Determining how much money you can expect in settlement of your injury claim

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:

  1. The nature, extent, and duration of the injury.
  2. 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.
  3. Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.
  4. Lost earnings to date, and any decrease in earning power or capacity in the future.
  5. Loss of love, care, affection, companionship, and other pleasures of the marital relationship.
  6. 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

Robert Greer

Humility and the Detailed Understatement – The Importance of the Story

By Robert L. Greer

Poised somewhere between sinful vanity and self-destructive submissiveness is a golden mean of self-esteem appropriate to the human condition.  – Stanford Lyman[1]

Some successful trial lawyers dominate a courtroom. Their intellect shines, their command of the facts are unparalleled, their language soars. Their physical posture is intimidating; their glare or bemusement or glow reflects whether a jury should trust a witness or even consider an exhibit. Their outrage or reason or compassion can be summoned to their faces and voices at will.

Such gifted advocates are rare. Those skills are as much natural endowments as they are learned. In fact, without those native gifts, similar efforts at domination fall flat. They are too forced, too unnatural for most.

What can be cultivated, however, is something that we trial lawyers normally suppress. That is an admission that we don’t know everything, that we cannot hope to understand it all, that we are just doing our best to represent our client with such modest talents as we have, gifts perhaps no greater than those of the jurors. We can, in short, infuse our presentation with humility. Not forced nor feigned, but real humility.

That concept is most often written about in theological terms, defined usually in juxtaposition to the sin of pride. And, while helpful to our understanding, the humility associated with monastic orders is not to be confused with the humility which marks an effective trial lawyer. C.S. Lewis put it in understandable terms:

Don’t imagine that if you meet a really humble man he will be what most people call “humble” nowadays: he won’t be a sort of greasy, smarmy person, who’s always telling you that, of course, he’s nobody. Probably all you’ll think about him is that he seemed a cheerful, intelligent chap who took a real interest in what you said to him. If you do dislike him, it will be because you feel a bit envious of anyone who seems to enjoy life so easily. He won’t be thinking about himself at all.[2]

Humility of this sort leaves us free to admit that we’re anxious of the task ahead. To represent another person whose future turns upon the judgment of a handful of strangers on the jury is a humbling thing. But necessarily in representing another in a forum for which we have been well trained, we assume power denied to the litigant. He does not know the rules of procedure or of evidence. He does not know how to present facts in a compelling and credible manner. He does not know how to deal with contrary evidence or adverse rulings. We do. With that knowledge comes power. That power, coupled with the natural competition born of the adversarial system, may cause us to slip easily over the fine line into arrogance. But the power to represent another whose future or fortune turns upon our representation cannot be treated lightly or arrogantly. It compels humility.

Telling a jury how we feel – probably the same thing they would feel if they were in our shoes – is telling the truth. It is an admission of our humanity and shortens the distance between ourselves ant the trier of fact. It is a leveler of social strata. That truth permeates the evidence.

But truth is best told as a story. We learn from stories. Fables, allegories, parables, poems, lyrics, plays, movies all are a means of conveying truth. The detail in the story conveys both the genuineness of the events and the deeper meaning beyond the events. A story should move the hearer to feel something, to do something, to bring the story to conclusion and to bring it to conclusion in a way that is consistent with the deeper truths the story is meant to convey.

It is from the details that not only does the story ring true, but the credibility of the story teller is enhanced. Consider the following story, part of an opening statement to a jury:[3]

I am grateful to finally be here in this courtroom. It has taken a long time and has involved a lot of work. I’m frightened by the prospect of having you consider what I have to say; fearful about how I can best help you understand what Jim and Carol Jones have experienced and have trusted me to show how you can make things right.

First, let me tell you about their home. It is a modest, three bedroom house in an old neighborhood in Mesa Arizona. It was built in the late 50’s and is a short distance from an elementary school. The yard is neat with old trees standing at its edge. Stretching diagonally across the lawn is a worn path from the front door in the direction of the grade school a couple of blocks away. Enter the home and you see to the left a wall of photographs, family picture mostly. By the clothes you can tell some photos go back three or four generations. Some people are aging, some are young people mugging for the camera; most are family group shots. In the middle of the photos is a slightly larger painting of a boy who appears about nine or ten years of age. Next to the painting is a small school picture showing the same subject, in the same clothes, in the same pose. Past the wall is a hallway to the left. As you turn you see a door on the right. At that door you look in the room. There is poster of Steve Nash and the Phoenix Suns on the wall, a framed drawing of Christ on the opposite wall. Soccer and basketball trophies are on a shelf above a neatly made bed with an aging “Toy Story” bed spread. There are shelves with books of stories for early readers. A baseball and bat is on top of the book case. In the closet you see the blue and gold of a cub scout uniform, a rugby shirt, an Arizona Cardinals jacket and unmatched pants. On the floor of the closet is a clear plastic bin with Legos in various states of assembly.

It is obviously a boy’s room. But strangely there is no clutter. No clothes on the floor, no books strewn about, no toys in sight. It is clean, almost sterile. But it is empty. You can almost feel the emptiness. It is empty and it is quiet.

It is empty and silent and clean because that man, Sam Everett, sitting at the table across from us, mixed gasoline with alcohol and drove his truck into the little boy who lived there; the boy who left the safe path from his home, crossed the street at the same marked crosswalk that he always did on his way to school and was sent flying more than fifty feet. His skull was fractured at the parietal bone; his lung was punctured by his fourth rib; his spleen was torn and bleeding; his right femur snapped. He lived long enough for his mother to reach him before the ambulance arrived. But the defendant was not even aware that he died. He was three sheets to the wind at the steering wheel of his truck.

You see, Mr. Everett had been at a company picnic, one of those large events at the park, at which his employer sponsored team building exercises, provided catered food, music, mingling between executives and line workers, good times and an open bar – an open bar attended by a single young woman who had volunteered to be there; who had never done it before, and, who never drank herself. Over a period of four hours, the outgoing and fun and charming and flirtatious Sam Everett consumed enough from the bar so that his blood alcohol registered twice the legal limit when his blood was drawn two hours after he wobbled away from the open bar and stumbled into his truck.

So what will a jury feel with that story? Does it ring true? How will they now view the evidence? Will they feel the loss? Will the feel any outrage? What will they want to do?

Now we could convey the same facts in simple declarative statements: “This was a close and religious family. The parents were involved with their children. They miss their son. The defendant was driving drunk. The employer was negligent in serving drinks.” Those statements are true. But they do not convey that truth as much as does the detailed story. They do not impel a jury to feel and want to do something about it.

Rudy Baylor, John Grisham’s hero in “The Rainmaker,” disappears behind his client’s dead son in his closing argument in an insurance bad faith case. The son’s videotaped deposition is first played to the jury in which the young man talks bout the hope and survival offered by a bone marrow transplant, denied by the insurer. The actions of the defendant health insurer are detailed. Mr. Baylor then concludes simply: “I’m askin’ you, the jury, to do what is right, in your heart.”
No demands, no soaring oratory, no brilliant analogies, just a simple heart felt and genuine, even humble, request for justice.


[1] The Seven Deadly Sins, Society and Evil [Rowman & Littlefield, 1989] 135.

[2] C.S. Lewis, Mere Christianity [Macmillan, 1960], 99.

[3] The names and facts are fictitious and do not represent any real people. Any similarities to real people are coincidental.