Nature, Extent, and Duration of Injury

In a personal injury case, the most important factors which determine the amount of damages awarded to the injured person are the nature, extent, and duration of the injury or injuries. A severe case involving skeletal, ligament, or nerve trauma is more apt to qualify for greater compensation than a minor case of whiplash or back strain, painful as the latter conditions might be. Furthermore, severe injuries are strongly supported by medical documentation such as x-rays and CAT scans, whereas some soft tissue injuries involving only muscle are difficult to detect by standard procedures. Other medical elements contributing to the viability of one’s personal injury case include the permanence of the injury as well as the extent of treatment required, such as surgical intervention and/or long-term rehabilitation. Clearly, cases that can be supported by solid medical documentation have the potential for greater monetary damages to be awarded.

Defendant Liability

In a personal injury case, the defendant’s liability (or degree to which he or she is at fault) must be determined. If an individual is completely responsible for an injury suffered by another, the compensatory damages awarded to the victim will be the full amount requested. If, however, the victim is found to be partially at fault in the incident, the amount of damages awarded may be reduced. In some instances, there may be more than one viable defendant and damages may be assessed in proportion to each defendant’s culpability.

Comparative and Contributory Negligence

Comparative and contributory negligence are defenses available to mitigate the amount that a defendant may have to pay to a plaintiff for damages. Each of these defenses is based on an assessment of fault towards the plaintiff. Depending upon the laws of the state where the case is venued one of three different versions of these defenses may be applicable. Pure contributory negligence is, by far, the most oppressive to the plaintiff. In those states that allow this defense if a defendant can prove that the plaintiff is one iota to blame for the accident, then he or she recovers nothing. For instance, if the evidence shows that a defendant was speeding and went through a stop sign and that the plaintiff was only one percent at fault because he or she didn’t swerve or brake quickly enough, then the plaintiff may be entitled to no recovery.

Less oppressive to the plaintiff and more prevalent are the two different versions of comparative negligence. The first version is what is commonly known as “pure” comparative negligence. In “pure” comparative negligence, the award of damages to the plaintiff will be reduced in direct proportion to the plaintiff’s percentage of fault, no matter what the ratio. For instance, if you are 30 percent at fault for an accident, you could recover 70 percent of your damages. If you are 70 percent at fault for an accident, you could recover only 30 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying you 30% of your total damages, apportioned between them in proportion to the amount of fault assigned to them.

The last of these defenses is also fairly common amongst the states. It is known as “limited” comparative negligence. With this version, in order to be able to receive any damages the plaintiff must be no more than 50 percent at fault for the injury. If the plaintiff is no more than 50 percent liable, but is still partially at fault, then the award of damages will be adjusted according to the plaintiff’s percentage of fault and the plaintiff’s award will be reduced accordingly. For example, suppose a jury awards you $100,000 in damages as a result of a car accident, but it finds you 30 percent at fault for your injuries because you did not properly use a signal. After applying comparative negligence, you would be entitled to $70,000 in damages – $100,000 minus 30 percent. In the above example, the judge or jury determines the degree of the each party’s negligence and apportions to each party a percentage of the total damages suffered, based on each party’s percentage of fault for causing your injury. If you were found to be 51 percent liable, you would be unable to collect any amount.

Credibility of the Parties

Another factor that may impact upon the value of your claim in a personal injury case is something known as “jury appeal.” This complex combination of personality elements is significant in determining the likelihood of receiving the damages to which you are entitled. Characteristics that can help you win over a jury include being clear, detailed, and well-spoken in describing the events surrounding your case. Juries are also more apt to be convinced by statements that are supported by documented evidence in combination with a truthful, anecdotal recounting of the accident.

The jury’s perception of the defendant is also very important. If the defendant is viewed as untruthful or reckless or attempts to shirk responsibility for the accident, a jury is more likely to be sympathetic to the plaintiff’s side. A good attorney will always try to find inaccuracies in the defendant’s version of events to diminish his or her credibility as much as possible and increase the chances of a positive result.

Age of the Plaintiff

It is perhaps an unfortunate fact that the age of a plaintiff can demonstrably affect the amount of damages awarded in a personal injury case. The logic in the system lies in the understanding that a younger person who suffers a severe injury is subject to many more years of pain, suffering, and mental anguish than an older victim. The monetary loss to a younger person who has a greater number of wealth-building years ahead is also estimable.

Witness Testimony

The witnesses who testify on your behalf can greatly affect the outcome of your case. Ideally, a witness should be able to describe in detail the events of the accident to help establish liability on the part of the defendant. Witnesses whose purpose is to establish damages should be able to clearly describe the victim’s condition prior to the accident so as to fully delineate the change in quality of life that the victim has undergone. It is essential that the witness be viewed as reliable by the jury. Since both the plaintiff and the defendant often rely on expert witnesses to support their cases, the plaintiff must be sure that the experts utilized on his or her behalf are very well-versed and highly-regarded in their respective fields.

Compensatory Damages

The word “compensate” means “to offset an error or undesirable effect”. Compensatory damages, therefore, are meant to make up for an injury sustained by an individual. There are two basic types of compensatory damages: actual and general. Actual damages reimburse an individual for funds paid out-of-pocket for medical treatments, lost wages, substitute transportation, property replacement or repair, and rehabilitation. An accident victim can also sue for general damages, which include estimates of loss not involving actual monetary expenditure. Mental anguish, disfigurement, future medical expenses, future lost wages, long-term pain and suffering, loss of consortium, and loss of opportunity are all examples of general damages.

Punitive Damages

Punitive damages are meant to punish a defendant for acts of gross negligence or intentional misconduct that cause personal injury to the plaintiff. They are not calculated by the extent of the actual injury, but rather are meant to prevent the defendant or others in similar situations from allowing or causing the same sort of accident to happen in the future. For example, if a person intentionally runs an automobile into a pedestrian, punitive damages may be appropriate.

