Lachenmeier, Enloe & Rall - February, 2004 Publication

Case Evaluation
What is a Personal Injury Case Really Worth?

You ask the question “what is a personal injury case really worth” to many claimants and they might tell you everyone knows a case is worth “three times the medical bills”. Indeed, some personal injury cases are worth that, and many cases are settled for something in that neighborhood. But, in fact, the true value of most cases is usually nowhere close to this simple formula. Cases can be worth less than the medical bills or many times more.

Let’s start with what is meant by the question “what is a case worth”. At the most basic level, it means what amount of damages would a jury award to the plaintiff if there were a trial? For some cases, it means what an arbitrator or panel of arbitrators would award. What it does not mean is how much it takes to make the case go away. We can always close files by paying the claimant or the claimant’s attorney the amount of the demand, but that is not paying what is owed. Claimants and their lawyers may appreciate it, but insurers and their shareholders do not.

Well…if three times specials, or just holding claimants to their demands (don’t pay a nickel more than they want!), is not the way to evaluate claims, what is? Unfortunately, there is no quick and easy formula. Each case stands or falls on its own facts and circumstances. The true key to understanding case evaluation is to forecast what a likely jury, made up of typical local folks, would want to require a person like this defendant to pay a person like this plaintiff for these particular injuries. If you feel you have your finger on the pulse of the community in which the case would be tried, then you are well on your way to evaluating the case. On the other hand, if you know from experience that your own views of what local juries decide in cases is not necessarily in keeping with actual jury verdicts, or if you just do not have the experience to know what jurors in the community in question think about claims in general or particular types of claims, it is best to get some help evaluating the claim.

Listed below are factors which my law partners and I have come to conclude from our years of experience are important factors in the evaluation of any personal injury case:

Will a jury like the plaintiff?
Will a jury like the defendant?
Will the trial lawyers change this at all?
Will either party be especially sympathetic?
How serious was the accident?
Were there any aggravating factors (alcohol, racing, etc.)?
Was the impact so minimal that jurors will question whether it is even possible to be hurt?
Are there any liability issues—for either party?
What were the nature and extent of the injuries?
What type of medical care was received?
Was the medical care reasonable and necessary?
How did the injuries affect the plaintiff’s daily life, and for how long?
Does the plaintiff seem to be a complainer or, instead, understated?
Does the plaintiff have other accidents or injuries?
Is the plaintiff a medical marijuana user?
In the overall picture of this plaintiff’s life, what role did these injuries play?
Is there another explanation for this plaintiff’s complaints?
Does the plaintiff have a history of other claims or lawsuits?
Has the plaintiff been convicted of a crime within the last 15 years?
Has the plaintiff filed for Bankruptcy and, if so, was it after the date of this loss?
What is the plaintiff’s family/household situation?
What is the plaintiff’s employment or what role does this plaintiff play in the community?
Did the plaintiff miss work or other activities?
Was the amount of time off reasonable?
Did the injuries affect recreational activities and will a jury care?
What venue will this case be tried in?
If the case will be arbitrated, are the particular arbitrators yet identified?

Applying these kinds of factors to the specific facts of any claim will help lead toward a fair forecast of the likely range of jury verdict or arbitration award for the case. Of course, there is no substitute for experience with actual juries and arbitrators to help understand what they tend to award in given types of cases. It can also be helpful to keep up on current jury verdicts, for example by visiting www.lerlaw.com/verdictsearch.php from time to time. As a reminder, this is a comprehensive database of jury verdicts actually reached in cases tried, not limited to cases that one side or the other is particularly proud of. Currently it contains over 2,000 local verdicts and can be searched by type of injury claimed, without charge, by insurers for whom the writer’s firm does defense work (others can still view the verdict amounts by accident type and county, but without detailed search capabilities).

Case evaluation is not easy. It is in part a science, but it is primarily an art, consisting of understanding human nature and knowing how local juries and arbitrators view the concept of fair compensation and then applying that understanding to the facts of the given case. At times, claimants’ attorneys will not have the same understanding (or will be motivated more from the standpoint of wanting to generate as much money as they can from the claim, regardless of whether that reflects a fair evaluation or a likely jury verdict or arbitration award). Those cases are the type which must be litigated, but the positive aspect of that is that those attorneys will learn what cases are really worth and everyone will have one more example of what juries do, to add to the total experience of tried cases, so the next case will have that verdict to consider when it comes to case evaluation.

If you have any questions about this article, or need any assistance with case evaluations, please feel free to contact the writer Jay Enloe, at 503-768-9600 or by email at jay@lerlaw.com.