Despite what some people may believe, the first thing out of an injured client's mouth upon meeting with me is not "how much money can I get?" Frankly, if it was, I likely wouldn't be interested in representing that client. In fact, it is not until I begin the conversation with them, usually prompted by some contact with the insurance adjuster for the other side, that the topic of compensation arises.
Something that most people (and even some out of state lawyers or lawyers who do not handle this kind of work) do not realize is that at the time of trial in a personal injury case, we cannot ask for a specific amount of money from a court or a jury to make up for what happened to an injured person. We can't even tell the jury that 1) there is insurance (although most people kind of figure this out) or 2) how much insurance there is. All that we are permitted to tell the jury is that they are responsible for deciding how much money an injured person should receive for what happened to him. All they are allowed to consider are the harms and losses to that person. That's it. Nothing else.
But for pre-trial settlement purposes, how do we measure the value of a personal injury case? A number of different factors weigh into this analysis and here are some of them:
1. Who's fault was the accident? Liability is the first question I have to answer for a jury if and when a case goes to trial. If an accident is caused by the injured person, there is no need for me to continue the conversation. For one thing, I can't take that case on and represent that person. If you cause your own injury, you are not entitled to compensation (except in super rare instances that I'm not going to bother discussing here). Liability has to rest with some other person or entity. An accident needs to be through no fault of the injured person (or limited fault at most) in order to even have a case worth pursuing. So as long as we know someone else is responsible for the bad thing that happened, we are in good shape.
2. What are the extent of the injuries? This is a little tricky and relies heavily on objective medical evidence which includes Xrays, MRIs, CT scans and other diagnostic tools that can show an injury to a doctor. If a client has broken a bone, that bone will likely and hopefully heal with the right treatment. But some injuries, like injuries to the spine in the form of herniated discs or even bulging discs in some instances, tend to be permanent injuries. A permanent injury has greater "value" than an injury that can be healed or cured. And that just makes sense because the impact on a person's life will be more significant when they have a permanent spinal injury in their neck vs. a broken arm.
3. What are the harms and losses? Harms and losses are the things that throw a person's life off balance resulting from an injury. If you think about an injured person's life as the scales of justice, for every bad thing that has resulted from a car crash; pain and suffering, the inability to take part in activities and hobbies, the loss of the enjoyment of life, etc..., compensation has to weigh as much as the harms to bring the person's life back into balance. A jury's verdict has to weigh as much as the harm done.
Everyone's life is different - what we do, how we live - so how an injury affects a person's life is going to be an individualized analysis. At least in my geographic area, injured people who give up their life activities and stop working are not well compensated by juries. But injured people who try to continue their lives despite their injuries, limitations and discomfort tend to obtain better results at trial. I think this has to do with the fact that no one likes a quitter - hard work is rewarded. Obviously, in some cases, working becomes impossible for some injured people, or at least working the job they had - especially when an injured person owns their own business or it's physical in nature. By and large though, a client who describes their life as full and active before a car crash and almost completely empty after, despite a zillion attempts to perform household and recreational activities with their family, tends to do better in front of a jury.
4. What are the policy limits? As I have said before, this is an insurance world, we just live in it. The policy limits of both the person who caused the crash and the injured person weigh into the analysis of settlement value. If the person who caused the crash (lets call him the "tortfeasor,"because that's what we learned to call that person in law school) has a liability policy of insurance on his vehicle of $100,000.00 per person and the injured person has an underinsured policy with $250,000.00 with his insurance, the available insurance coverage in NJ is $250,000.00 because we go with whoever has the higher amount. So if a person is significantly injured, they can conceivably collect $100,000.00 from the tortfeasor and an additional $150,000.00 from their own policy. This is a pre-trial resolution without the necessity of hiring many experts or incurring much expense. Of course, most cases do not resolve very quickly or easily, but at times we are guided by the policy limits in the case as we attempt to resolve the case without the necessity of litigation.
5. What are the jury verdicts or settlements in our area for similar cases? In order to determine a range of possible settlement values, smart lawyers always do (or should always do) a jury verdict search to determine the ranges or possibilities of a verdict. We look up similar injuries, demographic information and the like to get an idea of "what a case is worth." Again, every case and every jury is different so being definitive is not possible. However, researching prevailing values of settlements and verdicts can help resolve a case with an insurance company for the policy limits. It can also help maintain a substantial verdict if the defense appeals it on the premise that "it's too much money."
When you are living with a permanent injury that you got because someone else was negligent, it's really a life sentence to live with pain, discomfort and limitations. I tell clients and juries alike, "If we could go back in time and stand at Bob's front porch on December 13, 2015 and tell him, 'Bob, if you leave the house now, you will be involved in a bad car wreck that will change your life forever,' we would do that, but we can't. The best we can do and the best our system of justice allows is to help balance the harms and losses in Bob's life with a money amount equal to those harms and losses."
Our current system of injury compensation in NJ is largely based upon available insurance, unless you are unfortunate (or fortunate) enough to get rear-ended by a Vanderbilt or a Kennedy or someone with substantial assets. Ultimately, a time machine where we could go back and change the history of a crash or a fall would be the way any of my injured clients would prefer to deal with their claims. No one wants to live with a permanent injury. The struggle is with the insurance companies to get them to fairly evaluate and compensate an injury claim; the insurance industry for unfairly trying to poison our jury pools, spreading propaganda about "fraud" or "mayhem;" and then with the jury to offer enough information allowing it to compensate an injured person in a way that will bring their life into balance.
This is a challenging struggle to which I have devoted my career, pursuing justice and fairness on behalf of injured people. On one hand, I'm somewhat glad the insurance companies are so unfair at times because their "no pay" or "deny, delay, defend" attitudes provide me with a job. On the other hand, I kind of want to send some of the remote adjusters who refuse to be reasonable a tray of cookies laced with laxatives. Luckily for them, I don't bake.
Lauren D. Fraser, Esq
Lauren is a nationally recognized trial attorney in New Jersey, having been recognized by the National Trial Lawyers organization as one of the Top 100 Trial Attorneys in NJ. Lauren specializes in personal injury law representing people in the community who have been injured through no fault of their own.
Please note: The opinions expressed here are the personal opinions of Lauren Fraser (and sometimes other super smart people, especially when she provides appropriate citations.) Lauren's opinions do not necessarily reflect those of all members of The Fraser Firm or any other organization to which she belongs. However, Lauren is also the first to admit she is generally right about stuff.