Pam: So Barry, setting aside the issue of insurance, how do you evaluate the case for settlement?
Barry: Well there are three major variables. The first of these is the liability question, the second is the nature and extent of the injury, the last is the damages. Those are the three that you kind of weigh together and sort out through the lens of our experience. I’ve been doing this for over 20 years now and you weigh them together and try to come up with a range of what’s considered a fair settlement.
Pam: When you’re talking about liability, what do you mean by that?
Barry: The basis of just about every type of personal injury lawsuit is fault and you need to be able to establish fault before you move on to any other issue. Now the issue of fault is one that sometimes it’s clear, sometimes it’s not. If the issue of fault is one that’s contested, there’s a defense that’s called contributory negligence.
Basically what contributory negligence is, is the defendant, the person who you’re blaming for the accident is saying that you were in some respect at fault for causing the accident. If you end up trying the case, there’s literally a line on the verdict form for the jury to insert some percentage of fault against you. What happens is that if the jury finds you say 20% at fault, your damages get reduced by 20%. So if a jury was going to award you $100,000 and found you 20% at fault, your damages get reduced from $100,000 down to $80,000. This is true all the way up to the 50/50 point. But as soon as they find you at fault any degree in excess of 50%, 50.1, you get a not guilty verdict.
So in assessing the issue of fault, insurance companies are going to be looking at this issue of contributory negligence as being something that has the potential to significantly reduce your recovery or keep you from getting anything at all. That’s an important factor to kind of keep in mind when you’re trying to evaluate the issue of liability.
Now depending on the kind of case that’s involved and the legal issues that are involved, there may be other defenses that are going to be available as well and those are things that need to be taken into account in evaluating a case for settlement. The bottom line is if the insurance company believes that they have any reasonable chance of getting either a not guilty verdict or one that’s significantly reduced by the issue of contributory negligence, the odds of them offering fair value or full value for a settlement is really pretty slim. So one of the reasons that I really recommend to people that they get a lawyer is if the issue of liability is not one that’s being fully conceded because the odds are that a fair settlement offer is not going to be forth coming.
Now, the other thing that you have to kind of keep in mind is bad conduct tends to be in the eyes of a jury a damage driver. In other words, if the conduct of a defendant is really awful, it’s something that angers the jurors, those tend to be situations where a jury may award more money than may otherwise be warranted just based on the nature and extent of the injury. On the flip side, one of the things that I actually really hate to see happen is to have a defendant admit liability and it sounds odd because it takes one of the issues out of the case but if I have a defendant who has bad conduct and is admitting liability, all of the sudden that bad conduct becomes inadmissible evidence and all that’s left then is to focus in on the issue of damages with my client.
What happens then is that the jury knows that the defendant’s admitted liability so they’re wondering why they’re there, why the case hasn’t been resolved and the answer that they naturally turn to is that well, there has to be a greedy plaintiff. This lady has to be trying to get something for nothing or more money than she really is entitled to. It becomes a much more difficult case for me to get the kind of money that a client may really deserve when you have a defendant who’s admitting liability.
Pam: What one of the other factors you mentioned was nature and extent of injury. What did you mean by that?
Barry: What that really relates to is how badly hurt you were as a result of the accident. All things being equal and things really are never equal, the worse you’re hurt, the worse outcome you have long term, the more your case is going to be worth in terms of fair settlement value. When I say that all things being equal and things are never equal, you have to keep in mind that the question of how badly you were hurt is one that’s really individual to each person. You can have two people sitting in the same car getting rear ended in the same car accident and for one person it’s going to be an unfortunate event in the rear view mirror six weeks out. The person sitting next to them in the car may have life long consequences because of the exact same accident. So, you have to be very focused in on how did this accident affect this particular person.
One of the things that insurance companies are going to latch on to very aggressively, especially where there are really significant injuries involved is the issue or preexisting conditions. What they’re going to try and do is say that the bad outcome that resulted was really due to some other injury, some other accident, some preexisting medical problem that you may have had and it’s often going to be fairly aggressively defended by medical experts that the insurance company is going to hire on. Part of what my expertise is and what the expertise of any real well qualified personal injury lawyer is, is to be able to go through these medical records and sort through the evidence and really show the difference before versus after.
I was representing a lady who was traveling through O’Hare and slipped and fell on water. She had actually been in a trip and fall accident a year earlier where she tore some cartilage in her knee and needed to have surgery done. Following this accident, things were much worse and ultimately she ended up needing a knee replacement done. Part of how I was able to bring the medical end of that case together was to go through the medical records with her treating doctor and establish that before she had the fall at O’Hare, he had operated on her knee, there wasn’t any loose cartilage in there, that after the accident there were new tears that weren’t present when he closed up the knee. That there were findings of fluids loose in the knee and all of these things, little pieces of evidence were used to establish that it wasn’t this initial accident that she had a year earlier as being the reason that she needed the knee replacement, it was really the second accident that was a contributing factor in causing the knee for the knee replacement and that’s really all that we’re actually required to show is that something was a cause and not the cause of somebody’s need for medical care and treatment.
Pam: The last factor you mentioned was the issue of damages, what are they?
Barry: When a case gets tried there’s a verdict form and a jury literally lists out what they’re awarding for various elements of damages. The damages are past and future wage loss, past and future medical expenses, past and future pain and suffering, past and future disability and disfigurement meaning any scarring, loss of a limb that kind of thing. Emotional distress is one that may be awarded but it has to be a very particular kind of emotional distress. It’s something that as a matter of practice really isn’t awarded very frequently.
Pam: Okay and besides the three that you mentioned are there other things that you consider?
Barry: Well there’s a whole range of factors that we take into account. One might be similar case results, in other words, the kinds of injuries that people have had and how those cases have been resolved. It’s helpful information but it’s certainly not more than a guide post. The amount of money that’s been spent working a case up is a factor. What has to be reimbursed to others out of the settlement. The identity of any type of insurance company that’s available is another factor. How good a witness the client is, whether there are other witnesses who are going to be supportive of their damages claim. The role of the treating doctor is one that can be really important. If you have a helpful, supportive doctor, it can make a big, big difference in terms of how we look at a case in the context of settlement.
Pam: So Barry then what do you do with all that information?
Barry: Well we take all of these factors together and we really consider it in light of my own experience in trying to come up with what’s a fair range for settlement in light of the client’s goals and objectives and their tolerance for risk. Once we take all that into consideration, we come up with a recommended range for settlement and hopefully that’s a number that we’ll eventually be able to achieve and get the case resolved for the client.