Mar 10, 2009

I want to address valuing an injury settlement. When I am contacted by a victim of an automobile accident, the conversation sometimes turns to the topic of valuing the case. In fact, every injury case undergoes the calculus of injury evaluation at some point. After all, at the end of the day, the only thing the law can do is to attempt to give injury victims back at least some of what they have lost. After a major injury accident, these victims often lose their careers, sometimes their families, and often their long-term health. At the very least, an attorney has a duty to appropriately work up a case for a fair settlement. This blog will cover the analysis that we go through to try to answer some of our clients' questions.


Pain and suffering, what lawyers call "non-economic damages," is usually what most clients assume constitutes the beginning, middle, and end of the injury evaluation analysis. In fact, I usually do not directly address pain and suffering at all during settlement discussions. Pain is subjective, and generally, insurance adjusters pay it little mind. The pain is real, and the suffering can be excruciating, but valuing it for settlement is really impossible.


Instead, when I start the process of thinking about the value of a case, I think about what we call "specials." I am not sure the origin of the term, but it basically refers to what makes the injuries here unique and different from any other person who might be stiff or sore following a collision. "Specials" are the addition of past medical bills incurred by the client, plus the value of what doctors are predicting the client's future medical needs to be, plus past wage or other economic loss, plus future wage or economic loss. In fact, when I start a plan of action to maximize a client's recovery, what is called a "case work-up," I am always trying to think about what I would

be saying about my client to a jury were the case to go to trial.

Calculating past medical bills is easy. It is a simple calculation of what has been billed in medical care up to the present. Future medical care is a bit more complex. It requires asking the treating doctor or other professional to provide a life care plan of what the patient is likely

to medically need in a 1 year, 3 year, and 10 year time horizon. Often, once the doctor helps us detail future care needs, including prescription drugs, future therapy, and other care over a future time period, we hire an economist to help value the future medical needs. For example, if a patient is going to need a second back surgery in 10 years, we need to calculate how much money we need from the insurance company this year in settlement to assure sufficient money to pay for that surgery when it is needed. That is a great question for an economist. Certainly, no one should start settlement talks in this sort of case without knowing the present value of future medical needs. We also frequently use an economist to assist us in valuing any future wage loss.

If a client has lost the ability to do his chosen profession, we will often retain a vocational rehabilitation expert to assist in our understanding of the cost to vocationally retrain our client.

Lastly, an often neglected consideration in ultimately valuing an injury case is the permanent loss of function or impairment of function. Many times, treating doctors release clients that have a permanent limp, or pain, or have permanent physical restrictions. At the end of the treatment, the doctor may simply tell the client, "you're going have to learn to live with it." That is the definition of permanent injuries. But without asking the right questions of the doctor and, in fact,

encouraging doctors to evaluate and document the permanent loss, the client could miss out on substantial and well-deserved additional recovery.


Contrary to what you might hear from lawyers who do a high volume of cases, there really is no "going rate" for injury. There are certainly ranges of recoveries for certain kinds of injuries. For example, cases with back surgeries have a range of value, while cases with only chiropractic care have another range.

A good attorney will take each case and make proper inquiry, asking the right questions and document everything that can make a difference in the ultimate recovery for the injury victim.

Give us a chance to show you how we are different. We are available for home visits, for evening appointments, hospital meetings and our initial consultations are always free.


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