What Is My Case Worth?
What is a broken arm worth? How about a bulging vertebral disc that causes nerve pain down the arm for six months until surgery fixes it? What if the surgery doesn't work? Unfortunately, there is no science to this. In fact, here's the crazy way that our society figures out what a broken arm is worth: we drag twelve people away from their work and their families, make them sit in uncomfortable chairs in a courtroom, force them to listen to a bunch of witnesses tell their stories, then lock them in a room and don't let them come out until they've decided how much that broken arm is worth. Letting a jury decide might seem crazy, but it is a system designed to be fair to all parties involved. And I can't think of a better way. Can you?
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Because each trial will have a different jury, it is impossible to say with any absolutes how much a personal injury claim will be "worth." Of course, over 95% of cases never go to a jury. We decide how much those are worth by trying to figure out what a jury would say. As lawyers, we look at other "similar" cases in the past, see what juries awarded in those, and make our best estimate based on every detail we know about the situation, the medical records, any laws that apply, the personalities and histories of the people involved, the evidence regarding whose fault the accident was, the policy limits, and so forth. If you decide to pursue your case yourself, you will need to do the same - which is why some people feel the need to hire a lawyer.
But because, during a trial, the value is decided by twelve human beings, with all the flaws and prejudices that human beings have, there is a whole lot more to be taken into account than just the injury. How much the jury likes you will matter a whole lot. How much they like your witnesses will matter too. And how much they like the person who hit you. The judge has a tremendous amount of discretion, and the judge's rulings can affect a trial. How good your doctors are at teaching a jury matters a lot. What the police report says matters. In fact, so very many things matter, that it's really not possible to figure out what a case is worth until an extensive investigation has been done. But of course, there are guidelines. Here's one: your case is probably worth less than you think, but more than the insurance adjuster is willing to pay. Even though a book cannot tell you what your specific case is worth, we can educate you about the different kinds of "damages."
Damages is a vague term that helps us encompass all possible types of compensatory monies an injury victim might receive from a claim. In Oregon, there are two basic kinds of damages you can recover for a personal injury case: "economic damages" and "noneconomic damages." These used to be called "general damages" and "special damages," and you will sometimes still hear lawyers use these words. But the proper terms are economic and noneconomic damages.
"Economic damages" is the compensation you can get for any money you have lost due to the collision. Examples include:
• Money to repair your car, or the full value of the car if it was totaled
• Money to pay for medical bills
• Lost income if you were not able to work because of your injuries
• Money to pay for household services like cleaning and childcare if you were not able to do these things because of your injuries
• Money to compensate for future economic losses
"Noneconomic damages" is often called "pain and suffering." Noneconomic damages cover such things as:
• Pain
• Humiliation
• Mental suffering
• Emotional distress
• Inconvenience
• Interference with normal activities
• Damage to a person's reputation
• Aggravation to a previous injury
There are also "punitive damages," which are meant purely to punish the wrongdoer. However, the State of Oregon takes 60% of any punitive damages. Then your lawyer will typically take 20%, leaving you with only 20%. This is then taxable, so you might end up with only about 10% of punitive damages. In the right case, it can make sense to try to get punitive damages, but most injured people are better off seeking only economic and noneconomic damages, which are usually not taxable in personal injury cases, under Internal Revenue Code.
NOTE: Bankruptcy If you are in bankruptcy, or might be soon, this can have an enormous effect on any recovery you may get from a personal injury case. If you are in bankruptcy, your claim does not belong to you; it belongs to your bankruptcy trustee. Generally, you can keep up to $10,000. But the rest usually goes to your creditors. This is general information; there are plenty of exceptions, and negotiation is often possible. If you are in bankruptcy, it is essential that you tell your bankruptcy attorney or trustee about any possible personal injury claim. If you hide a personal injury claim from your bankruptcy trustee, you would be committing fraud. You could forfeit any money you win, your personal injury lawsuit could be thrown out of court, and you could even go to jail. A good bankruptcy attorney can refer you to a personal injury attorney, and vice versa, and the two can work together to find the best solutions for you, the client.
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