By Robert Greer
If there were perfect justice, a person who causes harm to another, either intentionally or by accident, would be able to make things right through a “do over” -– as if the injury never happened. But “Groundhog Day” and “Edge of Tomorrow” are fiction. We can’t go back and undo the past, restore health, take away pain, and erase memory. Neither can we offer up ourselves to suffer the same thing. “An eye for an eye” may satisfy the half blind with some sense of revenge, but it does not restore sight.
No, all the law can do is order monetary compensation under the fiction that money can somehow make up for that which was taken away. It’s not true of course. Few people would willingly suffer chronic pain in exchange for money or lose a loved one for pay. But it is the best we can do. It harkens back to the biblical concept of restitution. If “men strive together” and one dies not “but keepeth his bed,” if he rise again “and walk abroad upon his staff, then he that smote him shall be quit [released or set free]: only he shall pay for the loss of his time and shall cause him to be thoroughly healed.” Exodus 21:18-19 (KJV). Over the centuries, this idea took root in English law, thence to the colonies which became the United States.
Arizona is much like other states and instructs a jury what factors it may consider when deciding how much to compensate one injured by another’s fault:
- The nature, extent, and duration of the injury.
- The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.
- Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.
- Lost earnings to date, and any decrease in earning power or capacity in the future.
- Loss of love, care, affection, companionship, and other pleasures of the marital relationship.
- Loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury.
Those are factors in evaluating settlement prospects for a claim for monetary damages. What to settle for is based upon a rational prediction of what a jury likely would decide given the facts of the injury and its effect on the life of the person hurt. That is more art than science and takes into consideration as many factors as a thoughtful person can imagine. A sample of questions proves the point:
- who is at fault?
- is someone other than the defendant at fault?
- what percentage of fault should each person involved bear?
- was the fault aggravated? Will a jury get angry at someone?
- what were the injuries?
- what was the cost of medical treatment?
- was medical treatment reasonable?
- how much was diagnostic, how much was treatment?
- are there any permanent injuries?
- what will future medical expenses be?
- did the injuries affect the ability to work?
- what was the lost income?
- what are the costs of medical treatment?
- did the person have any pre-existing medical problems?
- how much did the accident add to the already present medical condition?
- how well does the person testify about the effects of the injuries on his life?
- are the parties believable?
- are they likeable?
- does the plaintiff exaggerate his/her injuries?
- what jury trial experience do the lawyers have?
- how will the lawyers come across to a jury?
- how strong is the medical evidence?
- are the testifying doctors credible?
- where will the trial be held?
- are juries in that jurisdiction conservative or liberal with money?
- will the jury be sympathetic to this type of injury?
- will jurors be able to understand the technical evidence?
- are punitive or exemplary damages sought?
- does the judge lean toward plaintiffs or defendants in evidentiary rulings?
- what have been the results when similar cases have gone to trial?
- what have other cases with similar injuries settled for?
Those last two factors tend to have greater weight when an insurer evaluates a claim. Bear in mind that insurers have access to databases that have hundreds if not thousands of similar claims. An experienced adjuster would have seen dozens of claims just like the one at issue. For larger claims, there is a “round-tabling” process in which the insurer’s most skilled and experienced casualty claims professionals come together to evaluate hypothetical injury claims by examining settlements in similar claims and published jury verdicts. See In re Farmers Ins. Exchange Claims Representatives’ Overtime Pay Litigation, 336 F.Supp.2d 1077, 1102 (D. Or. 2004). Some insurers use software which incorporate closed claims data from a particular geographical region. While the software is a useful estimating tool, it does not take into consideration external factors like re-injuries to or complications of preexisting conditions, the reputation and experience of trial counsel, aggravated liability, the appearance and believability of the parties and a multitude of other external factors. (After all, juries are never told what other similar claims have settled for.)
For an individual claims professional to recommend settlement in an amount outside the norm requires an extraordinary showing of why this case is different from the run of the mill case. In other words, is the risk of a higher jury verdict on these facts with these parties great enough to merit offering more money in settlement and eliminate the risk. In other words, what do I think a jury will most likely award if this case goes to trial?
Sometimes there are external considerations which bear on a defendant’s decision to settle. Do we want to defend the product or this professional or this company through trial to send a message to other claimants that a suit against us is never easy? Do we want to avoid adverse publicity either from a trial or from a settlement? Do we have business or financial reasons to delay a settlement? Are policy limits so low that the insurer risks having to pay its own money if it does not settle now and puts the policy holder at risk?
In summary, there is no easy answer. There is no chart to refer to which will tell you what to expect. Even experienced lawyers or claims professionals may have different opinions of valuation from the same set of facts.
Our advice? Hire a lawyer after carefully interviewing him or her about experience with this type and claim and this type of injury. The State Bar of Arizona has in place a certification program through which attorneys are tested and screened for subject matter expertise, number of jury trials, review by their peers and respect of judges. There are far fewer certified specialists than there are lawyers who advertise. Check the list at azbar.org.