State and County Where The Case Will Be Tried
Generally, lawsuits are filed in the state and county where the accident occurred or where the defendant resides. Where the case is tried frequently influences the size of the jury award.
Trial vs. Arbitration
When a claim against the driver who caused the accident does not settle through out-of-court negotiation, a jury will usually decide the case in a trial. A six or twelve person jury (much like what you have seen on television or in the movies) then determines the value of your case.
In other claims, a jury is not involved. When a claim is made under a client’s own uninsured or underinsured motorist policy, the policy usually requires the dispute be resolved by arbitration rather than a jury trial. In arbitration, a decision is made either by a single arbiter both sides agree upon or by three arbiters. In that event, we select one arbiter, the insurance company another and the two arbiters agree on a third.
The arbiters are usually judges or lawyers. They will hear the evidence and decide your case. Arbitration is less expensive for the insurance company than a jury trial because an arbitration requires less time and less money in lawyer fees to defend the claim. The plaintiff usually has lower costs in arbitrating a case as well.
Generally, jury awards are higher than arbitration awards. Jurors tend to identify more with accident victims and be more emotional than arbiters who may have seen many similar cases. However, there is always a risk that a jury award can be disappointingly low. Other problems with jury trials is the length of time until a case is decided and the inconsistency of jury awards. After a lawsuit is filed, it can be over a year until the trial takes place. Although an arbitration generally means lower injury awards, the awards are usually more consistent and quicker to obtain.
Likeability of Plaintiff and Defendant
Your likeability is another factor. A sincere and honest claimant elicits more sympathy than one who appears abrasive, difficult or greedy. Similarly, the likeability of the defendant is important. What kind of impression does he or she make? Does he or she have a chip on their shoulder or are they very remorseful that the accident happened? If the accident happened because the defendant was drunk, a jury could award you more money in order to punish the negligent driver and make a point that drunk driving is not tolerated. Juries tend to award more money to plaintiffs they like and punish negative behavior by defendants.
A jury is more likely to be sympathetic to your claim if they believe you are presenting an accurate picture of the accident and not exaggerating your injuries.
Objective vs. Subjective Injuries
Jury awards are higher for clients who have “objective” injuries compared to those clients who have “subjective” injuries. Objective injuries can be verified in a way other than the client’s complaints. For example, a broken leg can be verified by an x-ray. The jury can be shown the x-ray and see the fracture themselves. In these cases, the jury will generally believe that an injury exists.
Many injuries arising from auto accidents are subjective. These are the injuries a client describes to the doctor, such as, “My neck is stiff and sore.” It is difficult to objectively verify these injuries since muscle strains or sprains cannot be seen on x-ray. A jury or a panel of arbiters might feel that an injury is exaggerated when there are no objective findings to support the injured person’s complaints. This is not to say that the plaintiff is not injured, as muscular injuries can be very troublesome and long lasting.
However, the plaintiff always runs the risk that a jury may not believe that an injury exists or that it is less severe than the client describes.
Another factor may be whether your doctor prescribes medications. For example, the need for pain or anti-inflammatory medication indicates the injured victim is suffering from pain, inflammation or other symptoms. The type of medication and length of use may indicate seriousness of suffering.
Permanent Injuries/Disability
Awards for permanent injuries are greater than awards for injuries that diminish with time. Generally, the longer it takes to recover, the greater the award. We would expect a jury to award more in a neck injury case where it takes two years for a client to recover than one that has a recovery period of two months.
Larger jury awards occur in cases where a doctor testifies the client has permanent injuries that will last for the rest of the client’s life. It is not enough for the client to predict they will suffer the rest of their life. The court will require that prediction to be substantiated by a medical expert.
Soft tissue: Soft tissue injuries are the most common injuries from auto accidents and include sprains and strains of the muscles and/or ligaments of the neck, back, shoulder, knees or other parts of the body. Insurance companies consider sprains
and strains less serious because they are not usually expected to be permanent or life-impairing, regardless of how painful they may be. Also, sprains and strains are difficult to prove because they are not visible and cannot be objectively verified by x-ray.
Dislocations, separations and ligament or cartilage tears: These injuries can cause more pain and have a longer recovery time than a strain or sprain. Even when the healing time and pain is the same as a sprain, these injuries are generally considered more serious.
Fractures: There are many types of fractures. If an x-ray shows even a minor fracture of a bone, including a chip or crack, the value of the claim increases. The particular bone that is fractured and the seriousness of the fracture influences the amount of the recovery. As an example, a person with a fractured rib may return to a desk job, whereas a person with a fractured arm who is employed as a construction worker may be unable to work for several months.
Spinal disc or vertebrae injury: If the accident results in either a herniated or bulging disc of the neck or back, a spinal nerve may be affected. X-rays, an MRI or other diagnostic imaging tests can reveal an abnormality either in a disc or in the space between vertebrae. Disc injuries may require long periods of conservative care or ultimately, surgery. Discomfort or lack of mobility may persist or recur as a person gets older.
