awarded. As a practical matter, insurance companies often
disclaim coverage and then there is no policy from which the plaintiff
and counsel can collect, if punitive damages are asserted.
In summary, there are a number of factors that attorneys consider when
determining the value of a case. One tool that almost every attorney uses,
in addition to the considerations above, is research. Verdicts and settlements
are reported in New York and attorneys have access to this information.
We are able to come up with a range of values for almost any given case
and modify it based on the individual facts presented in our client's case.
All of this being said, I hope you and those you love do not find yourselves
in the position of being a plaintiff in a personal injury lawsuit. However,
if you are injured due to someone's negligence, please call an experienced
attorney and consult them right away. We are available and willing to
provide you with a free consultation and a free case evaluation. All you
need to do is call us at 1.800.900.6204. Michael R. Varble & Associates,
P.C., we'll fight for you !