Q: What is the value of my case?
A: Of course, this is the ultimate question. And the ultimate answer, if your case is not settled, is whatever a jury says it is worth, the verdict returned by the jury. Your case could be tried to 10 different juries with 10 different verdicts. A more productive question may be "What is the settlement value of my case?" This is affected by many factors, including whether or not there is any dispute regarding liability, what are the recoverable damages allowed by law, and what is the reputation and experience of the attorney representing you.
Liability - Whenever you bring a claim to recover money for damages, you must first prove that the defendant is liable (at fault). However, even if the defendant is at fault, the insurance company will attempt to reduce your compensation by trying to find some fault on your part. Even if the defendant runs a red light, the insurance company will attempt to prove what you could have done to avoid the collision by questioning you about the speed of your vehicle, and how much time you had to avoid the impact after you first became aware of the danger. The insurance company will also investigate whether you have done all you can to keep your damages to a minimum, such as whether you have followed doctor's orders, how much effort have you made to find other employment if you lost your job.
If the defendant (insurance company) alleges you were also negligent, a jury would be instructed by the judge to assign a percentage of fault to the defendant, if the jury finds the defendant at fault, and a percentage of fault to you, if the jury finds you at fault. The combined fault must equal 100%. If the defendant is 80% at fault, and you are 20% at fault, you will recover only 80% of your damages. For this reason, an insurance company will always look for a way to chip away at your recovery by building evidence to increase your percentage of fault. Insurance adjusters are experienced in doing this. Before you give a recorded statement, you should thoroughly review your case with an experienced attorney.
Damages - This is the second major element to consider in assessing the settlement value of your case. The standard recoverable damages in a personal injury case, include:
- Past Medical Expenses. You may recover the reasonable value of necessary medical expenses from the date of injury to the present time. You must prove that the medical expenses were incurred as a result of the incident which is the basis of your lawsuit. Not all medical expenses will be considered reasonable and necessary. Insurance companies will often reduce the amount of your claim for medical expenses, sometimes unfairly. A trial attorney with substantial experience in personal injury law should be able to assist you in determining what medical expenses are considered reasonable.
- Future Medical Expenses. This relates to reasonable and necessary medical expenses which will be incurred in the future. However, you may not recover for future medical expenses which are barely a possibility, rather than a probability.
- Loss of Time - Earnings. Loss of earnings which have resulted from your injury are recoverable. You are entitled to the full value of your lost wages, without any offset for disability income which you may have received from an insurance policy while you are off work.
- Loss of Future Earning Capacity. If your injury has resulted in some permanent impairment which affects your capacity to earn an income in the future, you are entitled to damages for loss of future earning capacity. This is true even if you are presently employed in the same job in which you were employed at the time of your injury.
- Loss of Full Mind and Body - Past. This includes loss of function of the mind and body from the date of injury to the date of the jury deliberation. Loss of full mind and body is the inability of a particular part of the body or mind to function in a normal manner.
- Loss of Full Mind and Body - Future. When there is sufficient medical evidence to establish that loss of full mind and body will continue into the future, damages may be awarded for loss of full function of the mind and body from the date of the jury deliberation through the life expectancy of the injured person.
- Physical and Mental Pain and Suffering - Past. This includes physical and mental pain and suffering from the date of injury to the date of the jury deliberations. Physical pain and suffering may include, but is not limited to bodily suffering or discomfort. Mental pain and suffering may include, but is not limited to mental anguish or loss of enjoyment of life.
- Physical and Mental Pain and Suffering - Future. When there is sufficient evidence to prove that the injuries are permanent, or at least will extend beyond the date of trial, damages may be recoverable for future physical and mental pain and suffering.
If you are married or have children, other recoverable damages include:
- Spousal Consortium - Spouse's Damage. This relates to the damages which are sustained by the spouse of the injured person. "Spousal Consortium" is the fellowship of a husband and wife and the right of each other to the benefits of company, cooperation, affection, the aid of the other in every marital relationship, general usefulness, industry and attention within the home and family. Numerous factors are to be considered in determining damages for loss of consortium including the ages of the injured party and the spouse, the injured spouse's health, strength, character and life expectancy, capabilities and efficiencies in performing the duties of a spouse, the non-injured spouse's needs and all other facts and circumstances bearing on the issue.
