Personal Injury Risk Evaluation is a multi step process. But the ultimate result of that multiple step process is to put a dollar value on the risk – monetizing the risk. The first step is to identify each issue that will be presented to the jury on a jury verdict sheet. So let us look at a frequently occurring verdict sheet – a rear end motor vehicle accident.
Here are the essential facts of our practice case.
SOFT TISSUE DAMAGE
UNDER $1,000 PROPERTY DAMAGE
$4,000 MEDICAL TREATMENT
$2,000 MEDICAL DIAGNOSTIC
$8,000 PHYSICAL THERAPY
$1,000 WAGE LOSS
5% PERMANENT DISABILITY
1.Was the Defendant negligent? Yes___ No___
2.Was the Plaintiff negligent? Yes___ No___
3.In what amount do you asses damages?
Pain and Suffering____________
In order for the jury to consider damages the plaintiff must get a yes to the first question and a no to the second question.
The process of evaluating a case needs to be disciplined and organized. You want to accurately identify all RISK factors that will affect your recovery. There are positive and negative risk factors. Positive factors increase the value of your case, while negative factors decrease the value of your case. Both are important and you do not want to miss any. And then there are factors which would on the surface appear to affect the value but do not — the red herring factor. A word of CAUTION. You cannot — I repeat cannot – properly evaluate a case until you know all of the facts which are relevant to the issues of liability and/or damages.
Liability factors should be evaluated first. The goal here is to determine what your chances are of getting a plaintiff’s verdict. Is it 25%, 50%, 75% or 100%? If it were less than 100%, prudence would dictate that you reduce the amount for which you would settle the case. In our practice case a rear end accident you can say that you have a 95% chance of a verdict on liability. Why not 100% – because you can lose that battle or rare occasions.
Now lets us look at our practice Case.
Liability. There is no evidence that the this rear ended was caused by other than the defendant’s negligence. So we can say that the plaintiff has a 95%- 100% chance of a verdict on liability.
Damages. The only question on damages is how much the claimant will be awarded for pain and suffering. Tracking jury results would reveal that in 8 out of 10 verdicts the pain and suffering award for this type of case would be about equal to the medical expenses or $14,000. So the range of a verdict would be $26,000 to $20,000. With regard to the permanency rating juries and judges generally are not persuaded that this type of collision causes a permanent injury even when a doctor gives a permanency rating.
Does it matter whether the case is tried in a liberal or conservative jurisdiction? Generally there is very difference with 80% of the verdicts. The exceptions (the 20%) however break against the plaintiff in the conservative jurisdiction but against the defendant in the liberal jurisdictions.