30 SIMPLE FACTS ABOUT YOUR PERSONAL INJURY CLAIM
Published to: comparative fault, comparative negligence, duty, Harrison County, Perspectives of a Small Town Lawyer, State of WV, Upshur County, West Virginia Lawyer - Tips and Techniques
on April 11, 2017 8:16 pm
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Starting with Ronald Reagan, and later Carl Rove, common perceptions of our civil justice system have hardened into negativity. Injury victims are treated like they are pariahs. But they are just like you and I.
But here are some real, simple, facts:
- Good lawyers will always “push the envelope”, so some personal injury claims will be marginal. That’s life and human nature. Good judges can deal with them.
- Our system of personal injury liability, such as auto, truck, and motorcycle collisions, premises liability, and dangerous products are based on your and my standards of right and wrong, the ones we grew up with.
- The concept is “duty”. I have a duty to pay attention, to refrain from texting while driving, to drive with enough rest, and to drive without intoxicating substances in my body. I have a duty not to injure you or yours.
- In other words, we all have the duty to follow “The rules of the road”.
- The State of WV follows a concept called “comparative fault.”
- In WV, a personal injury claimant may only recover if her or his mistake is less than yours. If hers is 51% and yours 49%, as determined by the fact-finder, she bears her own loss. A claimant who is 20% at fault may recover only 80% of his damages.
- So, most settlements and awards go to people who are primarily not at fault. With proper representation, the system works.
- The measure of “compensable damages” is fairly easy to calculate. I leave the concept of punitive, or punishment, damages for another day.
- Damages cover several elements:
- Physical trauma, injuries;
- Reasonable medical bills, past and future;
- Lost Wages, past and future;
- Temporary and permanent impairment, or what some call “disability”;
- Past and present “pain and suffering”;
- Mental anguish, “psychic pain”. This includes post traumatic, cognitive, and emotional injuries;
- Past and present loss of enjoyment of the benefits and pleasures of life;
- Disfigurement, scars, deformed bodies, or loss of limbs.
- These damages are both “economic” and “non-economic” loss. Legislatures often try to limit, or cap, non-economic loss for some types of tort claims such as medical malpractice. I do not discuss such claims here. And they protect some industries, such as negligent ski-resort owners, or gun manufacturers. Again, I am not talking of those cases here.
- Lawyers who advertise heavily on television may be excellent, or may be not. You may have them directly involved in your case; perhaps not.
- 75% of “bread and butter” personal injury cases settle without suit, and 90% settle without a trial. Why?
- When fault is clear and injuries unambiguous, a good lawyer and experienced adjustor can reach a good compromise.
- Where not so clear, a good lawyer may convince the carrier to go to pre-litigation mediation. Mediation often leads to settlement.
- I have learned that I can make good money in cases with clear fault and “manageable” damages by taking a contingency fee of just 20%, and occasionally less.
- “Contingent” means no fee without a recovery. Many lawyers accept as standard 1/3, or 33 1/3 % of any sum collected, before costs are deducted, plus the costs. Many times, considering risk and delay, that is fair.
- Personally, I don’t think 1/3 is fair in routine cases where suit isn’t filed. A 25% fee is fine if I have to visit and photograph the scene, hire a reconstructionist, or make the case for fault. But if the carrier spares me that effort, 20% is ok for clear fault cases. That’s my opinion, and it works.
- Some contingent fee cases justify 36% to 40%. Think major products liability, such as an exploding tire, medical malpractice, with its huge litigation costs, or industrial accidents, exploding mine or gas well, with expert engineers and complexity. I am not talking of them here.
- Back to the reasons cases settle: with $50,000 in per person liability coverage and $40,000 in medical bills, or where injuries are permanent, that case is going to settle.
- In those cases would you rather pay $ $16,666.67 in lawyers’ fee, (1/3) or $10,000,, (1/5) $7000, or even less. Don’t expect the t.v. ad guy to cover his advertising costs and give you that break.
- An experienced personal injury trial attorney can handle most traffic collisions just fine, and he/she can curate cases, identify the larger value or more complex cases, and associate with a top flight state-wide firm when needed.
My goal in this article was to make personal injury cases easier to understand, but not so clear that you think, “I can handle that.”
Adjustors have done hundreds or thousands of cases. They know your case’s value. Find someone who knows how to deal with them, and trust them with your future. Good luck!
This post was written by Burton Hunter