Queller, Fisher, Washor, Fuchs & Kool, L.L.P.

Case Value

The very first question that many seriously injured individuals ask when interviewing or hiring a lawyer is- how much is my injury case worth? As will be discussed, the answer to this question relies on many factors, some of which are almost never completely known shortly after your particular accident/injury has occurred. As such, particularly when interviewing an attorney, the victim of an accident should be very wary of any lawyer who immediately promises any type of guaranteed result. Unfortunately, some lawyers may prematurely tell you that your particular case is worth "at least" a certain amount of money, or give you the impression that your case is worth millions upon millions of dollars, simply in order to lure you to choose that attorney as your lawyer, as opposed to hiring someone else instead. This practice is actually known to be more common amongst less experienced and less successful attorneys in the personal injury field. If you truly are looking for the best possible representation, and ultimately the best monetary recovery for your injury case, do not fall into the trap of the "lottery mentality" that may be initially appealing, but may not result in choosing a personal injury attorney that actually has the experience and expertise to get you the result that you deserve.

Factors Relevant to Evaluating Injury Case Value

There are a multitude of factors that will eventually determine how much money you may recover for your personal injury case. On the most basic level, the value of your case will be determined by the percentage of fault of the defendant(s), multiplied by the full monetary damages you have sustained in the past and will sustain in the future. Therefore, as an example, and starting at the end of the process, if a New York jury were to ultimately find that the defendant(s) were 50% at fault (i.e., liable) for your accident, and also find that your total past and present damages are 1 million dollars, then a judgment could be entered on your behalf, against the defendants for 50% of the 1 million dollar award, which is $500,000. (There are exceptions to this calculation but they are not relevant to this discussion). As such, when your attorney negotiates your case with either the defendant's attorneys or insurance company, there is a constant argument/negotiation taking place regarding all of the factors that contribute to determining how much fault/liability for the accident is attributable to the defendant(s), and all of the factors that contribute to the full measure of damages that you have suffered or sustained as a result of the happening of the accident.

Fault or liability is often sharply contested. For example in an automobile accident, the Plaintiff (i.e., the injured victim bringing the lawsuit) and the defendant often have vastly different accounts or versions of how the accident occurred. This is often true regardless of what may have been recorded on any police report, the contents of which may not even be admissible at the time of trial. It is almost impossible to predict at the inception of a case how well any person involved will testify regarding their version of the accident, or how credible they will be. This is true not just of the parties involved, but of any witnesses to the accident. Moreover, the versions or accounts of what one or more witnesses saw at the time of an accident may not even be known shortly after an accident. An investigation is often warranted, and an investigator might be hired by your attorney to gather witness statements from anyone that may have seen your accident. Also, well before trial but certainly long after you have hired an attorney, depositions (sworn testimony) will usually be taken of the parties and perhaps from witnesses. As such, there is a great deal that is often unknown regarding the ultimate outcome on the issue of liability/fault shortly after your accident. A responsible attorney will explain this to you rather than telling you what you may want to hear simply in order to get you to sign a retainer agreement. Of course, much may be known about the strength of your liability case based on what is known after the accident occurs. However, a lot can go right or wrong along the way and the focus of a top lawyer will be on how to best ensure that things go right, rather than making guarantees and promises regarding any definitive outcome.

The issue of damages (i.e., how much money represents 100% of the victim's loss) is also almost always sharply contested during the course of personal injury litigation. Also, there are several different categories of damages and factors and sub-factors relating to damages issues that are argued and negotiated while trying to resolve your personal injury case. As an injury victim, there is a value to be placed on your "pain and suffering" and "loss of enjoyment of life." These measures of damages are grouped together. However, placing a monetary value on a particular injury can be far from an easy task.

