When an accident happens and an injury occurs a personal injury lawsuit is brought. That means that the person suing is seeking to be compensated for their damages. The person bringing the lawsuit is called the “plaintiff” and the person or company that is being sued is called the “defendant”. The plaintiff and defendant are then called the “parties” to the lawsuit.
Damages sought by a plaintiff may include three (3) different and distinct categories, or, types of damages. These are: lost earnings, health care or medical expenses and compensation for pain and suffering. The damages awarded are for both, your past and future damages.
Past damages are those damages suffered from the date of the accident until the day of your settlement or verdict. Future damages are those damages that will be suffered from the date of the settlement or verdict for as long as the parties, or a Jury decides, which can, unfortunately, be for the rest of your life if the injury is found to be permanent.
The final determination of the actual amount of the award for damages is arrived at by either a jury reaching a verdict after a jury trial or by settlement negotiations between the parties at any time while the case is pending, from the day it is filed, until, or even after the jury reached a verdict. A settlement is negotiated between your attorney and the attorneys for the other side and representatives of the insurance company.
For computing what a fair settlement should be all the parties will always consider the age and the “life expectancy” of the person who was injured and, what is called “work life expectancy” or, how long would that person have worked before they had to stop working due to the injury suffered. The numbers for “life expectancy” and “work life expectancy” are obtained from various statistics and charts that the courts accept as reliable.
Life expectancy is how much longer statistics tell you that the plaintiff is expected to still live and how long will also continue to have pain and suffering.
Each item of damages is then computed taking various factors into consideration. For lost earnings determining the amount for the past lost wages is simply a matter of math - how much was the person earning and how long were they out of work? However, computing the future loss of earnings becomes more complicated and often requires the services of various experts including medical and economic reports
The medical expert(s) needs to predict what they believe the future holds for this person. If the person has not worked for the past one or two years will they ever be able to go back to work? Assuming that the medical expert is of the opinion that the person is permanently disabled, and will never be able to go back to any type of work, then an economic expert is required to compute the dollar amount of the projected future loss of earnings, taking into consideration factors such as raises, promotions, pensions, fringe benefits, interest rates and inflation.
Past medical bills are fairly easy to compute by simply looking at the bills incurred for hospital treatment and confinement, doctor and physical therapy bills, as well as nursing and pharmaceutical expenses. When it comes to the projected future medical costs it requires the assistance of experts to determine exactly what medical care will be required for the rest of the injured person's natural life. This is often called a “life care plan” and there are specialists who do these projections and provide their opinions based on what the medical experts determine the person will require in the future.
When a personal injury case is brought involving serious injuries each side, plaintiff and defendant, will hire their own experts. What makes a case “adversarial” or why a case results in “litigation” is that in my over forty (40) years of experience handling thousands of personal injury cases each side’s experts never agree with each other as to what the damages are now, what they will be in the future, or how they should be computed.
If the parties cannot come to an agreement as to what is a “fair settlement”, on what is usually a compromise position, somewhere between what each expert has set forth, rather than after a trial and by a jury that will render a verdict. Only a very small percentage of all cases ever actually proceed to a trial and a verdict as most cases are usually settled either before or during trial.
The awards for damages for pain and suffering are usually the largest part of the recovery in a personal injury case and are the most difficult item of damages to compute. The parties must first agree on the “value” of the pain and suffering for the past, from the date of the accident to the present date. This number or “value” of a case is not contained in any book, law, guideline, or any other place. Even if your case does go to a jury and the judge explains the law to the jury the judge will only explain the factors for them to consider in determining the amount to be awarded for a person’s pain and suffering, but the actual amount is left to the jury with very little guidance from the court.
At times the jury may decide to award either too little or too much. The judge and the lawyers base their views of what the right number to be awarded is, and what is considered to be fair, and not too little or too much, based on their past experience with other similar cases. The more experienced an attorney is, and the more cases they have handled in the past, helps them to arrive at this number.
When it comes to computing the value to be placed on future pain and suffering the assistance of the dueling experts discussed above is again required. What have the medical experts determined is the pain and suffering that this person will suffer for the rest of that person’s natural life? What exactly are the injuries at present and will they get better or worse over a person’s lifetime? Naturally, there is much room for disagreement in this area that necessarily involves predicting with any reasonable degree of accuracy what that person will endure, projecting many years into the future, or for the rest of that injured person's natural life.
The only guideline that is used to determine the appropriate amount for all three categories of damages, lost wages, medical care and pain and suffering are past lawsuits that resulted in verdicts by a jury that were then appealed to a higher court. The higher court then has the power and discretion to set what they think should be the proper award, and if you refuse to accept that amount then the case can be sent back for a new trial with a new judge and jury.
Experienced attorneys are familiar with what the higher courts have ruled in similar cases in the past, and use those numbers as a guideline in negotiations.