- Parental Consortium. When a parent is injured, his or her child or children may sustain a loss of "Parental Consortium" which is the relationship between the parent and child and the right of the child to the benefits of companionship, comfort, guidance, affection the aid of the parent in every parental relation, general usefulness, industry and attention within the family. Ed Keane was gratified in assisting two children recover damages, by jury verdict, of $1,000,000 for the loss of their mother's parental consortium. Through a structured settlement, these children will receive well over $3,000,000 in compensation for their tragic loss.
If the injury resulted in death, in addition to the above damages, recovery may be also be had for:
- Loss of Accumulated Earnings to the Estate. This is defined as the present value of the additional amounts which the decedent would reasonably be expected to have accumulated as a result of her own effort if she had lived out her natural life.
- Burial Expenses. The estate can recover interest on reasonable burial expenses for the time of death until the time when those expenses would have been paid if decedent had lived out his normal life expectancy. The amount awarded for interest on reasonable burial expenses cannot exceed the reasonable cost of the burial.
- Loss of Support to Spouse and Children. Damages may be awarded for the present value of the amount of financial support which the spouse or children would have received, but for the decedent's death.
A maximum recovery of damages often depends upon the presentation of expert testimony. Certain items of damage will not even be submitted to a jury for consideration without the presentation of expert testimony. Having an attorney who has been successful in the proper and effective presentation of expert testimony is essential to recovering full and fair compensation for your damages.
The amount of recoverable money damages cannot be assessed without a careful and thorough review of all of the evidence in your case. Only after an experienced trial attorney has reviewed all of the evidence can the attorney match that evidence with his experience with other jury verdicts to give you a qualified opinion of your potential recovery.
The Trial Attorney's Experience
This is an important factor affecting the eventual recovery in your case. Not all attorneys are trial attorney. Not all trial attorneys are experienced in wrongful death and personal injury. Some attorney advertise that the practice primarily in personal injury law, regardless of whether or not any successful jury verdicts have been obtained. Some attorneys advertise that they practice primarily personal injury although they have very seldom, if ever, tried a personal injury case. On the other hand, some attorneys are very well experienced in personal injury trial work and don't advertise. It is highly recommended that you do not select an attorney based upon advertising alone. Ask friends and relatives. Meet with the attorney to decide if you are comfortable with him or her and if you believe you will be able to communicate with each other effectively. Good communication is critical to the effective preparation and presentation of your case.
One last point on this issue: The insurance companies know which attorneys are willing and able to present your case to a jury. Ask the attorney about recent trial experience and results.
Q: Do I need an attorney?
A: Obviously, if you can recover the full value of your claim without incurring attorney fees, that would be ideal. The problem is knowing the full value of your case and how that compares to the insurance company's offer. See some examples of jury verdicts obtained by Ed Keane, compared to the last offer by the insurance company. These illustrate the potential benefit of legal representation versus settlement on your own.
Q: When should I contact an attorney?
A: Immediately. The insurance company will have someone investigating the case immediately. Important evidence may be lost or destroyed and, often times, an accident reconstructionist will want to inspect the scene as soon as possible. The Defendant's insurance carrier will likely want to obtain a recorded statement from you. The insurance adjuster is experienced in attempting to establish some fault on your part. It is best to review the case completely with an experienced trial attorney before giving a recorded statement.
Q: What if the Defendant has no money or insurance?
A: You may still be able to recover money damages. An experienced trial attorney can help you evaluate whether there are other sources of recovery. For example, was the Defendant working at the time of the incident which caused your injury? If so, his employer may be liable. Was the Defendant operating a vehicle owned by another? If so, the owner may be liable under Iowa's owner-liability statute, or, in Nebraska, if a vehicle was a "family-purpose vehicle". You may also be able to recover money damages under other policies of insurance such as uninsured or underinsured motorist coverage of your own policy. However, there are dangerous pitfalls that jeopardize this type of coverage which can be avoided by consulting with an experienced trial attorney who practices primarily in the area of personal injury and wrongful death.
Q: In a rear end collision, isn't the back driver always at fault?
A: No. Ed Keane has represented clients who were injured, one tragically killed, after their vehicle collided with the rear of a front vehicle. In two separate cases, after a complete investigation of all facts, and with the presentation of expert testimony by an accident reconstructionist, Mr. Keane was able to convince a jury that the front vehicle was at fault. The insurance companies for the front driver, in both cases, denied any liability. Both juries returned verdicts for Mr. Keane's client, one setting damages in excess of $2,000,000.00. The liability in your case can best be evaluated by an attorney with vast trial experience.
