Written by Troy Marsh |
Tort lawyers generally refer to a bodily injury “case” as a situation that includes one or more people who have suffered an injury due to the negligence of one or more people or entities. A car wreck is the classic, and probably the most common, example of a tort “case.” Imagine you are stopped at a red light, and suddenly an oncoming vehicle slams into the rear of your car. The other driver had been texting while driving. By the time the other driver saw your vehicle, there was not enough time or distance for him to stop.
Imagine that your knees slammed into the dashboard, and your head snapped forward and then backward sharply. X-rays and an MRI at the emergency room reveal that both of your legs are broken, and you have a herniated disk in your neck, all caused by the wreck. After two surgeries, hospitalization for an infection resulting from surgery, and six months of physical therapy, your doctors finally release you from their care, and you return to work. By then, your medical bills total $132,052.43, and your lost wages total $15,387.10. This situation is what lawyers and insurance companies call a “case,” and your “case” has a dollar value.
All cases have a dollar value. If the parties cannot agree on the dollar value of the case and settle the case for that amount, a jury will determine the value for them. How do the parties go about determining the value of a particular case? Do they have a book that tells them the value? Is there a committee that meets and decides how much a case is worth? Is there a computer program that calculates the value?
Unfortunately, no book, committee, or computer program can determine the value of any particular case. The value of a case depends on too many factors and variables, some tangible and some intangible, for valuation to be an exact science. Case valuation is as much an art as it a science and can depend on the lawyer’s reputation, experience, and level of competence as much as the amount of medical bills or lost wages. More about that later.
Cases are like fingerprints in that no two are alike. Even if the cases arise from the same incident, like the wreck described above, the value of one case does not determine the value of another case. For example, suppose your 19 year old passenger was also injured in the wreck and suffered a traumatic brain injury that left her in a semi-vegetative state, in constant pain, requiring around-the-clock care and constant monitoring. She can never work again. Her past and future medical bills are expected to exceed $1,500,000.00. Obviously, the value of her case and the value of your case will be different because the amount of special damages, things like medical bills and lost wages, the extent of her pain and suffering, and numerous other factors and variables.
One way to look at case evaluation is to compare it to buying a used car. With the understanding that every used car has a value, the dealer tries to get the most money, while the buyer tries to pay the least amount of money. The true value of the car is the amount that a willing buyer and a willing seller agree is the value at a particular time on a particular day. It’s the same with an injury case, but instead of arguing over the value of a used car, the buyer and seller are negotiating over the value of a case, with the “seller” being the injured party, and the “buyer” the liability or uninsured motorist insurance company. The insurance company, through its highly trained adjusters, tries to “buy” the case for the least amount of money possible, while the “seller” tries to sell the case for the most money possible.
In an oversimplified generalization, the value of a case consists of general damages and special damages. General damages are sometimes referred to as pain and suffering, and the measure of general damages is the enlightened conscience of an impartial jury. Special damages are things like medical bills and other items that can be proven with some specificity. Because it is impossible to predict the verdict that twelve unknown strangers on a jury would return in any given case on any given day, it is likewise impossible to predict how much money, if any, an insurance company will pay to settle any given case on any given day. One way to estimate the value of a case is to compare the facts to other, similar cases that the lawyer has settled or received a verdict for in the past. Another way that lawyers evaluate cases is by the use of verdict and settlement reporting services that publish verdicts and settlements recovered by other lawyers.
Regardless of the method of valuation, a jury is not bound by prior verdicts or verdict amounts or settlement amounts in other cases. In fact, the jury is not even told about the amounts of other verdicts or settlements in any other cases. The jury must determine the verdict and the verdict amount by applying the law, as instructed by the judge, to the facts, as testified to by witnesses in open court, documents admitted in evidence, and other means allowed by law.
Below is a list of variables that may affect the value of a given case. Be aware that this list is not exhaustive, and not all factors and variables will apply or be relevant in every case.
Now, let’s take a closer look at how your choice of lawyers can affect the value of your case. Suppose your neighbor is a lawyer. You hired her to handle your divorce last year, and she did a decent job. She’s a nice enough person, and you hire her to represent you in your injury case. She has only been practicing law for two years and has only settle three other injury cases, but she seems fairly bright. She has never had a jury trial, but she tells you that most cases settle, so a jury trial is unlikely.
Your lawyer, we’ll call her Jenny, contacts the other driver’s insurance company, tells the adjuster that she is your lawyer, and asks for an offer to settle your case. Red flags erupt in the insurance adjuster’s mind! Ding Ding Ding! Newbie on the line! Newbie on the line! The adjuster, trained to say and do everything possible to save the company’s money, says something like “sure, just have your client sign and return these forms that I’m mailing you, and I’ll get back with you.” Jenny has her client sign the medical authorization and returns it promptly.
