Proving Damages in an Accident Case

If you’re in an accident that might be someone else’s fault, one question you may have is what damages you can get from it. That will depend on several factors, including the medical bills and lost income, and whether the injury and property damage are impressive enough to get a jury’s attention.

In accident cases, damages are based on actual loss, including future potential loss, and including pain and suffering and similar emotional harm. As a practical matter, the economic loss goes a long way toward predicting the non-economic loss.

Basic Economic Loss

The first factor in estimating damages is medical bills. This is often the most significant monetary loss. If you have a lawyer, he or she will usually ask you to sign a release to get your medical records and the bills from your doctors, the hospital, and so forth. Your personal injury protection (PIP) insurance records, if the accident is covered in your state, also help prove the first part of the medical damages. If there is a chance you will need more treatment, your lawyer will usually ask the doctor to give an opinion about this, which may cost money for both a pretrial prediction of future expense and any testimony that may be necessary. In addition, your doctor may be asked to testify to confirm that the injuries shown in the records actually were caused by the accident.

Medical damages also can include home health care. If these are provided unpaid by friends or relatives, they may, depending on the state, be able to get compensation at something close to the going rate for such services, but they won’t get the wages they give up from missing work. If your lawyer tells you that your state recognizes unpaid home health care as a measure of damages, you should ask them to keep logs of services provided and hours spent, then forward the logs to your lawyer.

You should be aware that your PIP and medical insurance and doctors will want to be paid out of your settlement or recovery. Your lawyer may be able to negotiate discounts with some insurers if the settlement is small enough.

The second factor is lost income and lost income capacity. Proving lost income between the accident and trial or settlement requires proof of wages and time lost. For this, tax returns, pay stubs, and records of time lost will help. If you haven’t come back to work by the time of trial or settlement negotiations, your lawyer should get a projection of future time not working from your doctor. In addition, if your capacity to work is permanently or temporarily impaired, your lawyer should get an expert opinion of the restriction on your abilities and what that does to how much you might earn in the future.

Jury Appeal

The third major factor is whether the accident itself is likely to make a jury sympathetic toward injured people or angry at a defendant. A jury may be sympathetic if the injuries are particularly severe. Broken bones, paralysis, and brain injuries, as might be expected, are indicators of potentially large verdicts. A jury may become angry at an unusually careless or unapologetic defendant. Substantial damage to the victim’s vehicle showing a high-speed impact, for example, may mean the damages are likely to be increased. A well-known case of an unapologetic defendant was the Ford Pinto, in which Ford Motor Company conducted a cost-benefit analysis of installing a guard plate to reduce the chances of a collision puncturing in gas tank, and decided that it would be less expensive to pay damages from the expected lawsuits.

Non-Economic Damages

Non-economic damages are harder to prove. As a practical matter, in most accident cases, one to three times the economic damages is a good estimate. Evidence that may increase non-economic damages includes logs of pain and suffering incurred, descriptions of how a plaintiff’s life was changed by the accident (such as loss of a favorite activity), and, if other family members claim loss of consortium, logs of the accident’s effect on their relationship with the injured person. These logs might not be directly admissible in court, but they can be the basis of good testimony or usable in settlement negotiations.

In general, if you think the accident you were in might be worth a reasonable claim (which usually means more than your PIP coverage limit), you should consider talking to a lawyer. When you bring in your story of the accident, also consider bringing in some of the documents discussed in this article. Your lawyer may find them useful in estimating the potential value.

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One Response to Proving Damages in an Accident Case

  1. ELAINE REITMAN says:

    You are busy writing.

    Elaine Reitman Certified Financial Planner 203-915-4974

    >________________________________ > From: Discussing the Law: The Online Edition >To: ereitman@sbcglobal.net >Sent: Wednesday, May 8, 2013 5:03 PM >Subject: [New post] Proving Damages in an Accident Case > > > WordPress.com >Daniel Reitman posted: “If you’re in an accident that might be someone else’s fault, one question you may have is what damages you can get from it. That will depend on several factors, including the medical bills and lost income, and whether the injury and property damage are im” >

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