Oftentimes when meeting a client for the first time, he or she generally asks what his or her case is worth. With over 30 years of experience, I still cannot give an exact answer. Each case involves a unique individual who has been injured and different factors come into play. The ultimate value of a case is determined by a jury of 12 people after hearing all the evidence.
As car accident attorneys in Milwaukee and personal injury attorneys in Milwaukee, we try to determine a range or estimate of what a jury may do, based on prior experience in similar cases with similar injuries. Each case, however, has unique details that factor into a damages calculation.
How do we Estimate the Value of a Case?
The value of a case in general depends on both liability and damages. In Wisconsin, the fault of the parties is compared and if the injured party is more at fault than the tortfeasor, the injured party cannot recover. If the tortfeasor and injured party are equally at fault, the injured party can only recover half of his or her damages. Lastly, if the tortfeasor is more at fault, the injured party’s damages will be reduced by the percentage he or she was at fault. Therefore, in calculating the value of the case, it is necessary to take into account the fault of each party.
Having a very culpable or negligent defendant can enhance damages. If the other party was impaired or engaging in reckless behavior in a vehicle accident, even very conservative jurors can award fair damages in order to teach a lesson or send a message. Although a claim for “punitive damages” may not be warranted, egregious conduct by a driver will increase the damage assessment.
What Consitutes 'Damages' in a Personal Injury Case?
Damages include numerous factors. In general, damages include medical treatment, wage loss, pain and suffering, and loss of consortium. Within the medical treatment category, injured parties can recover for the reasonable value of the medical services they received in connection with the injury. This amount includes medical bills from ambulance transportation, hospitals, physical therapy, chiropractors, and even prescriptions. Additionally, if the injured party will have to continue receiving treatment into the future as a result of the accident, this amount is also covered in the damages section.
If the injured party missed work or was unable to continue working in the same capacity as he or she had worked prior to the accident, damages would also include wage loss. The injured party can be compensated for the wages he or she could have earned if the accident had not occurred. Wage loss also includes future wage loss. For example, if your shoulder was permanently injured in a car accident and you were no longer able to continue your job in construction and had to take a desk job instead that paid less money, you should be able to recover the difference in damages as lost wages.
How is Pain and Suffering Accounted for?
While damages calculations for medical treatment and lost wages are fairly straightforward, the calculation for pain and suffering is not as easily calculated. Whether an injury is permanent is also a huge factor. The effect it has on a person’s employment, his family and household activities, and recreational activities are relevant considerations.
Consider Loss of Consortium
Another measure of damages includes loss of consortium. According to Black’s Law Dictionary, loss of consortium refers to “The benefits that one person, esp. a spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support . . . ” CONSORTIUM, Black's Law Dictionary (9th ed. 2009), consortium. In personal injury and wrongful death cases, the spouse or minor children of an injured party can generally make a claim for loss of consortium. The amount recoverable is different in every case and largely depends upon the severity of the injury.
Settlement versus Trial
Lastly, there is also a difference in recovery of damages between trials and settlements before trial. Both parties realize there are risks and expenses of going to trial, and claims may be compromised to avoid that uncertainty. The exact same case could be tried in front of two different juries and yield entirely different results. Experienced attorneys are able to weigh these factors in placing value on a case.
Therefore, while you or your attorney may be able to do a rough estimate of your damages at the start of a case, a likely case value cannot be given immediately. Additionally, due to the large number of factors that go into valuing a claim, there is no exact measure or guarantee that any provided estimate will be an accurate depiction of your recovery. Nobody can provide an exact calculation for damages, but our experienced attorneys can usually provide a range of values based on previous similar cases, a thorough investigation, and after accumulating all medical documentation.
At Murphy & Prachthauser we are car accident attorneys in Milwaukee and personal injury attorneys in Milwaukee who practice the law the way it should be practiced – motivated and equipped to do our best for you. We take pride in being good lawyers who help people.
If you have a case you would like to speak to a personal injury lawyer about, please contact us to schedule a free consultation and get an experienced Milwaukee auto accident attorneys and Milwaukee personal injury lawyers working on your behalf.