Time-and-time again, people come to me and ask the question: “What is my case worth?” They throw out a handful of facts, usually all of the positive facts about their case, and then pop the big value question.
The problem with this, is that there is no rule or guideline for what a jury can or will do with your case. No lawyer can predict a cases value with any accuracy because the variables that determine this change as a case moves toward trial.
Now, with that said, there are a number of things we look at in deciding whether or not to take a case which are factors that suggest a case may or may not have value.
Where did the wreck happen? There are certain places in Texas that the jury pool is more favorable toward injured persons than elsewhere. Two great examples are Jefferson County and Hidalgo County. Every plaintiff’s lawyer and defense lawyer knows the juries are more likely to give a big verdict in these counties than other counties. On the flip side, some counties, like Montgomery County, are perceived as very conservative counties.
The Complete Facts
Every story has two sides. The defendant, will most likely say you are at least somewhat at fault too. A jury gets to hear both sides and apportion responsibility. That means they can find you some percentage at fault and reduce your damages accordingly. Until a lawyer knows all the facts that will be presented to a jury from both sides, it is hard to predict a case value accurately.
Background of the Parties
Certain criminal convictions are admissible to impeach the character of a witness. This applies to both the injured plaintiff and the defendant. If a witness has recently been convicted of theft, assault on a female or some other crime involving moral turpitude,” that witness can expect the jury to distrust him/her. If it is the plaintiff, he can expect them to not want to give him money under the assumption he will use it for illegal or bad things. On the flip side, juries have less of an issue awarding money against criminals. They also have an easier time awarding damages against a corporate defendant or an insurance company than a real person.
Did the injured person go to the hospital via ambulance or drive home? Was the vehicle totaled or scratched? Juries want to see damage tat is in their minds consistent with the injuries. Are there gaps in the medical care? Were all doctor’s orders followed? Who recommended the doctor? All of these things can factor into how a jury sees your case and how much they will award, if anything.
Insurance defense lawyers love to use past injuries as a way to try to reduce your damages. That old accident that you had five years ago will be used against you if you claimed any degree of similar injury in it. The more of these past injuries you have, the harder it is to prove causation.
Child Support Liens and Judgment Liens
If you have a Child Support Lien or a Judgment Lien against you, in most cases your lawyer has no choice but to pay them back out of your settlement money even though they have no relation to your case. Obviously, this reduces what you would put in your pocket. But more importantly, a lawyer knows that he may have to cut his fees because of such lien. So it also affects whether or not your lawyer is willing to take on and/or litigate your case on a contingency fee.
The Nature of Your Injury
Serious injuries like death and paralysis are valued higher than things a jury cannot see and understand. A broken bone is generally worth more than an invisible whiplash injury. A surgery case is generally has a higher value than one where it has been merely recommended since everyone has heard of it being recommended but never received.
How Well You Present as a Witness
Insurance companies and juries size up the plaintiff. If you are all about being unique and have orange hair, tattoos on your forehead and bone in your nose, good for you. But your case is worth less than the all-American sweetheart or the returning war hero. If you are easily tricked and confused when testifying in deposition or at trial, you will be a less believable witness than someone who is clear and concise. Remember, your lawyer has no idea how well you present until you are presented for deposition, so this factor cannot be anticipated.
The Jury of Your Peers
Finally there is the contingency of jury. Your jury will be “selected” at the beginning of your trial. A panel is presented to your attorney and opposing counsel and they get to question them. At the end of the questions they can strike some for cause (they admit they cannot be fair) and a few more (6 in District or 3 in County Court) for most any reason. At the end of all strikes, those jurors still unstricken are your jury. You lawyer may not like the whole panel, but he is (and you are) stuck with the unstricken ones.
No two juries are alike. The reality of it is, your case, and your facts would not get the same award if it were tried twice to two different juries.
Most individuals are judgment proof. Companies may carry no insurance or alot of insurance. You generally cannot find out the amount of coverage without filing a lawsuit. Moreover, you may have a case that a jury awards you 10 million dollars, but if there is only $30,000 in coverage, it is probably only worth $30,000 since Texas homestead laws protect debtors from judgment collectors.
You can also run into coverage problems when certain facts raise policy defenses, such as the other drive is unlicensed, uninsured and/or has no permission to drive a vehicle. A lack of coverage is often what makes a seemingly big case suddenly become worthless.
Tort reform has not only capped punitive damages on all cases, but it has severely limited the ability of a lawyer to win a medical malpractice case. Many lawyers will not take them because the cost simply will not justify the recovery.
Government entities are immune from certain lawsuits. Additionally, most government entitles are afforded strict short notice requirements such as 60 days to notify them of your claim. Failure to do so means your claim is barred. Sovereign Immunity also places caps on damages of 250,000 for city and state and 100,000 for county government branches. This can affect your case value
Some insurance companies are more prone to settle your case than others. Some auto insurance companies basically like to force everything into litigation. This makes you and your lawyers costs go up which can ultimately reduce the settlement value of your case.
All of the above factors are considered by your lawyer in valuing your case. When he considers a settlement offer, the more of the above information he has, the better he will be able to tell you what he thinks an insurance company might pay to settle it. But he can never take a handful of facts and tell you what the case is worth. He can certainly never tell you exactly what a jury will do with the case.
The only way to really get a better idea of what your case is worth is to sit down and discuss it in complete detail with a personal injury lawyer who can spend time looking at it and anticipating the issues you will face. Most offer a free consultation. If you would like to speak to a personal injury lawyer who can better evaluate your case, call me at 713-932-0777 for a free consultation. The initial consultation is free and you pay us nothing unless you retain us and we make a recovery for you.