Nominal Damages

In a case where the evidence of actual damages is slight, the courts may still choose to award the plaintiff a small sum of money to acknowledge that he or she was legally wronged by the defendant. These nominal damages may only be sought in intentional tort cases where a physical injury to the plaintiff is not required for a defendant to be found guilty. If the tort committed is battery, for example, the defendant may indeed have shoved the plaintiff in an offensive manner but without causing physical injury. The plaintiff may then be awarded a minimal amount of nominal damages.

Court Costs and Attorney’s Fees

If a personal injury case is settled in favor of the plaintiff, he or she may also have recourse to recover some of the expenses of taking the case to court. These court costs would include filing and process server fees, obtaining deposition and court transcripts, and payment to translators. There are some instances in which a plaintiff may also be able to recover attorney and expert witness fees, but this is not as common.

Compensatory damages are meant to offset an injury sustained by an individual. Actual damages, or damages which reimburse an individual for out-of-pocket expenses, include monetary awards for medical expenses, property damage, and loss of income. General damages may also be awarded for pain and suffering, mental anguish, loss of consortium, and lost opportunity for the future enjoyment of life.

Medical Expenses

Serious injuries incur hefty medical bills; therefore, an injured person’s medical expenses constitute a significant portion of the damages to which he or she is entitled. Logic would dictate that the greater the amount of money owed for physician’s services, the greater the damages are to be sought. Future medical costs must also be factored into compensatory damages in the case of a long-term injury requiring significant rehabilitation or on-going treatment. An experienced personal injury attorney will be able to select the necessary experts to establish the need for future medical treatment as well as clearly determine the value of the plaintiff’s claim.

Property Damage

The plaintiff in a personal injury case may also be awarded damages for the replacement or repair of any property harmed in an accident. Automobile damage, for example, is a common occurrence in personal injury cases. In addition to the costs of repair and loss of value to the car, a plaintiff may also be able to receive compensation for damage to property contained within the car as well as reimbursement for obtaining substitute transportation during the repair period.

The valuation of property damage is a complicated process and may require the opinion of an expert appraiser. This professional will determine whether or not the property has been totally ruined or retains any salvage value whatsoever. If the property is useless, damages can be requested in the amount of its fair market value prior to the accident. If repair is an option, compensation for loss of use by the owner can be added to the cost of the repair itself. There are occasions when the cost to repair the property exceeds its replacement value and the damages are still limited to the fair market value of the property before loss. Other elements that can be factored into the property damage equation are interest and loss of profit, particularly in those instances in which the property is utilized in one’s employment.

Loss of Income

If the injury sustained by the plaintiff prevents him or her from working, compensation can be sought for the amount of money normally earned during that time period, otherwise known as “lost wages.” The injured person can also claim lost wages for any absences due to medical treatment of the injury. An injury severe enough to prevent a person from working for the remainder of his or her life may allow for damages to cover the loss of one’s future earnings. Finally, if a person dies due to an accident, family members can choose to sue for the lost income that the victim would have earned based on his or her age and current salary. Logically, a younger person has longer work-life expectancy and would therefore have a greater loss of future earnings in the event of an untimely death.

Pain and Suffering

The most personal element of an injured person’s experience is the amount of physical pain and suffering which he or she must endure. Each individual’s tolerance for pain is different which makes the quantification of suffering problematic, but certain factors can be measured accurately to document one’s discomfort level. For example, an experienced personal injury attorney will be able to collect information from the medical practitioners involved in the case regarding the amount of medication the injured person required, the types and length of treatments necessary, and the duration of the recovery period. In addition, the injured person’s spouse and/or nearest friends and relatives will be interviewed to ascertain the extent of change to the victim’s quality of life by comparing his or her condition and normal activities prior to and after the accident. It is an integral part of a victim’s case that any enjoyment of life that has been reduced due to an accident be brought forward and supported by witness testimony and evidence.

A person who suffers a more severe and painful injury that causes long-term or even permanent impairment will clearly have a more valuable claim in a personal injury case than an individual whose injuries are not as extensive. If the injury is indeed permanently disabling, experienced counsel will seek out expert testimony to support the victim’s claim and help determine the most suitable value of damages to be sought.

Mental Anguish and Emotional Distress

While mental anguish and emotional distress often exist concurrently with pain and suffering, the former are distinct in that they refer to mental responses to the trauma of a physical event. Common symptoms of mental anguish would include terror, shock, apprehension, confusion, humiliation, and sorrow. To try to stem the tide of personal injury lawsuits based solely upon mental anguish and emotional distress, some states have instituted strict guidelines such as the “zone of danger” test which takes into account how physically close the plaintiff was to the accident. Another limit placed upon such cases is the “physical manifestation rule” which requires that the emotional distress experienced by the plaintiff be exhibited by physical reactions such as depression, anxiety intense enough to cause ulcers, or loss of appetite and weight.

Loss of Consortium

Another type of damage that can be recovered in a case of severe and permanently disabling injury is that of loss of consortium, which refers to the inability of the victim to engage in the activities related to companionship with his or her spouse or loved ones at the level he or she once enjoyed. Although the damages awarded for loss of consortium are generally less than other types of compensatory damages, they can be significant in tragic cases of accidents which lead to severe impairment such as paraplegia.

Lost Opportunity

Lost opportunity damages are sometimes recoverable in addition to the damages sought for lost wages and loss of future earnings. These refer to a business opportunity that has been precluded due to an accident. It is imperative that the presentation of such a claim is supported clearly and not purely conjectural as this could damage the credibility of the case as a whole and cause a jury to reject the more substantial damages sought by the plaintiff.