"What is my case worth?" I am often asked this question by clients when I am first getting to know them. The simple answer is this; whatever a jury says it is worth.
Some people with personal injury claims are surprised to find out that they are not automatically entitled to a settlement from the insurance company. In fact, their only legal right is a trial to determine the amount of their recovery. The only way one can force an insurance company to pay is to successfully sue the person or company they insure. Cases involving very modest injuries are sometimes resolved by a judge in General District Court. However, more significant cases require Circuit Court trials which, in Virginia, allow for a jury of seven people to decide the case.
During the trial of a personal injury case in Circuit Court, a judge tells the jury what to consider when deciding the amount the injured person receives if the injured person wins. Typically, the jury is instructed to consider not only the injured person's financial losses, which include medical expenses and lost earnings from time out of work, but also the injuries themselves and any pain and inconvenience they cause. I often explain to juries that inconvenience means how my client's normal activities of daily living are limited or altered by the injuries. Many clients consider this to be their most significant loss, even greater than their medical expenses and lost wages.
Most personal injury cases I handle settle without a trial because I successfully negotiate with the insurance company to get a reasonable offer. However, the negotiations between the parties which ultimately lead to a settlement agreement are based upon what each side anticipates will happen at trial. Put another way, a settlement is fair if it is the same amount that a jury would award if it decided the case.
It may be no surprise that many people believe that successful trial lawyers who are experienced in the field of personal injury tend to get excellent settlements for their clients. There are three reasons for this. First, an experienced and knowledgeable trial attorney can develop the evidence in the case to make a persuasive presentation to the insurance company and, if necessary, to a jury. Second, an experienced trial attorney can reasonably predict what a jury might award, based on their experience with similar cases. Third, a successful trial lawyer has credibility with the insurance company with whom he or she negotiates because the insurance company probably will be aware of their "track record," or reputation, for successfully handling personal injury cases in court.
Anyone with a personal injury claim should be aware that the insurance company with whom settlement negotiations will occur is a business. As such, the insurance company is looking out for its own financial best interests. An injured person who is not represented by an experienced trial attorney may be at a significant disadvantage trying to settle directly with the insurance company. The following example illustrates this point.
When I first began practicing personal injury law over 25 years ago, the trial attorney with whom I trained at this firm handled a case where our client hired us after first negotiating by himself with the insurance company in an unsuccessful attempt to settle his case. It was reported by this client that the insurance adjuster with whom he negotiated pronounced the claim was worth $6,000. However, this adjuster was willing to pay only $4,000 to settle, pointing out that if the injured claimant was represented by a lawyer he would have to pay a fee of one-third of the recovery to his attorney. Interestingly, this client never questioned or doubted the assertion by the insurance adjuster that his case was worth $6,000. What motivated the client to retain our firm was his desire to force the insurance company to pay the full $6,000 to settle his claim rather than only $4,000. Essentially, this client was prepared to receive $4,000 from his case and allow our law firm to take a $2,000 fee as long as the insurance company paid the entire $6,000 the adjuster acknowledged it owed. As it turns out, this case, in the hands of an experienced and skilled trial attorney, settled for $18,000 without a trial! Imagine how surprised our client was to receive nearly $12,000 from his case, after he had been led to believe by the insurance adjuster that his case was worth only $6,000. Why did this happen? Because both the insurance company adjuster and our trial lawyer knew and ultimately agreed the case would likely bring around $18,000 from a jury, and the insurance company knew our lawyer would file suit and take the case to trial unless they paid that amount to settle.
The lesson learned from this story is that an injured person's best interests may not be fully protected unless they are represented by an experienced trial attorney. When an injured person is confronted with the choice of handling their claim themselves or retaining a lawyer to represent them, I suggest considering the example above. They should also ask themselves this question, "How can I possibly determine what my case is worth - and recover that amount - without the benefit of an experienced trial attorney?"
About the Author: Charles L. Allen is among the third generation of Allen family attorneys to have worked with the personal injury law firm Allen, Allen, Allen & Allen. Since joining the firm in 1983, Charles has had extensive experience handling various types of personal injury cases.