Nature, Extent, and Duration of Injury
In a personal injury case, the most important factors that determine the amount of the compensation awarded are the nature, extent, and duration of the injury to the plaintiff. A severe case involving skeletal, ligament, or nerve trauma is likely to qualify for a significant compensation award. A minor case of whiplash or back strain, as painful as may be, will likely result in a less insignificant, compensation award.
Furthermore, severe injuries are strongly supported byobjective evidence such as medical documentation (X-rays and CAT scans). Soft tissue injuries, on the other hand, that only involve internal bruising are difficult to detect by standard procedures and difficult to demonstrate to a jury. Other medical elements contributing to the viability, or strength, of one’s personal injury case include the permanence of the injury and extent of treatment required. Clearly, cases that can be supported by objective medical documentation have the potential for a compensation award of greater monetary damages.
In a personal injury case, the defendant’s liability—the degree to which he or she is at fault—is a crucial fact to be determined. If the defendant is completely responsible for another’s injury, the compensation award to the victim should be the full amount available under the law. However, if the victim is found partially liable for the incident, the amount of the compensation award may be reduced. In instances where there may be more than one viable defendant, damages may be assessed in proportion to each defendant’s culpability (responsibility).
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 brought, one of three different versions of these defenses may be applicable.
Pure contributory negligence is by far the most burdensome to the plaintiff, and the least popular among the states. If the defendant proves that the plaintiff is, even in the slightest amount, responsible for the accident, the plaintiff will be completely barred (denied) from recovery.
For instance, suppose that there is evidence which shows the defendant was speeding and went through a stop sign. If the defendant can then prove that the plaintiff was at fault, the plaintiff will be barred from recovery. This may be the case when the plaintiff is only one percent at fault because he or she didn’t swerve or brake quickly enough. Supplying even one percent of pure contributory negligence could still deny the plaintiff from recovery.
Less burdensome to the plaintiff and most popular among the states are the two different versions of comparative negligence: pure comparative negligence and limited comparative negligence.
- In a “pure” comparative negligence scenario the award of damages to the plaintiff is reduced in direct proportion to the plaintiff’s percentage of fault, no matter what the ratio. For instance, if you are deemed to be 30 percent at fault for an accident, you would recover 70 percent of your damages. If you are 80 percent at fault for an accident, you would recover only 20 percent of your damages. All of the other parties alleged to be at fault would then be responsible for paying that 20 percent, divided among them in proportion to the amount of fault assigned to each.
- In a “limited” comparative negligence scenario, to be able to receive any damages, the plaintiff must be no more than 50 percent liable 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 proportion of fault. For example, if a jury awards you $100,000 in damages as a result of a car accident, but finds you 30 percent at fault for your injuries because you did not properly use a signal, after applying limited 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, or assigns, to each party a percentage of the total damages suffered. This percentage directly reflects each party’s percentage of fault for causing your injury. However, under this limited comparative negligence, if you were found to be 51 percent liable, you would collect nothing.
Credibility of the Parties
Another factor that can impact the value of your compensation award 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 compensation award 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 best persuaded by a truthful and personal account of the accident supported by documented evidence.
The jury’s perception of the defendant is also very important. When the defendant is seen as untruthful, reckless, or appears to be shirking responsibility for the accident, a jury will be more sympathetic for the plaintiff. A good attorney will persistently try to expose inaccuracies in the defendant’s version of events in an effort to diminish his credibility. The more questionable the defendant’s credibility is in the eyes of the jury, the better the chances for obtaining a significant compensation award.
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. This helps to establish liability on the part of the defendant. When a witness’s purpose is to establish damages, they should be able to clearly describe the victim’s condition prior to the accident. For the jury, being able to clearly contrast the victim’s prior condition with that after the accident clarifies the change in victim’s quality of life. It is essential to a victim’s case for the jury to find the witness reliable. Plaintiffs and defendants often rely on expert witnesses to support their cases. Therefore, the plaintiff must ensure the experts utilized on her behalf are competent and well respected in their fields.
Age of the Plaintiff
Unfortunately, the age of a plaintiff can have a significant effect on the compensation award granted in a personal injury case. The reasoning being that the younger a victim is who suffers a severe injury, the more years of pain, suffering, and mental anguish they will have to endure. The monetary loss to a younger person who has a greater number of wealth-building years ahead is also factored into the compensation award.
Securing Your Compensation Award
If you or a loved one has suffered an injury, it is vital to receive the help of legal professionals experienced in these areas. The Rothenberg Law Firm LLP has been handling personal injury cases for decades and can provide the advocacy you need to ensure your rights are respected every step of the way.
The firm can be reached at 1-800-624-8888 or you can fill out a free online case evaluation form. The initial consultation is always FREE. If we pursue your case, there is no legal fee unless we are successful in getting you money.
Timing is important, because statutes of limitation affect how long you have to file a claim.