Though the evaluation of every case is unique, three primary elements come into play in almost every single one. In Part I of this series, I discussed the first element: liability. To have a case, the wrongdoer's actions have to be considered unreasonable and unacceptable by society and law. If liability exists, then our second question becomes: what are the damages?
Consider a case where violent Johnny throws a rock at innocent Jimmy and misses. Clearly, Johnny's actions are considered unreasonable. But what are the injuries? In over nine out of ten cases, any remote emotional trauma Jimmy suffered from momentary fear of being hit by a rock is not going to amount to a financial justification for litigation. Even when a person is physically injured from the negligence of another person, the significance of the injuries and damages still have to be weighed against what it is going to cost to fight it.
It is not unheard of, for example, for complex cases involving medical malpractice, products liability and government liability (to name a few) to cost over $100,000 just to litigate. In medical malpractice cases, hiring doctors as experts is necessary to prove not only that the defendant doctor did something outside the standard of care, but that those negligence actions caused the injuries being claimed. Engineers and other expensive experts are required to examine a faulty product and find the root of the problem. Economists, life care planners and rehabilitation specialists are sometimes required to explain how a person's injury will impact his or her future. In addition to expert investigation into liability, causation and extent of injury, we must also create exhibits and illustrations that are easy to understand so a jury knows what in the world we are talking about. For these reasons, most complex cases require substantial injuries and damages to justify moving forward.
In addition to costs, attorneys are entitled to fees for their time working on the case. All fee agreements are different, but it is common for a plaintiff attorney to take a contingency fee, or a percentage of the compensation they were able to recover for you. Since your claim will likely include damages for medical bills that other providers (insurance companies, hospitals,etc.) paid for, certain medical providers are legally entitled to be reimbursed for treating you or paying your bills. These are called medical liens.
If a jury determines you were also partially liable for causing your injuries (comparative fault), any compensation you receive will be reduced by your own percentage of fault for the incident. In other words, if a jury rewards you $100,000 for your injuries but determines you share 30% of the blame for what happened, your reward will be reduced to $70,000.
It's a lot to take in, but case evaluation includes a determination of whether the value of the injuries and damages will exceed the time, resources, costs, fees, liens, comparative fault and any other factors that come into play. Even where liability and damages both exist, it is still very possible litigation is not the right answer if the value of the damages cannot overcome other crucial, expensive factors.
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