What Is My Case Worth? Determining Value Part II

The pricing of personal injury cases may be somewhat like selling a home. The buyer, or the person bringing the action for his or her accident, can be tempted at the outset to have a discussion regarding value. Often I caution my clients that it is far too early to have any sense of the value of the case. Injuries and facts must evolve before any educated guess can be rendered. In that sense, it is not akin to selling a home, where the property value can be assessed by a real estate professional rather quickly. In contrast, it may take several years before a personal injury lawyer can truly assess how much an injury will affect a client in the longterm and how such an injury will be evaluated by an insurer or third party who will most likely have a different view of the facts.

I always tell clients that three factors will determine the value of a case. Consider them three legs of a stool. The first, and threshold issue, is liability. I say threshold because without it there will not be compensation. There will certainly not be compensation at trial because the jury will find in the negative on question one or question two; was the defendant negligent and was the negligence a proximate or legal cause of the accident. As i discussed in the jury verdict slip blog, if the answer is no to either of those two, the jury goes no further and the case is lost from the plaintiff’s perspective. You may have heard that people have received recovery where the liability issues are very weak. That can of course be true but rest assured it is not for a hundred percent of the value of the injury. The insurance company will have deducted for what they will be quick to say is weak liability.

It is true that most cases settle. Why is there the concern over how the jury will answer question one or two as described in the above paragraph? That is due to the need for the plaintiff’s lawyer to show in the pre-trial stage that a recovery would be likely if a trial were to occur. The question that the other side is asking itself is whether the plaintiff can establish liability. Can the plaintiff establish that the responsible party deviated from the standard of care or from the standard of conduct as set out in the law. If the insurance company, with the advice of its lawyers, believes that the person suing can do so, they will see it as a case to settle.

When a case is deemed as one to settle by the adversary the focus turns heavily to damages. What do the medical reports say? What do the hospital records say? Will there be compelling information from co-workers, family members or friends as to how this injury has affected the client. If there is, a case has greater value than if there isn’t.

In a prior blog post, I discussed the personal biography, or in modern phraseology, the personal narrative of the client. I cannot emphasize enough how important that is. Seven years ago I wrote an article for the American Association of Justice on this very topic. I had just been representing a client who came to the United States twenty-five years before her accident and taught herself English and eventually became a longtime teacher in the Boston schools. Her commitment to overcoming personal obstacles in order to lead an enriching life resonated. I still believe that I was able to achieve an excellent result for this client after a very long and hard mediation because of the client’s personal story. The bottom line is that the same injury will not pay the same amount. This is actually quite amusing to me because several years ago insurers started using a software program to “price” injuries. However, when presented with a meaningful story about a significantly injured client, those software programs often no longer govern the value of the case.