3.4. Strategies for potential tort claimants
Personal injury litigation, an unwelcome bane for most everyone, is sometimes a necessary evil for persons with SCI.
Such lawsuits may provide an important means of paying costly medical expenses and of compensating injured parties for other damages which they have incurred due to another's fault, providing funds that make a substantial difference for their future quality of life.
Personal injury cases are controversial. President George W. Bush has made tort reform one of the top legislative initiatives for his second term of office. Criticism about the amount of money spent on claim settlements and jury awards will likely remain in the forefront of public discourse in the coming months.
Appropriate compensation for injuries to a wronged plaintiff could be impacted in the rush to limit "nuisance" lawsuits.
How are personal injury damages determined, and how should persons with SCI prepare themselves for such cases? There is no single guideline which applies in every case, but certain general principles apply.
First, prospective litigants should keep in mind that the vast majority of personal injury lawsuits which are filed (over 90% nationwide) are eventually settled out of court.
The process of arriving at an agreeable settlement involves balancing a number of factors including:
- The relative ease or difficulty in proving the defendant's liability
- The plaintiff's attractiveness to potential jurors
- The availability and strength of expert witnesses
- The relative ability of counsel and the expenses associated with their legal representation
- The amount of insurance coverage available to the defendant
- The maximum amount of potential damages
For claims covered by insurance, adjusters typically set aside a specific sum of money, called a reserve, at the beginning of the litigation. This fund represents the insurer's best estimate of the case's value.
This amount may change during the course of the litigation as additional facts are discovered or if the applicable law changes.
It may ultimately be difficult to settle a claim for a sum exceeding the reserve amount unless the plaintiff's counsel can convince the adjuster (either directly or through defense counsel) that subsequent developments have increased the insurer's exposure since the time when the plaintiff's claim was first brought.
It should be a highest priority to accurately inform the insurer of its total exposure at the outset of the claims process.
When assessing potential damages, plaintiffs' lawyers and defense counsel typically reflect different perspectives, but their approach is essentially the same. The lawyers on both sides evaluate each of the following factors which potentially affect the amount of damages that may be recovered.
- Past, present and future pain and suffering (both physical and emotional)
- Disability, disfigurement, and loss of function damages
- Past, present, and future medical expenses
- Past and present income loss
- Future loss or impairment of earning capacity
- So-called "hedonic" or damages for loss of enjoyment of life
Depending upon the jurisdiction involved, close family members (such as spouses, children, and parents) may also recover for their losses of the plaintiff's companionship and affection.
To assist them in their damage estimates, lawyers may retain the services of medical experts, economists, vocational rehabilitation specialists, and life care planners.
Questions often arise, in the SCI context, whether plaintiffs should live their lives any differently in order to enhance their prospects of a recovery. In all instances, honesty is the best policy.
Based on my twenty years of experience in litigation, the clients who do the best are those who cooperate fully and provide complete and accurate information. It is never in a plaintiff's best interests to exaggerate any aspect of his or her claim.
When considering whether to return to work, plaintiffs should follow their treating physician's advice and recommendations. They should not deliberately refrain from work, rather than seeking some alternative employment, if they are capable.
Attempted employment represents a win-win option. If the plaintiff can successfully hold a job, he or she will feel and be productive and happier.
If unable to maintain a position, he or she will have at least tried and will have created a more compelling case for recovering lost earning capacity damages.
There is generally no good reason to hold back from the full living of one's potential in the hopes of appearing "more disabled" in pursuit of a greater award, rather than interacting with the process responsibly to gain the best possible result.