What is my case worth?

The Legal Point

I hate to break this to you, but this question cannot be answered on a billboard or in a TV commercial. Valuing an injury case, and recommending settlement, is based upon a number of factors, chief of which is the lawyer’s experience in trying injury cases.

The simple answer: Your case is worth whatever seven jurors think. Note that Virginia civil juries consist of seven jurors. I could take the same case and try it 10 different times in front of 10 different juries and the result would be 10 different verdicts. The numbers would bounce all over the place. But jury trials are expensive, lengthy and, for the client, can be emotionally taxing. And many people who retain our firm like to know: Will my case settle? Will it go to trial? What is it worth?

Statistically speaking, most civil cases do settle. The odds are in favor of a lawsuit resolving without a full-blown trial. Yet, it’s impossible to forecast whether a particular case will settle or be tried in court. No one can give you rock-solid certainty on that. A case can be straightforward—the driver rear-ended the plaintiff, or the defendant was drunk, or the defendant ran a red light—but the insurance company can disagree on the value of the case (i.e., how much should be paid to settle the case).

A disagreement on value is why most lawsuits end up being tried. The value is driven mostly by the injury—how severe? Is the injury permanent? How long did the plaintiff have medical treatment? Is future treatment needed? These are all questions that can complicate a case that seemed very simple and straightforward.

In Virginia, the Judge reads jurors a set of instructions before they are sent to deliberate. As it relates to their verdict, one of the instructions specifically gives seven factors for jurors to consider:

  1. Any bodily injuries sustained and their effect on the plaintiff’s health given their degree and probable duration;
  2. Any physical pain and mental anguish that the plaintiff suffered in the past, and any that she may reasonably be expected to suffer in the future;
  3. Any disfigurement or deformity and any associated humiliation or embarrassment;
  4. Any inconvenience caused in the past and any that may reasonably be expected to occur in the future;
  5. Any medical expenses incurred in the past and any that may reasonably be expected to be incurred in the future;
  6. Any earnings that were lost because she was unable to work; and
  7. Any loss of earnings and lessening of earning capacity that she may reasonably be expected to sustain in the future.

As you can see, the answer to these seven questions can be complicated, and more importantly, be contested by the defense. The easy part is the past medical expenses. You may have heard someone say “three times the medical bills” as a rule of thumb. Sometimes a settlement of three times the medical bills is way too much; other times, it’s not enough. And sometimes, the past medical expenses are no real indication of the extent of the injury.

The question of permanency and the need for future medical treatment is left to the doctor. He ultimately carries the baton on whether the jury can consider the need for future medical treatment. On this question, the legal standard is medical probability. That is, is it more probable than not that this person will require medical treatment in the future? If the answer is “yes,” and the doctor gives that opinion in court, the jury can consider awarding money for future treatment. If you envision a scale, “probable” means 51 percent, tipping the scale. As you might imagine, some physicians are more conservative than others in doling out these opinions. And, remember, doctors charge money for giving their opinions in court cases. These costs ultimately come out of any recovery for the plaintiff.

If the physician decides that the injury is permanent, and believes future treatment will be needed, an attorney can retain a nurse to prepare and present to the jury a Life Care Plan, which will outline the costs and expenses that can reasonably be expected to be spent in the future of the plaintiff’s life. This includes doctor visits, diagnostic testing, therapy, prescriptions, etc. In calculating the plaintiff’s life, the Virginia Code has a life expectancy table that can be read to the jury. For instance, I am currently 38 years old. According to Virginia Code §8.01-419, my life expectancy is another 39.1 years. These figures are read to the jury for consideration in reaching their verdict.

At the end of the day, no one can predict a jury’s decision. It is impossible to predict what a juror considers as “a lot of money.” This is why it is important for you and your attorney to have a realistic conversation when you are considering going to trial versus accepting a settlement. In any civil case, personal injury or otherwise, you and your attorney should discuss the “preferred most likely outcome.” Then, both you and your lawyer will be on the same page as far as expectations are concerned. And that formula will usually make for a happy, satisfied client, which is the goal.

Joe Verser
About Joe Verser 7 Articles
Joe Verser is a partner in the law firm of Heath, Overbey, Verser & Old, PLC. He regularly represents both commercial and residential contractors in disputes, as well as homeowners and project owners. He can be reached at jverser@hovplc.com or at 757-599-0734.

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