Invariably, before my initial interview with a client who has been injured in an accident or who suffered the loss of loved one in an accident is completed, I will be asked, “What is my case worth?” Mind you, prospective clients aren’t asking this question out of greed. Rather, there are many other motivations. They often ask this question because they don’t know if it will be worthwhile to pursue the case, or incur the expense of an attorney. They may be asking the question because they are inundated with medical bills at the same time they have a loss of household income. They may be asking this question because they are shopping for the lawyer who tells them the highest figure or are gauging the experience of the attorney. They may be asking this question to compare the response with settlement offer they have received from a claims adjuster. In almost all cases, I candidly respond that I can’t tell the prospective client what the answer is due to the many variables that require careful analysis before an answer can be given and then it still can only be an educated guess.
The first variable in determining the worth of a personal injury claim is to determine whether or not someone else is at fault for causing in the injury. Wisconsin, unlike some other states that apply a “no-fault” rule, requires that in order for someone to recover damages for injuries they have suffered, the injured party must prove that the injured party’s negligence is not greater than the negligence of the party against whom recovery is sought. Moreover, if there are several parties that may have caused an accident, there can be limits as to how much each party will be required pay based on whether or not they are 51% or more at fault, or some smaller percentage.
Determining the potential liability of other parties, as well as one’s own client, requires extensive investigation of the facts surrounding the accident, and is seldom fully known at the time of an initial interview. The liability of parties in some cases may only be determined after experts examine evidence and render an opinion.
Even if liability seems pretty clear, there are other hurdles to recovery for a client. In recent years, the Wisconsin legislature has passed a number of statutes which either grant immunity to certain parties depending on the situation or limit the amount of damages that can be recovered. The following are just a few examples. Landowners are now immune from paying damages when a person engaged in recreational activities is hurt on the landowner’s premises. A “good Samaritan” rendering emergency aid at an accident scene may be immune from paying for damages they may have caused. A municipal employee may be immune for certain acts, and even if not immune there may be a cap on the amount of damages that can be recovered.
Assuming the client appears to have a pretty case from a liability standpoint, the determination of damages is often not readily evident. One can recover past medical expenses and past wage loss, but usually those figures aren’t known at the time of the initial interview, particularly if one is still in treatment for their injuries, or hasn’t yet returned to work. While one may be able to ballpark some of these numbers at an initial interview, gathering accurate information regarding all medical bills and wage loss information is important to fully determining one’s damages.
Future medical expense and future wage loss requires even greater analysis. A doctor will need to give an opinion to a reasonable degree of medical certainty that the injured party will need future medical care, and someone with knowledge of the cost of medical care will need to give an opinion as to what those expenses will be. Future wage loss will require an expert opinion that a person cannot perform the same work related tasks and a vocational expert to quantify what those limitations mean in terms of reduced wages and opportunities for employment in the future. If one is likely to have future medical expense or future wage loss, it is virtually impossible to make a reasonable estimate of those damages at an initial interview.
It is also important to note, that there may be other parties that will be entitled to receive a portion of any damages. These parties would include any insurance company, employer, or government entity that has paid for medical expenses or provided disability payments.
A client may also have a claim for past and future pain, suffering and disability. These claims are the most difficult to determine as there is no clear measure for pain and suffering. Afterall, who ever says, “If you pay me X dollars, I will agree to live with a certain amount of pain each day for the rest of my life” or, If you pay me X dollars, I will agree to live without the use of my arm or some other body party for the rest of my life, or “If you pay me X dollars, I will agree to suffer the loss of my wife or child.” The measurement of these damages requires careful assessment based on comparing jury awards or settlement amounts in other cases, as well as potential surveys of impartial parties, and in some situations a gut impression by an experienced attorney of what will fairly and fully compensate one for their loss. In reality, the only way of knowing what these damages truly are is to take a case all the way to a jury verdict; and even then two juries hearing the same facts are likely to come to a different verdict.
Another factor that is usually unknown at the time of the initial interview is the amount of insurance coverage that is available to pay for one’s damages, or the ability of an uninsured party to pay for the damages they caused. Gathering information regarding potential insurance coverage, including the insurance of an injured party, is a critical first step to assessing a case’s worth.
Lastly, there are usually a few other variables that makes a case’s worth change for both better or worse over the course of representation. Maybe a client doesn’t come across well in a deposition, or they fail to follow their doctor’s advice for treatment. Some clients become increasingly sympathetic as they struggle to overcome the challenges of their injuries. There may be a recent legal decision that improves or lessens the chances of recovery.
So the next time you ask a lawyer, “What’s my case worth?”; be cautious if that lawyer gives you a firm number at the initial interview. Chances are that lawyer is more interested in signing you up as a client, than be willing to lose you as a client by giving you a candid response and an indefinite figure.
Robert S. Duxstad practices personal injury law in both Green and Lafayette Counties in Wisconsin. He can be reached by e-mail at duxstad@swwilaw.com.