Damages – Managing Monetary Recovery Expectations of a Personal Injury Victim
Injured persons almost always believe their case is worth more than the likely recovery. There are a number of reasons why this is so. First and foremost, when a person has sustained a personal injury, especially an injury that is painful and takes time to heal, the person suffers emotionally and physically. And, that suffering is commonly on a daily basis. Also, the person may be upset and angry that someone else’s negligence has substantially impacted the quality of their life.
So the value of the personal injury claim to the injured person is often inflated because it is not related to typical settlements or judgments in similar cases. Injured persons often seek validation of their own opinion of the value of their cases and there are attorneys willing to adopt what may be unrealistic expectations of the client to get the client “signed up”. But, having realistic expectations will save a lot of grief and aggravation.
Evaluating the likely recovery in a personal injury action depends on many factors including the nature and extent of the personal injury, where the case would be tried, the strength of liability, credibility of witnesses, availability of evidence, expert opinions, if necessary, and the judge to whom a case is assigned. Don’t listen to your friends to determine the value of your case. Consult with a personal injury attorney who knows the local courts, is familiar with the value of similar types of cases, and would be willing to take your case to trial if necessary.
An attorney who is willing to make a commitment to work on your case on a contingency fee basis is much more likely to have realistic expectations of the value of your case than a family member or friend who happened to read about a personal injury recovery in a magazine or newspaper. Moreover, establishing realistic expectations of the value of one’s personal injury case also helps avoid mistakes in taking a case to trial that should settle.
Insist that your personal injury lawyer candidly explain the value of your case and the risks and advantages of going to trial. Be an informed client and actively participate in your case and litigation strategy. This will help manage your expectations. In the long run, you will be happier and more satisfied with the result.
Damages recoverable in negligence cases – Pain and Suffering
People injured as the result of the negligence of another are entitled to recover their damages. Damages refer to monetary compensation for the loss or injury a person has suffered. There are different types of damages. In fact, the famous Black’s Law Dictionary has three pages just covering the definition of various types of damages. Obviously, damages is a big subject. So, by necessity this post is limited in scope. This post is a brief discussion of non-economic damages or what is commonly referred to as pain and suffering.
California requires juries to be instructed in the law before deciding a case. The Judicial Council of California has developed Jury Instructions which are used throughout California in negligence case. These instructions are designed to explain the law on how to determine how much money a person injured by the negligence of another is entitled to. The Jury Instructions are referred to as CACI, an acronym for California Civil Jury Instructions.
CACI 3905A explains what is included in physical pain, mental suffering, and emotional distress physical pain and what must be established by a preponderance of the evidence to recover such damages. Past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical impairment, inconvenience, grief, anxiety humiliation and emotional distress are all included. There is no fixed amount for these types of damages. Jurors must use their judgment to decide what is reasonable.
There is art and skill involved in presenting a believable case of damages. It must be real and sometimes little things make a big difference. If you have been injured by the negligence of another, keep a diary detailing how you are feeling, your daily troubles related to the injury, and your aches and pains. When one is suffering, one is focused on the pain and misery. However, as recovery occurs, some of that pain and suffering fades from one’s consciousness. Do yourself a favor, document your journey.
For those unfortunate victims who have suffered catastrophic injuries, obviously much less is required for people to understand the suffering. But, even that story must be presented with sensitivity and compassion so the jury will understand. Not understand academically, but understand as human beings deciding an important issue for an innocent victim.