One key issue for injury victims in Illinois accident claims and personal injury suits is what their case is "worth," or in other words, what the fair settlement value of the personal injury case is. Evaluating a case to determine a fair settlement value is a process which takes into account many factors which we discuss in this article.
"What is my case worth?"
This may be the most common question we receive at my Chicago personal injury law firm. In this article, we will try to generally address some of the myths and some of the realities of how insurance companies and lawyers evaluate personal injury cases for settlement.
None of the following information applies to worker’s compensation cases. This is because worker’s compensation cases are adjudicated through an entirely different system. For example, worker’s compensation is a no-fault system, while the issue of fault is a crucial element in assessing damages in a personal injury suit. Therefore, any comparison between worker’s compensation cases in Illinois to personal injury cases in Illinois would be a false one.
In the end, a jury decides what a case is “worth”. However, approximately 95% of all personal injury suits settle before trial, and most people would really prefer to reach a fair, reasonable, out-of-court settlement. This raises the question, “What is a fair settlement?” We will try to answer that question here.
Here are a few facts that run contrary to common misperceptions that people hold about settling personal injury cases in Illinois:
• There is no “standard settlement” or “typical settlement” for any case or injury. One common myth is the “three times medicals rule.” Years ago, many simpler cases were settled for approximately three times the medical bills. However, that practice was subject abuse. That “rule” is no longer followed.
• No one is required to make you a settlement offer. In fact, in car crash cases involving substandard insurance carriers or in medical malpractice cases, there are often no settlement offers made.
• Defendants rarely, if ever, want to settle to avoid bad publicity. Virtually all personal injury cases never generate any publicity at all. Counting on bad publicity to raise the value of your case is folly.
• No two cases are exactly alike. Experienced Illinois accident attorneys consider the verdicts and settlements reached in similar kinds of cases, but do not treat cases as being exactly the same. For example, scarring from a dog bite on the face of a girl will generally result in a higher settlement than the scarring on a boy. Similar cases are helpful, but nothing more.
What are the important factors that insurance companies and experienced Illinois personal injury lawyers use to evaluate a case for settlement? The three crucial questions: (1) liability, (2) the nature of the injury, and (3) damages.
Concerning the question of liability, if there is a chance of a “not guilty” verdict because of a poor liability case or because of contributory negligence, this greatly affects the settlement value. A poor liability case is one where there is a evidence that could lead a jury to conclude that the defendant was not negligent or that the plaintiff would have difficulty in proving an essential element of his case. Regarding contributory negligence, juries in Illinois are asked to assess the contributory negligence of the plaintiff. If they find that the plaintiff committed any contributory negligence that caused his or her own injuries, damages are reduced accordingly. For example, if a jury found that the plaintiff suffered damages of $1,000,000 but was 30% at fault in causing the accident, the verdict would be reduced to $700,000. This is true all the way up to 50%, but if the jury finds the plaintiff’s contributory negligence was over 50%, this results in a not guilty verdict. Other defenses may apply which can result in the dismissal of the case, and where those are an issue, it can affect the settlement evaluation.
Another important factor in determining a reasonable settlement for personal injury cases in Illinois is the nature of the injury. Generally the more severe an injury is, the higher the settlement value. This is subject to proof that the accident caused the injury claimed. Where this is in doubt, such as when there were previous injuries or a pre-existing condition, or where there is evidence that something else caused the claimed injuries, this can adversely affect the settlement value. This is especially common with neck or back injuries. The plaintiff must offer medical proof, but this is often disputed by the insurance companies.
Illinois law allows an injured person to claim the following items as damages in a personal injury case:
• Past and future pain and suffering;
• Disability;
• Past and future medical expenses;
• Past and future wage loss;
• Disfigurement; and
• Emotional distress
For lawyers representing injury victims, there are other factors that are considered: verdicts and settlements in similar cases, the amount of insurance coverage, the identity of the insurance companies, how much case file expenses were incurred and expected to be incurred, the quality of supporting witnesses and of the client as a witness, the support of treating doctors, and the desires of the client.
Experienced Illinois accident attorneys take all of these factors into account when making a settlement demand and in making settlement recommendations to the client. Lawyers are required by ethics rules to inform the client of settlement offers and to make recommendations regarding settlement.
To complete an evaluation of an Illinois personal injury suit, careful review of the accident facts, the medical records demonstrating the nature and extent of the injuries, and all other factors affecting the settlement value of a case must be considered. This cannot be done during an initial phone consultation or during an office meeting. Lawyers who offer evaluations to clients during an initial phone call or office meeting without doing the detailed work required to adequately evaluate a personal claim are doing their potential clients a disservice.