The degree and extent of injury, type of treatment and time of recovery influences the value of spinal injuries.
Wounds and scars: Any tear or cut serious enough to require treatment, including stitches, increases the value of a claim. If the wound leaves a permanent scar, the value increases even more. The value can vary substantially between the facial scarring of a young female and scarring that is not normally visible on an older male. Also considered is whether the scar can be surgically revised and what impact the scar has on the person’s life: facial scarring on a model would be valued higher due to the effect on his or her career.
Amputations, brain damage and catastrophic injuries: Amputations include the removal of a fingertip or an entire limb. A brain injury can affect certain mental and bodily functions or leave a person totally incapacitated. The effects of these injuries may last a long time and can even recur after recovery seems to be complete. Paralysis usually results from spinal cord damage. These injuries result in lifetime medical treatment and loss of earning capacity. These claims have a high value.
Wrongful death: Physical and emotional suffering before death, the accident victim’s occupation, age, sex and marital status influence the value of this type of claim. These claims have substantial value.
Psychological damage: Injuries can cause depression, stress and tension among family members. The relationship between psychological damage and physical injuries is now becoming more accepted. However, in order to claim psychological damage, a psychologist or other therapist must be involved in the diagnosis and treatment of the condition.
Effects on Work and Lifestyle
Jury awards are higher when injuries have a permanent effect on a client’s life than when there are only short term effects. If injuries cause a client to be unable to work (or need retraining for a new job), jury awards are higher than in cases where injuries affect a client’s ability to engage in sports or recreational activities.
Diagnosis of Injuries
Injuries must be diagnosed before treatment can begin. Most injuries are simple to diagnose and the charge for diagnostic services is a small percentage of the total medical bills. Sometimes, numerous costly tests are performed before a diagnosis is made. In these cases, the insurance company may not view the total medical expenses as accurately reflecting the injured victim’s pain and suffering.
Type and Effectiveness of Treatment
Insurance companies and to a lesser extent, juries, tend to favor mainstream Western medical treatment over alternative medical practitioners. Alternative practitioners (including chiropractors, naturopaths, massage therapists, acupuncturists, acupressurists and herbalists) may be effective in treating injuries, but normally insurance companies do not consider this type of treatment legitimate. These expenses will probably be reimbursed by insurance companies but you should be aware that pain and suffering compensation may be lower than if treatment was provided by a medical doctor, orthopedist, neurologist or prescribed physical therapist. Nonetheless, it is important for you to seek the treatment you feel comfortable with and believe will benefit your recovery the most.
Frequency and Length of Treatment
Juries usually feel that a client who is hurting from their injuries will seek treatment. Generally, treatment that is immediate and continues for a long period of time until the medical provider indicates you are either well or medically stable, is considered stronger evidence of injury and will be valued at a higher amount. The insurance company views treatment of short duration to indicate less serious injuries.
A client who claims serious injuries with great effects on their home and work life will be viewed suspiciously if the client never went to the doctor. If treatment is not sought at all after an accident, injuries will be regarded as minor or nonexistent. If treatment is not sought for a significant period of time after an accident, the claim may be viewed as suspect.
On the other hand, a jury will have no sympathy for a client with minor injuries who went to the doctor daily in order to “drum up the claim.” Insurance companies may view long term chiropractic treatment as excessive, believing chiropractors sometimes treat more often than necessary. In other words, the insurance company will not view long periods of chiropractic treatment as legitimate an indicator of the seriousness of an injury as the same amount of treatment with a medical doctor.
Length of Recovery
When evaluating pain and suffering, insurance companies will consider how long it took for the injuries to resolve or stabilize. The higher the frequency, severity and duration of pain, the greater the pain and suffering. The insurance company looks at whether your injury required ongoing attention and the number of times you saw the doctor. If you keep your doctor informed about your progress, any continuing pain, discomfort, muscle spasms, limited range of motion or immobility you have had should be noted in your medical records.
Amount of Medical Bills
Generally, the larger the amount of bills directly related to medical treatment, the higher the jury award, assuming the jury concludes that the treatment was reasonable and necessary. Jury verdict research indicates that jury awards are higher if the medical treatment is done by medical doctors, hospitals and physical therapists versus chiropractors, naturopaths and acupuncturists (as noted above).
Amount of Wage Loss
The larger the amount of verifiable wage loss the higher the awards. Your wage loss must be verified by your employer or supported by your tax return. You must also have written authorization from your doctor for the time you are unable to work.
Amount of Property Damage
Although it is certainly possible to sustain a significant injury with relatively minor damage to your vehicle, juries tend to award larger verdicts if there is significant damage to the cars involved. Since we live in a society which is very visually oriented, a juror being able to see property damage increases the likelihood that juror will conclude an injury has occurred.