For starters, some injuries are subjective in nature. For example, two different individuals may suffer from a herniated disc in their back. One individual may suffer from excruciating pain, and the other individual may suffer no pain at all. Even the best diagnostic test for such injuries (magnetic resonance imaging) may be inconclusive regarding the severity of the injury, and what degree of pain, if any, is caused by the injury. Medical experts in the case may disagree as to the severity of this type of injury, or even as to whether it was a pre-existing condition as opposed to being caused by the accident at all (unlike your treating doctor, insurance companies and defense lawyers often hire experts who have a pre-disposition to minimizing your injury, or to opine that your injury is not accident related at all. After all, these so called experts are getting paid for their "opinions" by these very same insurance companies). The subjective nature of this type of injury means that other factors, not known at the time of the inception of the case, will help a jury (as well as all of the parties attempting to negotiate a settlement along the way), evaluate the severity of your injury, and the degree of pain and suffering that you endure. For example, what was the extent of treatment you underwent for your injury? Was it necessary that you be medicated and for how long and with what type of pain or anti-inflammatory drugs? If conservative therapy failed was the pain so severe that you then took the step of undergoing epidural steroid injections in your spine to try to relieve the pain? Did that treatment succeed or fail and if it failed did you go on to have back surgery? If you had back surgery what type of surgery was it? Any type of back surgery is serious and severe, but did you undergo what is called a discectomy or laminectomy, or did you require the even more serious "fusion" surgery where vertebrae in your spine were fused together and it was necessary to place hardware in your spine in order to fix your problem and alleviate your pain? Obviously, the subjective nature of the injury (where you may feel pain but have a hard time proving it) becomes more objective, known, and provable when an orthopedic surgeon has recommended and performed surgery. Obviously, this is just one example of how the outcome of how your medical injury progresses is not known at the beginning of your case, sometimes making it very difficult to estimate the value.

Other types of injuries are more objective in nature. For example a fracture of your femur (the big bone in your leg between your knee and your hip), which requires surgery, undoubtedly causes a great deal of pain to every person that suffers the injury. Unlike the more subjective herniated disc, nobody can seriously argue that you did not experience pain for a period of time. Moreover, there is in fact some reliable measure of your damages based on what amount of damages juries normally award for such injuries, based on the amount of money higher (appellate) courts have permitted for such injuries, and based on the history of settlement of similar fractures of the same bone. Still, the ultimate result of your serious fracture remains unknown. Perhaps under the circumstances, despite having to have your fracture reduced with plates and screws, you achieve a relatively good recovery under the circumstances. On the other hand, perhaps even after surgical intervention you continue to suffer serious pain and need additional surgery, or have pain that cannot be helped with surgery. Perhaps you are pain free but suffer from a limp (also known as an antalgic gait) or have some other permanent problem. Remember, a determination of the value of your "pain and suffering and loss of enjoyment of life" has both a past and future component to it. These two components encompass separate determinations of monetary damages by your jury. By the time your case is ripe for settlement discussions or reaches trial, the "past component" of your damages will only be based on the time that has passed since your accident. The future component is likely to encompass your entire future life expectancy. Obviously, even with this "objective" type of injury, a great deal is unknown at the very beginning of the case. Again, the lawyer that professes to know the result of your medical course immediately after your accident and therefore can predict the outcome with a great deal of certainty may not be the best source of information.

In addition to the pain and suffering aspect of your damages, there are several other aspects relating to economic loss that need to be evaluated. Were you working and if so were you able, or will you ever be able, to return to work? How much money were you earning and for how long? What if any benefits have you lost in addition to your earnings (e.g., medical benefits, pension benefits, annuity benefits, vacation benefits, etc.). If you cannot return to work at your work of choice, can you get a different and perhaps more sedentary job? If so how much money can you make at that new job to offset economic losses at your old job? The issue of whether you can work or perform a different job often entails an entire battle of opinions among experts in the field of employment and a field known as vocational rehabilitation. If you are employed, issues relating to your ability to work in the future and past and future economic losses often involve even more significant sums of money than your claims for the monetary value of your past and future pain and suffering. Again, there are too many questions and unknowns that exist at the beginning of your case to responsibly make guarantees or promises regarding the precise result or outcome of your case.

A good rule of thumb is to find a lawyer that can and will point out all of the factors that affect the outcome of your particular case, rather than telling you how many millions of dollars you are assured of recovering before your case even starts. An attorney that is conscious of the factors that contribute to the value of your case is more likely to provide diligent representation and maximize your ultimate recovery.

So, how much is my case worth? If you just had your accident, the truth is that nobody really knows for sure. The best course is probably NOT to hire an attorney based on promises or estimates of case value or recovery.

Our attorneys at Queller, Fisher, Washor, Fuchs & Kool have decades of experience litigating serious personal injury matters. Our practice is exclusively dedicated to handling serious and catastrophic injury cases. We are always available for a free consultation and to answer any questions that you may have about your new personal injury matter.

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