Personal injury and a lawsuit often involve a fundamental primary question on every client’s mind: what will this case translate into in terms of damages if I win? While it would be nice if there was a reference table one could use to produce an answer quickly, the law does not work this way. Instead, many times cases have nuances that make them different from others, which is why good attorneys will not guarantee any kind of a specific recovery, no matter how solid a personal injury case may be on first appearances. The process of generating a claim, filing a formal lawsuit, discovery and potentially going to trial have so many risks for new issues and challenges to come up, no lawyer following good professional ethical practices would tell a client a given case is a slam dunk worth $X thousands of dollars in recovery. While this might seem a bit frustrating for a client, it’s really doing them a service and refocusing the discussion on how to get the client back to status quo before the injury occurred in the first place.
How are damages categorized?
Damages are categorized into three main categories: physical damages, mental damages, and punitive damages. The amount of these associated with each individual case depends a significant amount on circumstances of the facts, the evidence available and accepted into the case in the trial phase, and the willingness of both sides to reach an agreement point if possible. Ideally, those damages recovered should be enough to restore the injured party back to the way he or she was prior to the injury, or to compensate for what is permanently lost going forward. What that figure exactly is depends on multiple factors.
So why is there so much variation? The reason has to do with the damage categories themselves and how they are calculated. Compensatory damages are those that people are most familiar with. They cover the cost of property damage, hospital bills, lost wages due to injury and similar. These are costs that typically can be easily documented because they are verified by receipts. The most common of compensatory damages are classified in:The last three tend to be a bit more ambiguous than the earlier categories because they often involve a mental element which cannot be easily measured in an objective manner. For example, what might be tolerable distress and pain to one person may be entirely intolerable and unacceptable to another’s standard of living. Much depends on the context of loss, the person’s life prior to the injury and what was is the average person’s normal expectation at the time prior to injury.
Punitive damages, on the other hand, are entirely about sending a message. And that message is not just to the party responsible for the injury, but to anyone else who might be considering doing the same kind of act or failing to prevent it. These types of damages are frequently severe when compared to the amount requested for compensatory damages above, and that is intentional. The law gives the court the ability to teach a responsible party a painful lesson, especially when the circumstances show that the responsible party could have prevented the harm or purposefully chose not to prevent it from occurring and could have. Some of the most common circumstances for severe punitive damages involve parties who allow others to get hurt for the sake of profits, gain, or avoiding expenses or costs associated with care and safety.
There are three types of punitive damage optional scenarios as well, and that classification approach can make a difference in a case depending on which party it applies to. These categories are in addition to cases of direct responsibility.
Comparative negligence is the concept that fault comes in degrees and is not a black and white application. This allows the law to split between extreme cases and those where there is moderate responsibility but not full association based on the facts. Many states apply the rule of comparative negligence in practice.
Contributory negligence, the second category, is really a defensive approach for the party held responsible or alleged to have caused an injury. In short, this perspective essentially holds that if the injured party had any share of responsibility for the injury he or she suffered from someone else, then a recovery cannot be provided or compensated in the case. Essentially, the case gets dismissed if partial involvement is proven. This is an extreme perspective and one that only exists in a few states, fortunately.
Additionally, there is the aspect where the injured party, where possible, has a responsibility to lessen damages that can be avoided under his or her own power. This is to ensure that the responsible party is not stuck with expenses and costs that are not reasonable for the injury suffered. The injured party, even if damaged or hurt, still has a responsibility under this perspective to prevent further damage if possible. Not doing so or being shown as not acting when possible can actually hurt the injured party’s ability to recovery by lessening the amount a court will award as a result.
Combine all the above, and the results of similar cases producing very different damage recoveries can become both possible and frequent. Much also depends on the skill of the legal representation and attorney skill involved as well. And that becomes apparent in just about every phase of the case, from initial intake, to early communications, filings, discovery, motions and hopefully an amicable resolution (such as alternative dispute resolution) versus an extended trial. Depth, experience and extensive legal knowledge oftentimes prove invaluable in produce the best practical results in case versus a prolonged, frustrating case that ends in a loss in the 50/50 environment of trial. Thus, it’s important to again remember, what a personal injury case is worth is not about how much one can get financially out of an alleged, responsible party; it’s about obtaining a fair and proper recovery for an injured party so he or she can get back to life and put an injury behind.