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What if I Feel my Personal Injury Case is Worth More?

I'll be honest. One of the most disheartening parts of being a personal injury lawyer in Boston is having to debate my own client as to the value of his or her own case. I'm the one who's helped hundreds upon hundreds of clients resolve their matters, while the client has likely never been in this situation before. Of course, I get it: when I ask clients how they feel about the proposed settlement figure, regardless of what the client says, the general feeling is that they want more.

The client is probably right. Indeed, the client probably needs more money, given the extent of the injury, the likely lost future earning abilty, not to mention the pain. However, there are factors other than need which go into the calculation of value of a personal injury case. So, what should you do if your case has already gone through the entire claims negotiation process, either on your own, or with another attorney, and you feel you're not getting the fair value of your case? Let's discuss.

If you're at the point of researching to find out if you're getting a fair deal or not, you likely have already received an offer which you feel is unfair. You may have gotten to this point a number of different ways. The most common way is that your expectation was set at an unreasonably high figure--either by your attorney, by someone else whose opinion you value, or by yourself. However it happened, you developed a sense of what you feel your case is worth. This is probably true even if you've had no legal training or experience in dealing with these types of cases.

As a starting point, I think it's important to discuss the interests of the parties. You, the injured party, logically want to get as much money as you possibly can as compensation for your injury. But, remember, your personal injury lawyer has the same interest. Your personal injury lawyer undoubtedly has a contingent fee agreement with you, under which the personal injury attorney will get a percentage of the total recovery area. That means the personal injury attorney benefits in a proportionate manner to your benefit as the recovery grows. Logically, the attorney wants to get the largest recovery possible for you, because that will mean the largest recovery possible for the attorney. So, have a good control in place to ensure you will get the most possible recovery from the honest perspective of your attorney.

The system, of course, could be flawed if your attorney simply doesn't have the experience in handling personal injury matters. If he or she hasn't handled enough of these cases, then he or she may not have a strong enough sense of what your case is worth. A lack of knowledge and experience would clearly put your attorney and thereby you at a disadvantage. The attorney may think he or she is obtaining a reasonable (or even excellent) settlement for you, when the reality is that it is low given the circumstances.

Whatever the case, it's natural to want to do some homework to ensure you're getting a fair deal. The issue is that you're probably not going to find credible information about what your case is worth. That's because there simply is no method of determining exactly what your case is worth, or even a credible method of determining a ballpark figure of what your case is worth, without someone who knows what he or she is doing becoming immersed in your case. If you are searching around the Internet trying to find an answer to how much your case is worth, you may have stumbled upon the personal injury settlement calculators that are available in several different websites. These calculators are fundamentally flawed. It is simply impossible for a calculator to input basic information of your case and calculate what your case is worth.

The value of your case is more than a calculation of your medical bills and lost wages plus some sort of multiplier for pain and suffering. First, if every case were a clear winner, then a calculator of that nature could probably be developed to some degree of reasonableness. However, not every case is a winner. Most cases have some degree of risk for both parties. The jury may hear the facts of the case, of the evidence, and conclude that your client has acted unreasonably and was comparatively either equally at fault or more at fault than the other party. The jury may conclude that your party is not a credible witness, thereby inferring truthfulness issues, and that your client is likely inflating and exaggerating his or her injuries. An unsympathetic jury is not something that can be well-predicted, particularly by you, the injured party. Remember, under our comparative negligence doctrine in Massachusetts, whatever degree of negligence you may have had as the plaintiff will reduce your recovery.

For example, let's say you are a pedestrian and you're crossing the street on the opposite side of a hill where the road goes over it with a 30 mph speed limit. The road evens out about 50 yards ahead, and most people would be of the opinion that you are crossing in a relatively unsafe spot. A vehicle is traveling up the road at 40 mph, and comes over the top of the hill faster then you had expected. When the vehicle gets over the hill, you are not ready; you see each other at the last minute, and it results in an impact. You are hit by the vehicle and significantly injured.

You are taken to the hospital by ambulance, treated, and continue to treat your injuries for a period of six months, after which you are fully rehabilitated without any permanent damage. Your medical bills are $20,000. You lost $4000 in lost wages. You were in great pain at first, but the pain was reduced significantly after a few days. You are on medication for the pain for another two months, after which your pain stops. You had to go through the inconvenience of doctors visits and physical therapy sessions for several months.

Your attorney has compiled all your medical records, lost wages documentation, and has compiled a demand letter for $75,000. However, the attorney is aware there is a reasonable argument that could be made that you have a decent percentage of the comparative negligence due to where you were crossing the road. If you've read other blogs on this site, you may already know that there is no black line rule regarding liability when hitting a pedestrian with a vehicle. The pedestrian may be negligent, and that negligence will be comparatively figured into any judgments and, of course, settlement. Your attorney feels that a jury could reasonably assess 33% of liability to you. The attorney also feels that if all goes perfectly well, meeting you have your best possible day in court, you'll get a recovery of $75,000. The attorney also feels that if everything goes perfectly well for the defendant in court, the jury could conclude that you were equally at fault the spot to crossed and, as a result, you recover nothing. With your agreement, the attorney sends the demand of $75,000, several days go by, and a counter offer of $25,000 is made by the defendant's insurance carrier. The attorney believes, given the extent of conversation here she is had with the insurance adjuster, that the recovery could be agreed to at $50,000. After payment of the attorney fee, expenses, and the payment of a health insurance lien, your recovery under that scenario would only be about $15,000. You want more. What to do?

Well, I suggest you review the facts of the case. The fact is your case simply it doesn't have full value, because you made an error in judgment in deciding where to cross the street. There is risk on both sides of the case. Win everything, and you might get what we think would be $75,000. Or, you could lose everything and get nothing. Because you have an emotional connection with this case, you are in a compromised position to really assess what's best for you here. There are many clients who would simply say, "you're the attorney, so do what you think is best." Likewise, there are clients who would demand more money or threaten to go to trial.

Being unreasonable in cases like this is usually a bad idea. If your attorney is experienced and counsels you to take the proposed settlement, there's likely a reasonable basis for the position. If you want another attorney to assess your case properly, you will need to bring all the documentation associated with your case to that attorney. If you do that, be upfront with the new attorney and explain that you have an existing attorney was garnered a settlement figure for you for which you are not happy. Don't go to several attorneys until you hear what you want to hear - that the new attorney can get you more money. Be wary of the attorney who falsely sets high expectations simply to get the case. You need an attorney with whom you are comfortable and who you feel is truly looking out for your best interests. The best time to find that attorney is at the beginning.

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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