The adjuster has seen Jenny on TV commercials saying things like “Golly gee, I can’t guarantee that I’ll get you a gazillion dollars for your case, but you should hire me anyway” but is unfamiliar with Jenny’s reputation among her peers, her level of experience, or her competence. The adjuster asks fellow adjusters if they have had any cases with Jenny. Not one adjuster has ever heard of Jenny, other than seeing her TV commercials, so the adjuster contacts one of the insurance company’s defense lawyers to find out about Jenny. One defense lawyer knows Jenny from his community and tells the adjuster that Jenny has never tried a case in court and has never even taken a deposition. He tells the adjuster that Jenny settled all three of her previous injury cases for the amount of the first offer made by the adjusters. The adjuster smiles from ear to ear. “Thanks, so much, for the information,” he says.
A few weeks later, the adjuster calls Jenny and says “well, we reviewed your client’s records and bills, and did you know that your client had seen a doctor two years before her wreck complaining of neck pain?” “Gee, no, I didn’t know that,” says Jenny. “So,” the adjuster continues, “the previous neck pain must have been caused by the herniated disk that pre-dated the wreck, so we are not responsible for paying for that surgery or any related damages.”
Jenny reviews her client’s previous medical records and finds that her client did, in fact, complain to one doctor on one occasion of mild neck pain about two years before the wreck. However, the records are silent as to the cause of the pain. Jenny’s client did not see another doctor for neck pain until the day of the wreck.
Armed with knowledge of Jenny’s lack of experience, the adjuster then calls Jenny and offers to settle the case for $150,000.00. “Wow,” thinks Jenny, “that’s a lot of money.” “That’s more than the medical bills, for sure.” Calculating quickly in her head, Jenny determines that her fee on that settlement would be one-third, or $50,000.00. “Man, I sure could use $50,000.00 to pay off some of this law school debt and buy some more TV advertising,” Jenny thinks. “And, I have never tried a case to a jury, so I would not really know what I was doing, and I may lose the case or get a verdict for less than $150,000.00, then I would end up with less than $50,000.00 or maybe even zero.” “That would not be good,” thinks Jenny. Relying solely on her lack of experience, Jenny decides that the best thing to do in this case is settle for the $150,000.00 and not risk making a fool of myself in front of a jury and a judge.
Jenny calls her client into the office and explains that the value of the case is $150,000.00, and that is the amount the insurance company offered. Not knowing anything about the legal system, the client reluctantly agrees to settle the case for $150,000.00, which, after Jenny took her fee of $50,000.00 left the client with only $100,000.00 to pay over $132,000.00 in medical bills and no money to compensate for lost wages or pain and suffering.
Suppose, instead of Jenny, the client’s lawyer had been an experienced lawyer, we’ll call her Barbara, with over 20 years of experience handling similar cases, was well known to the adjuster and well respected by defense lawyers and judges, and had won many jury trials for large amounts of money in hotly contested cases. Even though the case arose from the same facts, resulted in the same injuries, the same amount of medical bills and lost wages, the value would be higher simply because of the particular lawyer representing the client.
Never underestimate the value of hiring the right lawyer in a case. Just because a lawyer calls himself an “expert” in personal injury cases does not mean that he is the right lawyer. Anyone can call himself an expert or a specialist, and anyone can buy advertising space on TV or newspapers or billboards. What matters is the lawyer’s substance, his competence, his reputation, his experience, and not his form, his appearance, or his entertaining rap artist TV commercials. Insurance adjusters know the lawyers who try cases and those who do not. Insurance adjusters are highly trained to exploit every weakness, including the injured party’s lawyer, to the company’s advantage. That’s how the adjusters keep their jobs. That’s how the insurance companies stay in business. They take in more money (your premiums) than they pay out (in settlements and verdicts).
In selecting a lawyer, it is not important to know how many cases the lawyer has settled. Anyone can settle a case, with or without a lawyer. Just because one lawyer settled a case for a gazillion dollars does not necessarily mean that the true value of the case was a gazillion dollars. Maybe, if a different, more experienced lawyer had represented the injured person, the value of the case would have been ten gazillion dollars. However, for many reasons unrelated to the client’s actual injuries, the lawyer convinced the client that the case was only worth one gazillion dollars, which, to the client, seemed like a lot of money, when in actuality was only one-tenth of its true value.
Likewise, for the same reasons, it is not important to know the highest settlement amount the lawyer has ever recovered. Sure, when viewed in isolation, a gazillion dollars may sound like a lot of money, but if the client has suffered a traumatic brain injury with permanent disability, a gazillion dollars may not even cover the past and future medical bills. Selecting the wrong lawyer could cost you a lot of money.