by Gerald D. Siegel, Esq.

We have all heard stories reported by the media about colossal settlements and “runaway” jury verdicts in personal injury cases. The McDonald’s hot coffee case is one that pops into everyone’s mind as being outrageous. We also hear big business, its minions, and their politicians claim we need “tort reform” to eliminate these awards.

While these stories prompt backyard barbecue discussions and political debate, what we hear second-hand about somebody breaking a fingernail and getting a million dollars creates misperceptions about the workings of our court system and unrealistic expectations for legitimate accident victims. The purpose of this article is to explain what losses someone can expect to recover and the factors and mechanics involved in deciding whether to negotiate a settlement or go to trial.

In New Jersey, when a person is injured or suffers loss of life, there are basically two types of damages upon which settlements and jury verdicts are based. These are economic damages and non-economic damages.

Economic damages are those losses that can be reduced to a certain sum. Good examples of economic damages are medical expenses and loss of earnings. They are economic damages because they can be calculated and explained in specific dollar figures. If a person visits a doctor 10 times and each office visit costs $100, he or she has suffered damages of $1,000.

Another example of economic damage is loss of earnings. An accident victim who cannot work for a period of time or one who can never return to work is entitled to economic damages. Economic damages for loss of earnings are reduced by disability payments and 20 percent for federal taxes.

The more challenging type of damages to recover is non-economic damages. Losses such as past, present, and future pain and suffering, loss of enjoyment of life, disability, and permanent injury are examples of non-economic damages. These are qualitative damages as opposed to quantitative damages because they cannot be calculated in accordance with a fixed formula to come up with a certain sum.

Calculating non-economic damages depends upon a multitude of factors:

– Who was at fault for the accident in question?

– What is the defendant’s version of the accident?

– Is the plaintiff partially negligent?

– What are the specific physical injuries claimed to be caused by the accident?

– Are the claims supported by objective medical evidence or merely subjective complaints?

– Did the plaintiff suffer broken bones or need surgery?

– If it is an automobile accident case, is the plaintiff subject to the “limitation on lawsuit threshold” or “no limitation”?

– Will the plaintiff be viewed by the jury as credible, sympathetic, angry, or evasive?

– Are the interruptions in the plaintiff’s activities of daily living describable with compelling testimony?

– Was the plaintiff involved in any prior accidents where they suffered an injury to the same part of the body?

– Are there underlying medical conditions which can account for the plaintiff’s present complaints?

– How old is the plaintiff?

– Could the plaintiff’s job cause wear and tear to his or her body consistent with the lingering accident pain?

– What is the opinion of the defendant’s doctor concerning whether the injuries claimed are related to the accident or whether the injuries claimed are permanent?

– In what county is the lawsuit filed?

The factors to be considered are endless.

There are two paths to pursue the recovery of economic and non-economic damages. One is to settle a case without filing a lawsuit. The other way is to file a lawsuit and prepare the case for a trial. A smaller personal injury case may have a reasonable chance of settling with the responsible party’s insurance carrier without filing a lawsuit. However, more complicated cases will likely require a lawsuit before an insurance company will pay what a case is worth.

Once a lawsuit is filed, it can take as much as two years to resolve it. The Rules of Court give the parties about one year to do all of the legal work necessary to find out about the claims and the defenses being made. This is called the “discovery” period. Discovery has different techniques and methods, the most common of which are completing questionnaires about the claims and defenses (called interrogatories), securing the plaintiff’s medical records by proper medical authorization, depositions, and medical examinations.

After discovery is completed the lawyers begin to evaluate cases for what economic and non-economic damages can be proven. This enables them to recommend whether their client should settle or go to trial.

Damages are measured by predicting how a jury will decide the case at hand. This requires asking more questions. How have juries decided similar cases? Has a fair offer been made by the defendant’s insurance company? While the factors are numerous and complex, the following hypothetical question should always be asked: If a case is tried 10 times, how many times will a jury award a sum less than the offer, how many times will the jury award a sum in the range of the offer, and how many times will the jury award more than the offer? Finally, what are the out of pocket costs incurred to date to prosecute the case, and what is the cost of presenting expert witness testimony at trial?

In conclusion, almost all personal injury cases are resolved by settlement or jury awards without much fanfare. The big settlements and verdicts that we hear about are reported because they are interesting and prompt discussion. However, these awards can create unrealistic expectations for legitimate accident victims. In New Jersey there are only a handful of “million dollar” settlements or verdicts each month. Most of these are resolved by settlements because they warrant it.

In providing quality representation to clients lawyers should fully explain the personal injury process to their clients in order to create reasonable expectations. While a lawyer should be able to tell a client if it is worth pursuing a case early on, clients should not expect a lawyer to evaluate a case until they are discharged from medical treatment and discovery is complete.

Ultimately, lawyers certified by the New Jersey Supreme Court as civil trial lawyers have the best training and experience to help clients evaluate their economic and non-economic damages.

If you need the services of a personal injury lawyer, seek out one of these certified professionals, and remember that a good lawyer will explain all of the details and set realistic expectations for the outcome of the case.

Gerald D. Siegel, Esq. is a principal in the Law Firm of Siegel & Siegel, P.C.in Plainsboro, New Jersey and appears in courts throughout the state. He is Certified by the New Jersey Supreme Court as a Civil Trial Lawyer. He is joined by his son, David A. Siegel, Esq. Consultations in matter involving personal injuries are without charge.

Their website can be found at www.lawsiegel.com. They can be reached by telephone at 609-799-6066 or via e-mail at gsiegel@lawsiegel.com.

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